good morning i need a rifkind representing appellant ronald sanders judge crime thoughts comments the beginning of the session made me realize that perhaps i had overlooked a rule granting me the possibility of requesting more time i prejudicial notice and this motion to expand the certificate of the hill ability granted by the motions panel i will address the claims that in effect of instructional air which require reversal and ineffective assistance of counsel which life without parole to him or life without parole or equally unacceptable therefore what is the duty of counsel to investigate under those circumstances what is it that he is supposed to investigate and present the sender's and why health and point why i'm asking the question why wasn't the things cited psychiatric evalu ation of him an adequate investigation since wouldn't the psychiatric investigation most directly address why he was refusing to consider putting on a medication  phase difference but here the only purpose of the doctor is to see if the client is capable of making a rational choice to not present such a defense a strong of the strickland standard i agree i don't think you need an evidentiary hearing to conclude that mr hoover rendered ineffective assistance of counsel by not investigating mitigation and particularly against his own professional judgment that penalty just lawyers it's a very serious thing that i can easily imagine a client well we've had quite a few actually come through the circuit where the difference between life without parole and death that's not really the big in a criminal case time is always the most critical component of your and every hour that you spend investigating one thing there's an hour that you cannot spend working on some other aspect of the case if the client wants your one hundred percent effort devoted to seeking an acquittal and orders you not to spend time investigating the penalty phase i'm a little concerned that you i do not want to spend life without parole for them and you're showing me that you have an even better chance of beating the death penalty because of my cherokee forbears or something that would be worse not better i don't care i don't want them like in prison standard of care in california and current county at the time of this trial and both of those attorneys explained why it is absolutely critical to investigate mitigation when you have a client who is adamant that he want judgment you're saying is even though sanders said he doesn't want to dance maybe if you knew the defense was going to be a pretty good defense it would have changed his mind he might if he were you have nothing which changed mr sanders mind to the extent that that determination revolves around a credibility assessment about mr sanders that cannot be made on that on the whole record of a sanders came back and said he feinstein and then elias about his position clearly mr hoover thought that there was still a chance of changing mr sanders mind because at the end of the hearing on the waiver he asked for more time he sa lingering doubt itself could have carried the day in terms of a life sentence given a doubt about the prosecution's witnesses identifying standers whether he was the state has admitted he was not the actual that they don't know who the actual killer was one can see the logic of going out and saying look what the attorney you uncovered of the holy nor that scripture gone out and conducted a full blown defense even put it on three people of the family those that those kinds of cases here we have an issue which is an instruction from the defendant that i don't care to get life without parole so does the district court look at the quality of the mitigation evidence that could have been put on and then try to reconstruct from evidence as to what standards would have done had a good case been presented to him i think i think it does i think not doing the investigation had he done the investigation and had he done everything that stance or in susan sawyer say a competent counsel should do then the court would be facing a different question and with regard and this  he admits that he never he never ten minutes in the hall that would be an incompetent penalty defense and be facing a different issue that he did it and he did it poorly in his declaration this to her states that he brought sanders hadn't seen his parents together since he was a young child it suggests that really what was holding mr sanders up was his family and his parents which is common but mr hoover's very clear that while the parents were in the courtroom he was not prepared he never interviewed anything amalie members and declaration which is in the record is very explicit about what he did do and what he what he did not do like that maybe you can follow going back to whether if this if i mean where you looking at here if you prevails on this point is he keeps a conviction and maybe he gives a rip granted on the penalty phase and mitigation but to go back to the point of what happens if the lawyer has done everything landrigan makes it clear that it depends on the facts there's an the client doesn't necessarily a investigation even if we don't know what circumstance it can only affirm the death sentence if it gives close appellate scrutiny to the fact that the invalid aggravating circumstances had on the verdict in this case the automatically affirm a death sentence in fact the california supreme court did not acknowledge clemens for three years after this direct appeal is decided the california supreme court did not apply the chapman standard which is required under clemen it's said that the two invalidated special circumstances were but nine that there is little chance or prejudice but it nothing in its analysis suggested that it was aware of the heightened chatman scrutiny that was required and what we did is we evaluated those factors and determined that all of the would have affected his labeling the jury would have heard exactly the same evidence they would have been waiting exactly the same circumstances at the only way in which the labels mattered was whether the person was death penalty eligible and since there was at least one valid special circumstance he was court in its own opinion acknowledged that there was mitigation in the record after record thirty one that the jury could have found mitigating factors from the evidence presented that guilt they never considered the combination of no penalty evidence and the mandatory instruction in light of that take you take away two aggravating circumstances and you have two circumstances left no mitigation and a mandatory instruction had that the same whether you call them us special minutes i have is the no narrowing claim the district court denied the evidence rehearing that we requested on this claim on the grounds that it concluded there was no such thing as quantitative narrowing required under the eighth amendment  showing that we have made in fact in charisse the court says nothing about quantitative narrowing at all i think mayfield's understanding of narrowing  penalty applied in a way that it's not going to be like getting struck by lightning to be sentenced to death so i think that furman itself sets the whole narrowing principle up as a real factual question how many lly makes it very clear that the defendant has standing to challenge the constitutionality of the death penalty are now in grounds even if in fact his case would have fallen within a properly now statu deputy attorney general representing the state of california in this proceeding i would like to begin by reiterating probably something that's pretty obvious and that is that the only thing that is really at issue in  brief and claim thirty eight from below that is that ineffectiveness of counsel it would appear that what counsel is really arguing is that and a death penalty case is what defense trial counsel has an obligation to do counsel tremendous obligation of even in the face of opposition from his client to conduct an adequate investigation to the client and make an informed decision about whether or not to  is the fact that here as we were discussing earlier it's not clear whether the investigation into mitigating circumstances addressed necessarily the basis on which have the ammunition in this case i think that question comes before the court because the record is quite clear mr hooper puts on the record they discussed at length it does not matter what the mitigation evidence is investigate and that's the first prong of strickland that's the first prong of that and ineffective assistance of counsel and if we say that no matter what sanders told his lawyer that hoover nonetheless had a duty to investigate then hoover has failed under prong one at that standard that under pronk to what standards prejudiced the answer is no because his point of view that he states on the record that hoover's take on the record penalty that for him both penalties were equally as severe and equally as unacceptable and he didn't want on his part for his counsel or himself to have any effect on which of these court on the record that there may be some ambivalence about sanders position and that his time would be beneficial as a create a question as to whether or not something could have been done at that point in time by the the warriors as in fact the two lawyers who we've heard about whose declarations are in that notwithstanding the fandom statements about not wanting to pretty overblown additionally even and now with the then after over twenty years of hindsight the best that counsel can get mr sanders to say and his declaration in two thousand  mind because it's clear what his mind his opinion was based on was not on infallible medication evidence it wouldn't have mattered you know what the investigation really well it doesn't matter what what the investigation would reveal because standards of decision was not based on the quality or quantity or source of that time has no investigation it's taken place and the real question were to me add that to that decision in this case that if we go back and say there's all this wonderful mitigating evidence then we're also speculating whether that evidence would those transcripts from those discussions from mr hoover statements about his conversations with mr sanders and with other lawyers there's nothing in there that gives even hint that it has anything but the decision has mean from day one saying i want nothing i'm innocent i want nothing on the record isn't that been in a position to say that it didn't make a difference and it would have maybe been obvious in hindsight that we didn't need to go through all of this investigation but that's not what the supreme court seems to be same seems to be saying counsel's obligation there's automatic prejudice from that because i once asked if we were to assume reach the legal conclusion as a matter of law or as a matter of fact because we didn't do any investigation but there them a question not it would have likely changed his mind and that's something i'll make my carrying out the mandate of the u s supreme court and how that carries with morales could we stick with the previous question for just a moment i'm wondering about the ninth circuit case quote furthermore a lawyer who abandons investigation into mitigating evidence in a capital case at the direction of his client must at least have adequately informed his client of the potential consequences of that decision and must be assured that his client has made informed and knowing judgment could you tell me just  articulate how to apply that test to this case rather ambiguous to be made how can you say for example it's harmless beyond reasonable doubt when they were example so there was on the burglary a special circumstance that little chance defendant was california has emphasized in this case some of the same points that just described felt was making earlier or with pointing out earlier which was that the special circumstances that were invalidated in this case were not factual special before the jury whether you call them special circumstance or not is really not determinative and that would be certainly a logical conclusion and also the prosecutor in his death penalty argu  about each of the potential aggravating circumstances in turn and spent no more time on that pain a special circumstance and he did on any other special circumstance for any other aggravating circumstance situation as in some cases where the prosecutors really hound in on a particular special circumstance that was later deemed invalid and they didn't make an argument therefore going this way and only one going that way they were acting like that right now he didn't do under under direct spenders seems a little awkward well but if you if you look at i mean if you isolate that statement and apply brecht only to that one little statement maybe that's true but if you look at that say yes they did because there's the impact of it and it doesn't really matter whether they wrote down i'm in detail what we might at this juncture like them to have done thirteen years ago when they wrote this decision like thank you nation of the special circumstance would not have changed the evidence for a picture before the jury and i would refer you to our opening brief at seven seventy two hours so would at the risk of been made in the in harness about the record that mr sanders parents were brought to bakersfield only after the conviction the second trial in fact mother's declarations reveals that he shouldn't even know he was on trial for over a year and yet his own declaration says what did i do in terms of investigation i looked in the suitcase and confirmed that he had been employed at some oil company he had he did not do anything in terms of seeking