section two eighty eight days categorically sexual abuse of minors although the court has a number of times affirmed that the broom edina definition survives and that it's holding survives no case has ever gone back and looked at whether or not it's tailor  categorically sexual abuse of a minor even though it punishes the juvenile offenders and the second question that the court has never addressed is whether or not it's categorically sexual abuse of minors even though there's no harm psychological physical otherwise to the victim  we know that pro medina wasn't talking about juvenile offenders but california cases that it cited were not and did not involve juvenile offenders and certainly the focus of the case was the discrepancy in age with a minor under fourteen necessarily involves psychological abuse and it says because a child that young cannot understand the nature of an adult sexual advances that's what lopez so he said in prayer selma on the court although it wasn't directly addressing the same holding talks about the fact that there is a danger that force could be used when an older person is the quote an older person attempts to sexually touch your child so the focus is on the age discrepancy when an adult engages in sexual conduct with a child under fourteen what the court has never done and under moncrief under johnson the court is required of course to consider the least degree just conduct punished by the offense what the court has never done is look at the fact that california in fact punishes juvenile offenders for the same conduct there is in fact a statutory provision second welfare institution code section six which provides for the prosecution juveniles as young as fourteen these offenders not the victims the offenders as young as fourteen and so the question i brought another case people the cole which shows an actual prosecution of an offender at the age of sixteen and so the question  tell the purpose of the stand you just protect the victims that the under age the under fourteen year olds that's absolutely that's what the whole purpose is that's the purpose of the statute absolutely and because that's the purpose of the california completely disregards the age of the offender and it clearly disregards any harm to the victim so the question is whether this conduct is criminal or not under california law is it necessarily abusive is it the kind of conduct under this is a plus sixteen unhandsome and it's a crime of violence in needs to be abusive under the aggravated felony statute we're asking is it an aggravated felony no but but you think we're free to re examine all that in light of you know just circuit precedent also makes it a crime for juveniles to engage in the same gun yes and so the court has that would that be a reason well would that be a reason to say to  se abusive conduct is the fact that it involves adults engaging in acts with minors that age discrepancy in the fact that as running broom idina said a younger person is not able to understand the sexual advances of an adult implies of course that the person engaging in the sexual advances of a different sophistication that's the discrepancy that makes it abusive not just sexual conduct with a minor and what i can say is even if even if the court is because this conduct undoubtedly involves psychological abuse that's what all the cases have been talking about so the question then is under california law is there necessarily psychological abuse does that person can follow under is is really the only case that has examined the question to know about all the other cases said yes brown indiana survives what bro medina did is it presume that there was in fact such a psychological abuse due to the nature of the evidence to find that he was guilty because he had hugged and kissed that child that was all of the constant contact that he had with that child i think get them on the top with him and i would drop that right well he had taken into he had taken him out to outings and i think the relationship ended when he took that child in a friend without the parent parent's permission on an outing but there was there was no allegation of any sexual object it was sexual contact and but the court said basically we will infer the lewd intent from his other conduct with other victims but not from those victims because there wasn't and what judge a team of your you're alluding to is the fact that later on when they talk to the mother that victim for the purposes of restitution she says there was no psychological harm to him he's fine and says you know i think he just hugged him and there may not have been anything improper so what you've got is a statute that that the court of appeals of california has said we will be comfortable punishing people for a lewd hug a lewd kiss on the top of the head and whether or not that's that's conduct that we want to prohibit on the criminal laws in order to protect protect children is beside the point the question is is that abusive and it clearly isn't because the ninth circuit has said in order for there to be abused there must be either actual evidence of psychological or physical harm to the victim or is there something about the  times in the ten year period and very recently this court is held in published opinions the two eighty day is categorical sexual abuse of a minor well with that in mind it's not enough the government would submit for the defense to pick a case that maybe has facts on the lower end of a spectrum a claim will that somehow is enough to you know to write the tovar all these cases he needs to show something that's clearly irreconcilable in this court has said that i i'm referring to is eleven forty seven and they cite a case a california supreme court eleven forty seven yeah the federal reporter correct clearly irreconcilable there is no way that valente which by the way i think is cal court of appeal it wasn't cal supreme court it didn't purport to affect a sea change or any kind of difference in california law it's relying on the same case in  knew about this broad reach but what they said they needed judicial policy children under fourteen as a matter of law any touching with a lewd intent is abusive and i would submit that there is absolutely nothing wrong as a matter of policy or law with a principle in effect look at the view that my opponent is espousing if he wants to make proof of the actual harm the bellwether for abuse it might have some intuitive appeal but it actually ends up in perverse results what hundred ninety nine sanction was a very reasonable view that is a categorical matter to a da which only applies to children under fourteen that that a sexual abuse of a minor and again even if here today in twenty with california law and sure maybe we can cherry pick that the other one about the bikini game i think that was another lopez case you look at the wrong line of cases i mean for these two i could put a hundred in front of this court with her if it facts i didn't do that i don't have to do that i know the score is well aware of that there's certainly nothing that shocks the conscience or is unjust about holding to a to be categorical sexual abuse of a min court requires is for the defense to show a case that covers the least egregious conduct punished by the statue the people the martinez case that mr a he was just talking about has that quote for sure but if you look at the conduct in that case that was a person who went in and grabs young girls in public and almost attempted the kidnapping but the toccata the process there's no question that that was  he talked about in all of the other cases no question that that's abusive and certainly when he when he talked about conduct with younger children or contact with with sexual organs there might be a presumption that that conduct is in fact abusive but the question is is does this have i presented you with a case that shows that in fact there is none of use of conduct that is punished by california and that's what that case shows ok