you and so under our breath to this court at this court is thrice before i mean at least four times before sorry determined that a cutting him error has the potential injurious effect on a petitioner sentence where the upper term was based on subjective factors such as those that were applied there are several facts which the jury would not have been allowed to consider and its decision and the court of appeals was required to determine whether or not a jury or this jury would have deterred german the same aggravating circumstances beyond a reasonable doubt and because the california court of appeal considered facts that the jury would never have been allowed to consider in reaching that determination if the aggravating circumstances were put to them the california court of appeal clearly misapplied chapman by making determination have found callousness which seemed to be sort of in a circle on the reasoning do we owe them deference in determining whether or not they erred well you tell us we don't look out of the air that doesn't get well i believe that well in terminating the fee that the that the crime was callous or great callousness the california court of appeal considered the fact that the jury would never have been allowed to consider namely that mr calvin within a one of the elements of the crime was that he was inside of a motor vehicle in the victim was outside of the motor vehicle a fact that the jury would not have been allowed to consider and the california court of appeals did consider in determining how to because he says the people versus the end of all when they did and including him itself when they write about what how juries determine the aggravating sort of how judges determine the aggravating circumstances they clarify how the california court of rule court of appeal sorry the california rules of court defined what judges are allowed to consider and what they're not allowed to  reached the end of unfolding that car did shot outside the window of this guy at point blank range how can that not be an aggravating circumstance that would be considered by a jury were the jury to be the one  consider because they considered it in determining the count of his conviction if they considered that fact in determining the counts of this conviction they would not have been permitted to consider those factors been convicted for shooting from a motor vehicle if the person had been couldn't they consider that it's not a government of the offense the exact proximity of the to the victim of the perpetrator is not in the movie for the proximity isn't an element of the offense but the fact that he shot fall in a car while the victim was outside of the car was an element of resolved against but i think that it's already been resolved yes but since the state of mind was disputed it's not certain that a jury having been submitted these aggravating circumstances would come to the same conclusion as the to change them change their mind because anything you've said today well i believe that i don't know exactly what how california has revamp their rules in terms of sentencing but if the mid term is no longer is the mid listen to your argument i don't know how we can escape the facts of the case even though the facts might be undisputed against this jury at the very least which means a reasonable jury could still find that he only committed voluntary manslaughter and not hypothetically based on the facts based on these facts i think it's still possible that he would be returned a conviction voluntary manslaughter i think that the jury read the instructions carefully after they deadlocked i mean that means some of the jurors believe that he was actually innocent  at the time that they reached a deadlock and then they went back to the court it went back to the jury room and what what what would you back up your theory of actually in if the jury came back in indicated that they were deadlocked on the murder count and they couldn't reach a conviction and the judge urged them the jury initially was considering the murder charge deadlocked on murder after two days of deliberations so it is fair to say that the jury was taking a long look at whether this was a murder ultimately that was not the jury's verdict and as we don't verdict was reached having said that it is also the fact that the sentencing court in this case not the jury made the determination of the aggravating circumstances that cunningham indicates as a matter of constitutional law the jury is to make but it is also fair to say that when the state court applied the harmless error analysis that was acquired in these circumstances it evaluated it under the chapman standard which of course is the most stringent standard and it is not accurate to say that it did so and this is stressed in the opening brief i just want to reiterate our opposition to that it is not accurate to say that those findings were made by the court based on subjective factors as as you well know in sentencing a criminal defendant a court can evaluate the circumstances of the offense that's exactly what differentiates an aggravated term from the term from the mitigated term and aggravated circumstances in this case notwithstanding the manslaughter verdict included the fact that the the defendant the petitioner was in the vehicle he's in a five thousand pound vehicle there is an unarmed person on the other side of that vehicle and unopposed undisputed fact is that after killing him or at least paralyzing him and leaving him to die the petitioner immediately flees the scene driving away with a cellphone that is never used to summon any help for the dying or dead victim and that when he is apprehended he expresses concern that media is photographing him so there are circumstances that are not indicative of panic or of and are indicative of callousness now whether or not this this court acting as a sentence or would have imposed the same sentence of course is not the standard question for the state appellate court was whether or not this was chapman harmless and that court found that the aggravators that i've described and others were present beyond a reasonable doubt such to a jury would have made the finding so i could turn to another point of disagreement it is about i don't just get just before you go and yes so is the state's position that chapman was at all times including in the direct appeal in state court that cunningham was violated and that the appropriate harmless error standard was chaplain and in federal court the state continued to take that position and the district court found that in addition to finding that the analysis done by the state court was appropriate applied the harmless error standard that applies in this court and that is where as i said at the beginning we move past chapman so there has been no discussion by the petitioner of davis vs and davis rhesus is the last indication by the supreme court as to how the harmless error evaluation is to work and we know from the davis case that the question is not again what this court would do in the first instance if sentencing this defendant or even in evaluating the jury sentence the standard is whether or not any fair minded judge looking at the manner in which the harmless error evaluation was made by the state court would find it on reasonable and no one has come to that conclusion at least not yet in this case that is the magistrate was of the view that the harmless error inquiry was adequately done by the state court as was the district court so the this something from your perspective applying  found that there was harmless and when it was harm harmful here right it is it is extreme deference according davis sources which of course is in accordance with general principles underlyin the p a that were also reflected in breck but at some point these cases wouldn't continue to be decided if they didn't mean something in davis first as i all of means that that given the collateral nature of this review  the fact of the matter is there was there is no incensing the defendant it is the circumstances of the crime that are evaluated and to to raise a claim such what i take it that claim is which is essentially the defendant is being punished for his crime that would require first of all the state courts decide what state law is and what does or doesn't violate a state statu so for that claim to have to be appropriate here first of all not sure it would be because it's really to gating state law that i don't think was ever litigated in this case there was an argument in this case in state court that cunningham was violated not that it jury couldn't have made the not one that comes immediately to mind but again that that's not the claim here i think if one goes back and looks for example at the just record opinion there is no discussion of whether or not again under state law a your honor the supreme court including have said itself that a fact that is an element of the crime cannot be used to impose the upper term and so if the supreme court of the united states affirmed that a fact that is an element of a crime cannot be used to impose the upper term on the california court of appeal in their chapman analysis used facts that were the elements of the crime clearly they misapplied chapman well you're asking you know aren't you basically assuming that there's no harmlessness analysis on reasonable in that they considered facts that they weren't permitted to and which which judge which fair minded judge disagreed with that in several cases that have come before that i'm talking about in this case in this case i mean it's here because you're asking us to do that yes ok but the reality is that's the standard if when we look at this the knowledge that kind of him was violated if we look at this and conclude that the error was harmless then that's