exists and was created by executive local officers in riverside for the express purpose of protecting inmates and staff state law mandates local jails to create these policies and and the evidence below shows that correctional officers in the riverside county jail repeatedly violated the policy in specific instances which are specifically referred to in our briefs the opening brief pages forty seven in their reply brief at pages to divide that with citations to the record shortly after being placed in the same cell with mr espinosa mr albert alvarez violently attacked him beat him and killed them question for this court to decide is do these violations of the policy by these correctional officers at the riverside jail raise  negligence that the court should have instructed on but failed to do so to the jury that the respondents focus on basically on one part of the exceptions to the presumption of six six nine point one that requires the rule policy man guidelines which the policy clearly is which is referred to in sixty six nine to be adopted as an ordinance or a statu respondents also rely on judicial president california state judicial president involving what are purely internal policies of a local agency or a local department and the question is whether their interpretation and their reference to the applicable law is accurate i submit that it is not and perhaps of the strongest relevant case that applies in this case was cited by the appellants at by the respondents on page thirteen of their brief and also was relied on by the district court judge in denying the motion for new trial based on the failure to give the negligence  and that is the case of strong versus the state of california and strong dealt with particularly internal policies guidelines the california highway patrol and in stating that the presumption of evidence code section six six nine did not apply the strong cork held in at pages that there was no evidence in the case that the guidelines in the manual of the california highway patrol or the form number five five five on which the case was based was the product the product of a law passed by the legislature or adopted fifty two and ten fifty three and that's the excerpt of record page thirty eight if we noted on page seven of our reply california does not distinguish between delegation of authority by statute or administrative regulations that's the east side union high school district case not a question arises as under section six six nine point one which is the exception to the presumption and the administrative procedure act is whether this manual or guideline it was adopted by an agency of the state and the agency of some of the state that's involved here is the board of the state and community the focus of the responded in this case is the ultimate product we all commit product are the policies there is no focus on how those policies were arrived at it's clear based on sections ten fifty ten fifty two and ten fifty three that the policies were arrived at for someone to a mandate and delegation of authority by a state agency to the local agency over which it has oversight to create these policies giving specific guidelines general guidelines to be followed and filling in their details clearly a delegation of authority that's recognized to be valid but it's also clear that contrary to a strong case  here is that the end product of the policy is indeed the product mandated by a state agency and therefore this is not a purely internal set of guidelines or policies that jails decided to create this is mandated by state law and therefore does not fall within the exception of section six six nine prejudice resulting from the failure to give an instruction the negligence per se for violation competed violations of the this policy by the custodial officers the issues that were framed by counsel you policy violations require the giving over negligence of perceval instruction i think we completely addressed in our brief but there is one point additional that i'd like to make if you take a look at the proposed instruction which is instruction number thirty which you can find at least seven and eight of the opening brief and the appellant's volume one excerpts of record of pages six and seven the instruction as it was proposed did not reference either alleged downgrade classification status so as that instruction was proposed it did not address either policy violation and there would be a separate reason not to have given that instruction notwithstanding evidence code section six six nine that is there's no evidence to support the giving of that instruction because none of the allegations that are contained in there were what was argued to the what was argued to the jury is what would have been covered had those two violations been asserted in the instruction they argued that there was no approval by a supervisor and there was no creation of a new form the jury heard it with the exception of the plaintiffs expert who never testified on that subject never an opinion as to whether or not that was a cause of the incident that was a violation of policy everything else that they talk about in that instruction was not the basis of coun allegation she violated any aspect of the policy in the opening brief there is no reference to any violation that she made in the reply brief for the first time and of mr alvarez for co habitation first she did testify she reviewed jim's notes but even more importantly that's not an aspect of the policy in any way shape or form so there is no evidence that would would have permitted to giving of this particular instruction as to deputy gear i think the case law is relatively clear that title fifteen section ten fifty creates no standard of care whatsoever all it does is mandate the creation of a policy county has a policy there's no dispute about the california state legislature when they passed evidence code six six nine point one did it for a specific reason we provided the court with the legislative history behind the reason there is no indication that in the record either with the brief filed by appellants that there was proof that this particular policy was adopted as an ordinance there's certainly no indication that it's a regulation under a p a even if the county had the authority to do it which i don't believe it does and there's certainly no statute in play and additionally i believe the ninth circuit even recently has recognized that an internal manual and i'm now referring to the stein lee case which was decided in two thousand and seventy made it clear that absent formal adoption as an ordinance or a regulation internal policies cannot be the basis for a negligence perceval instruction additionally as we pointed out to the court under evidence code section six six nine plaintiffs have the burden to prove causation there is no evidence in the record and certainly nothing referenced in either of the appellant's briefs that talk about how they have established that a violation of these policies pause this incident to occur there is no evidence that filling out a new form would have changed anything there was no evidence that had this new form been submitted to a supervisor that the downgrade would not have been approved in fact all of the evidence shows exactly the contrary and that came from deputy pendleton that came from sergeant taylor and it came from robert the plaintive because of the dissidents age his medical history his previous history of a song the concern that he had about the t ype of inmates that would be would have access to him if he remained at level five as opposed to the lower classification and he was with other that as did mr fonzie and mr fonzie is no stranger to jail regulations he sat on the post commission that sets title fifteen standards for correctional facilities throughout the state of california and he himself had run the largest detention facility in in san bernardino county the west valley detention center which housed almost four thousand in the jury had the opportunity to assess the behavior of both deputy bureau and deputy pendleton hearing all of the evidence they concluded that under the circumstances what they did or did not do was appropriate i don't think there's a single thing in that proposed instruction and i don't think even if that instruction had been properly written to reflect the two violations there is any evidence in the record that suggests there's a reasonable chance that if the jury had been given that instruction they would have reached a different result most support us question some so i think you well one other point your honor her and again there was no evidence of violent behavior that involved mr alvarez and his cell mates and they had been together in a day room for more than a month with no incidents and they had been together in that cell for a significant period of time without incident so i don't think there's any evidence  r alvarez was not forthcoming after this incident there's a lot of supposition that his seeing had been stealing from him which i understand not to be an unusual occurrence inside the jails but i don't believe we'll ever know what cost that incident to occur thank you thank you first runners with respect to the proposed instruction i think counseled observation that shows a fundamental misunderstanding of what a jury instruction if i had submitted a jury instruction referencing specific factual issues it would have been rejected as being argumentative on the facts of jury instruction merely provides a framework for argument for facts and if you look at the last sentence of the instruction the security and safety of staff and off and in the one stat instruction is in and then the argument covers all the specific instances what sections ten fifty state second states ten fifty eight after ordering local jails to implement these policies states that the classification plan is to assign mates to housing units according to sachs age criminal sophistication seriousness of crime charged physical or mental health needs an answer to judge ward los question there's no reason mister s the knows i should have been assigned to a mental health unit he didn't have any mental health issues and he signed with and the evidence showed that everyone assigned to those to the mental health unit had exhibited some kind of bizarre behavior or had some problems with the with their cell mates and were constantly being moved one from the other the only reason he was assigned there is because the custodial officers in violation a policy the side that oh maybe he'll be better off there than some other place that's the only reason he was assigned there and it turns out what happened evidence was presented while he was being beaten by mr alvarez oh it pretty clear that why how he died he was beaten to death by mr alvarez who had serious mental issues and also contrary to there was absolutely no reason to place mr espinosa first in the mental health unit and more importantly to place him in the same cell as mr alvarez who the day before he