juror and if i heard that this person was callous and indifferent to the fact that he'd taken a human life i would feel very differently about him and i would if i had not heard that remark and most of us w that's that's perfectly consistent with the defenses leery of the case that this was self defense if somebody had asked him point blank you know why did you do it and he said i had to you know in his own voice if he said i had it with him or me it would have been a lot different than hearing from his best friend that he had no remorse if you show no remorse that he laid in bed at night thinking he was going to do something to him and then he just had just let's go to the effective assistance here and that  accept some what i don't know just part of don't understand she wanted some stuff to come in about how it was how they were drug deals and he had said no and my understanding was that his once she objected to this he said well all right i'll let the other stuff come in and i was going to come and i don't understand why she wanted that but he thought it was connected up somehow and that it was going to kill our problem here well the fact that it's a perfect example of wanted and they were going to play the tape which i think they would have been happy enough to do without but he wanted in the fact that there was the victim was supposedly gangster who was trying to cast my client for selling marijuana in his area and the prosecution didn't want that and left my client testified that that's why he was afraid of him and that was the the there's a big dialogue if people are talking in complete sentences and it gets particularly because of the this or specifically because of this paragraph and that afterwards she she what she could if she had asked for a limiting instruction and he had given it that would have been  shot oscar wasn't in doubt but that was not that was not in question and this this statement seems to confirm his own theory that he thought that oscar was was reaching for his waistband but he had a gun he had to shoot it sure but you know used to feel bad about it  think feel bad but i feel bad about the council but i'm trying to figure out what the prejudice is here even assuming that there are a mistake has been made by the lawyer what is the what is the prejudice when it confirms their own theory of the case well we  district judge found that it wasn't a question that there was it i stay so much at that that there was no prejudice but on the other hand you look at it this way you've got a man who shot somebody and he was should feel bad about it not like that you can't just take the words out of context you have to take the way it was presented to to the to the jury to his best supposedly best friends now about something he might or might not have even said ok morning your honour's me please the court kathy pomeranz on behalf of the warden counsel wasn't ineffective here because he did object twice to this challenge his statement and he reasonably relied on the trial court earlier ruling that sustained his objection and the record also shows i was trying to find it in the record what was the earlier ruling and what was it is confusing because there's nothing in the reporter's transcript so it's our opinion that that's when this original objection was made and then was sustained by the trial court action the objection that this information should not have come in in the record it order unfortunately doesn't give a great deal of information but it does show that a pretrial evidence year hearing was held mr ramirez did testify so it's not a transcript it's just unfortunately there was not a translator script included and this issue wasn't raised on appeal for whatever reason didn't make it into the record unfortunately so what happens at this hearing is defense counsel objects the trial counsel the trial court sustains that objection we go for it and i believe it occurred about a week before mr ramirez testif focus on this particular paragraph i'm sorry focused on this particular paragraph i believe so because when he makes his second objection he first of all he seems completely surprised and he's like wait a second here i already objected to this i just did to this transcript none of the recording well and i believe what he's saying now he's referring to the redacted part of the transcript that the prosecution wanted to say and what none of the recording if you're not going to put this in he said he wasn't but i think he wanted he was ok with the whole recording coming in  was played and mr ramirez identified but when he makes he makes the objection i objected to this transcript in this thing being entered into and then he says there was an opinion given by this gentleman in the court sustained it and now he sneaks it in by a transcript what's interesting is if you also look at page two zero six of the excerpts of record we get a little more of an explanation and we find out that defense counsel had been told the day before that the tape was going to stop at ten minutes and forty one seconds which i believe is where the redacted portion was going to start out and figure that out just what i mean at this point they're they're fighting over two things actually they're fighting over the statements made by ramirez about the remorse and they're also kind of going back and forth about this redacted portion that the prosecutor didn't want to bring in until after petitioner had testified so this redacted portion had to do with ramirez saying were mere is indicating that he knew that oscar was having some run ins and he said you know this whole thing was all about dope so that redacted portion which the prosecutor took out because he didn't want to play it until the end of petitioners testimony was what they were going back and forth on so i believe where defense counsel says i'm page two zero six this tape is going to stop at ten forty one which would be right before the redacted portion would have come in and then there's yes and then these challenge statements came after that so defense counsel again so he's relying not only on the court having sustained his objection earlier he's also relying on a on a representation by the prosecutor let i'm going to stop this at ten minutes and forty one seconds which means everything after that which includes these objectionable statements allegedly objectionable statements that were made were not going to come in and so up counsel could not have been deficient for reasonably relying on the trial court sustaining of his objection and he was surprised and he was upset and he could not believe that this came in and he says he's sneaking this in by transcript so it seems very obvious that this was a never supposed to come in and for whatever reason so i don't know if he said to him like at around ten minutes and forty one seconds into the tape this is where i'm going to take all the information out about this portion that they wanted that the prosecutor wanted redacted to remain until after petitioner had testified so again i mean under ed and under a reasonable standard here i mean the california supreme court could certainly have reasonably found that defense counsel acted reasonably in this situation he objected twice he had no idea this information was coming in he relied on the trial court sustaining of his objection and then he also relied on the prosecutor saying here's where it's going to stop i suggest if if the court wants to look at the transcripts and there was a lot of issues with the transcript but if you look at the first one that was entered and the last one exhibit thirty one in exhibit thirty nine if you look at it you'll see where the redacted portion doesn't appear in thirty one and then it does appear in thirty nine and i can a strange well because you guys have completely different stories about what happened well i have to say after a more thorough looking at the record in preparation for this case and i spent a lot of time with my the core of her complaint as i understand it is that he did have the transcript and he didn't read it you're saying in ab he may have happened but i think he will i'm reasonably relying on that sustaining of his object object and find their record a indication that he did have  that he was actually given it the night before and he didn't look at it well i don't believe that he didn't look at it and i think he relied on the fact that his objection to this material was sustained and that and that the defense or the prosecutor indicated i'm stopping it here and the stuff that we're now complaining about comes after that period it comes after that redacted and it's confusing i understand and and as far as the prejudice prong i mean you know he said he had no remorse and again as five you pointed out if it's him or me i'm not going to feel bad about it i thought this guy was going to blow me away so i don't feel bad that i got to him before he got to me and i think you have to look at the context of that statement as well he's talking to his buddy he's talking to his friend is he going to tell his friend oh yeah you know we feel really bad or you know these are trying to manage he was afraid of him that he didn't go to sleep at night and saw i mean i think that that was sort of b record you know he said he didn't go to sleep at night but at the same time he said you know i never saw oscar with a petition or with a gun he left the gun back in los angeles and defense counsel on cross ramirez some pictures from mexico and he said you look scared there said no i don't look scared there i mean i think it was i think it helped ramirez a story when he came back and told the police his version of it because this is somebody who's clearly involved in this crime in some way he helped to try to destroy evidence so i'm sure in ramirez's mind he's trying to paint a picture to the police like i'm so innocent here i just went along with petitioner i was scared of him i didn't know what to do  and on and on and so i think you know you know here's somebody who's looking for immunity basically and so i think you have to take all of those statements with a grain of salt ok me out of time thank you your hon so it would be helpful to hear your version of events i e why is there an earlier objection for the trial to this particular paragraph unfortunately i was not the attorney that did the direct appeal on this but i found  no indication what i found is on page two of i were the prosecutor represents an open court which i have no reason to disbelieve in that he gave a defense counsel or whole transcript the day there's absolutely no evidence of that in the record well there's some reference defense lawyer about having made a prior objection at the trial he references right but we don't know what prior means i mean i probably through x doubt things that he thought shouldn't come in and gone to the judge and said look these things didn't come in this is why i just wanted to make i do agree with counsel on one point there's no evidence that there were ever any tapes transferred to the defense which is but this quickly that the defense lawyer forgot to take the actual tapes because in the beginning i was unable to get anything from him but the tapes were there if you want to make one who went on the page this aspect because that's how the court said pretty much out that the man that he thought had a gun really just had a cell phone right here so he wouldn't know that he made a mistake if they had listened to the news well yeah but it's a matter of months and their wanted in a or in mexico well yeah they're not not exactly like this is something that these guys would have been likely to do be checking on c n n well they stayed in and they stayed in los angeles area and in san diego for