court should reverse the just or course denial of the ret i'd like to start with the state court's decision on the claim that there was insufficient evidence for the special circumstance felony murder the state court under reason after that so we're going to find highest but that's a matter of him long well i still think tyson applies because tyson is what level of evidence is constitutionally required for someone who is eligible the contacted at the tyson brothers engaged in that actively and engaged in every element of the crime is still the standard that we are to judge major which is and again and the stake or any kind of because the california court says so or because the united states death eligible felony murder special circumstance ok but is that but as you think a california court has big tyson in is that way or is that your position no i don't think tyson applies just because that's the constitutional standard that's required for you outside the standard place so when the court went through and looked at whether he was a major which is it then it overlooks several facts in the records it overlooks the fact that he didn't  is you're not talking about the point where she says she's already in the trunk and are having a discussion in the nd thing is that she was that he was involved in the incident where she didn't  what happens at ten o'clock in the morning he goes to drop her off that's all the marijuana and she doesn't pay for him and he then leaves then there's all these interviews series of events that he's not involved in and he's going at it what i think is that the next event though i think he might be in a quite go to planning i'm not going to get your way but isn't he michael when they decide to call valencia of lent is going to know what to do he's the one who reports back to the owner of the marijuana that it wasn't paid for and he is he not involved in all of that well he's sitting there he's not really disgusting and his it's his roommate brother's marijuana so he says they're kind of having this is going to use present for for it but he's not participating in it he's not thinking yeah i need to get the marijuana back he doesn't go for it he doesn't ask them to get it doesn't go with that he doesn't ask them to get it back  lindsay already procured this bottle of gasoline you don't have the gasoline but it's not clear it's that he's going to spray her with it it's not quite clear what's going to be done it's not there there's ever a discussion about what's going to be done  they had the same argument which they had basically the same argument they brought their dad and the other guy out of prison they armed them they flagged down the car of the innocent family they had the same argument that they didn't know what their dad and this other convict were going to do until they did  o i'm not sure that the distinctions you're making are helping me very much given well even if we take the knowledge part out of it i think ok they were engaged in just much more active calm i mean they themselves were pretty sure in the weapons necessarily know what they were going to do with the gasoline even though he helped carry her into a boat but after they got her i or i don't know the area but ok after the after she was set afire what is the answer to the question about whether we should consider his conduct after that because at that point he knew clearly what was happening and it was horrendous so then what the answer is yes we do consider it and even we need to consider it unfair to other after the translation whether or not the officer is i mean this translation as i have to the record is a little bit confusing because the author is translating as they're going through it's not like a court certified translation and so threatened again carla well this is the implicit threat which started as part of my next argument about arrests where the lens is going up to him and grabbing his sleeve and yelling at him and the argument was that the california state court had ignored all of the surrounding circumstances that contributed to finding an implicit threat the fact that he's grabbing his arm and walking in that's the car and yelling it and there's also a woman down in the trunk there gun in the car valencia's high on him that he's been out for daisy this violent gang member he's already explicitly threatening him not to talk the lens he has also violent group of you know friends is also around a sort of back up for him culpability in the murder and doesn't mind but i i it was to me the most interesting in training thing is there seem to be some way these two things were running at each other because some of the evidence relied on as to why he was a major purchases and seemed to be things that he was a threat not to do well i tried to weave that in a little bit apparently didn't make it clear but i mean all of you a lot of what he was doing was just standing there absolutely i mean he was really was in the back seat of his own car along for the ride for much of this and i understand you know he is helping her get out of the trunk and i understand he started this whole thing but a lot of it he's president and the state court is basing this major purchase on him being president while other people are doing other things he doesn't object he doesn't stop it those are all positive actions and like your honor said as he was told don't even make a peep she's going to recognize your voice don't say anything right and i think that's right so that  other way on major participant the but they didn't and the burden of proof that you've got here is really tough why why was this finding why would a reasonable jury couldn't decide this because what it does i just that but i just think he's nowhere close to the you you know he let his car be alone he drove her twelve hours before he ever gets back involved and he helps take her out of the trunk which palencia orders them to do and there's no evidence he even knew that he was are actively involved every single detail when in fact crime and mr serrano is just nowhere close to that even folding in the dress on top of it i just think makes it even a stronger case that a reasonable jury just could not find stacy met younger hear about that that evidence i think is important can you tell me where is it in the type of timeline at what point you're sure so this would have been this would have been asked or he you know transported the victim in the marijuana and after he dropped off the  the victim at the house to sell the marijuana and after the victim you know came back and he asked her you know where's the way but then on the morning right if not all that hours earlier isn't that right correct so so know when that happened well i mean it's early in the process and it's you know it's hard to say with this the morning or i don't i mean you have the same problem with the timeline i do i understand the sequence i was trying to nail down how many hours again that was early in the process before the senate left his carter's confederates so that's that's all evidence of reckless indifference it's all evidence that the defendant was aware of the possibility that the victim could revolving that after that point he would have been a major purchase but after that point go you have a human somebody whose car for something you thought was probably going to be or could have been a murder well yeah i think i think at the very least i think at this point we would have reckless indifference a there has to be a demand that the defendant participate in the cross so you see this crime at least the major participant part of that is being defined in part by whether he spoke up so it seems e i think they were away from right they were in a field away from the victim away from the car i mean you know how many minutes out i think my understanding of the duress instruction had one been requests is that he would have to show his life was immediately correct again the timeline it's what's the can you tell me i would have what is the duration what distance is there either temporarily or geographically between that statement and her being lit on fire let's see i think those covers occurred or the planning sessions sycamore house and so that he was in the trunk she was in the trunk yes he was in the trunk correct yes and then he stayed current if they occurred well after she was in the trunk how much distance could they have been temporarily well i'm not i'm not entirely sure if i can give you an exact time frame but i know there was you know she was a relationship between that she was in the trunk and there's a statement made about being quiet and i'm trying to figure out how much later it was and you explained there was a meeting at the sycamore house let me ask you once they drove her when she was in the trunk to go over how far did they take her yelling out he has raised voices irritated and then this is that too e r three hundred and fifty eight he says he grabbed him by the sleeve and then he wants them over to the car he grabbed him and led him to the vehicle not all the way so he sort of grabs him and pulls into the car circumstances i don't think the landsea has to say much for this to be an implicit threat given everything else that's happening but as your honor pointed out a lot of what the state points to is just not saying anything  as major as occasion but some of the other things that it points to letting her out of the car or lowering his car out those are also things that the other people at last you are telling him to do as done when you combine the direct evidence which i'm not sure that it necessarily