your attention as to whether the degree of force a kill shot was warranted by government interest at stake in this personal ababil accident case where there was absolutely no damage to the against your client correct but there were so many errors i want to go through them good which i did good thank you mike my clients it's a new trial in this near fatal road rage case to prevent trial a new trial maybe warrant or warning if the trial was not fair to my client and substantial errors in admission we understand that what what areas would you like us to look at that you say demand a new trial did the be charged while he refuses brandishing a knife in a dangerous way that could be part of the circumstances is that right your honor he was not brandishing a knife and that's only that's only the japanese testimony but see that's the point we're past summary judgment we're in a trial i know and the instructions are formulated and we let we take a look at them not to know before an abuse of discretion what instructions are you attacking that you say client getting an unfair trial well basically that because we need of having a criminal trial and you have to understand your honor that eyewitnesses this is only the deputy self serving testimony about bernie fine we had a jury listen to all of the trial judge did not give did my request a jury instruction on provoking a confrontation this isn't a first amendment case and that evidence was presented to the jury but your honor he didn't give the special instruction with the guards provoking the incident and then also you want to just to quote you what case says that they had to give this instruction well it's you know the knife surf of the case did the deputy testify that that the that your client brandished a weapon he said my client never threatened him with a weapon what did he say he did with the weapon he d took well so this is the whole problem he you know the whole thing is but the question the question is a simple one ok did did mr carranza state that he saw them but he saw the knife the knife folded said that's what the expert did he goes i know what the case is and let me tell you what this is and they're there for there and you can look at the judge's order denying a motion for summary judgment and the judge only says that substantial evidence was with the bra and hired expert by the county that's all it was the eyewitnesses discounted what the deputy said got counsel the argument that you're making i think it's one that you made that you fairly made in your brakes which is that the verdict is against the weight of the evidence but that's asking us to overturn the jury verdict i know and that's tough i tough but but it seems to me that that everything that you've said so far is that you're making that argument not not that you really want to play around with the jury instructions or the expert witness what you really are telling us is that you believe that the jury that the that the verdict was against the weight of the evidence you might want to focus on that that's really your argument if it's not you did but then he didn't take into account the eyewitnesses counsel he does if you had done so it would have been reversible error for him to have granted a new trial on that basis he is supposed to take the evidence in the light most favorable to the jury verdict well but the whole thing is it was all unfair and it was it was all a bunch of lies is it may have been my counsel but that's why you let it go to the jury and you let the jury figure it out you tell the jury that it flies and you let the jury determine their demeanor the jury's going to hear your argument that mr carranza is lying ok look you know the expert wendy on the world twenty six with port correct that's one of my arguments you know that the and therefore this expert testified just before we went to the jury the expert got up on the stand verified what browsers said not taking into account the eyewitnesses of nothing and and went beyond twenty six we po d and you know that is clear air under rule thirty seven and some of the other cases that i've given to you you want to neutral also based on the c t scan yes because well you know the photograph t scans it was just there it was just the photograph but i thought your new trial said you were we went on a new trial because you had newly discovered evidence well after after the last trial where and when was the last excuse me if you wait until i ask my question and then i'll understand your answer i'm sorry i wasn't all that that should have been done before the trial shouldn't it was the technology was available in the sac cdma just were there why wasn't it done before trial you know what your hon was sitting in his car so you you didn't think it was necessary so you made a choice not presume to realize it until we saw all the lies he starts telling again different lies at the last trial the last trial he got  was over the limit which is what well you know the whole thing is that they took it in the merchant the room like two hours later and it was still over the limit yeah because when you take it from the emergency room you don't take it from the brain you take it from an artery it's forty percent higher i had a technology expert ready to testify to that and also even even though he had four beers during the day my psychiatry was in the opposing cell so i tighter said that he probably had a tolerance what people in this country who get into cars every day and drive other drunk the problem with being drunk is that it's it's a it's a self disguising disease and then it is and is a reason to be shot counsel that's why you got to go to a jury you had all the talk you had this substantial evidence you had two primary witnesses to this incident there were other third party witnesses they saw bits and pieces you had two primary witnesses one of those witnesses is a trained law enforcement officer and he's about what twenty two he's fairly young i think it was i want to say twenty four i don't know exactly how long how long you've been a law enforcement officer i think between one and two years and again i'm not sure and he wasn't it was a sheriff's deputy it was it was a correctional officer right well his conduct comported with accepted standards as testified to by the police practices expert clarence chapman now could he have done things differently yeah probably but that you don't even have that that the question on this  think i probably don't know that i'm serious though none the less there is no evidence in the record that he was impaired in any way on the contrary the other witness to this event had a blood alcohol level of nearly point three zero nearly not quite as measured approximately an hour after the incident so many long know what his blood alcohol level was during the incident so it's not surprising that the jury accepted the version of events that was testified to by deputy mike ross did did did your client change testimony in any material regard i know that he says there was something the start with the first question  changes testimony in any regard my understanding is that he did change things that he changed the primary thing that he changed was i thank you nischelle lee indicated to the investigating officer if you want to call that testimony at all all agree that the knife was being held by mr stan of all in his right hand he subsequently testify that it was held in his life to the left hand correct did he ever see the bladed anytime no my understanding is in he testified to that effect that the blade was cracked i don't disagree with anything you've said there your honor it was a somewhat confined space there wasn't room to move obviously because he was able to get out of his car and he was and he was concerned that he might be reaching for a gun  waistband it could have been in his waistband it could have been to the right on the on the front seat next to mr stan of all because which deputy brought which it was it was right handed if you pulled it off of the right that he still would have had to have pulled it across his body to fire through an open way either you'd have to fire through his windshield or you have to fire it through this this crack at this office or across his body at the very very awkward not exactly a fluid motion that could have been made not much of a fluid threat i would submit your honor that history is filled with incidents of shootings that have involved far more gymnastics if you will than that it's not a stretch to reach over the right and pull back it can happen in a split second exactly what are the facts that caused your client to believe that he was menaced with a firearm specifically with respect to a firearm i would cite clients that was afraid of firearms he was he testified that he didn't know if perhaps a a firearm or some other type of weapon was in total speculation or was there any any even scintilla of fact that suggested a fire aside from all of the occurrences that had happened up to the point approach the car i would cite to the fact of the brandishing of the knife that tells deputy barraza this man has a weapon and it's if he's messing with and a knife is where you get the firearm out of it's that's i mean i had a case years ago where a woman was in a courtroom she didn't like the hearing didn't like what the judge had to say she walked outside and put six bullets in his name and the outside of the room i mean she had a firearm nobody knew that possibilities that gets pretty tough ok the first thing that happened was the two bombs to the right are the freshest suggest the fire out right taken in and of itself absolutely not it's the totality of the circumstance that even ok keep going what else sure the first bump no big deal that happens sometimes and drive through a line you then have a small within a short period of time a second harder bump that means a firearm well no no keep going what sure when we get to the fire and then you have the person in the belligerents so the deputy gets out of the car this is this is before deputy bra's even got out of the car because he called out hey you're hitting my car and then she gets a response of f you pardon my friend f you go call the f ing cops ok we've got t taps two bombs two hits to his car we've got belligerence and cursing now he will be he needs to get out to see what's going on here we still don't know that it's a life threatening situation you know what you are into he didn't just get out of his car and look to see loads evony happen to have a gun in his hand with the testimony is that he didn't get his gun out until he saw them i know that there's some testimony that's different deputy br shows that he had his gun out when he got out of the car he said he wasn't drawing it but he had his gun in his hand because he was afraid to leave it in the comma is was unlocked and silly had it in his hand is there any question about that and the test on his record the testimony was he doesn't didn't want to leave the gun in the car an unsecured gun right but his time there's also testimony from deputy barraza that he didn't produce his firearm until he saw the night where was a gun that was caught and where was the gun in the car that he didn't want to leave in the car was and on his person initially and i apologize i should know that i don't think you know it's in the record i think it was not on his or her sister he subsequent right so he gets out of the keep he gra citations to the record my understanding is that there was he put the gun in his waistband because he did not want to leave an unsecured gun in a car once he left car so he gets out of the car with his gun he gets out of the car if it's on him he's not he now has his his handgun and when it went to take the phone out and hand it to the head of through the window you know i think there was testimony that he did that after immediately after exit in his car i know that i think we said in our brief that he he handed it to the employee through the window that may be incorrect i don't think it's a material change there's no dispute that he handed his phone to the employee and said hey can you call nine one one and it's not because he thought it was a life threatening situation at that point it's because he thought there'd been a traffic collision and he wanted to have a uniformed officer tom out to deal with the situation how much damage was there to his car up i don't think it was even visible of course he didn't know that when he exits car and that requires police to take police reports in los angeles they're not going to roll to something like that i think it was witt something i'm talking about the can never rule to something like two cars well at the point he hands his phone to the employee you don't just have the double taps at that point you've also got the f you call the police being said to him so he's like ok i guess i better better call the police isn't anything to do with anything but i learned on by about my second day as a deputy district attorney in one thousand nine hundred sixty six don't mess with anybody i had a case where two guys bump into each other just like that in a parking lot they're both backing out of the back and each other driver number one gets out and says you stupid son of a bitch watch where you're going driver number two reaches into his car grabs a machete and starts drop chopping up driver number one i learned just say thank you very much have a nice day  honor and this is a classic example i think there are a lot of people who wish that things had gone differently in this case but i don't think that it was deputy parata that escalated the situation it was mr sand of all who brandished his knife yes he brandished the knife there was testimony from process to that effect it doesn't matter whether opposing counsel thinks it's self serving the jury had the opportunity to assess credibility and they did so the deputy complying with a not with a request from somebody who's told you that he's an officer beckley i disagree he did more than just show the nine according to deputy or asa he kept waving it back and forth when i was a blade the boy was not deployed but i want to respectfully suggest to the court that boyd could have been easily could have been deployed in a split second and mr chapman testified to that effect because he has experience with those types of knives and one of the state's records it wasn't the knife he was afraid of on this record he says he was afraid of weapon and still at that point was giving instructions hey put the knife down he still didn't shoot at that point it was the brandishing escalated the situation and then it was repeated refusals to comply with keep your hands in view he kept pulling point his hands down putting them back up pulling them down the back of the field though that his his instructions were not consistent get out of the cars stay in the cars get out of the con don't move did didn't did something in that so i don't believe so your honor i think the records pretty consistent that he respects you repeated warnings and instructions to mr stand of all keep your hands in view and he repeatedly refused to follow why was it was a kicking is door deputy prophet testify that that was an attempt on his part to effect command presence which was something he'd been trained to do to get a card or get get the suspects attention make him hitting the mule with a with a stick and the kicking the car door i don't think they teach that a post i never heard of that all i can do is tell you what's in the record and it was unrebutted as far as i know you're lucky this case is you're on a jury trial not summary judgment well i wouldn't disagree with your honor but if it did go to a jury and the jury assessed credibility and the jury found that deputy brosnan's version of events was the true person now they just found that the case had been proved well that's true i amend my my statement i agree with you but if mr sand of all had proved that satisfied his burden of proof we'd have a different verdict he didn't do that the jury instructions were completely appropriate certainly there's been those selling of abuse of discretion what about the photographs on that basis those this case had been going on for years at that point photographs of the scene any reasonable turning would have known that photographs would be necessary the photographs that they took they took him and provided them to the defense counsel just days before the second trial and those photographs would have been taken months or even years why were they excluded my understanding is they were excluded in part you know you keep saying my understand that makes me nervous i don't really care not a criticism what your understanding is and i don't  minute that was one of the reasons what was the other is the other reason was that they lacked foundation there was no way of showing whether they depicted the events in question accurately at that time of the event exactly how many years later was that i like that with all due respect sounds like a poll and a guy's an idiot ok let's look at record one hundred nine he draws a gun before he walks back there there's a photograph it was on the video that we cut out no the jury did not see this because after the trial when you know when when my client got his mind back a little bit you have to understand he was dead on arrival at the hospital and was in the hospital for ever had heart attacks and everything and he didn't have his mind he took the video and took the grains out of it and came up with this photograph and know the jury didn't get to see it but you can see the gun was drawn right before he went back to light in the jury get to see it as i just told you because we didn't have it motion for new trial ok so you didn't you didn't prepare it three years three years later and you didn't you didn't prepare it in time for a second trial correct ok i'd give it gave this to the judge with regards to the motion for a new trial to show that the gun was pulled away from the from the first found out that he did it you know what what you have to the problem you face i think is that you've had two trials i know that's my problem and that's say if you're going to base that is the error if it wasn't presented the court certainly could make no but the judge could give us some he took that he took a year with regards to ruling on a motion for a new trial and this was a local to him to even prove you have to understand the george was was tired in this case by the second trial he worked on the bench he didn't pay attention but the whole thing is  just didn't consider it newly discovered evidence at all because i contend it wasn't no they discovered evidence because it could have been done before the trial your honor i wish i wish someone could have done we had experts after experts the carey has expert nobody went in and cleaned up that video that does not make it newly discovered evidence that's the point well it should be the evidence that should be considered by the jury in a new trial that i asked why didn't you go in and clean up that video before the second found one which the guards to the movie industry when they came out and started coming out with readings he found a program he could come in that would that would have these little features that was could be shown point is it was a preexisting program pardon it existed no not the program he ended up using to show finite detail when was the what was the program created i don't know what program i use i can ask him but he used the program so you know if you weren't if you weren't ready for trial you weren't ready for a trial action have been done before hand i'm not criticizing you we are an appellate court you demanded and asked for a jury trial and you got two of them and now you say well we got some stuff that we came up with  after the trial we get another one you know what that rarely works you know what your are at the record will show i went and because brian dunn was on the case and he dropped out of the case for personal reasons and you create you can see that this was dumb so me and i went in and tried to get a continuance it's a part of the record so that we could rework some of this evidence and this could have been one of them you know and the experts photo you haven't you haven't appealed the denial of the continuous motion aren't you haven't appealed the dial of a continuous motion you know what i look to the federal rules and there is and judge told me find something in the federal rules and it's totally up to the discretion of the judge you didn't appeal it though no i didn't appeal it because we know we had it what are we supposed to do with that you didn't ask us to even look at that until just right now yeah i did ask you to look at it now because this is the whole omeo of the unfair trial this is part of the unfair trial it's great that we've taken you well over your time and i think that we understand your position thank you i just want to mention one more thing and that's the that all of this circumstantial stuff that they've come out with the witnesses did not see the brains in the witnesses of the brought weapon the witnesses did not see and you have to understand if we went to the jury this i think your time has expired