that can be charged is a misdemeanor under california law under california law the that offense now can no longer subject a defendant to a sentence of more than three years dixie's trial counsel was prejudicially ineffect because she failed to conduct a reasonable investigation into his diagnosis of paranoid schizophrenia and she also failed to prevent prison isn't a defense based on his mental health at the trial the riverside county superior court unreasonably applied strickland and wiggins with which require that counsel conduct a reasonable investigation prior to the hearing of the founder we know she  dixey statements are the evidence that we have in the record he states that no expert ever met with him or evaluated him and we also know that from trial counsel statements during those closing arguments where she told the katie there could have been a better defense here based on mental health and schizophrenia but that's not in front of you so we know that she bypassed that defense and that mr dixie was never of value is for a long time now know that deals with the issue of of of what other whether he had schizophrenia is there anything in the record that would suggest that this symptoms that you've just described well your honor he testified that he right before he fled from the police thought that was in his mind was that he wanted to go home and that he then had no memory of fleeing from the police the next thing he remembered was waking up in the hospital you know blood except he went through i mean you have pretty low burdens on the type of intent that you have to have and the activities that were involved because essentially you have ingesting substances or motor vehicle place approached his car he big at which time he began what eventually became a high paced speed chase mission a hundred miles an hour crashing through fences struck palm trees round red lights drove on the wrong side of the road and more before he came to a halt he damaged his vehicle you know he was convicted at trial of evading the place as well as several mr manners and he had prior convictions under three strikes ok so and  to investigate at all when she did know that mr dixie suffered from schizophrenia and when she was attempting to present a mental defense at trial and when her arguments to the jury demonstrate without question that she misunderstood  misapprehended the law that she was trying to persuade the jury to apply she told the jurors because mr dixey was intoxicated his his actions were not list criminal that is incorrect and is there any affidavit from court he was per se your honor in the district court so we couldn't add a new declaration in the appeal but we do know from counsel statements to the jury what she was thinking because she thought that she could persuade or may not have been a better it's hard to imagine an expert witness one who understands schizophrenia and who understands psychiatric illness who would not have been able to explain to the jury that mr dixie unlike a person who doesn't suffer from schizophrenia would have been what do you have to but to commit to met the court to be convicted of the crimes that he was convicted of these are not they're not they don't require a lot of mental  mean in terms of like yesterday a police car and you take off at one hundred miles an hour you ingest drugs and your there isn't any specific content under there that you have to know that that would have cost you to be tried under the influence you don't have to no way that you just have to you're under the influence what we're not contesting the under the influence conviction it's the only the of aiding the police which is the only felony in the the prosecutor did have to show beyond a reasonable doubt that he had the specific intent to evade the police when you look at the fact that offer that you need to know is it's a police car and of their employees uniforms it's not it's not rocket science it's not like you have to know the police manual it's not but what we have journal of occasion it requires putting defenses on right not suggesting that the jury that she was trying to get them to notify or that she should have done that but the jurors should have been fully informed about mr dixie's mental health in order to make them your judgment about whether the prosecutor it proved beyond a reasonable doubt that he actually formed with the intent to mislead the police and because they didn't receive that information they didn't hear from a defense expert who could have explained to them about mr dixie the morning here on earth may please the court california deputy attorney general daniel hilton will respond to this court's questions really cut to the heart of the matter here first we have no declaration from counsel so it's very well possible the council did do some preliminary investigation and then determine the further investigation was unnecessary especially and he has mental issues yes your honor is but he again he could have been incarcerated propane present petitioner has a limited ability to obtain expert evidence and as i say claim was that his own trial counsel failed to you have a process and say like yes you know of course you are york and you're correct but in this case certainly he didn't need to provide thousands of dollars for an expert but he could have at least provided declaration from himself which would be the bare minimum saying appoint for money to a point or to a point there but an expert if he doesn't but i was miserable certainly your honor and one other thing i'd like to point out is although he does suffer from schizophrenia he had no trouble litigating this case at both in state court and federal court he's filed he filed for separate petitions pro per hour so and several of them are quite lengthy and supported with with case law and with citations to the record they weren't jibberish by any means so ok so we know what th sort of the facts of the case were so the record shows that trial counsel was aware of his schizophrenia i think as petitioners counseled indicated but never consulted with a mental health expert and never recurrent requested a mental health evaluation or even his mental health records why is that not deficient conduct and white what the facts at this case while you're on our opponents argument is based on the assumption that council never conducted any research but without an affidavit we don't know that that's true counsel very well may have conducted some sort of informal preliminary investigation and then determined based on the facts it was unnecessary because as this court's questions showed the facts of the actual event itself immediately before during and after the chase also that there was nothing having to do with schizophrenia that would have prevented appellant from forming specific intent specially when we have him discarding the drugs right at the police arrive pulling away and then pulling over when the police initially pulled him over showing that he understood and recognize that if the police turn on their lights he has to pull over then he waited until the police got out of their car before taking off which gave him the maximum amount of head start and the best chance of getting away he then turned off his lights as it was evening making them harder to detect he drove at speeds up to one hundred miles an hour weaving in and out of traffic and so all these facts show that he was not having hallucinations he was not suffering from delusions or hearing auditory voices and so even if he could establish deficient perform establish prejudice because by his own testimony there was nothing in this crime that had to do with his schizophrenia let me ask you guess he i think there's also an allegation because you got twenty five to life because of his prior convictions under three strikes right yes there are and how i didn't ask one case is ewing versus california which counsel did not talk about extensive and violent criminal history than dixie's yet we found this sentence under california three strikes law grossly disproportionate yes there are so the two cases the united states thing course cases in ewing both those cases involve very similar criminal history and less serious the third offenses that weren't dangerous to the community in both those cases involve the wobblers which in california are crimes that can be charged as a misdemeanor or a felony and so those cases are directly on point here when the defendant moved in he had previously registered in the court indicated the district court indicated that it was concerned that the defendant had actually tried to register and they described this offense as a mere regulatory offense that by itself poses no danger to robberies his entire criminal history and both were were very minimal force was used and one was an open hand push and the other he committed no act of violence but his codefendant did and so in that in both of those cases there distinguishable by the first the criminal history and then second the trial what that what is this defendant mr dixey criminal has said he has seven felonies six misdemeanors seven of those felonies are strikes there are robbery offenses and all involve the use of violence and one robbery he bit someone in another he stabbed someone in the leg with a screwdriver and in the third robbery he pulled someone out of the car and sat on them and when the police found him sitting on top of the victim well someone's rifling through their with that continuous criminal history where he had spent more than half of his adult life post rated and that one other thing i'd like to point out is that appellant was actually sentenced to twenty five to life for his robbery offense and then that conviction was reduced on appeal so he already had the benefit of knowing that he was sense of twenty five to life getting a break getting out of prison and then within a short time later he was again committing more felony level offenses ok anything else now you are of course has honor the court has doubts whether there's any evidence that mr dixey was suffering from a delusion at the time he was driving but i would submit that the whole incident reflects a delusional behavior because he had no significant reason to flee from the police much had drugs he had a very small amount of marijuana in the car and a very small amount of gin both misdemeanor conduct when he was under the influence and he was under the influence which again is a misdemeanor your honor it's not something that would justify a caught because your honor is doing twenty five to life now if not to get caught is pretty motivational for a misdemeanor if it comes up to trial your honor we're trial counsel says what did you think what do you think you could be sen to for having a small amount of marijuana or a gin in the car it's a misdemeanor he knows that that's very mild compared to the prior thinks it is not going to subject him to the prison sentence so why would he be such a desperate increasing weight from the was delusional at the time of the offense it should have been evaluated by an expert author and also as to the issue of trial councils declaration frequently trial lawyers don't cooperate and we don't know whether dixie any given explanation for not having the out for davis that the lawyers don't know but in my experiences both ways that the sometimes the lawyers don't want to give an affidavit and sometimes they fall on their sword unnecessarily to try and help their client but the but there is no explanation given anywhere i mean he brought several collateral proceedings i don't understand the collateral the collateral proceedings in california with several a b s corpuses but he brought several collateral proceedings and i just want to ask you one more question i believe the driver of the ambulance testified that he took his medical history and there was a list of the illness is that he said he suffered from while he was being driven to the hospital and in fact it was accurate another on response or the first person on the scene was just there or medieval you know after the car stops suddenly but by the time he got into the ambulance you apparently was lucid enough to provide his medical history and your hon first medical person on the scene described him quite differently i understand that but it seems to me the reason that the ambulance drivers are significant there was because it accurately reflected that he had schizophrenia and i don't remember the other collection of illnesses that he described and somebody you and he admitted to exceed that in fact he had those almost says forget about they try to be for the moment somebody who was who was totally out of it and not lucid couldn't have given those answers at the time he was being driven in the ambulance that was for the answers that were yeah so he was he was not quite out of it at that time