principals here don't waste time it's the principle issue in this case and you have a number of other issues that are present in the present for more than one reason the president on the issue of the air itself but they're also present on the issue of the fundamental unfairness of the trial in this case the starting point on this case has to be looking at what the facts are that need to be considered in terms of the issues in this to i found it necessary to go through in painstaking detail the facts in this case not just the facts where if you ignore the conflicts in the evidence or the facts or search you needed the conflicts in the evidence you have to look within the evidence to determine should the conspiracy evidence have been brought before the court should the the issue of did the issue of improper allocation of the burden of proof in self defense affect the the outcome of the case when you take one of the issues that time so we can talk about that do you want to take the argument the oral argument issue i'll take the oral argument issue  can i ask you about that because i read or you know i read the i think we all read the oral argument the first thing the judge did the trial judges he gave them an opportunity on count one to say whatever you want to correct no not really what  was he said you will take each count separately and talk about the count separately right but and you're you're the lawyer you didn't try the case i tried cases and you didn't say anything like no i don't want to do that i can't do that or th well when i went ahead i went ahead because i was i was told to do that i was directed it was it's you're asking a question of us reacted and said judge i can't do it that way you have to look at all the counts together and i did that and i count one what you could have done is you could've said look i'm going to argue and i've got this is the page five thirteen and five fourteen of the transcript where you could have said is look to understand why he's not guilty on count one you have to take into account the  e the cats but you didn't write you could raise that argument and prevent you from raising that argument well first of all i didn't understand what the what the court's intention was until if it had come to a conviction on count one the court did not announce up front that it was going to go through and in take each count take the argument and then render a you didn't even measure even after he says on page five fifteen line sixteen and seventeen so i finally found not guilty i count to you didn't say anything there when he found him guilty on count one before that which is five fifteen page  a choice of going through with it and making arguments that the court was not going to listen to the lawyers always do that to me well and perhaps that was a the fact and they say judge this is unfair this isn't reasonable you can't do this jack i could you least now my objection for the record i'd like to preserve that objection i hear that every every day well this certainly was not a this was a unique situation and i'll tell you it was in a situation like right over one hundred cases i've never had a judge tell me that you're going to you're going to argue these count by count and that i'm going to convict your client of count one before you have to go through an argument on the other eight counts and that you're only to talk about each count in individually this was something that hit  me in a rather unique and rather unique way it was not something i was expecting it was not something that was was typical and you've got to remember we're starting with the judge who's who's saying in complete ignorance of herring versus new york is saying this is a court trial i don't have to accept any oral arguments are you aware of hiring versus new york are you aware of it at the time of the interview nobody objected when he made that misstatement of law right now i'm pointed out so i know it's a time out yes i do have a right to make an argument under the united states constitution as a matter of fact the court says there's nothing more important than allowing a lawyer to render is frankly i didn't have the case in front of me at the time so you don't know about it either conventional wisdom forever in california i tried thousands of these cases what you did not have a right to an argument in a bench trial that pairing made it clear that it wasn't correct and i've always understood that you do have the right to the argument  well i mean i don't think this case has never been we've been through a countless number of courts where this has ever has ever taken the position certainly not the respondent that there was a waiver of this issue by failure to have we're just looking at what happened and thinking and the reason that it happened the way that it happened was this occurred essentially by ambush this was a manner in which the case proceeded that was not expected by anybody don't think anybody expected at the time that it happened that it was going to proceed in this fashion the problem is now you want everything on done after all this time surely everything is going to found guilty in a final form of three the other one the judge found guilty was can a put the state court of appeal on that that one crack that's correct and that was on a technical issue not on any of the issues that are that are here and that's the one that you really contend that he didn't have an opportunity that he didn't have an opportunity to argue one that's correct and there was nothing that prevented you later on when he started equating your client of a couple caps to say look judge it's for those reasons i like you to revisit count one count three because you see that there's issues as to whether she's telling the truth on those and she's lying about those she could be lying about these the problem is you're now coming to us and saying look i want to long with this now you take care of it for me but i don't think i went along with it i think i was trying to make the point to the judge roll along that there were other issues in the case there was self defense issues there was defense of property there was issues of his concern about her harming him her safe house and got  ahold of a weapon there were a number of issues that were driving him to do what he did in that particular wrist situation and i was making that clear to the judge well look you could argue that for count one it was made clear throughout the trial that  along we were arguing that her subsequent behavior from from october of one nine hundred ninety nine up until november of two thousand when the last charge occurred that all of that conduct is relevant to the issue of whether the october incident you had an opportunity to present that then you in terms of in terms of evidence we had some opportunity to present that the court kept cutting us off and facts stated that evidence of the conspiracy was not before the court and and we can talk about that's gathered and so you're talking about is that they didn't allow someone else to testify that a person who was in the defendant said that they were going hunting for your client essentially essentially the complaining witness was a get on the stand and say that she had never seen him that she was involved with an individual in a number of different ways she made a phone call to charlene goes to one of the defense witnesses in which she talked about examine the complaining witness correct i was able to cross using the complaining witness but she just denied that the why didn't you call companion as witness actually at the time the reason companion wasn't called was he was then you got a hundred hunting no i didn't do that well didn't you tell charlene that yeah goes that you're going andre hunting now well then you can impeach him with the statement but his statement about that there was a conspiracy  we're going to rob a bank i'm thinking about robbing a bank that's not and further inside the conspiracy it's just a statement to someone else it's pure he i disagree because there was more than just a simple one statement you go on three hundred and he was talking about he was talking about the andre honey and it was talking about these two states there were statements that were made to charlene guy exits to threaten her to essentially keep her from being a witness in the in the case there was a whole host of conduct related issues that these people were doing attempting to dissuade this guy because there was a chaste jennifer uber chasing ghosts in her vehicle all of these types of things were being brought in to show that there was an ongoing conspiracy that was going on that was in further and  single statement though we were attempting to bring this in through with remiss guy it goes and the court essentially cut off the line of questioning that had anything to do with statements by marcus companion well but isn't the issue that you've raised on appeal not allowing that that statement there's no proffer that you've made as to what you told the judge you wanted off or i'd have to back to the record i thought there  was actually some fairly extensive discussions on the record with the judge about their the nature of the you saying you you raised those in your brief or you just read believes i did go back and look  supreme court decision which ended up deciding on on a lack of jurisdiction but for the justices talked about the fact that they would have found a clear due process violation and the situation where even though the prosecutor didn't know of the the evidence being false at the time that the prosecutor now knows that the evidence was false at the time and can't maintain the continuance of that conviction that's why four of the justices the it was actually cited by the district judge in citing the case doesn't get us anywhere well it gets us it gets to some work to know that there is a a number of justices that would look at this and say there is no case law that says that perjury that is not known to the prosecution does not satisfy constitution have to use clearly established supreme court of law in this context don't mean you're telling us there is not the clearly stabber supreme court law in this context is in the context of having one additional moment which is that the that the the evidence is known to the  the prosecution i don't think that that the existence or requirement of that element needs to be there in order for the violation to occur you've got perjured testimony and even if it doesn't the the one point that should be noted is that the the perjury that used tells you something about the fundamental fairness of this trial and so if there's another error that occurs in this case that is a basis for reversal you have more evidence of the fundamental unfairness of this trial you're down to two minutes and i see a point that sort of technical question with the declarations that were filed in the trial with a sign yes there were those were signed those were submitted to the sixth district the signed copies were under seal actually if signed originals were under seal with the the sixth district and certainly if that's an issue that needs to be brought up by i'm sure the copies first of all very happy to hear him asked to talk about the facts he doesn't talk about facts at all in his briefs i'm very happy to talk about the facts i believe they're very strong in the people's favor and i w we argued that he did have opportunity for closing argument we did raise the waiver argument in direct appeal as to count eight because the trial court did not let him argue about that count and we said the only way we can win that w arguing is the error whether it was because he got cut off in one of the arguments or because of the whole nature but i don't think there's anything i don't think you breaks it down and i tried to do that in the brief that you haven't seen when i try to break it that the trial court said what's your argument counsel said what he wanted to say and the court said fine i hear you i'm fine i'm guilty at no point did counsel say your honor i have more to say away or anything like that and then she mentioned the transcript shows no interruptions exactly as for count three count two i don't need any argument on that not guilty right count three count three he was found guilty of using tear gas bit of a problem first of all you have a trial judge who is operating under a misapprehension as to what the constitution wires probably like many in california he still haven't caught on to the idea that there is a constitutional right to argument a bench trial you know along previously some people thought there was some people thought there wasn't but it hadn't been really established but this judge was operating under a misapprehension of the law and the way i read this transcript the judge had already made up his mind before the arguments started and which may happen in a bench trial but especially on count three it appears that he did limit the argument is this count three i presume there's no issue that's been raised before me etc etc i presume there's no issue that self defense the evidence is certainly insufficient to justify i find it was us any form of self defense so i mean before the argument you know first the verdict and now you now that i've told you what the verdict is then you can argue and it seems upside down and backwards he says are some technical defense and then he goes on a little bit on that the judge keeps talking keeps saying why you know what he's going to do so i don't think there's any choice but the find by proof beyond a reasonable doubt that the defendant did in fact violate count three and the way i look at the transcript there's been no argument at all but by counsel on count three he just says sorry i've heard the case and it's guilty and then he says unless there's something you're going to suggest of a technical defense mr di filipo i don't characterize the be a technical defense it's a defense of property she has an authorized interruption he doesn't like counsel finish that's not a technical defense i was referring to that's a factual defense mr di filipo is not correct in a judge goes off again for pages and without allowing any more and since guilty what seemed to me the counsel was allowed to argue that point at all the judge made up his mind before the argument and cut off counsel at every turn why isn't that a problem i understand what you're saying your honor the question is what what did counsel want to argue is totally irrelevant and besides the point there's only one defense that he can talk about self defense and he doesn't talk about so why should the judge if you had an issue that i was talking about right now and i was completely off the mark cannot find from the state of the evidence that it was necessary in any sense for him to pepper spray his victim in order to protect his property was a judge confused there no dividend and i didn't the judge say protecting property doesn't qualify period instead of saying i don't find any factual basis for protecting property there's no evidence that she was trying to steal his property and take his property she was merely present and he apparently did not want to continue the discussion so that finding will stand actually sure what the judge was thinking and i agree with you that he had a misperception about what the defendant's rights were as far as the argument but the fact is that there was only one defense that a felon could r even to allow you to make a closing argument in a court trial i don't know how many how many comments from you guys soon that i show you i've taken notes heard the evidence i know the law in your remedy not by way of argument to dissuade me any more than obviously  counsel's right but taken that aside what happened there is not a violation of federal law because counsel had only one argument to make and he didn't make it and he had a chance to make it crane is that you know if he provides any evidence that there was perjured testimony in a trial he gets the right to a new trial and that's just can't be right not only  imagine how many it would come up with was a declaration from a friend from somebody if that's all it took it's very clear from that that the prosecutor has to know that this project for it to be a said no you're wrong he says that again in his brief in this court he doesn't offer any authority whatsoever not california authority federal authority he can't just say there's a hearsay exception and leave it that he has no basis no proof and several questions that he's compactness had such compelling evidence then i think perhaps counsel should have done a better job serving that subpoena we don't have any evidence that he tried once twice three times he was  all and and that's controlling and that should be the focus of his argument and it's not even mentioned he claims that he's innocent but he admitted at trial that he sprayed the victim with pepper spray several times his self defense claim was not credible he admitted that he sprayed and raj he never said that she was attacking him he never claimed that she touched he claims that yes i put my foot on her but it's just because i put my foot up and she ran into my friend that's just ludicrous there's no credibility there he claims that he was defending his property but he never said anything at trial no nothing in this testimony about the fighting property and as i was saying earlier the statute about the use of pepper spray says that the only defense available is softer so the protection of property is not a valid is what would you have argued we've read the transcript multiple times what i'm saying what i'm saying is this is really more to what we're talking about earlier the this was not a position where i was told go ahead argue  but his property ok let me stop him right there counsel says that that's not a defense it's actually it is a defense and the judge is not incorrect about that and i've never seen any law that indicates a defense of property would not be inappropriate if you read the california law somebody is taking your property you can pepper spray them tear gas them i believe that that would be inappropriate it's reasonable force under the circumstances there's always been she was clearly a trespasser she admitted at the trial to being a trespasser she knew that the  can't you can't shoot a trespasser with a with an automatic bow and arrow either absolutely not but you can use reasonable force as necessary to eject the trespasser so there are limits would be reasonable midst of the your client's testimony was i just wanted to defuse the situation i didn't want any more touching and i just wanted her to go away i don't want to be around her anymore that's part of the testimony there was also testimony that was  elicited i think both before and after that testimony and i don't have the cites to it in front of me right now but there was other testimony where he talked about the fact that he was concerned because of her mental state and her mental state was such that remember she had  him some fifty times she had left six or seven dozens of roses on his front porch that day she had followed him to the gym she had gone out into the parking lot afterwards and grabbed on to the steering wheel of his car as he's trying to drive away to stop  then followed him in the car raced up behind him screeched to a stop behind him got out of her car and raced through the garage door as the garage door was closing all of this was showing some some very high level of instability on her part she was emotionally distraught testify i did it for self defense reasons because i was afraid she was going to inflict bodily injury upon me yeah that she was going to hurt in that she was going to hurt herself that she was potentially going to gain weapon from inside the house and either hurt herself or remember she admits the evening of the the october incident she admits that what she said to the police was false she then carries on a relationship with mr omar for the next seven months she gets caught with all of sudden starts making up these charges she all lab rates on the charges you know i don't understand why did you tell the trial judge that you wanted to bring all this and make all these arguments why did i mean maybe maybe it was you didn't you thought you would this please him and he's making a decision as to whether your client's guilty or not well they're in and there's a lot of things that you have to go through in that process but that's one of them certainly as well as the fact that it really didn't have the opportunity to work to do it i suppose i could have cut him off that certainly would not have his it was obvious from his demeanor that he had made up his mind about this entire circumstance before he even started the the closing argument  process it seemed to be futile to try and raise the arguments that he was cutting me off from making you know to make a record of what those those arguments would be i said now you're saying but we should issue the  risk and say retry him again so i can make all these arguments if you had made the arguments before that you elected not to press those arguments because you didn't think it was going to do any good before that judge is that the  basis for a waiver or no no no no i'm not saying that no it wouldn't do any good i think that a reasonable person listening to those arguments would have understood the circumstances and would have acquitted mr will mouth of the charges so i'm saying why did you then say judge look i want to bring all these things  your attention because this judge had already made up his mind and he was already cutting me off and he was stopping me from making the arguments in the first place so it didn't seem to me that there was an appropriate method of being able to go to him and say well i want to make a record where i get to make of the arguments that you're telling me i can't make on the transcript doesn't show that on count one what's the defense's position and then he then you argue about the self defense but i don't really or you say mr lamont does not deny the use of pepper spray but his defense is that he was using it in self defense as well as in defense of his property she was inside his residence the garage is a portion of the attached residence and because of that he has a right to defend himself period what he or i think i understand the factual contentions on that matter what he gave was  or four line summary of the prosecution's position and then he asked me what's the defense position on that i answered his question and before i can get into any argument he states i think i understand the factual contentions on that matter the court's prepared to rule as to count one and then he goes on to find mr guilty this was not a situation of where i was allowed unfettered argument as to even count one counts of your time has expired we understand your position and we thank both of you and i'm not going to order submissions so we get an opportunity to look at the brief and then should we decide that you want to be heard from in response we'll let you know ok thank you so this case will remain pending and we'll let you know when submission occurs thank you both very much