instructions that were given at the time from the child gets the california standard jury instruction for you in this case i need you would heard briefly to the trial this evidence was introduced it was introduced two times through prosecution witnesses and the defendant testified and it vetted at the conclusion of the case the trial judge in connection with this evidence in connection with other evidence having to do with the discovery of a small amount about wiring marijuana paraphernalia in a house  jurors an instruction to instructions actually pursuant to calculate section two point five zero and two point five zero point one as they were in effect at the time the first instruction says that  evidence of the commission of a wrong or crime may be considered by the jury there was a connection between the other offense and the one with which the defendant was accused such that it could be inferred that if the defendant committed the other offense he also committed the crime charged in this case then this instruction was coupled with an instruction the funny part of the evidence that the trial judge gave the instruction because he can see that it should be given and i believe it gave it to a spontaneous as is the obligation in the california trial courts because he perceived that that was evidence of a truck but there was nothing about this innocuous evidence that call for that instruction to be given and the only thing in the evidence which a reasonable jury could have  can't be thank you i should've clarified that it was not it was not given at the time some of the introduction of the evidence concerning i wanted it was given with all of the other instructions i think of the case and this is where the terrible specified sexual conduct and and or domestic violence infractions from the previous time and that is what i thought the court was focusing on as as being was there ever an argument that the spanking was a crime and therefore should be connected up with this proponents instruction yes  look let me if i could address that first of all judge mckeon i think your point is well taken and it's fair to say there is that distinction that you just drew between gibson and the instant case that is to say they say instruction specifically alluded to sexual offenses of domestic violence of fancy them gulf with the usual predisposition but i think that is a a legitimate difference but in this case with out of legal distinction because the instruction although slightly different in its wording had the same effect that is to say from the proof of the other effects it was sufficient with means clear or similar language s offensive language of the nature of the previous offense really doesn't matter in light of the fact that what you have in all situations is the instruction to the jury that if the media suspense is shown and it's in g more the practical effect that trial in terms of how this was argued yes the answer to your honest question is there was no reference of argument by the prosecution that this previous act with a crime but there was repeated reference to the previous spanking of the older sister there is another point that i feel i need to make and that is that in this case we don't have to go on the basis of inference or speculation there is in this record two separate times where it became apparent that the jury was relying on their own new standard in public to their decision at the conclusion of the jury's deliberations they returned they were home and a mistrial was declared as to the murder charge on the two seventy three a charge which requires proof only that there was an assault which a re declared a mistrial there was a colloquy between the four person of the jury and the judge in which these four persons asked questions about the reason process and part about if the evidence is reasonable equally balanced between the defendant and the prosecution were to give the benefit to the defendant are we not and this colloquy occurred right in the courtroom like at the time the verdict of the two seventy three  b was returned and before the jury was discharged so it was clear that this idea that there was not a requirement of proof beyond a reasonable doubt but instead this balancing and i jury the state of the record on that is that there was no request by the defense for the instruction given sue aspired to the judge it was and and so as i recall there was no specific objection raised in the trial court however the argument that we're hearing today is the first time that this argument has been presented to any court this this is not this is not the argument presented to the california courts and it's not the argument presented in the district court it's not even the argument to infer guilt based on previous crimes and and and and secondly the factual basis of the claim in the state courts and then to just report always was purely that the that  the the previous spanking of the victim's older sister was nowhere mentioned nor was any argument based on jury questions or anything like that so for that reason alone and so the claim was certainly an exhausted for purposes of patriots review was what was the argument presented to the last california court that dealt with this issue while as i said it it was a multifaceted  complaint as the grab them it was essentially that this that this evidence of the marijuana use shouldn't have been made at all because because it was inflammatory and would have allowed conviction based solely on crime the instruction in fact that the evidence itself was primarily based on on petitioners on acknowledgement during a police interview that he had spanked the older sister at one point but transcript the company court of appeals says that really the objection to having marijuana evidence come in and was linked with the jury instruction evidence that they linked those two together but then said we  measure the parties that this instruction was meant to address the drug evidence and not the prior spanking i believe mr the drug evidence was not clearly connected with the killing the prosecutor expressly disavowed any such theory disadvantage because i was not the attorney you handled the appeal in this case nor was i the attorney you handled the the district court proceedings in this case and so i don't know exactly what it instruction they may be referring to and  ok i just know their claims that were presented or feel an honest and i know that this connection between the spanking and the instruction was never the basis for any argument and the the court pointed that out as well and r pages sixty three through sixty seven where in the complaint about the instruction relies exclusively on the evidence of the marijuana paraphernalia and there's one additional point i'd like to address regarding  a modus operandi and as the district court properly pointed out as well the jurors were additionally instructed that they had to find each element of the charged offense true beyond a reasonable doubt the instruction referenced it before you can even use the evidence that's modus operandi evidence you must first there's an additional due process hurdle required you must first find that that evidence is  element of the crime itself and the jurors were told that to get find a conviction they had to find proof beyond a reasonable doubt as to each and every element of the charging fence and they were additionally instructed as to what they could do with evidence of inference this evidence if it was germane to anything at all in this case and it was and i think this instruction shouldn't have even been given i guess the judge just gave it in an abundance of caution but assuming that there was actual evidence that  might have been germane in this case under this instruction the jurors were first ok you can you can use that evidence to create an inference an inference but only first if you find that it would a preponderance of evidence and then  you do you want to if you will give you a minute if you want to add anything urgently otherwise you have an easier time i would like sixty seconds of trying to do it in l only specific reference that i need to make is this issue the issue of the instruction and this specific instruction was raised in a state court of appeal and dealt with on the merits by the state court of appeal the instructional issue was raised in the district court and raised explicitly in the opening we all did to be fair not without without the reference to gets but i think it's fair that the substance of the claim and that's what's despite or not whether a particular case is i think whether the substantive playing was fairly presented i think it's fair to say that it was secondly and finally definitely general