second degree murder in this particular case of the court knows he went to trial originally with two other defendants they were acquitted first degree murder but and out this conspiracy theory issue of the conviction was for second degree murder but as i understand it if the thief theory under which he was actually tried case and that in this case the defendant was charged with second degree murder and attempted second degree murder but the jury was instructed on a conspiracy charge rather given and the conspiracy instruction which in effect was to indicate that the jury could convict my client if they agree that he conspired with others to murder or commit attempted murder well under california state law can that conspiracy if the jury so found i mean just zooming that was open and shot the jury found that does the conviction become a conviction for second degree murder or a conviction for conspiracy is it a separate crime or is it the same crime in effect he wasn't expressly charged with conspiracy to commit the california supreme court ruled that conspiracy to commit second degree murder and attempted second degree murder is invalid it's not a crime so as a result my client was convicted of three crimes that didn't exist three non existing crimes only they only that they don't exist today as a result of the court in that particular case the court knows the defendant was charged with using a firearm in the commission of an offense and the jury was unstructured that all they had to do is possess the firearm to be that's an interesting case in cleveland are the defendants were charged with similar to the case and here here where the court  first degree murder but the result was that the jury acquitted the defendant of first degree murder and convicted him of second degree murder and so the issue on appeal was whether or not under the court's has ruling that a person cannot be convicted of conspiracy to commit second degree murder whether that was he was unlawfully convicted based on the defective jury instructions well the majority in that particular case went on to hold that a person charged with first degree murder and who is acquitted but thereafter is charged with second degree murder but juries also instructed given a conspiracy or a conspiracy instruction that they could convict him of conspiracy to commit second remember is that essentially equivalent to a first degree murder case and therefore the court held that the only reason why the defendant in that particular case west convicted of second degree murder rather than first degree murder is because the sense of leniency by the judge by the jury they wanted him a lesser sentence murder and the jury came back with their as they said a conviction for second degree murder and based on the conspiracy instructions now in this case the defendant unlike flexible in this particular case because the jury did not have a choice as to whether to convict defendant of first degree murder or second degree murder as they did clete case they only had one choice of whether to convict him of first degree murder second degree murder out of this and of let's say convict them of the lesser offense because of some sense of leniency or towards the towards the defendant and also since you brought up cleat i w on the other hand supports my clients to double jeopardy argument which was an uncertified issue but i brought it up because i agree with my client that it was a merit first degree murder in this case but under double jeopardy the person cannot be tried to ice for the same crime and it wasn't wasn't he acquitted of first degree not second degree used in this particular case  result if my client was can convicted of second degree murder he was in effect convicted of also first degree murder which would be in violation of double jeopardy because he had previously been convicted i mean acquitted of first degree murder theories can support murder charges in california murder is totally a separate crime from conspiracy to commit murder they have different elements and different standards of proof now i'm really confused about how this all comes together because it support a murder conviction and you're not required to agree the jury is not required to agree as to the theory all they just have to agree that that you committed the murder what happened here is they charge a conviction will say second back here and they don't the jury doesn't have to decide if great because he's only been tried on for second degree murder so there's no decision for the jury to make in that instance when they use the conspiracy instructions they never in the first trial or in the current trial  there was never anyone killed all basically they pulled him over for a traffic stop and i found basically hitlist and his weapons and i think he was charged for conspiracy to commit murder and drew was given a choice in that case the first or second degree as a conspiracy charge not conspiracy as the theory for conviction is right you can use conspiracy to commit first degree murder but not second degree murder and in this particular case we don't know what theory the jury used in convicting my client of first of second degree murder there was a definite evidence so if the jury they couldn't convict him of first degree  was particularly incriminate him because he was actually the only one who seen with a knife mike the jury in my particular in this case ruled or came made a finding that my client did knife in the commission of the crime so the only reason why my client could have been convicted was based on a vicarious liability and if he did if they did that if that's the basis then he was convicted of conspiracy to commit but when you use our theory and instruction to that you to the jury the thinking victim a person accused it of second degree murder based on conspiracy theory i