the first issue in this state prisoner havey this case is whether the numerous repeated statements by the prosecutor during his closing argument to the effect that there is absolutely no evidence  failure to testify or whether the comments were such a character that the jury would naturally unnecessarily take them to be comments on the failure to testify and we believe that the  defense and the defendant has to believe that he or she is in imminent danger of injury and that subject to believe has to be francisco over south the market and somebody who's fifty pounds heavier than me and very very drunk and high on drugs and outweighed me by fifty pounds the cost may demand thirty dollars t me he's bigger than i am he's stronger than i am and i'm going to give it to him and then starts to make a motion like he's going to hit me i would certainly fear that i was about to be in something and i think any reasonable person  and so the prosecutor had ample notice that that was a potential problem he had time to craft his to some nation to avoid the problems and could have been done why didn't these other people come and testify he looked afraid why didn't i mean they understand griffin and i suspect when they talk about that person bar prosecutor from commenting on the state of the evidence and then they jump to the conclusion that in their context the prosecutors comments examination of marine sciences the defense witness the prosecutor asked and this is on page forty seven of the supplemental excerpts of record  prosecutor as described butters vavi as he threw the punch and butter was a nickname that appellant had and i don't know why prosecutors in other people in court feel like they can address defendants in this kind of case better  the deceased made a motion look like he was going to strike the defendant in the defendant punched in reaction to that motion so when the prosecutor says there's there had been not circumstantial evidence he would not have gotten instruction of self defense because you don't strike most of the fans unless there is sufficient evidence to go to the jury with that defense so there was circumstantial evidence so i want to is governed by and there is nothing resembling a dyno review of the decision at issue here but only whether it's an unreasonable application and giv which requires to show he had an actual fear of bodily injury coming so every time there is a reference to actual belief he is referring to language from the instruction was extremely drunk and amazing that he was able to even be on its feet and then they walked away that's totally consistent with anybody who acted in self defense mr schonfeld said that if he was approached think in terms of the prejudice i probably would wait if i if actually i probably would walk away from the person in costume and i don't think that's right in self defense for the fly did the person fell probably way for the police or the ambulance that i'm not a poor defense in this we're not talking about a single isolated comment we're talking about repeated hammering away at the same point so the least a half a dozen times and i think he didn't flinch but no actual belief good morning i'm michael rothschild i represent her happy i'd like to discuss today or continue a discussion that we began in our supplemental brief about how the factors in the smith case united states supreme court when applied to the facts concurring opinion smith what we had in our supplemental brief with regard to the intent effect test which is really where we have to begin if we're looking at the intent of the legislature in this case let's compare it with the alaska sta statutory scheme and smith registry maint first sex offenders in alaska is maintained by the department of public health which is a regulatory agency in california it's maintained by the department of justice which is the chief enforcement officer of the state of california in alaska the notification from visions are found within the health safety and housing code and the registration provisions are within the criminal procedure code no matter which contains numerous consecutive numbering for example with sodomy incest forcible sexual abuse of the small child and so forth in the state of alaska the act itself had no procedures of the statute moving to the effects of branch intent thanks tast in alaska the disability presented and the restraint was minor it doesn't restrain activities sex offenders could proceed but leave them free jobs for residents to move in california you have to look beyond the penal code for some examples of the dry county and penal code section two ninety now there's no doubt that there are some people who have to register under to ninety who should most likely be in prison the rest of their life and clearly never ever get a teaching credential but the problem with two nineteen and this is my reference to justice souter's concurring opinion is it's overbroad and an example we provided in our briefs the eighteen year old young man to so here we have a young man who decides for whatever reason with his girlfriend they don't want to go all the way get caught he has to register as a sex pervert and he's treated by the education for the same way as a sucky sexual psychopath and a person found to be criminally insane so we have an over breath rick problem here continuing in alaska  need not update their registration in person in california the registrant must personally go to the police station sheriff's department and register within five days for example of their birth they can't simply ma card and you must consider and one can't ignore the california three strikes law because there are people being sent to prison for twenty five years to life in california for failure to for life that's the other extreme those that register are the usual suspects it's the this that actually goes back to the eight hundred seventy two statutes where they talk about rounding up the usual suspects so a person that's registered has a higher chance of being in a lineup of being possibly god forbid falsely accused of another charge so that is something that follow always and that ties to the fact that in california unlike in alaska one has to register as a sex offender for the rest of their life in alaska for their less serious type of offenses it was only fifteen years requirement that justice souter talks about in his concurring opinion and smith i won't read the quote you have it in our supplemental brief that is what he is talking about there is something that overrides all of  example and if you look at footnote five of the majority opinion and then read footnote five of the casting on this case which says they are expressly not going to apply the intent affects t there you have a discretionary call that the trial judge makes upon the facts of the case and says this person is dangerous and this person should register and it avoids all the over breath requirements that justice souter was concerned casting i have no quarrel it's that part of section two ninety which and the application of it which does there are a rational relationship to a legitimate so that's what was before the california supreme court and cast you know it also had a unique factual pattern in that case also in that the law was changed to either subdivision we're talking about here was added discretion to decide whether to have registration or not and three the high court in california expressly this is a valid and declined i think this about decline to follow or apply the federal mandate as far as evaluating for ex post facto and i think that's a very very very important point the final point before my time and sat because i'd like to reserve about a minute to minute to have if i could place in looking at the intent behind  we just step back a little bit the federal statute that has mandated megan's law throughout the united states is tight federal funding for criminal justice grants the fight believe if i recall correctly whether or not they have that statute is entitle quote the crimes against children and sexually violent offender registration act this is found early on in the smith opinion crimes against children and sexually violent offender registration  now compare that to sexual battery in california as we discussed in our briefly tween a male and an adult female in a bar absolutely inappropriate conduct absolutely appropriate for a court to intervene but is this the kind of thing where someone would have to register for example and then if they went to college after they grew up and got hopefully more mature have to report to the campus police that they're registering the dean of students back to the campus please a state court i don't know that it was it was formulated precisely that way and i know that the state court decision and the court of appeal did not did not discuss that yeah but we did make it in the eastern district and whether or not his due process rights based on a claim of inadequate notice were violated the state court decision on both these points was not unreasonable and in fact supreme court cases registration law california does not require unlike alaska that advised of the registration duty be made a part of the criminal judgment rather notice is given after the time  conviction by either the prison authority or the jail or the probation officer that registration is required so it's not part of the judgment although my colleague notes that in a plea bargain situation there is a california supreme court case have currently an internet site we have a site can only be out which can only be accessed by the public if they go into a police station present california identification and prove that they're a california resident and then they can look at some of the register once a year unless they are in the snow category of transience and in california unlike alaska judicial determination of rehabilitation can relieve some of the standards of the duty of lifetime registration in alaska there is no relief early for registration in this case we don't have a college student in this case we don't have somebody who is eighteen having sex with a seventeen year old girlfriend consensual act unique facts the offender was notified when he was released from prison in the early eighty's that he would have to register for his crime of assault with intent to commit oral copulation and what no one noticed was that that offense had knowledge of the crime and to register so that is what both the appellate court in the state and the district court looked at did this particular offender had actual knowledge or the probability of such knowledge of his duty to register when t at that time so he did register being given the official notice that he was required to and he complied with the registration statute to further times while living in california every time you change your address as a registrant you must notify the hundred six it was four years after the california legislature realized that that be complication of tonight he had omitted his crime from subdivision and up to ninety although it always remained in the penalty subdivision so there's no for saying well gee i registered but i wasn't required to have at the time know it as far as the record shows he believed and he did have actual knowledge at the time that he returned to california that he was required to register there was a court information when he was first convicted but somebody said well there's look after in the statute it's probably a mistake but you know it's you don't have to register and we'll pick that up with a legislature but right now you don't have to register and then he leaves and goes to texas and he comes back very different situation than we have today when someone is convicted of a sex offense but in california i can speak for the state because i do represent a sex offender registration unit we would not advise prosecution that an offender who had never been given don't i don't have to register if i change my address anything else because the law doesn't apply to me and i registered but i did fill in correctly the first time leaves and goes to texas then comes back to california and in the interim california corrected the omission now what would happen in that case well again we would still have to show that he had either knowledge of the probability of such knowledge so you're saying now he has knowledge that he he doesn't have to register but in fact of course in the interim in his absence four years and someone doesn't happen to look it up i mean isn't the same person who was originally told he had to register in the later learned it wasn't true anymore when he returns to california at least i notice there's a possibility that he may have to register that the law may have changed he should be at least on advisement and should check the statute to see how it now applies to his restful whether is offense has become in the interim time that he was gone from the state because he knows that at one point he was told it was dreadful he's learned it was in the air but he knows that there's a possibility that sex offenders may have to register with the state so i would say he's on advisement or he's on notice that he should check at that point he had previously been and should be a registered sex offender until he was investigated for suspicious incident of following a jogger and string part pornographic photograph in her path so i would submit to the court that even in that would know that assault with intent to commit are copulation is not someone who must register on this form then you look at the circumstances within which mr happens he signed it ten days before he was released including registering you go back to prison that's the factual pattern that the record confirms this occurred with him once he was off crawl he stopped registering and that