please the court i'm brayley o'connell representing petitioner wayne arnold resolution of this case simply requires application of a handful of very elementary principles each one of which represents a well established principle of federal law for purposes of the f twenty two fifty four days standard the instructions must be reviewed as a whole jurors are presumed to follow the instructions of the judges instructions prevail over the attorney's arguments and i think most importantly for this case the specific prevails over the general and explicit instruction prevails over some message supposedly implicit in some other instruction now this specific over a general rule is not some arcane lawyer ly concept with a latinate name it's the weight ordinary people review written materials whether we're talking about a statute an apartment lease the manual for a that has to be a taking by fear or force and the intent must be formed before the taking that is before the force well your honor i think i just seems too real simple to me i  honor i think the problem with that is that in these situations to walk down to which california is after formed intent and will is directed are situations in steal something and then suffer at their expense that is a situation which in many other jurisdictions many other jurisdictions will look at that and say that is a taking  jury that there has to be a taking that is accomplished by force and the intent must be formed before the taking that is before the force that isn't exactly what you're arguing for where i think i would disagree with your formulation is when you said at the time of the taking that is at the time before that that's what the instruction years when you read both or when you read them all together i disagree with that your hon paragraph is that is acceptable so as the one that says that the taking must would be with a specific intent permanently deprive now if nine point four zero were the only instruction we preceding instructions and the instructions the bar afterwards and if you read them all together it becomes clear that the intent can't be actors in form a ridiculous scenario in which someone takes something for some reason and then only then decides to permanently deprive your honor that that it's clear that that is not a robbery but what is not clear is given that the most specific instruction on intent and i'm specifically on the tiny of intent focuses it right on the act of tak  in the context of the act of cake when you combine that general instruction which is silent on any requirement that the time  record where you've been referring to it when you said earlier that's the one that has the five points that was correctly stated as far as it went and then we were up two point four zero point two which is the one that begins to constitute a crime of robbery and and i am not clear from what you're saying now and i am confused are you saying that this paragraph is correct as far as it goes or in practice i'm saying that is incorrect as far as it goes you correct instruction would have had the same could have had the same structure and would have read going to the the fourth line and nine point four zero point two and the written instructions at the are thirty  fact that most other jurisdictions take this same concept take the same concept i pay thing accomplished by force and say it's all right and it's within the meaning of in that inquiry we do love to see what the arguments for and hear the arguments the theory of defense theory of the prosecution the evidence all focused on whether arnold had the requisite intent before he got to the store or did so the times that imperfect self defense required depended on and on reasonable belief then there was one errant instruction in the list of those in which the cour used a reasonable person standard supreme court said this was a case of at worst the internal inconsistency in the instructions that was why it was permissible for the court to consider the attorneys arguments in the mix but what is missing here is anything analogous to the three times or more in the macneill trial that the judge correctly gave the i'm reasonable belief stand evidence and the instructions we know that this jury had trouble with this case they deliberated for three to half a day after day had multiple repack requests including krieger who was the neighbor across the street who made the observation of the people saying hey i want you to take something and they have to least one question relating to intent and robbery felony murder focuses on what the us supreme court says right and this and the u s supreme and under this court has interpreted the u s supreme court as a as having a well established right to instructions on the defense theory of the case and here it just happens the defense theory of the case took the form of a theory that due to a failed due to the in actually given are always revealed will if they affect substantial right now there was a defense request for the lesser included on valid point you were making earlier when we walked through it you said the word should have been plainer i don't think playing here being a concept of review within the federal judicial system i think the relevant question here is what does this bar on state review and that there has been no claim here that that there was a waiver or procedural fault because the california rule is that the instructions actually given are reviewable with or without objection if the effects of stand for rights and under that rule the california courts routinely consider any alleged defect in the instructions the finding the elements because they've used those as as effect and substantial rights so given that there has not there was not a waiver claim asserted and that the state's answer to the atheist petition the not allege any procedural the fault of jackson i don't the petitioner did not request the lesser included offense instruction that was incorrect it was sloppy on my part made and the rush i misread a footnote in the direct appeal opinion i disagreement under california law is that there have to be a taking of property from the person of another i would characterize it as element one that the taking has to be accomplished by force or fear and that the taking have to before contemporaneous with the elements of the taking and the elements of the force there's no after forms in tampa theory of robbery in california those are the elements there's no dispute on that here's what the jury was told and this is if you are twenty nine and thirty i believe they were told that a robbery in california requires a taking they were told that a that the tape has to be accomplished by force or fear and then they were told both in and the nine point four zero and the immediately succeeding nine point four zero point two nine struction that the taking has to be accompanied or preceded by an attempt to steal the intent to steal was therefore necessarily tied in with the taking and with the use of force it's our position that those instructions were correct as a matter of state law which is what the state court of appeal found what appellant argues is that the instructions had to say that there was a taking that the taking was accomplished by force and that the intent to steal preceded the force taking the court should have used force when it's had that the intent to steal had to rise before the act of the taking in our view that would have made no difference  instruction incident this instruction has never been held to be wrong by any court as a matter of state law it's because conceptually the jury starts out with the notion that they've got to take right and then they're told what has to be added to that taking to make it a robbery so the taking have to be by force or fear the taking taking have to be with an intent to steal the taking have to have an intent to steal that arose before the taking that's that's that's a logical understanding if you think that most people think that when something is taken from them i was wrong how many times do you hear somebody say who's been the home has been the victim of a burglary when nobody's been present they say i was robbed because the notion of the taking that is as the fundamental act that that that sticks out in most people's minds so conceptually it's not  that the the instruction drafters just got it wrong as a matter of state law i believe they correctly went through the notion of what is a robbery and they focused in on that taking and they put all the elements there and they're all there they're the read as a whole we fundamentally disagree with petitioners argument that there was a mr rections a misstatement an omission of any element of state law we believe it was all there for that reason  we don't concede that there was even an ambiguity in the instruction but if this court were to conclude that somehow this jury was left to see or possibly didn't understand that brings this case squarely within middleton vs mcneil bell versus mcguire any number of us supreme court cases that have talked about what happened when the instructions given have a potential to be misinterpreted by by the trier of fact not when there was an omission but when there's the potential for interpretation that's what we're talking about middleton and we're not talking about need for example which is which is an omission case in that case then one looks to the entire record and certainly as middleton explains the arguments of counsel are important part of the entire record particularly and this is basically a quote from mcneil particularly when the prosecutor adopts the position that is favorable to the defendant and that's exactly what happened in this case and i quote at some length in my briefs the at least a dozen instances when the prosecutor argued to the jury got her and her theory of the case was that the defendant intended to rob the store from the moment he went in there before he when he went there to commit a robbery and then she twice was if she wants says if you agreed the afterthought theory that's not felony murder and again she says if you believe the spends and that's not felony murder defense counsel reiterates the same idea in his in his argument in our view there is simply no reasonable likelihood that any jury having heard the instructions hurt the evans heard the argument of raised a point i guess i can see what your answer to it might be but he said well no the jury was confused because they had read backs that took three and a half days what's your answer to that our answer to that would be leaves just to say that a given length of deliberations shows such a close case or does a machine show it's a call even if it was close you're saying that the instructions were clear correct there was no injury might have been undecided about the weight of the evidence but they were not clear as to the purport of the instruction that's correct and in fact the one thing in addition to the length of the deliberations petitioners also talked about they asked for a question about intent that he argues that they were focusing on after form intent i believe that now it's speculative to say what they meant by that but it seems to me that the most reasonable interpretation of that question is that they understood the intent directed to  the primary clerk or the younger younger clerk for whom the when the defendant had said that if i had a gun i'd go in there and rob him and take the cash register and so the fact that they're focusing on that doesn't  indicate that they have gone off on some frolic and detour on on after foreman ten it seems to me the most reasonable interpretation even of that question is they understand we have to find an intent to rob here and the question again please the question they ask and again i'm reading from the state court of appeal opinion was does the intent to commit robbery make it murder one for both murder one being the felony murder   struction so the question then becomes is that constitutional there or is that state where that person is alabama says that say that again a lesser included offense is not constitutional accept in a capital case bradley as well condi is the only one of those cases that involves a lesser included offense ho involved a erroneous instruction on general intent as opposed to specific e lesser theory we maintain that comedy has to be interpreted in its entirety for what it what it cannot stand for the rules that favor to give a lesser included offense amounts to constitutional lawyer because that would contravene united states supreme court authority we simply don't have the way of issues that was present in condi in this case we do not concede instructional or we believe it was correct if  included offense issue is an issue of state law not one of federal constitutional commission never alyssa's but i do have a couple of questions and these are background questions the felony murder rule was used here and i can see why the prosecutor might want to use it but was it something about california law required to be used why couldn't murder be charged without resorting to the felony the words just ignore the robbery part and try to prove murder without regard to the robbery was or something i'm trying to understand the interplay of why the prosecutor a charge that way well i i'd be speculating and on on this record i think that the filming murder theory was a much quicker more direct route to a potential first degree murder conviction than than an attempt matthews no i do not contend that that that there is some generalized right comparable to back to lesser offense instructions and non capital cases but when you have a defective instruction on the distinguishing element and you have a denial of the of the corresponding lesser offense to result i think i think