reduced to several court propositions first yahshua harvests initiated s u v s proceeding challenge the constitutionality of his murder conviction the state opposed to this court agreed with the challenge teammate and within sixty days they did not do one of the others and secondly the court's order instructed the state to send a notice of compliance within sixty days it is on question that the state did nothing it as it said in its own had no good reason to do that at the time alas it was within its power to comply it simply did nothing so i submit respectfully that the issue before you is whether the state is bound by the rule of law did say either sixty b or the general equitable principles under he said referred to both in its reasoning and but it seemed to be saying that he did say that even if it goes on of the general equitable principles it still had to show excusable neglect to there was no citation of authority indeed the attorney general in its recent didn't argue the standard set as you say in pioneer or in this court's opinion in thin k and the other cases cited in my griefs here there is no substantive discussion of that but in fairness i must note in about that at all it simply usually is later in the business when the defendant usually having blown a period for appealing seek some other kind of relief and so there was really no substantive discussion of what is the standard by which the state may secure additional time but it does appear from the u s supreme court's decision in gonzales two years ago that sixty b doesn't apply and hideous and therefore it's requirement of excusable neglect would be required i don't think it's sufficient for the district court judges to say you the cases maybe they are not they tend to deal more with changed circumstances or other kinds of for reasons other than excusable neglect for changing the order of the court is certainly correct neither i nor the three journalists rest those matters to you so i over again well i would agree the state could start over again the state could dismiss or this court could order the dismissal of the pending proceedings under california state law the state in fact is entitled to reprosecute it because under section thirteen eighty  seven and related sections the penal code the state is a lot more than one shot absent a fine with insufficient evidence no such claim is made here so were this court to say we're ordering the release of mr harvest and you are barred from prosecute him on this prosecution trying to do it because they actually had still in effect because of the conditional order of the district court following your order there was a huge factor sitting in prison following the conviction and they filed a new charge based on the exact same proceeding the state was given an option by this court in the prior proceedings to simply reduce it from first to second degree murder it was an option that i argue so should the state forfeit it when and after sixty days it had done nothing and again it seems to me that that's an appropriate response i believe there is a distinction that i try to point out of my papers which some courts have done just that that is they've adopted more than just the release order in some cases they have simply dismissed this action not marketing not barring further prosecution on and on another docket something special by allowing a reduction from first to second degree murder it was to exercise that option within sixty days it failed to do so and therefore i'm asking the court to withdraw that as an option for them leaving in place if they wish a retrial of mr harvest on the you good morning jeremy friedlander for responding i think there are two issues here the first issue is is there authority in the district court for retroactively extending time after that deadline has passed even though by definition the  position i think he would take the position although i'm not sure of this that there once that time expires the district court lacks authority and you don't look to this equitable notion now maybe i'm misunderstanding i'm if i thought on that but maybe let's suppose i'm wrong ok i don't think there are two lines of authority here i think there is an overarching a constitutional violation and i think that what appellant is really suggesting here is that sixty day period was itself a constitutional right was no prejudice there was no danger of prejudice petitioner comes fear and the danger of prejudice is if you had moved timely and i could've gotten resentenced in a timely fashion a timely parole eligibility hearing and we responded to that in a number of ways i'm not going to go through them all but i will highlight the very important one because appellant doesn't address it and that is this court that is the say this trial court has shown us that that is an empty claim when this case was originally before the trial court on green and from the state appellate court which said we don't have a second degree murder here in the in the one case we only have a manslaughter the trial court said i am now going to change your sentence from a cunt current sentence to  why we don't know exactly why but it was probably because he wanted to give this man the maximum and he had already given him the maximum with an l wop and when the l wop was thrown out he gave him the maximum with consecutive so for appellant to stand here and say well now address that further i will simply assert that he could have been arrested that's my understanding from the prosecutor i've not looked at it in great detail but i'd like you could have these to turn to pursue things i suppose and then having screwed up as i did appellant continues to confuse the distinction between a conduct that is negligent and system was obviously flawed because i didn't understand what i needed to understand so i don't think it does make a difference but of course and  remember the whole thing i don't think the bottom line is that i don't think there's anything i think that suggests that the district court here abused its discretion in granting it and i think all the cases have suggested that the police the court certainly has that authority to do so unless there is that constitutional violation and that's the point about the final point about the a question of good faith and bad contest that there was any bad faith in the failure to meet the sixty day deadline he finds bad faith in what we did afterward and again i may be misunderstanding but it seems to me his position requires one to believe that we knew there was a constitutional violation here and we formed our nose at this constitutional violation and to say the concept that there was a constitutional violation and failing to act in sixty days and we plainly did not know and did not believe that there was a constitutional violation and feeling in sixty days and we acted in good faith with what we thought the law allowed and what our obligations as public servants to protect the community require and i mean is there ask for deterrence problem here i mean if we continue to allow these retroactive changes honor i would like to make three points in response to mr friedlander is comments first i actually think that he's been very enlightening although he's made a new argument here about what he thinks of excusable neglect it's meaningless his view is that once the court issues the order it can do whatever it wants unless you're seeing new constitutional violations he believes that's my position which it's not it seems to me rather what the supreme court said in consol is two years ago and this  eligible for parole if he got a concurrent sentences beginning in two thousand and three which means in two thousand and five when this order was issued two years and four months ago when it came to fruition he could have been released on custody and again i don't have the burden to show to the parole board in all of its idiosyncrasies and questions of balance and being entitled to release under a district court ninth circuit order under one is very clear i feel to the three of you or the judge where he's ordered release of the paro board is an entirely different kettle of fish with a whole different set of discretion so i think there really is a danger of prejudice be on the fact he's been kept in custody the fact that he could have had to stay active promptly but in either case even though this is an unusual order