defective instruction five feisty the court of appeals in california and the other side saying the jury was told that the defend to the jury was told they could only convict the defendant if he had a clear deliberate intent to kill which was the result of premeditation and deliberation that's correct however the aiding and abetting instruction was also given i know but it says that if you find that the killing was preceded and accompanied by a clear deliberate intent on the part of the defendant that said the perpetrator that might be one thing but it says the defendant why isn't that the dispositive in this hay vs case in the court of appeal said the jury was told they couldn't convict  he had this intent and that that's what was left out of the ending instruction thing but here it is in another part of the instructions however the court gave the instruction however the jury was given the demon court of appeals pointed to this and said when you get to the bottom line the jury was told that the defendant had to have been demonstrated to have the intent to kill however if we looked at the finding that the given it's possible that the jurors relied on the aiding and abetting instruction to find him as the perpetrator of the offense without finding the use of the gun allegation and that raises the problem because it is conceivable that the jurors use the aiding and abetting instruction we're not sure and the question is how do you think if they use the aiding and abetting instructions how would they get the first degree murder if the jury saw conclude that my client titian or problem in this case because given the evidence which is not overwhelming the court of appeals stated that the evidence was compelling compelling however it only refers to the fact that fishing was present at the scene of the killing and then refers to the fact that one of the witnesses overheard van driver discussing your client discussing the shooting is retribution for robinson's assault on coleman's for a crime well it was not only presence it's he's talking about it right what he states is that he overheard three men discussing the shooting linda tollner said when she asked him about it he that might just try one side and use the other facts what do you have that would counter that and show that the court of appeal determination with reasonable in mind the felt facts well petitioner had maintained that he was there as a witness so you have no other facts you just simply have an interpretation of the facts by however given the facts of this case we don't have a determinative evidence to show you don't have to use you so this is this is reasonable another interpretation may be reasonable also your interpretation may be reasonable also but the court of appeals accepted this determination this isn't necessarily a reasonable this is another reasonable interpretation of the m s however to factor a certain the jury certainly seem to think so however the facts don't support the conclusion the question is given the evidence that was presented at trial could the jury necessarily have found the specific impact which was omitted in the instruction that's the question whether the book did the california court of appeals that the way the case developed it was clear to the jury that they had to find intent before