function in the reason that competent counsel is required in fact the integrity of the criminal justice system depends upon that and that's why when competent counsel represents a defendant that the prejudice prong it is your honor absolutely the court the district court actually found three instances of incompetence that found that that did not rise to the level of did not create an error in this case  i disagree that counsel's objection to the interrogation itself in two requests that portions of it be stricken did not announce ineffective assistance i think that that is an unreasonable conclusion i obviously agree that the failure to request in overwhelming case of guilt and that assumption is absolutely wrong in this case the theory is derivative liability obviously scott strand didn't kill anybody his come his whole theory of liability is that he was present at the scene and that heat aided and abetted the killer in some act which was not a homicide and that the natural and probable consequences of his aiding and abetting they take a snippet of for instance the six hour interview of the thing it where in five hours and thirty eight minutes of that interview he denies involvement and says he wasn't there those statements in which he for the most part he indicated he had been drinking heavily was drunk he was aware that there was a melee going on a fight that as he stepped out of the car that's when he heard the gunshot go off and he got back into the car if that's true then that is mere presence at the scene and that would not even amount to aiding and abetting but even if he had gotten out of the car and hit the victim that is not necessarily overwhelming evidence of guilt because the prosecution still had to prove that second prong and that is that even in that assault and it's undisputed that he did not know that there was a gun there there was absolutely no evidence that he was aware there was none there and in fact the accomplice that testified said nobody else knew there was a gun there and that everybody was quite surprised by the fact that this went on so we know that he wasn't eating in a bedding in a crime in which he knew that there was a firearm involved that there was a deadly likely to commit great bodily injury the prosecution still have to prove that the natural and probable consequences of that assault stall with force likely would be a homicide and that standard is so forth in the california jury instructions which indicate that what a person of reasonable and ordinary prudent to expect that a homicide is likely to occur by participating in a fight and natural consequences one which is in the normal range of outcomes and that may be reasonably expected to occur is nothing unusual has intervened and probable means likely to happen so if in fact the aid isn't abetting in a simple assault or an assault without a weapon the jury still had to find that it was more probable than not or a very likely outcome a probable outcome that a homicide involving a firearm would occur the reason that that probable problematic is is for two reasons the statement that came in from the officer during the six hour interrogation and i say officer i mean officer ers because there's multiple police officers that are interrogating the defendant throughout the two interviews throughout those interrogations and the police officers repeatedly make statements to the effect that this would be a natural improbable consequence essentially testifying although they're not testifying to that the other problem is the gang expert that was check not testify actually testified to that conclusion that legal conclusion that murder is a natural probable consequence of again fight and she says i know this because i've spoken to gay members and gang members know that that's a natural probable consequence that was not a proper opinion for this application of strickland to washington in this case because i think that the court jumped to the conclusion that this was an overwhelming case and overwhelming evidence case and that's not true and when you pick that apart and you look at it in its humi knowing that evidence i mean the prosecutor would be laughed out of court if he were to ask the court to call a witness to testify to those things but that's absolutely what the jury heard for six hours not only did they hear it for six hours they read it and they asked for those transcripts even during deliberations and read those during deliberations so you have all of this outside evidence that should never have been brought in and there was never an admonition for the jury to disregard it and we know that it's coming from and efficient source a government source which should be more reliable is presumed to be more reliable and so the jury is basically bombarded with police officers opinions that the defendant is guilty that the defendant is a liar that the defendant participated one of them that testified that they often tell us to the him or not lies we know that they talked to third parties we know which he said they talked to be and we know they talked upon and those police officers relayed to scott trant numerous times exactly what he said he did and exactly what fonts that he did then the government called those two witnesses as your key witnesses in trial so what happens is you have these two one accomplice who's getting eleven years he was the person that handed the gun trained when you told him spohn told you that he participated in the fight the answer would be no i didn't i didn't lie to him because that's the truth that is what font told him but that wasn't admissible evidence and that evidence was especially harmful because it testifying after being granted probation for having a gun for which they used to love having used that and during the shooting he even ended up getting a deal he wasn't present at the scene so he basically testified to statements that  trend supposedly or allegedly made but then those statements are bolstered by the officer statements during the interrogation which were not subject to proper cross examination where an officer state on at least  officers believe in the case is and not what the actual evidence is in other words the jury wasn't able to really evidence in it until to really form because there is no i mean just unadulterated form in this case because the entire this case the district court identified three elements of deficient performance and i really have to strongly object to the district court's finding that counsel was deficient in the gate in the admission of the gang evidence because there is no defense for trans there was no other defense he had let me ask you something with that have come in and after crawford your honor again  it could have been objected to in this case council made a tactical decision to admit it because that was the argument that he was bringing in this case under crawford in any event the statements of tra type of question is very questionable i'm not test of whether he was first or there was a famous case in san diego where the police officers charged a brother with killing his sister and that turned out to the not correct it w transit i only told you know what am i supposed to say when you're when you're telling me everyone says i did that i only told you if you say i licked him then i guess i licked him i only told you that i that i was there that i had him because you're telling me that in the in the video that was showing that he was being kind of badgered so wouldn't it be the important thing for us to look at is to see whether that's a that francis actually admitted that he was there and kicked people but it's a fact that the the defense attorney wanted to have more than that i point that i cannot see any defense in this case there is no defense tran intentionally went and assaulted the victim people were hitting the spectum with a screwdriver or a chain of that the fact of murder occurred it doesn't matter if there was a fire france attorney is obligated to make the best defense possible and so what we're really interested in is whether there is and that's the problem here is the the bear inculpatory and missions would always come in they always come in and you don't get any of the additional statements the external the choice statements that he was drunk that he heard shots no stumbled right back into the testifying correct that second issue is when it comes down to the tactical decision i am not arguing that the attorney made an unreasonable tactical decision in allow videotape in what i am saying is the attorney did not have a tactical reason for not being the portions that work inadmissible there were large portions that were inimitable in the court could have sanitized those portions out portions but still have the admissible portions so it was not a rational tactical decision to not request sanitize the interrogations or more requested management so that the jury knew they were not to consider that miscible portion and inflammatory portion for the truth of the matter and the fact that the defense counsel agreed to have the videotape on or didn't object to the admission of the videotape doesn't answer the question that is not that the tactical