hudson the california supreme court held that where a police because of certain distinctive markings and otherwise complies with twenty eight hundred point one a conviction will be sustained whether or not the individual knows that he's fleeing law enforcement and an individual who's playing who doesn't know his pursuer is law enforcement is actually engaged in the opposite conduct of someone who is deliberately provoking a confrontation now notably in the supreme court's  aca cases the only two times that the supreme court has held that a prior offense can serve as a proxy for identifying an individual who would deliberately use a gun to harm an innocent person the supreme court has looked at the fact that the offender in the past deliberately and necessarily invited initiated or provoked a confrontation now unlike in indiana in california a conviction does not mean that the offender deliberately provoke the confrontation with law enforcement it doesn't mean that the offender deliberately defied a law enforcement order and by definition it doesn't show that the individual are you saying that intent to evade does not mean something deliberate that the prescribe actus reus is fleeing from a law enforcement officer and as the court incites held and was very specific it was deciding not all flight from law enforcement officers in a vehicle but only one that required knowing defiant the fine to the law enforcement the individual had to know when the supreme court was very careful to limit it holding to that individual because that individual has deliberately defied law enforcement and has shown a callous disregard for the collateral consequences of initiating a confrontation with law enforcement and that's the individual that poses a heightened degree of risk beyond the average felon in possession that they will deliberately use a gun to harm an innocent person such that the sentencing court must be stripped of its jurisdiction and the individual sentenced to a mandatory minimum  fifteen years so mens rea matters for counsel me ask you this in the supreme court case of sykes yes they were looking at the indiana statute and in the concurrence by justice thomas he cites mason and i know one of the issues in this case is what do we make of the indiana statute does it have similar language to the california reasonably should have known or knew in your briefs you say mason's really not on the table here because the supreme court didn't talk about the mason case if i recall the way you tried to distinguish mason in your breeze if you could comment on the mason case which is cited in justice thomas concurrence which analyzes the indiana statute and specifically mentions that i forget the exact language was that new or reason we should have known language i think in mason the court specifically talked about that the individual deliberately defied a law  justice thomas is very clear that the statute at issue here requires knowing defiance of a law enforcement he emphasizes that by definition that's what we're talking about here are statute the california statute talks about willfully fleeing a pursuing peace officer so how why do we not have that kind of intent in the statute because we have to look at california's interpretation of that statute the statutes not only drafted and in california people the hudson specifically said that you don't need to know is essentially strict liability if this vehicle has certain distinctive markings that sufficient whether or not the individual knew which means that we sweeps broader than in most states where it is is a felony which requires that the individual actually know when the supreme court strikes was very careful to emphasize that what they were talking about is an individual who knew that they were defyin law enforcement and what that means about that individual and their propensity to potentially use a gun to harm an innocent person in the future come from many states have statutes similar to california where they say that you know you knew or reason we should have known that a police officer was pursuing you i'm curious since sikes was decided by the supreme court are you aware of any federal appellate decisions holding that a similar type statute fleeing the police would not qualify as a violent felony you are the only two statutes that i'm aware of that are like california statute is south carolina's statute and possibly the statute in washington every other statute that i'm aware of requires that the individual knowingly receive a signal and be aware that they're defining law enforcement and it's a felony in most states unlike in california so in south carolina which was before sites but it has courts because the statute in south carolina like california doesn't require the individual to know and that is unusual and there are very few statutes that are like that let me get back to the indiana statute because i'm looking at the mason case and it says to be convicted for resisting law enforcement the evidence must show that the defendant knew or had reason to know that the person resisted was a police officer how was that functionally different than the california statute in california it's well first of all let me answer your question directly in california i would say it's not simply reasonable in terms of a reckless it is essentially strict liability we the people the hudson said we don't look at what the individual knew it doesn't matter because in it how a court they have tried to say well he had just committed a initially stopped he should have known so therefore that's enough and people he had seen the california supreme court said no we don't look at what the individual actually knew that's not our concern when we look at is whether the police vehicle had certain markings on it and if it does that's enough and that is essentially strict liability but isn't that really the same as had reason to know i don't i don't believe so when we're talking about ak and we're trying to identify an individual who would deliberately use a gun to harm in an innocent person which is present a heightened degree of risk on the average felon in possession so that we're stripping the sense in court of its jurisdiction of its discretion and mens rea matters but we do have some answer you can see that the statute says willful right so there are willfully fleeing whether i mean it seems like you're just spewing whether they know for sure that it's a police officer but they're they're doing something willful and they're driving dangerously willfully fleeing something yes reckless driving that lacks the police officer that's correct but i believe the question was is and i think just doing something dangerous and isn't that enough and my coin is that that is reckless driving in california more over twenty eight simply by violating three vehicle code violations which require nothing more than a mens rea of negligence and as the court and bake a said we must look to the fact of conviction which means the perspired actus reus so  investigate we look at the court look at said yes drinking is intentional driving is intentional that's dangerous but that's not the prescribed act astray it's driving under the influence so that can be done with reckless or negligent negligent behavior therefore it doesn't qualify as an ak up predicate the same thing here intentionally driving in a dangerous manner that's not the prescribed actus reus that's actually reckless driving in california the perscribe act flight from a police officer and that is what matters and that can be done through negligence or strict liability in california so we cannot use it as a proxy for identifying an individual who present a heightened degree of risk that they would  i think you need to look at the statute first and parse it before you can determine what the mens rea is so the statute under twenty eight hundred point two requires that the court look to twenty hundred point one requires proof of twenty eight hundred point one in order to have a violation of twenty eight hundred point two and under twenty eight hundred point one the elements require that there is a specific intent to evade law enforcement and that there's a willful attempt willful flight or attempt to flee from police officers that cannot be satisfied under any strict liability theory or recklessness theory the cases cited by the defense hudson a stray matthews t address the element of what her car is distinctively marked or one of the other elements that the offense contains that show that it's a police officer pursuing the person or the defendant in the case so in hudson and industry the court discuss how do we show how does one prove that a car is distinctively mart and the court looked and said we look at whether a reasonable person would know that this was a police car the court did not say that the mens rea of the offense is a reasonable person standard but even if the court found that and that none of those cases say that there's a reasonable person standard to be applied in determining the mens rea there's two parts to the statute there's the part that talks about the mens rea or willful flight and the specific intent to evade peace officers and then there are four or five specific elements that address proving that it's a police officer in pursuit and and california vs people vs acevedo a california court noted that there's suggestion that those elements were for the purpose of protecting the public from being stopped by a policeman personate or so ensuring that is actually a police officer who's pursuing the defendant and so i'm not sure you are saying it's not necessary that the that the driver be aware that actually subjectively aware that there are police officers as long as there are objective signs that it is a police officer no and that's not what the court said with the court said is defining distinctive markings on the vehicle in order to define that the courts can look to whether a reasonable person would know that the car was a police car so if there is an insignia on the car is that one indicator officer to the statute was the same one pivotal year was decided why aren't we bound by purely or normally or it was decided precise it addressed a definition under the immigration statutes which is different than the crime of trust the willful and wanton requirement under twenty eight hundred point two and never looks to twenty eight hundred point one as to what the man's right of the overall statute was but but is that just a way of saying familiar was wrong point of law even the case that you know your cited from the california courts did not address the mens rea or the statute that case again addressed different elements of the statute to discuss what a the california statute if i understand your crack question correctly the question is whether if i knew it was decided post sikes whether the result would be the same and i think it would because i think of cases clearly incorrect that this court can overrule the prior decision and i think that case is clearly in correctly and young correct because the sites are clearly incorrect on its own terms or let's see one of the time i'd like your answer that i think is clearly in correct undersides and i think it's clearly incorrect on its own terms i think even if the standard was one where a reasonable person would a reasonable person standard it still would apply under cites because that's a way of proving knowledge so far really just just the question of if i think you're saying clearly or was clearly incorrect on its own terms as a panel are we bound by that anyway you're saying or not but i don't know what your authority is for that and i'm sorry  argue here previously on a specific point where there was an argument about whether a previous case law could be overturned i can't remember the case but if the law is clearly wrong if there's no ambiguity the court can overturn  we have to say that sex is clearly irreconcilable with camilla because otherwise i think we're bound by familiar and i don't think that size is irreconcilable i think there's two points for that is one even under the reasonable person standard if the standard was that a reasonable person would know that an officer was pursuing them that would be a manner of proving that the defendant had knowledge that an officer was proving was following him that it was in fact a police officer but on the second i just think that it's wrong california statute are you aware counsel of any post sikes cases involving fleeing from the police that were held not to be a violent felony no i'm not  sorry the language in psychs was yelling or intentionally and our language here is willfully do you know of any california case that says that those terms always mean the same things well in this case there's  in california jury instructions that solicited that is willful flight or an attempt to flee with the specific intent to evade a peace officer so it has that a minimum and intentional element for the man's i'm just wondering whether under california law there is some case we can cite for the principle that that language is willful language in our statute necessarily means the same thing as knowing an intentional knowing or intentionally which is languages like i don't know seconds before we can we can round up or not quite round we'll go to one one minute i would like to clarify that under california law the willful only applies to the actual the evading the driving the willful wanton driving it does not apply to knowing that the individual is being pursued by a police officer we can look at california beehives and also that was exactly the issue i'm sorry people beehives and in people the snipes in people the snipes which was held on hay vs review in the district court the prosecutor had argued that the individual he didn't have to prove that the individual knew he was being pursued by law enforcement that individual argued that he got woken up and he just got scared and drove off and didn't know that he was being pursued by law enforcement and california courts have said very clearly that is sufficient you don't need to know and also with respect to the issue of the driving psychs specifically said we're not concerned about how the individual drove when that statute the prescribed actus reyes is gleaned from law enforcement what we're concerned about is the knowing and deliberate choice to flee law enforcement and defy our law enforcement order we are not concerned with how the individual drove that was the argument that justice kagan was making and the court said no you can drive perfectly safe that doesn't matter what matters is you set in motion by defining law enforcement and showing a callous disregard for the collateral consequences of the confrontation that you invited and provoked that is the issue that makes it so the individual it has a potential and it can serve as a proxy for identifying someone who would deliberately using a gun to harm an individual in the future and i would note that that incites i think ari said this i mean the focus has been on deliberately initiating a confrontation and that's why we stripped the court of at sentencing discretion discretion and that's why we sentenced the individual to a mandatory fifteen years in