moment your honor i think the issue in that case was that they were trying to prove that the court had exercise discretion and i think it might have been a state wobblers situation or something like that where they were entry wasn't sufficient to essentially narrow what had been charged and that's not the situation here the situation in this case is that the charging instrument the information and the minute order are consistent with each other so i think that  of the minute order to narrow charging instrument or to without some kind of facts admitted by the defendant would be improper i think i think the court's issue in that case was  reading too much into the minute order not the fact that the middle order was a clerical document and was therefore some how unreliable which i think is what the defendant is arguing in good noonan does say in the first paragraph of his opinion and this is a two thousand and six opinion the minute order of the state court relied upon the federal district court is not a judicial record they can be relied upon well i think because it once again with the government would argue is that it is because of the facts and not exercised its discretion and had made a notation misdemeanor or something like that where it was clear that the court exercised its discretion and that the sentence didn't just happen to be a felony with a lesser sentence i think the issue was there that the sentence because it was less than a year they were trying to argue that it inherently was a misdemeanor and i think that's where the court had trouble was that it could have still been a felony just with a very low sentence are there any other decisions from the ninth circuit or the supreme court following shepherd that the find that phrase other judicial record you know what i'm referring to yes your honor i don't think the the only published decision that this is this circuit that this panel can look to in terms of whether there's a shepard problem with the use of the minute injury order here or not  understanding of that case is that the minute order is is necessary for a determination there is some kind of conflict that way will be resolved on on the minute order do you have the  area and that the state work defines inhabited under section four fifty nine as currently being used for dwelling purposes whether occupied or not so i don't think there's an issue in terms of first re provision applied i think that there's no question that the statute of conviction was with first degree burglary i think that the charging document is clear and the apparent that on but i think that what we do have here with an order is a first degree residential burglary conviction that qualifies it as a burglary of the dwelling and therefore was the not the type of document that this court should be relying upon and i'd just like to know for the court that the california penal code itself knows that that in order of the clerical documents must reflect the offense for which the conviction was had and not section twelve zero seven of the california penal code there is no evidence in this case that the minute order is somehow incorrect i think there's any issues before this court where there is some discrepancy there some decision on the tightest form that they were going to use and how they organize that form or what they title that form that it would prevent both sides from green being able to present you know that's not necessarily so if you had a play call a quick transcript where the defendant was asked to tell the court what he did in the defendant's pleading guilty because i broke into a house and it was a house that people live there wouldn't be a problem but recently are sometimes those documents are no longer available due to you know whether it be the volume and storage mechanisms of the state court well that's why it's necessary to have a have a judge sided judgment yes your honor i mean obviously would that we know to the minute order is not a judgment that would be the best case scenario but i don't believe that every county is doing that and so there are cases where this is the only document that's available and i think there's nothing in the record to say just that this record is not accurate and it was judicial record and the clear clear concern is it has to be something the defendant assented to or the judge made a finding with you know the defendant there and that's why although you know taylor was looking at you know jury instructions or what can we look at that makes this not require the court to go into this very deep fact finding process and i think that that was the motivation at least behind taylor and sheppard is what what list of documents can we identify obviously they were not looking at  a significant difference in this case how much is he you know i'm not sure i think it's about two years just under two years i think and so i think that the question clearly presented is we've got abstract of judgment which is and i did send in a twenty two letter late yesterday afternoon which is treated the same under california law as the minute order in terms of being a clerical function and certainly in l a county it's something prepared by the clerk the judge doesn't see it the defendant doesn't necessarily see it or i don't know if there was or was not a plea agreement those doctors not one in the room there's not one in the record the government proffered two documents the information which charge the three separate counts and the minute order and those were the two exhibits a m b to their pleading and that's what they proffered we have some information in the p s r which we also under matthews should not be considering but it indicates that this was a parking garage and to answer  is question the california burglary law is incredibly complicated and i would refer this court i don't believe i did in my briefing and i can send a letter in tomorrow to people versus cru z which is the california supreme court's discussion of this tension for purposes of determining a serious felony between penal code section four fifty nine which defines burglary in both degrees and code section four sixty which distinguishes between first and second degree and it goes through in detail what a residential dwelling is in california including a carport which is open including a garage that doesn't have any kind of connection to the house there's reference to tents i don't know exactly if a person can fit into it i mean there you know so that generic version of burglary as defined in taylor is clearly not the carport or for breaking into a vessel i mean these are all these are all allowed under california law so if we're looking at just i'm not saying that's exactly what happened although the carport issue is a little bit of a concern given the fact that we do have and whether what he pled to exactly in terms of going into a quote unquote parking garage and these are going to things we're not to be looking at but obviously the records of before the court you know whether that is is tailored generic i think we need sufficient facts and that's what we don't have it's the government's burden and it's supposed to be unequivocal and based on these records we don't have that and based on shepard that's what we need regime and it is you request you long court to sounds without further evidence not really going to make it but i honestly would be reminded free sentencing and we'll see what the government can do there is no actual holding on that said i want to concede it but i know that's what the court will do you have anything else or yes your honor i did cite this in my brief or take  in answer to the question you posed to opposing counsel there is a another post shefford minute order case thank you thank you both of the argument here that it's very interesting issue submission