the situation where he joins a long in the situation turns out to be a robbery and the whole issue was whether or not he knew about it and at what point he knew about it the defense argued that the trial that he only knew he never knew about it at all even the point robberies what he said play robbery that's what he said a silly response apparently have that same evidence was presented at the first trial your honor i think the evidence i believe convinced i think you know we don't interview the jurors and don't have their statements as to why they had a hung jury the first time and concluded six of the jurors probably did it that first trial six of them did not have their first trial and all i can say is here in the first row no but we're here to talk about when he joined in the intent and more specifically whether or not there was evidence to support the idea that he joined in after the shooting on a california law if you join in after the shooting and can't be responsible for the murder everyone agrees on that and even though everybody agrees the district attorney's contrary was wrong the question is would it have made any difference on what how it went against the tactic of the lawyer and so forth so i told very scary if it's your theory that was a play robbery what difference would just political structure have made any way of teaching consistent with both resolve around revolve around the police no instruction i totally agree with that well there are not defense counsel should have made that request and whether or not the court those are very sick different issues analytically on the i ssue the council may have made a strategic decision for exactly the reason you're arguing that the first jury hung and he might not have wanted an instruction my client may have joined this on the way out by hiding prosecutor walked up in front of the jury and said ladies and gentlemen it doesn't make a difference all that stuff about whether or not he joined before hand doesn't matter at all because under his own words as soon as he picked up that kind of touch that he's guilty at that point which the da didn't argue until rebuttal and didn't argue with the first time and waited till the second time to make the second the second trial at the second rebuttal argument at that point there is no tactical reason not to request that theory on that well it does feel things when i was just saying i don't believe the court might have i believe the court might not have had as powerful a suicide bomb to the obligation if there can be sometimes if we can  however what did the jury what are the judge leave them with instructions point and face that argument even having made that argument one instruction of the judge leave them left with the instruction that says how long does a robbery last from the beginning until they find instruction your honor that says that if you refer to the correct instruction that's what the jury should have done that there wasn't any correct instruction regarding this point given by the court that's why i say it magnifies it exacerbates the situation that's why i say at that trial but the state appellate court didn't have any declaration from trial counsel or from a stricken expert or for anybody else a reasonable attorney wouldn't do this so what the court of appeal and the regard to that is that one possible tactical reason for not requesting the instruction was it would water down the defense theory the question is is that an unreasonable or arbitrary application of strickland to the facts of this case and the answer that yes in light of the jury being instructed that arguments are not evidence and the fact that this was a rebuttal argument the very end of a very strong case that there was no possible prejudice from this  last we don't need to decide whether there was a still sponte duty because in this case there was no prejudice now that it's not entirely clear but the way they analyze this instruction under the old version of the watson test for instructions which is cured by other instructions then when they analyzed the prejudiced promise of this instead of using chapman a reversible per se they appear to be d a defense not an element of the stance that that there's no duty at the outset to instruct that if you join the live robbery late that your not guilty of murder this is something the defense can raise and then they can request an instruction on it since it's not an element of the offense it's an affirmative defense there's no denial  process which we don't think you can what the court of appeal found if i recall correctly is that given the overwhelming evidence in this case which was a surveillance videotape a mask over his head five people are still testifying that he told them he planned this robbery from the outset and his own testimony which defense argued that he had no specific intent at all that there could be no possible prejudice under any theory minute left the question about whether or not there's overwhelming evidence may have had a lot more strength to it had this not then the second trial after the identical evidence was presented to the first trial for the first jury and it was decided to split six six to say that this is not a closed case as a result of that no words that whole first trial which i don't think it's appropriate for us to do the fact pleader was six months before him probably is why it wasn't in the minds  of the defense counsel but i don't know but the question of whether or not to sue a sponsor a duty of the court i believe at that point in time when the district attorney makes this misstatement of law to the jury and encourages them to find in the statement to follow the wrong