reserve the final five minutes for rebuttal time and one to begin by clarifying a position from the breeze with respect to argument about the proper interpretation of buoy and the mortons advancing two arguments that are very much related but are distinct the first is that the exact meaning of buoy is that it only covers situations where a court expands the definition of a criminal statute to cover conduct that previously had been innocent conduct second argument that we're making and which is very much related is that even if that is not the true definition of who we at the time of finality in this case in one thousand nine hundred two the definition of doing the scope of who was at least debatable and therefore and the statutes at issue in this case we went on the merits with respect to the united states supreme court in its cases as replete repeatedly applied it to situations where the conduct in question was innocent when done prior to the interpretation the examples of course of the situation where it's a man sitting in his car talking on the radio or the new definition of insanity in miller which prior to that time would have been innocent conduct senate have fair warning and notice it with essentially a procedural aspect of our criminal system is it fair to impose the criminal process against a defendant for conduct that he might not have known but i think you'd agree that if you're changing the elements definition of state law but the constitutional analysis for this court is whether that process was within or without the constitution whether or not there was constitutionally adequate notice that aspect it's procedural but i think at the outlandish no reasonable person could have expected it and what happened in this case is this group of six people that are down by the river said ok we need to get a car we've been doing too many robberies we need to get out of dodge because it's getting too hot so tell you what you do you crack up our they differentiated between it was between twenty murder and not tell any murder so they didn't really specify which of the four theories although the jury did find it they were finding it both on felony and on felony murder in the course of closing argument  presence and that's exactly what we have in this case these people had a preconceived no questions premeditated planned to murder this guy and to lure him away from the car probably for no other reason than the car wasn't easy to get out of the river but separate them from the property by trick does not relieve you of liability for a robbery that was clear in one thousand thirty four more than forty years before webster committed this crime so he was without question on notice that it was foreseeable that the california supreme court would interpret the robbery statute to cover his conduct in this case if the california courts have to interpret it to impose liability you know they could have done a narrow construction that would have been reasonable as well but the fact that the court choos with respect to the lying in wait the district court in this case had problems with two of the elements and lying in wait had problems with the concealment aspect and problems with the period of watchful waiting with respect to concealment the district court which was of the belief that what was required in california case law up until the webster decision was actual physical concealment of the person in fact that is not the case in fact there are a number of cases which given their facts i mean the victim was unquestionably aware of the presence of the killer in the case where the wife walks into the cabin and sees her husband and she then leaves the cabin and comes back in knowing of course he's still there and then he shoots through that was s wait despite the fact that she he wasn't wasn't until all the situation where the person runs up to the house in full view of the occupants of the house and start shooting having previously been seen out outside the house down the road about fifteen minutes earlier no concealment there what the quilt the language of the court says is what is controlling is the intention to ambush ok that's the that's controlling that's can fifteen twenty years prior to the crime in this case then what california supreme court does in this by the california supreme court interpret the concealment element of lying in wait to impose liability because again what was happening here they were walking down the trail back to the camp webster was behind the victim holds out the knife and does exactly a surprise attack from behind th because most victims if they think they're going to be killed don't hang around or go don't put themselves in that circumstance or are we conflating the elements of capital murder by vice stretching that definition i don't think you are a classic example this would be criminal statute would be interpreted to cover this particular conduct without regard to some of the other potential constitutional issues that may be hanging around as a result of that expansive definition  rocks and so that's why they were relegated to a foot not just to give kind of some background context to what this case was about while it resolved the legal issues and so in the course of adopting for the most part the findings and rex except for the  waiting because that statement of facts in the footnote used by the magistrate judge didn't fully describe the fact that they had planned this out and walking down the hill and took about a half hour to go get this guy and bring him back and he waited for the opportune moment on the trail ambush and so it was kind of a kind of an unusual holding because it was done in the context of buoy but in some ways it reads almost like a insufficiency of the evidence on that element even though elsewhere in that we're dealing with a court turning one crime into of greater crime rather than just review simply non criminal behavior into criminal behavior and as i understood the briefing of respondent had raised that only as the issue that it was arguable that it applies only to the latter situation based on the fact that the u s supreme court had never gotten it in the former situation and some of the language might interpretation of belief but before i press that i want to just touch on what i think the second question is because i think the briefs don't really flesh this one out in a whole lot of detail but i think that skiff buoy does apply right in on the first question and has questions without that but i do with time permits intend to come back here no objection i'll continue my second question i think that's a really  dispute between the parties and that's respondants contention that the petitioners overanalyzing the cases and and looking too much at holding rather than some of the discussion and outlandish change now none of these cases have the slightest independent analysis of the belief yes they are simply citing in a shorthand fashion what seems to indicate to that court and are not purporting to modify the test in any way so i think we're still dealing with a reasonable know does not some sort of them role notice or slight or or those affirmatively presumed that the law is going to go in this direction even though there has been a case with those particular facts i think that is one situation that comes up fairly frequently and i'm not saying there has to be a case thing something like claim is frivolous because there's no radical shift here and the radical shift gets repeated in a couple of other cases including the hayes case recently but i think in fairness the test is really reasonable  ability are we free to disregard and the panel were found what other panel study but it's not holding it's just a statement that there's no radicals there's plenty and if we want to view it are leading u s supreme court cases on this louis and his kind of speech where there wasn't adequate notice and rogers on the other hand where there was just to go through them quickly including what was not was not adequate that the civil trespass laws in south carolina had already been interpreted that way and it was not adequate that other states at interpreted virtually identical criminal tr attack it's only manslaughter justice o'connor writing for the court wrote in some detail there was lots and lots of notice here the year in a day of rule it's an antiquated relic with no jurisdictions had recently considered whether to get rid of the doctrine and had done so so there were these three very strong stances that the times they are changing on and it's of getting back to your question jets clifton about yes you can be on notice if things are changing and you don't have to have exact notice that they're going to change in your jurisdiction a particular some of these decisions for civil rights protesters and that there were lots of attacks being made in that case in the claim that ultimately one was one of the narrow   i can't think of one that we would be the first time i'm not sure about and it would be interesting press to know that i would be happy rogers didn't set out to kill in a way that caused the victim to linger more than a year and a day i think it's probably fair to say that that your client didn't set out to kill in a way that separated the victim from the automobile by a quarter mile raising all of these questions about principle of that more than the reality of it but as to the but given that we're talking about principle and what is actually out there i think it's very important to realize that the situation with it was dark you both ways to the jury that the forcible taking of the that's what happened and the forceful taking of the car both supported the robbery and there's no way to know which the jury found so that the robbery convi value and you have an opinion on whether under california law to construct a theft of a car i don't know your honor i would tend to doubt it but that's just my opinion based on having practiced in the field for a while to find foreseeability someone had to dig in and dig for chase and there's only one that talks about in the rain and it's victim and it's forty robberies are taking by force so i think the cases are explainable by you can take the person away from the property or you can take the property away from the person it's really here we're talking at present this means that the issue is the definition of present by the granted for stastny part of senate horns where you're separating a person from his property and yet horn and then side of lavender talks about that's constructive immediate presence i don't understand where force comes into it because there's obviously force applied here for me to get the keys to the car the use of force to remove property use of force to remove property from the victim's immediate presence so it comes up because it's right in the statute and even the california supreme court says you can't just simply say there's a use of force on someone somewhere and then properties taken and that's a robbery what would it be a robbery if something stopped suppose you try to take the car that hypothetical the specs of trying to take a car can you take somebody away from the car but you never actually move the car anyplace is that robbery actually that's used as the same language and that's what led me to believe that was probably a standard instruction but that discretion get in together with concealment by ambush or some other secret design now if the model instructions or the file judge of the trial judge is formulating one for himself or herself what their understanding of the case law is would not seem unless there's something ironic about the instruction there has not been a successful claim here th rather than a judge's substantive i think clearly the definition of the crime as it was in effect at the time it was committed is substantive i think there's absolutely nothing to the claim that in reality even leaving mr webster stabbed mr burke in his car and took his car that's a robbery murder he stabs him outside the car and take this car it's a robbery murder if you pulls the knife and drags him away from the car my colleague has an acknowledged that's a robbery murder what he wants this court to hold is that by not showing him the knife and luring him away a quarter of a mile and then stabbing him and taking the car is somehow not a robbery murder not even that he wants to say that for a court to consider imposing robbery or murder them from the u s supreme court identified page twenty one twenty two of my grief but a number of those situations where were for example where a gentleman was on probation and one of the conditions of probation was that he had to report all arrests his probation officer and he got a traffic  up until that time and never been considered an arrest and then of course he was his probation was violated and he said wait i didn't know i was supposed to report that and the course and you write that novel interpretation of the traffic citation to mean an  even even without the year and they rule i think in tennessee they would have been reduced to justice scalia said in the senate would have been a manslaughter the appellate was arguing that it should've been attempted murder but either way it would have been criminal conduct your correct two things though in procedural puzzle including a criminal procedure i think more of the of the search and seizure or so forth seems somewhat more substantive why do you say this is procedural this is a minimally tricky and here's why it's the crime but the determination of whether it was a constitutionally significant change has to do with whether the defendant procedurally was honest was the nature of the evolution of the state law such law what's the definition of the crime but again the constitutional test that this court applies doesn't look at what the elements of the crime should be it only looks that when the caliph the spring when we do that all the time we have to render decisions based on our understanding of state law state law which we are not free to interpret we have to turn to the highest court of that study that's something we do all the time i don't think about is being pursued not every intermarriages not every  i think because what you seem to be saying that if you use the words due process that's automatically procedural i don't mean to be that cavalier about it i think the ex post facto situation is a little bit different because there you're doing you are doing as the court statutory construction in the first instance and then from that determining whether or not that was indicated that ring affected the redefinition of arizona's criminal law after reading arizona's criminal actually had changed in this case the boy violation it doesn't change the law and that's the whole  california supreme court is saying this is always been the law or at least it was up in the air until we decided in fact no one no one is saying even if there's a buoy violation in this case no one is saying that we can't still apply the expansive interpretation to another robbery case ok the california law has not been changed here it is what it is it was and it remains it's only whether this defendant or unreasonable but then it had adequate notice of that sort of compliance the argument that again because you're so you're taking assumption