fine thank you you can hear a song i can hear you perfectly and i'm sure i'm sure it's a spectacular day in seattle nice cloudy skies verdict was satisfied the argument of the dissent and of the attorney general is that there remains some part of the verdict but the heart and soul of the verdict was that mr taylor was the shooter and when that w taken away when an actual innocence finding was made there was no verdict as he didn't argue actual innocence of the crime he might have been not the shooter but he was still there and it was a felony murder and therefore he could have argued i suppose but did not that he was actually innocent of murder well he did at all long because right then and so the crime was in eighty seven and the timeline shows that really there is that there is no windfall to him that went for all these years since ninety seven has been to the state at the new trial motion he told the judge your honor i'm not here to say i wasn't used that defense but he did not yes and he invoked his right to remain silent and he is invoking his right to have a jury decide whether or not he was guilty of the problem i have with your position is the jury found him guilty of attempted robbery and a murder occurred during the robbery why is he not guilty of felony first degree murder under california law for which he was properly sentenced to life in prison he was found both there are two special verdicts both find that he was the shooter so his role  t matter under california substantive law if a death occurs during the commission of an attempted robbery you are guilty of felony murder whether you pulled the trigger or not so the fact that the jury decided he was the shooter we now know to be erroneous is legally irrelevant to whether he may be punished for a felony murder because a death occurred during the commission of the attempted robbery there are only two ways that he could be guilty either he was the shooter or he was an aider and abettor so the jury found he was the shooter which was mutually one hundred percent consistent with finding that he but they also found him guilty of attempted robbery as the shooter well maybe there's no maybe your own theory was instructed that they could find him guilty either as a principal or as an aider and abettor and the evidence is clear that the other person in the robbery actively assisted in the robbery by tripping or obstructing the flight of the waitress who was trying to run that and his statements to the to the court his statements to the prosecutors who wrote letters to the california court department of corrections saying we believe he was not the shooter we are convinced he was not the shooter we have investigated th case post trial and we believe he's not the shooter he admits he was there so therefore he had to have been the other man but they told him over and yes that's correct but the other men deny anything of that and they told him over and over again i think if the evidence shows that the other man actively assisted in the robbery by preventing the flight of the witness who was running for help that would be for a subsequent jury to find no i don't mean that's in his petition s c r eighty eight eighty nine when he when he was taking too long he didn't know where the gunshots were coming from he saw a woman but he pushed her to the floor he has that in his petition it collided with her his his statements in the fifty four page transcript when they met with him at the prison and interviewed him was that he collided with her and collided his his his to vision all along is has been that they collided not that he cackled her or pushed her and that he was with her and then he fled yes they both fled together but his his what he told them all along and what he testified to was that at the preliminary hearing was that he went there to the pioneer chicken and that his cohort was going to go to the bathroom and they were casing the joint and then he and they they told him the d a and the d m vesta gaiter and the detective said we don't want ninety nine point nine percent accuracy you have to be completely truthful to us if we're going to consider using you as a witness what do we do with the fact that he stole the the vehicle that was used as a getaway car and drove the vehicle after the robbery isn't that sufficient to find aiding and abetting under california law you know that would be accessory after the fact or and it's to vehicle was stolen after casing the robbery location in preparation to aid the getaway that is aiding and abetting the robbery is it not that's like supplying the gun that's going to be used in the robbery now aiding and abetting had that's not dating and abetting liability and my misunderstanding california substantive law yes your honor aiding and abetting has has three requirements the first four with this he would have to be the internet better that's hundred lines any possibility that because you know under california law my question is if you steal a car that you're going to use in the commission of arar bery and thereafter drive it is that get away is that insufficient under california law to constitute aiding and abetting a robbery yes he would have to have the specific intent of the principle that principle has to have the intent to go to the pioneer chicken not just any random place go to the pioneer checking to rob that place but he said he was casing places for robberies and then they went to the pioneer chicken and he admits that he was there and he says that when they went to the pioneer chicken it was go to the bathroom so there's i mean what we're y that a death occurred during the commission of the robbery and there's lots of evidence to show that he was actively involved in the robbery so i'm trying to see how it is fundamentally unfair to recent and see him as the state did he to life in prison with the possibility of parole the focus of whether its structural error harmless error the focus of every court is on the verdict we do not ignore a jury verdicts we do not erase jury verdicts if this court were to find that a judge can't replace a jury verdict it would be the first time in history that we can do the race and replace procedure a directed verdict would be that result no case allows that when what the cou rt had granted motion for judgment of acquittal on the the shooter aspect of the case and simply sentenced him for felony murder on the attempted robbery would that have been ok entire verdict but counsel you did move forward judgment of the as to the special circumstances which was denied right but you asked the judge to knock out the special circumstances and leave the good the guilty verdict in place that's exactly what the california supreme court ordered the trial court to do here how can you fault the california supreme court for effectively ordering what you asked the trial court to do in the first place i didn't ask them to do that mr taylor's attorney in the alternative asked for that lesser ok well not you personally but your side mr taylor asked the trial court to set aside the special circumstances and leave the guilty verdict in place isn't that correct in the alternative sure i got it i got that part but you asked the trial judge to do that would you have then taken an appeal from the motion that he just granted in your favor and told the california supreme court there was a violation of the sixth amendment to grant the motion you asked for would i have taken that appeal i would have taken that appeal but that's not the situation we find ourselves in the situation we find ourselves in is the jury's entire verdict was set aside to say that any part of their verdict remains would be to ignore their their verdict it's loud and clear they found that he was the shooter they said it twice the true finding saying that he's the shooter at two we are sixteen two we are seven so we cannot ignore that weather and the concurrent insight then why did you ask the trial court to set aside the special verdict again i didn't ask for that was that i didn't understand i understand mr taylor's counsel at the time why did mr the trial court to set aside the special circumstances if that would have been sixth amendment era to have asked the trial court to do that because attorneys make mistakes all the time and it's like asking for a porsche or a volkswagen if you won't give me a it's not a hypothetical council it's in the record it's what it's what you asked the trial court to do and you got the remedy that you asked for others on invited here well the invited error is really what the people did in this case and what the people did and i give them credit for half doing the right thing but to say that they completely did the right thing and are being punished for it is incorrect the right thing would have been in one thousand nine hundred nine when they wrote a letter to the california department of corrections and said ok we have to set aside this shooter verdict we know he's innocent of that when he came back for he should have come back for a reset and not for the sentencing but for a new trial so by being half good i don't think the state is being punished and and when the dissent talks about this huge delay and maybe he can't be retried at this point that's not his fault he's been trying since one thousand nine hundred ninety six fault is that the truth wasn't known at trial the cause is just aids we don't have a requirement that defendants take the stand but he knew and he elected a high risk defense hoping to persuade the jury he wasn't there at all he did who in the courtroom knew the actual facts and didn't come forward was that the state but we don't punish i understand that the did the state know the actual facts is there any actual mistake or error made by the prosecution here no there is no not at trial  recent kharia says that prosecutors do have an obligation to correct inconsistent verdicts it would be a manifest injustice for a prosecutor to try one person as the shooter and then try another person as the shooter the prosecutor and the investigating agents and every single prosecution person on this case who looked at this case was convinced completely convinced that mr taylor was not the shooter so convinced that they went after mr hayes they tried mr hayes that didn't work out he got an acquittal because of course there's reasonable doubt when first the witnesses are saying one guy's the shooter and then they're saying another guy's the shooter that is unfortunate that is a travesty that the shooter is free but that's the price we pay for our wonderful and i'm not saying that ronald taylor is completely innocent of everything of course night he was involved in a string of robberies with mr hayes he admitted that he admitted everything decades have gone by we're coming up on thirty years so there's i don't think there's really a wind farm and he's going to be up for parole in twenty eighteen but he probably won't get parole the way the way things worked out he deserves a new trial speaking of our wonderful system of justice this is an advocate this is not in that the kids respond in ways that was not this case to no so unlike many cases where the ninth circuit gets reversed this isn't one of those twenty two fifty four g cases so we're not going to get reversed no matter what we do well i think the prudent thing even though i can firmly believe  structural air because i kept trying to fit a round peg into a square hole and see how does this work with harmless error i think the prudent thing for the court to do would be to i mean whether or not you want to find their structural error i think it is but it's also ross i'm sorry what do we do with frost we had an uneven track record with the supreme court when we declare structural oir or even really i suppose it's actually think insisted we get reversed every time we find struck right i do believe that the supreme court is nar guilty as the shooter whether or not he actually had the weapon in his hand when the robbery was committed that would be error or constitutional error in the instruction but doesn't that fall right within hedge paths that we would apply breck versus abramson and determine was a constitutional error was harmless beyond reasonable doubt yes and under hedge pat as this court did on remand from the supreme court you look at th instructions the evidence and the verdict the verdict is the most important thing and also internet or you look at the verdict you don't strip the whole away and ignore it but it might have pathetically the verdict is based on instruction isn't right so that would be an instruction error case this is not an instructional eric case but yeah underneath factual error case you can look at would there be another way that they could have found him him guilty and i'm giving you one which is the aiding and abetting and the murder occurs during the commission of the crime that he's eating and abetting as i think it would be whether structural or brecht analysis it would be a reversal because if the judge is saying you can find him the shooter even if he's not the shooter well that's clearly erroneous and that's not the law and i don't know how that could be harmful problem though is that it's felony murder and in california as in many it doesn't matter whether he's the one who pulls the trigger or not if the jury finds that well if the death occurred during the commission of the robbery that he participated in we punish him we punish him as a principle whether or not he fired the fatal proceeding and abetting is simply a theory of liability it's not a separate substantive crime correct well why can't we find from this record that there was sufficient evidence including the admissions that he made after the trial to struggle again this isn't sufficient issue and people but why isn't he liable alternatively under the theory of aiding and abetting even though the jury relied on the erroneous theory have that he wasn't the shooter so now we know that he actually did aid and abet the shooter now we don't know that was not himself we absolutely do not know that we don't know that he was not the shooter you just said we know that he didn't about it i believe that's what  said and we do not know that he had it and about it counsel i'm looking at two e r sixty one which is the verdict from the jury and i just want to be sure i understand what you're relying on there is in line seven the jury finds that taylor personally used a firearm now is that the same thing as the as being the shooter of the victim your honor your other provision that you're relying on and if the court doesn't have a hand you know look at sixty one the courts referring to two we are sixty one two or sixty one line seven we further find that commissioner yeah and so forth personally used a firearm is now is what you're relying upon to establish a special verdict that taylor was the shooter that and that's just what the court reporter that's actually i think that's what the court reporter typed down but on page two e r sixteen in two year seventy the actual verdict form and on the actual verdict form the jurors wrote that they found him guilty of first degree murder we further find out the murder of  was committed by defendant and we and we find that special circumstance true that he he the one who killed him and we further find the murder was committed by we had the murder was committed by ronald taylor and we victim is not necessarily the same or is it they specifically found that he was the shooter that he used the firearm and he's the prince i know he used the firearm is said right on page sixty one so there's only two assailants one is the is the getaway driver guy who you know collides into the woman and the other guy is the shooter so the shooter is the is the one who personal use a firearm and why do you have to conclude that he collided when the jury convicted him on the theory that the waitress was actually running out of the restaurant in order to out of fear in order to s don't don't we view the evidence the evidence here the facts in the light most favorable to the father you're out of this is not a sufficiency of the evidence case say never but we have to look at the record and i don't see i mean i see an argument that it was a collision but i don't find it to be very believable and apparently the jury didn't either this court would have to find beyond a reasonable doubt that the jury found he was an aider and abettor we know the jury did not find he was an  aider and abettor they found that he was the shooter well that's the end of the story we know that they found him guilty of the crime of attempted murder because tempted robbery because that was a separate count with which he was charged we cannot erase the verdict  he was the shooter and that's what they did or the answer my question yes he was in fact convicted by the jury and i believe it's count two of attempted robbery i believe the as the shooter so well that's not what count two charges charges the crime of attempted robbery which is separate in a par with personal use of a firearm the allegation is attached right so it shows that they found that he committed the crime by being by personally using a firearm so he was in fact convicted of attempted robbery with personal use of a firearm you can ignore that part of the verdict you're trying to ignore it and you're trying to ignore the fact that he was convicted of the attempted robbery or not but i'm not pulling it apart and trying to split it apart and divide and conquer course your you're trying to say that he couldn't be guilty of attempted robbery because of this problem with the firearm but the problem with your argument is he could be convicted of attempted robbery whether or not he had a gun or not if the jury found that he was there and that he was acting with intent to further the robbery the jury's verdict is mutually exclusive with aiding and abetting the jury found he was the shooter and the shooter can not aid and abet his own crime opinion the prosecutor's closing argument and the are in are there are no citations to you know to the record where that would support an inescapable finding that the verdict was that he was a and if i would like to reserve my six minutes if i mean they are from the s there was a federal constitutional error here we had simply the trial court striking a special circumstance and an enhancement but the valid remain remaining underlying convictions he was properly sentenced on those are the term five to life counsel let me ask a threshold question i notice that the district court treated this is an epic case yes and somewhere between the district court decision and the decision of our three judge the state appears to have changed its position why why does the state take the position now this is no longer an advocate looking back at the time that i did the briefing in the ninth circuit i concurred with the several years ago i don't recall exactly why but in my interpretation looking at the cases why i concurred with the interpretation of yells at that time now looking at yields to get in the cases subsequent i think would not apply and that the review review there is not a miscarriage of justice here there even assuming there was some sort of constitutional error the error would be really subject to review under brecht there is no structural error here position received a fair trial he received due process he received notice of the charges against him the state continued to give petitioner fair process even after the trial in moving as it did in taking the extraordinary steps to have him  have the special circumstance and the allegations stricken and have him reset and for the crimes that would serve justice and the third reason is that even applying brecht as in a harmless error review picked the any potential error here assuming for the sake of argument there was there did not have a substantial and injurious effect on petitioners case mr reynolds can i ask you do i understand correctly that the california courts found that he was actually innocent of committing the murder during the course of a robbery no no i well this special circumstance and that that special circumstance under california law could only have been found if he was the shooter so it wasn't that the california courts found him actually innocent of felony murder it was the special circumstance of murder of a special innocent of the special circumstance how could he be guilty under a felony murder theory because under the special circumstance the aider and abettor would have had to have a specific intent to kill and in this case on a felony murder that is not the case a felony murder and a better merely has to be an active participant in the and the attempted robbery in this case and the evidence in this case overwhelmingly establish there's no possible interpretation of the evidence to reach a conclusion first that petitioner wasn't one of the two men entered their chicken restaurant and second that the second man as the lookout was not an active participant in the robbery you had the two men shortly before the attempted robbery occurred steal a car shortly there after they go up to this restaurant the two men case the restaurant one of them goes into the restroom the other one sitting outside the car watching the front door and we have witness testimony as to all of this at that at a certain point the man from the restroom goes back in followed by the lookout who's takes a position by the front door and as soon as yet in the  r goes into the back of the restaurant and when those gunshots are fought fired the evidence at trial wasn't that there was a collision the evidence at trial was that the man serving as a lookout through that woman to the ground to prevent her from leaving the restaurant and then the two men ran out of the restaurant and got into a car an escape together in the understood but then he did he is found to be actually innocent of the allegation that he was engaged in a robbery at the time of the murder the special circumstance i call would you will i mean that was he's found actually innocent of that allegation so now how can a film any murder theory stand he the only way he could possibly be guilty of the murder would be by eating and abetting not by felony murders isn't that really no because felony murder includes not only the direct perpetrator that would be the shooter it includes anyone who is an active participant in that attempted felony attempted robbery under california law it's kind of a two separate step analysis and it was laid out to the jury that way in the prosecutor's argument the jury first had to determine felony murder and the prosecutor argued that both men both the lookout and the shooter were equally guilty and the evidence  that the second step was once they made that finding the term if there was felony first degree murder the second step then is to move on to that special circumstance and make a choice was to its mission or the shooter or was he the lookout and the jury here shooter was a separate allegation i'm not talking about who was the shooter that the shooting out there were two allegations they set aside right correct one was that he was the shooter not the shooter we're talking about one i'm talking about the allegation that he was in gage and a commission of a robbery at the time found to have been actually innocent of well under california law and this is the penal code section one ninety point two for that alegate for that special circumstance to apply the jury would have had to find that petition was made the choice of petitioner was the shooter they would have to make that that finding that petitioner was the shooter in order for that special circumstance to apply the special circumstance would apply to an inner better that doesn't change the fact that felony murder the underlying murder conviction encompasses both theater and a better and the direct perpetrator would could you take a look at the verdict yes which i'm looking at and it talks so when when it went back to the trial court for the sentencing the the things that were struck by the core were that special circumstance that the penal code section one ninety point two which is the second thing on that verdict form and that's where the prosecutor and the jury was instructed on this and i have the citations in the instruction supplemental exercise beginning around page one ninety one that talks about the underlying felony murder where all persons who actively commit or it and additionally about eight or better liability are guilty of felony murder then there's the second finding under california law which made it eligible for it to be a life without parole sentence a special circumstance if you will section one ninety two one ninety point two a seventeen that and the prosecutor argued this they had to find that petitioner was it wasn't that he wasn't there to see them determining whether he committed felony murder it was determining whether or not the special circumstance applied to petitioners case the felony murder arose because there was an attempted robbery and petitioner both men were active lookouts are active participants in this case both the shooter and the lookout so the other the national circumstance to cut to the change yes the first part in your view the first part of the verdict stands yes convicted of murder and then when you get into the part about one ninety point two correct and use of a firearm those are strong and then you get to page two my ration of the penal code with respect to the foul the robbery does that stand n two we are sixteen that remained so the trial court made no findings made no did nothing to to the underlying conviction it merely struck the special circumstance and the see how the analysis is different in this case where it was several years later that special circumstance and special and hansen's were struck i think it's the same result basically petitioner received the sentence that was just in that he was entitled to based on the underlying conviction that this really amounts to a known approach revisiting the denial in a decision to grant rather than to deny his motion i think that's a good way to look at it your honor yes so any error here certainly is not structural if assuming there and again and i can see in there is there is always carriage of justice here petitioner got everything he was entitled to and then some there is no constitutional malfunction quite the opposite he received a fair trial and fair sentencing at the evidence the trial overwhelmingly established both men were guilty the subsequent record of petitioners admissions reaffirmed that he admits that he was one of the two people he admits that he helped steal the car he admits that they were casing restaurants he admits that he knew the other individual had a firearm all of these factors demonstrate beyond a reasonable doubt that the jury would have found both the lookout and of the shooter guilty of felony murder therefore there was no miscarriage of justice in this case here thank you counsel for battle so if i may i'd like to talk about anything else and i have to ask you i don't believe that the attorney general conceded contrary to what you told us earlier that this is not an end the case well they had in their prior  conceded so for the most are what's your response to counsel in open court today i think his first take on it is correct it's the guilts versus not a maker is clearly established united states supreme court law that says you look through and reason opinions to the last reasoned opinion   well and has the attorney general changed positions twice sent well no because this and i've have experience with this when the attorney general remained silent regarding you know they just quote twent d and quote all the cases talking about deference but then they don't say whether or not deference is appropriate in a case and then when asked about it things can change at oral argument i've had this happen before in well one for the question from your standpoint is your business case is your case affected adversely if we were to find that notwithstanding united states supreme court law in right when shit sullivan saying that you can't just a race a verdict you have a right to a unanimous jury verdict and here that the jurors were you know the special circumstances and they unanimously found that he was the shooter which is mutually exclusive with aiding and abetting so for aiding and abetting they the jury would have had to find that mr taylor knew the perpetrators unlawful purpose they didn't find that they would have to prove that he intended to commit encourage or facilitate the offense and they would have to find that he aided promoted or encourage or instigated the crime and most importantly they would have to find that he was the aider and abett and because he was they found he was the principal it is impossible for them to have found that he was an aider and abettor what's your response to his answers to judgement humans question were he judge found mr taylor factually innocent of being the shooter and therefore the special circumstance that results in l wop the one ninety point two had to go away and the fire the personal use of a have life but it left him with a robbery and a murder conviction correct with the striking of a special circumstances yeah which is the judge finding that but the judge would have to find anything right why didn't the verdict right but it would have to be but it would have to be an implicit finding because for that verdict form to remain when you start cutting pieces of it out you would have to ignore the jury's finding that he's the shooter and no court has has ever done that whenever you look at any case whether it's structural error or harmless error the focus is on the verdict and a lot of times we don't know what the verdict is maybe they found he was an aider and abettor maybe they found he was a principle we don't know and we don't care because if one goes away we can just assume and we have a presumption that they relied on the other one this case is unique because that presumption cannot apply this case is unique because we know they found he was the shooter and that's why this case is distinguishable from herman every other case yes your honor if if the court had granted his motion for judgment in ovi wouldn't it have then proceeded to sentence him just as it did in two thousand and six parts well but that procedure has been authorized under california law california supreme court case authorizes trial courts to say to split off the special circumstances well there would have been anything procedurally wrong with the with the trial court granting the motion to chew that your the tailor's counsel made which would be here under a very very different argument here wouldn't you be arguing you would have to you'd have to argue that was ineffective assistance of counsel to have made that motion that's a pretty tough motion to w it would be a different argument