assistance is judged on a standard of reasonable this reviewing court judges the reasonable us of counsel's conduct was to d s says that his attorney was not reasonable in the context of the evidence and in this case the context of the evidence is  statements or look let me let me lay my my concern is for you to see if you can help me yes there's a witness that says that mr diaz said that yes darrelle hicks right there's there's another witness who says somebody said somebody said it but i can't identify who the rebels brother tomorrow and then there's a third witness who says that after this happened somebody went and got a gun yes well yes now now oh al is subject to discrediting in getting stuff but why given that and the fact that your client didn't testify why isn't it why why was it incompetent for counsel to say well i guess i better embrace that statement try to explain it away rather than rather than attempt to persuade the jury that the statement was never made because the two people you mentioned  heard mr diaz say go get a gun and his brother said i heard somebody go get a gun these were both they both testified this was when we first drove i know i understand that there that there recollection was subject to cross examination and perhaps impeachment and counsel was there makes the decision that the better strategy is to is to adopt a statement and try to explain it away as as your client's trying to scare them away in effect but will wasn't when they said it everybody agrees they both said it when they first drove up there was no conflict on that he said consistent darrelle said consistently i was by the car to make a was standing by the car  but other witnesses say people came out of the car in a threatening or aggressive fashion so yes but look let me start by saying if i were looking at this as a trial judge at the time or as a state a b s judge i might well find that it was and reasonable decision the question is given or double deference why isn't just a hint of a strategy enough because there's no because the strategy doesn't fit with the evidence there was no evidence no witness testified that diaz said go get a gun after he had been confronted by time ico to make himself says i stayed back by the car darrelle says initially to make it was by the car but why i guess i'm not understanding why  i'm not sure i know you made some effort to suggest that the timing was different and presented at court but i'm not sure why the added difference because the timing  this perhaps the the lawyer at trial could say this this evidence is credible and her response was let me try to come up with a rationalization or an excuse for it that might be persuasive to the jury as detroit says we're actually one step removed removed from the question of whether there was ineffective assistance of counsel right where we have to say that mistake or was objective l and reason of all it was in in saying that the council could have had a strategy to two reasons number one to say he said that in response to being confronted by the mico she would have to put it in the context where he said that as they first drove up she put it in the context that they had jumped out of the car had confronted him to make oh says who's messing with my brother day as i was afraid so he said go get the gun but that didn't fit with the evidence nobody tells and i never said isn't it worse for mr diaz if he said it when they first get out of the car well there is evidence was then then it looks like it's it's i'm encouraging you to confront these people with a gun for no reason where at least if he makes it later it sounds like it's a reaction to a crisis but but remember the context here when w interviewed by the police he said we were going to pull up but then my brother said somebody is going to go get a gun that's what he told the detective and then and his brother to me go says yeah when we pulled up i was putting on the car and i heard somebody go get a get say go get a gun and it was only after the police officer said when through went through you know what happened next you saw the guy well but i'm focusing on the testimony at trial so there wasn't any testimony a trial to that effect was there yes there's the even more to the recorded statement was ok was played and the jury asked to hear it again dr liberations so can i ask a question it's probably not implicated by this case whether  lesser included offenses charged it was it yes they were not so serious that's my recollection yeah the jury's only i think voluntary manslaughter was but the jury said it didn't fit the jury's only real choice was the aiding and abetting charge on the right ok lose your position that if the client tells the lawyer do not argue this point that the constitution requires counsel to follow the instruction of his client there is no there is not yet a supreme court cases as that my understanding is it's recently been granted certain on that particular issue right i know what cases are pending what your position is a relates to this case well it's stric does say that the one of the duties of counsel is to consult with is one of the duties of counsel is to consult with his client on important matters i submit that strickland i would support the idea that  if he says and she says in point number ten of her points on appeal when she filed a notice of appeal she said he said he didn't he denied he made that statement to me he denied to me he made that statement what would infective representation have been with respect to the state point out that when he ridgewood that when darrelle originally told the police what happened he said my brother said this his brother confirms i said i heard somebody say i heard somebody go get a gun the police officer through suggestive interrogation then said wasn't didn't the guy you were talking in the middle of the street say that and he says yes and you have inconsistent statements from the from the from the person who actually says he heard diaz say it in terms of timing please the court and deputy attorney general max finds that i represent the warden in this case the situation with petitioner standing on a dark street corner with several of his fellow gang members when a car pulls up five men jump out at least three of these men aggressively approached petitioner and according to several witnesses one of them said are here even messing with my brother at this point to share said go get a gun and did just that got a gun came back shot the victims so when counsel says in closing yes my client says that hasn't she in effect stipulated to his guilt no your honor  gave an innocent explanation for that statement she argued that when petitioner said go get a gun he was saying it out of fear he was saying it to back off these men who are aggressively approaching him  if but for that statement i mean the thing that concerned me was that statement seemed to be the only basis for liability for mr d s was there any other evidence of that for which he could have been found liable as an aider and abettor or was it solely that statement it was primarily that statement your honor there were three different witnesses who discussed some version of that state right but you aside from i'm interested in aside from the evidence that he said go get a gun is there any evidence that mr diaz aided and abetted these homicides he's attempted on us no your honor besides him turning to the man who went across the so the only evidence that he of his guilt is the statement go get a gun and counsel has an alternative way to attack that which is that there's there's evidence in the record that somebody else said it and that the people who testified are at least impeachable and yet she decides to myth that he said it and try to explain it away that's that's what happened here right there is no evidence in the record that somebody else said well isn't that what what what about the record statements he says i didn't say it that's in the record i'm sorry your honor who says i didn't say mr yes mr d s yeah so too so there so there's there's an alternative way to do it he says i didn't say it somebody else must have set it up why isn't that the competent way to represent this this now i understand we're stuck with that the double deference and you you may  prevail in this case eventually anyway but just in terms of common sense rather than admit the only fact that makes him liable why not try to make and he denies making the statement why not try an alternative approach which well your honor that would as opposed to a smart mistake that is what counsel said after trial but closing argument itself that that's was a different story she marshal all the evidence that petitioner was in fear that these men appeared to be armed that they were coming out of aggressively and her closing argument gave the jury not only the opportunity to find petitioner not guilty based on no intent but also to find that he acted in self defense or that he acted in imperfect self defense and if she had said simply this this statement didn't happen he never said this then if the jury looks at her and says we don't buy that we think that these three witnesses were credible then they're not going to go with the rest of our closing argument they don't have imperfect self defense or self defense they just find petitioner guilty so her strategy did come with a certain amount of risk but at the end of the day it was reasonable and it was definitely reasonable for at least a reasonable jurist could agree that someone could fine trial counsel statement was reasonable i know we can't deal with it  but as i indicated to your colleague i find the charging of this case who diaz slightly troublesome i mean he's he's plainly not the main actor in this thing the only evidence is that he said one thing and that he home do you want to address opposing counsel is talking about the timing of the statement and why the timing of this tape at made the his counsel's closing argument didn't make sense can you address that petitioner's argument is that trial counsel had to follow durrell's timeline and doris said i heard petitioner say get a gun when i was standing next to the car as soon as i got out of the car but both durrell and harrison downplayed their involvement in the situation they downplayed how aggressively they approach petitioner that they were coming up to him in a confrontational matter durai on the other hand said my brothers jumped right out of the car and watson the guy who was shot in the head and they went right up to petitioner they got in a semi circle around him and harrison said i hear you've been messing with my brother so should take the most advantageous timeline in closing argument she doesn't have to argue that these guys weren't aggressive that they just got out and kind of loaded by the car here's the problem is that the state's timeline is different and  believable than others the fact that duran would try to downplay his own involvement i mean that's that's something that has a clear motive behind it because he doesn't want to be seen as the aggressor however he was obviously afraid when he was giving the sesamoid he was a very reluctant witness it doesn't seem like he would put petitioner in the situation particularly when he said afterwards he recognized petitioner he shook his hand  his credibility as the statement i heard petitioner say get a gun stand i think it's very believable and particularly given the fact that it's corroborated by the other witnesses by harrison and by durai if he says go get a been it in your view if he said not in jest but you know it to to frighten somebody off if he said it to frighten somebody off but somebody else reasonably acted on when you got a gun that would not that would be a defense in your view that would be a defense or if he said it out a reasonable fear that could be self defense the timing also getting back to your question that the timing doesn't necessarily matter i mean this happened very quickly these guys got out of the car and they ran up and whether petitioner said go get a gun before harrison said i hear you've been messing with my brother or as they're running up the force of her argument that as soon as these guys approached petitioner was afraid still holds and regardless of which exact time line you adopt the the same theory that petitioner s fear would still apply thank you in response to counsel's argument timing does matter nobody said that mr diaz said go get a gun as these guys are running up the only testimony two people heard somebody say go get a gun and that was as the car was driving up it to me co says as it was as i was putting the car in park so timing does matter he can't be in fear if they haven't confronted him yet they just drive  up second i want to point out we can use council's declaration in this case because this was decided under california rules of court which assumes all the facts alleged in the in his petition were true now we can assume counsel's declaration is true but is it relevant yes it's you can see she she even in her letter she still seems to think roger's my question is let's assume counsel didn't really have a strategy but if we look at it objectively it would be a not unreasonable strategy it really doesn't matter what was in her mind it probably does not but it doesn't matter if her excuse doesn't fit with the facts and it doesn't she brought out on cross examination that to chemo her this statement before the confrontation says me she brought he she brought out in the cross examination of d he says this was after taking the i had confronted him and that's that's consistent with her final argument but he says no use it was before she said did you say before it was before and you remember that sir yes are you sure yes so