on twenty five money on behalf of mr black you want to read this case is troubling because he should have never even been prosecuted to begin with now mr black is mean in prison since two thousand and eight for a crime where the only evidence implicating him in the shooting did not meet the threshold of constitutional a threshold beyond reasonable doubt when you say he should have been prosecuted he did have a problem area hearing and the admission is because of that yes you and i wasn't there it wasn't me that was the defense at trial for that particular charge yes sure that was a defense that try charge is attempted murder right correct your honor and then the question is whether or not  aiding and abetting under california law requires a separate charge or whether it is under the principle that an aider and abettor is punishable as a principle under california you sure the more clear but that's not the question counsel isn't the question is whether or not under substantive california law an aider and abettor is punishable as the principle you want to answer to that question is yes at least as i read the case violation is a separate violation in of of itself he has nothing on your theory is wrong he did not have adequate notice under the sixth amendment to know what charge he was being charged with a sixth amendment claim credit which is more productive but we have to look to substantive california law in order to determine as a matter of substance whether or not an aider and abettor is punishable as a principle and whether given that fact whether that is sufficient notice to meet the federal constitutional due process standard that he must know the charge that he's facing in order to mount a defense to it isn't that the analysis counsel if if that that's been the an somehow you would have defended this case differently had you known that he was also being charged as an aider and abettor a number of different things he could have one of one for one example he could have said he was in a car but he knew he didn't it in this is the new one the court found as a matter of fact that there were only two people in the car and that he was one of them that is a finding of fact by the trier of fact sure but is that enough let's assume that to be true well i think i'm going to qualify for a moment i want to because i think there is a they there is zero evidence and if you if you want to allows me to explain this because this is sort of point here and i'm sure you understand the point and the the the point here is your honor that the only evidence that pointed to mr black being in the car was that him being a passenger and that evidence the court found was insufficient as a matter of law there was testimony at the preliminary hearing by one of the police officers  o not correct you on it there is nothing in the record i made that very clear i've tried to make it very clear in the briefs that there was never i don't know what the court of appeal was thinking i don't know what the record there were looking at frankly there is nothing in this record and we of being present in the car what did he what was his car so did he present any evidence that it was at least sometimes his car he drove this car in people so that so was there any evidence that he was out of town or any alibi evidence that he wasn't the person they had one witness who was seventy five percent sure seven and a half months after the crime when he was confronted by the captain twice with photos with a six by four to saying i'm i'm i'm almost positive he's the shooter but that didn't measure up to beyond reasonable doubt and for good reason that the trial court believed that witness and said i believe he saw the believe the car believe in not beyond a reasonable doubt well he didn't believe beyond a reasonable doubt that he was the shooter but he apparently believed he must have been in the car and that's how you run it if if i mean it seems that the judge thought ok well this witness saw him he knows him he knows it's car he's familiar with him he must have seen him through the window and in the commotion he was confused about whether he was the shooter or not i that's what i'm extrapolating to judge must of thought well you must have thought you know we can do quite frankly on it i respectfully i wouldn't speculate all we want here but the the truth the matter is there was one witness and he said mr black was the shooter ok but your defense at trial focused on shaking the credibility of the state's evidence cross examining the witnesses and asking the trier of fact not to believe it i didn't hear in response to judge friedland's question any indication that you would have offered evidence that he was in sacramento on the night of the shooting or some other evidence to put him anywhere he  that is very simple i mean i put myself in mr black shoes for instance if i get charged with a crime and the allegations are throughout the entire proceedings up until the verdict the allegations are that you are the shooter i'm going to defend that charge based on me not being the shooter but but in answer to my earlier question you still didn't tell me what additional evidence you would have introduced had you better understood that the aiding and abetting fieri was being the car in order to better give the shooter an opportunity to fire the shots and that after the shooting the driver of the car accelerated at a high rate of speed  and quickly turned at the end of the block in order to make good you want to get out and if that was the evidence of aiding and abetting on the part of the driver isn't that what the tripod i would be great evidence if there was anything any evidence implicating that he was a driver you  as the de one issue i think petitioner is trying to make this argument about subset of california law and what actual notice he could have had based on that we can't even get to that point because petitioner has not shown and indeed cannot show that there is any controlling supreme court precedent governing no no your honor we don't know why ok first of all sheppard as circuit court precedent and this is what the lopez court found is entirely irrelevant to this issue because it is not controlling supreme court precedent so that's number one even if this court were to analyze this claim or in this vote standard apply shepherd shepherd still an entirely different case shepherd deals with a forty year old decision of this court that this court has found on many times since to be a very narrow ruling dealing with an extreme set of facts where defendant was  essentially i think is the court's word ambushed by the prosecution the court found there to be a litany of prosecutorial misconduct violations there that is simply not what we have here moreover in that case the issue was notice for felony murder whereas this  claims he did not have but i understand his argument but our first point the primary point that i want to urge as i did my briefing is that because there is no controlling supreme court authority on this issue as the lopez court made clear sheppard in cases like shepherd simply have no relevance petitioner wants and the court also found as i was saying that a petitioner cannot rely on circuit court precedent like shepard to sharpen or refine a general position of supreme court authority into a specific rule that the court itself has never actually rule or annou so for this reason we can't even get to shepherd here are cases like shepard but again even if we did under dover review sheppard is a fundamentally different case and moving on briefly to the d to issue it's a challenge of several questions about what the trial court found so far for ninety eight the judge says that he doesn't find beyond reasonable doubt that it was willful deliberate or premeditated and says he's going to find a lesser included offense can you explain to me what the lesser included  fense was that was the conviction at that point to be honest your honor i'm not entirely sure i know that he was convicted of attempted murder i'm not sure what the lesser included offense i'm going to what what i'm wondering about is that language where the judge says i don't find that it was willful deliberate or premeditated but then it seems like to have attempt you need to have something like willfulness anyway and i'm a little bit confused about what what the crime was if it wasn't a willful crime that allowed attempted murder to be the conviction he wanted to be honest i'm not one hundred percent sure about that language i know that he was ultimately convicted of attempted murder pursuant to that conviction the court necessarily must have found that he proceeded in a willful and premeditated way i think certainly the facts him but we would urge this court to address this or analyze this claim the petitioner makes not under d two but actually under the one given that it was as was the case in lopez it next question of law in fact regarding the court of appeals factual determination in the effort to reach a legal conclusion about whether petitioner been put on adequate notice so to the extent petitioner challenges factual determination is made by the court he must do this under do you want but again due to a distinct lack of controlling supreme court precedent any deal one claim here must fail i'd like to move on in my remaining time to talk about the prejudice issue the decider simply can't show actual prejudice even if you can get through the one or two his defense a trial as ron has noted was that he was not there at all that he wasn't present the witnesses couldn't identify him falsely identified this car the police had it out for him whatever the defense actually was but given that defense it is difficult if not impossible to see how had he been given say greater notice that he could be convicted as nater in a better beyond the information beyond the police in every hearing it's difficult to see how his defense would have changed or how the result of the trial would have been any different beyond that petitioner tries to offer in the reply brief and again here today an alternate defense he could have presented namely that he was in the car of the driver but somehow did not share the intent of the shooter but the simply no reason based on the record to suspect that such a defense would have worked any better beyond the fact that this is a speculative vent they based on the evidence he did not presented evidence he cannot talk about because he doesn't know about it the bottom line is that this defense was entirely inconsistent with the defense and he did present that he wasn't there  and this is the more important point what is this defense that he wasn't there or that he just wasn't the shooter you know his defense was that he wasn't there that it was mistaken identity that the witnesses couldn't have identified him never mind the fact he ever said he was somewhere else i don't believe he said he was somewhere else he just said the witnesses couldn't place him there they said the witnesses despite the fact that were burgled the witness in the backseat identified him i believe he said with seventy five percent certainty that it was that he was the shooter he claimed essential he wasn't there at all that there was it was all a case of trial judge rejected the defense argument returned correct his father testified was he the only defense witness your honor i'm not one hundred percent sure if he was the only there were only at most one or two  i can't recall if it was anyone beyond the father so he was there any evidence putting him in the car other than the testimony that he was the shooter yes your honor there was evidence putting him in the car the fact was that the fact that the witnesses including carlos identified the car itself the silver chrysler that was closely identified with petitioner carlos lived i think several houses down from petitioner was familiar with the course or knew that the brother sometimes drove the car and other people as well sure but this was sufficient evidence to place him at the very least in the car you take not only the evidence of the car the fact of the witnesses said on several occasions they had only ever seen petitioner driving that car before and after the shooting and also the fact that is that right where their witness is said that only seen petitioning the carcass i thought the test mony was that the brother drove the car also that he wasn't the only driver of the car carlos the victim the main victim the front seat said that he had only ever seen petitioner driving that car before and after the shooting so there was evidence placing him in the car you know where that is in the  head that is heavier correct so do we know anything about who the other person was comparing to no we don't you are but this was evidence again painting or creating a factual basis in support of the court of appeals finding we're not talking about sufficient sufficiency of evidence per se but whether there was a factual basis supporting the court of appeals factual determinations here the other point i want to make is that the car the evidence shows the car pulled up very closely alongside the victim's car within about two or three feet the shooter reach his hand out the partially open window shot several into the car before the driver sped away at a very high rate of speed so you take this evidence of the getaway driver and his actions combine the fact that the trial court found this was very clearly a gang motivated offense  member all of this presents sufficient evidence to say that if petitioner had presented a defense that he was in the car but somehow did not share the intent that defense would have failed there's no reason to suspect that petitioner was somehow just a mere innocent bystander california law and this is a quote from a california court two thousand and thirteen is unsettled with a california short form pleading practice without more confers constitutionally adequate notice of the prosecution decision to proceed on an  implicitly charge alternative legal theory but that's not the question i was asking the question i was asking was whether or not under california law and aider and abettor is punishable as a principle and the answer it is that question is yes yes but no it's not clearly established that even  see what your response to the state's argument that there is no united states supreme court case directly on point that requires that as a matter of the sixth amendment due to two to five point to anything that shows that mr black was in that car other than being the shooter if in fact the testimony from carlos to me it was insufficient as a matter of law to show that he was in a car meaning being the shooter what evidence do we have to point that he was guess your argument is i don't need shepard to win i don't necessarily need to shout out so it's a yes or no question i mean if you do then then it is a case that your i don't need it to win in the sense that you honor if you take thought your argument was you didn't have notice but what's the factual i think you're making the legal argument but notice you want to factual i want to make this very clear here because i think this is a very subtle point but easy to forget the evidence here point one one piece of evidence said this is saying that he was the shooter period there was no other evidence other than mr black having access to that car before and after the shooting that he was the driver or otherwise present in the call at the time the shooting nothing zero evidence a court of appeal said and the notice issue said the reason why we're going to uphold this decision is because mr black in fact he said you know what your testimony is good but it's not good enough for a criminal conviction then how can you jump from that and say well i'm going to believe he was in a car i couldn't use it as proof beyond a reasonable doubt that he was in the car maybe you could but the