my client george likely was wrongly convicted of voluntary manslaughter he had no intent to kill my no valid his attorney asked for jury instructions on the absolute defense of self defense and on the backup defense of involuntary manslaughter based on one voluntary to involuntary the two involuntary ones did not apply to this case any reasonable jury if properly instructed would have had a reasonable doubt whether my client form the intent to kill and would have convicted him on the theory requested by defense counsel had it been given tell us why you think that the involuntary instructions don't apply well the  voluntary instruction based on negligence specifically says that it doesn't apply if the crime was committed based on in attention or  mistake or something like that and that's the sort of the hallmark of the unreasonable self defense it's an unreasonable assessment of the situation and that seems to be ruled out by that particular instruction the o instruction of the misdemeanor manslaughter instruction based on prior and issuing begins by saying if the if the act is not done in self defense and of course that was the defense that it was done in self defense it doesn't say reasonable or unreasonable self defense and so it seemed to basically be excluded off the if you read those instructions also the california supreme court in its opinion has stated that those true and the reason that we think that the jury i believe didn't truly focus on that element is because when you take a step back and look at the big picture what was going on in this case the prosecutor was seeking a murder conviction based second degree murder conviction where he didn't have to prove intent to kill he could prove simply  only in a very passing way and the prosecutor mainly didn't argue intent to kill he argued implied malice and he based that on primarily flight and that doesn't really get to this issue of intent to kill or not intent to kill so the only defense counsel didn't need to negate intent to kill because you can have intent to kill in self defense context so the kill but we have a jury instruction and there's instructed on that and the jury found voluntary manslaughter under that standard so how do we get to prejudice in this case well we are i pretty likelihood that this was a compromised verdict the evidence was very murky the prosecutor conceded his witness credibility problems he suggested unreasonable self defense as a middle ground he articulated the wrong a wrong burden of proof he said in the abstract it may be difficult to find to figure out whether on the you know whether on the one hand that side is right on the other hand this side is right i may be difficult for either side to prove beyond reasonable doubt essentially and in also suggested an reasonable self defense is a middle ground and this was three days of deliberations this was a friday afternoon  it was very difficult to figure out what really happened here my client said he didn't have the intent to kill the other witness had tremendous credibility problems and i'm reasonable self defense basically fit the case much better than the involuntary manslaughter instructions that were given so i think it's very likely that the jury just figured that ok we can't agree it doesn't seem like it's this it doesn't seem like it's that we're going to settle on the middle ground which in the self defense case is unreasonable self defense and the only instruction that really clearly talked about that was the voluntary manslaughter instruction and i think that's what happened i don't think we can find that it didn't the chance counsel was had a way to approach this trial what he wanted acquittal backup wanted involuntary manslaughter and could have made that argument if she was given a simple instruction instruction that she asked for instead she was given two other instructions which didn't apply and when you're arguing the case you can only deal with so much and so i think they both kind of both attorneys just threw in this other notion but in reality defense counsel was hamstrung and couldn't make a good strong argument for involuntary manslaughter based on imperfect self defense because the court didn't give her that vehicle that instructional vehicle so requested theory be given to the jury so that the jury can apply the evidence to the law and come back with that verdict if it finds it appropriate and in this case the court refused to give the one lesser instruction  defense counsel wanted and gave three that she didn't want the two involuntary didn't apply and we're just unhelpful and just confused things more than anything so for this unlike other cases that we see in this case it was very hard to figure out what the facts were and i think that's why we can't really be confident that that there was a clear thinking union in many on intent to kill by this particular jury  no none of the briefs of opposing counsel and none of the court opinions that have looked at this case has spent one sentence on trying to say that this case shows intent to kill it's not there the prosecutor didn't even argue that it was time now that's a very murky fact to determine whether he had an intent to kill or not both of them were had been drinking that there was no pre present  counsels argument that it is likely that the jury because of the instructions given were impacted by the failure to receive the specific pinpoint instruction on involuntary manslaughter and i think that if if you if you begin by going through the instructions first of all we have you know this is a case where the jury's given the murder instruction given voluntary manslaughter give an imperfect self defense the flannel instruction given self defense and given involuntary manslaughter so they're given a range and i think that this is the strongest argument for why the supreme court concluded that this was not prejudicial is because if you if you start by looking at first of all the voluntary man structure involuntary manslaughter instruction which the jury was given says as one of the solemn an intent to kill and they're also given seventeen point ten which says you have to find any if you find that he did not commit the charged offense you have to find any lesser included offense beyond a reasonable doubt every element and they're given the the the voluntary manslaughter which says intent to kill so councils asking this court and the supreme court  had we don't under california law you have an actual but unreasonable belief in the need to defend yourself and her success defense that gets you voluntary manslaughter because it negates the element of malice and structure was given and that recently believing in the need to defend myself and up to that point which is what the supreme court said was that up to that point if you had no intent to kill it would be involuntary manslaughter and what they said in blakely they said from now on going forward even if you have no intent to kill like the federal system it's still voluntary manslaughter but that's a judicial enlargement we can't apply it to this defendant so it is a state law voluntary manslaughter they were told that they have to find an intent to kill the involuntary manslaughter instruction was also given and in that instruction it said it differs from the not from the defendant request instruction in the following way both start off i have heard by saying every person who unlawfully kills a human being without malice of forethought and without intent to kill is guilty of the crime of involuntary manslaughter so they got that instruction and what they found was since they got that instruction here's involve no intent to kill here's involved requires an intent to kill an affirmative finding of intent to kill it's not likely that the jury disregarded that voluntary manslaughter instruction and went ahead and found him guilty of it even if they believed he had no intent to kill and they also looked at the arguments of counsel and contrary to to counsel well under the under the prior under california law up to that point it is i mean it's i guess i'm having difficulty a question because it's a matter of sort of analytic i mean i think in in theory you once you negate malice because of reasonable self defense you have these sort of two parallel l and they are not like one is not lesser of the other but i think elementally they are because you're finding an absence of intent to kill whereas voluntary manslaughter assumes an intent to kill but in any reasonable sel involuntary manslaughter instruction in this case under california law the answer is yes and he got it and he got it right when he didn't get it was a pinpoint right reducing voluntary involuntary through imperfect self defense under california law it is really it gets it you're not going to find voluntary manslaughter unless you found imperfect self defense so you've already found imperfect self defense by really clear instructions that you've got to find all the elements of any offense beyond a reasonable doubt and so you look and you say ok here is voluntary manslaughter and it says intent to kill and then if you're the jury you say what i don't think there's intent to kill saying you know we have this prosecutor gets up and says we have this middle ground it's sometimes called imperfect self defense this is a situation where the killer thinks he's in danger but he's on reasonable and that leads us to the  manslaughter alternative which is either voluntary if it's an intentional killing or involuntary if it's not that's what he tells the jury then he goes on that's on the excerpts of record at page forty  then he goes on and i mean the defense counsel gets up and says now in the manslaughter context i would agree with counsel as he puts it it's either voluntary or involuntary and the difference is one of intent he goes on under the issue of you know he keeps going and so on the issue of manslaughter you have to assess whether it's reasonable and then you're going through back he goes back here next paragraph on page sixty six talking about the respective differences of the defendant did he have an intent to kill didn't have intent to kill this what he says that's the difference between voluntary and involuntary manslaughter and the answer there is you have to look at the timing you have to look at intoxication and i submit to you there was no intent to kill  intent to kill anyway a crime which requires that so i think i mean that's why i don't think it's reasonable to make that assumption so as leaving the verdict decide what's  and i think that the evidence you know we basically have is one witness who has a lot of credibility issues he's the friend of the victim who sues the defendant pull out i mean this is a case where the victim threw a beer bottle was the drunk misses the defen knife and it just money and one witness is that he does an uppercut and stabs the guy right not heart i think that's strong evidence of intent to kill his testimony he just impaled himself on the knife it was an accident and i don't think that's i don't think that that's strong evidence of lack of intent i think he did intend to kill maybe if the jury concluded it was reasonable he would have had a self defense argument but not a i have no intent to kill murders all the time on these he looked at me the wrong way and you know now i mean it's tragic but i don't think that this is a case where these instructions made it likely that the jury wrongly you have a few points earlier you said that we have to make a flight presumption that the jury found intent to kill and i don't think that's the case i don't think we apply a presumption otherwise there were never and there would never be any harm or prejudice when the greater instruction was provided accurately but the lesser but  hurdle versus morgan which i cited talks about the sort of situation where there's two material distinct theories and one is given one is not which would negate premeditation the premeditation instruction was perfect but it was the an element of involuntary manslaughter differ significantly from that of voluntary manslaughter and requires the trier of fact to make substantially different findings and this goes to the earlier question about what these other  element from intentional killing to unintentional killing correct that's correct because you still feel under the perfect self defense you say you are intended to kill under the own reasonable apprehension that i was about to be is that imperfect self defense assumes intent to kill i intended to kill under the only reasonable apprehension that i was about to be killed no i don't think it does i don't think it does in the language it assumes that you act i mean you can benefit from the self defense instruction he may have killed he didn't have to intend it so it's it may or may not it doesn't that the defense did not have to prove that he did intend to kill and the prosecutor didn't have he didn't have to prove that  you can get on reasonable self defense without intent to kill gets you to involuntary as they said it briefly at the beginning that didn't that was inconsistent with the courts that it didn't and therefore and the jury was told if there's inconsistent because there was nothing in these questions showing that imperfect self defense related to involuntary and there were more than one difference between voluntary and involuntary because of the special precise and convoluted