lived in this country from the age of twelve was held to be inadmissible they don't have a conviction for a felony crime of moral turpitude his removal should be reversed for two independent reasons first the immigration judge relied on legally inadequate evidence in further into his mental capacities as to the disqualifying conviction the government bore the burden of proving that the penalty for that offense was either the maximum penalty for that offense with either greater than a year or the actual send was greater than six months as the government concedes in its brief in effect the materials upon which the immigration judge will live in making that determination were inadequate to carry that burden as to the actual sentence the government alleged and the immigration judge found th first the statutory text of the relevant section of the california penal code two seventy three point five and second a notation on a criminal history printout death or felony with respect to the statutory text that was legally inadequate because again one in state prison this court's decision in united states the bridgeforth which is four for one f thirty eight six for reviews a number of the decisions that this court has handed down looking at wobbler offenses both under the immigration statutes and in the criminal context and explains that this court consistently has looked into the treatment of the offenses under california law and has taken into account whether the offense is indeed a misdemeanor or felony for purposes of california  w so in that respect both of the things that both of the pieces of evidence upon which the immigration judge will i view are inadequate as a matter of law as for the second claim the fairness of the hearing that mr hernandez received we believe that there is abundant evidence in the transcript of the hearing to show that mr hernandez completely lacked the ability to understand the priest proceedings that were that were going on he persistently failed to comprehend the charges against him despite repeated efforts by the immigration judge to explain them to him he blurted out at one point inappropriate remarks to the court room clerk and had to be admonished for no apparent reason even when eventually the immigration judge was able to elicit from him one word responses to certain yes or no questions the immigration judge was only able to do that again after repeated labored attempts as the immigration judge said after at the end of the first of the six hearings that were required to reach a result in this case the immigration judge said after trying to explain the charges to mr h repeatedly and this is a quote from administrative record pages one of six one zero seven you told me repeatedly you don't understand why it is that you're here in court i tried to explain that to you but we haven't been able to get past where one frankly i don't know if the charge is a correct one or not because you keep telling me you don't understand why it is that you're here those sorts of exchanges occur again and again in the course of the transcript in the face of that evidence of mental incapacity we believe that both under the statutes and regulations and  clause mr hernandez had a right to assistance or at least at a minimum to further inquiry by the immigration judge as to his actual mental capacity or incapacity with respect to the statutes and regulations the the immigration a seemed to say he didn't need counsel but again that exchange i think your honor again illustrated mr hernandez failure to understand the proceedings against him because when the immigration judge asked him about getting counsel and he seemed to say he didn't want to an immigrat he didn't you're saying that this record is so compelling that it's a matter of essentially due process that the judge was obliged to appoint counsel that's correct your honor or if not if not counsel against some form of assistance that would have helped mr hernandez understand the proceedings against him the statues in the regulations make reference not only to counsel but to next friends or somebody else who could have been assisting could have been of assistance again at a in the last century through the right papers the closets didn't come down and that's where the district court observing irrational behavior of the defendant penguins for the petty offense exception only applies when the maximum sentence is not greater than one year and he was petitioner was actually actually served more than six months in jail on this offense he was originally sentenced to six months no he served six months he had a three year state prison suspended sentence and then he served another six months and thirty days in jail following probation violations related to this conviction so he's  serving one year plus one month in the county jail where you had me i don't think you can add him that probation violation to what well it was a probation violation that was related to the original conviction showing by clear and convincing evidence that he is in fact admissible the government's burden is simply to show some evidence that the alien has been convicted and in this case the government has both the admission of mr hernande judgment of the few and now there is not in the record there's a certified record from the state of california showing that he was convicted under the california penal code see seventy three point five and there is that the rap sheet in itself especially coupled with the petitioners admission in an immigration court hearing that he was convicted of this crime is certainly enough to meet the government's burden fish to show some evidence of the conviction and to shift the burden  actually got is what really controls for purposes of california law well petitioner in terms of meeting his burden of showing that he is admissible to the united states has submitted no evidence whatsoever to show that he you know anything about the character warden or whatever the you know that position is of the facility where petitioner is being detained and he used to inform the petitioner that he has the right to be helped end in his proceedings by a spouse a family member and he you know he should urge that