involuntary instruction it lessen the state's burden of proof that everything be proven beyond a reasonable doubt because the elements of the crime were not properly presented i'll just a minute let let's go back it's my understanding that you did not object and have not objected to the instructions on the first degree murder or the second degree murder what i think is the second degree murder your honor that that had the fullest second degree murder what you're suggesting is we're talking about the second degree murder of the fetus it's my understanding that your objection in that is that if there is a problem it's in the fact they could have convicted of a lesser included rectum so but as to the first degree murder instructions and the second degree murder instructions without regard to whether they're in it was a mistake in the lesser correct on that and if there's no obstruction objection to those instructions then i guess what i'm worried about is this it seems to me that if you failure to properly instruct the jury on the state law would not be a federal habeas file ation correct well we just a minute i'd like my question is the failure to properly instruct the jury under state law a federal habeas file ation it can rise to its can and that's where we're going next in other words in order to rise to it it's got to be so eron in the context of the in jury instructions as a whole and there must be no reasonable likelihood that the jury apply the erroneous instruction in a way that violated the constitution right destruction or so said another way the government must or relieved or the air must to relieve the government of its burden of proving each of the elements of the crime beyond a reasonable doubt that's correct so what we're really talking about here now is did the instructions that you've not objected to so were they so it were only as in the context of the whole that there was no reasonable likelihood that the jury could have applied them wrongly rightly and i'm having a tough time with that because they didn't even get to the instructions you object to they convicted them of first degree murder and second degree murder of the fetus so at that point failure to object to those and having been convicted of that i'm having a tough time understanding how that meets the federal hey be a standard it might have been a problem for state law i understand that  instructions to the way we give mass to be a certain way but i don't see how it meets the standard as to a federal hey b s problem what you are i might requote the case of doe vs a buzz be where the  says what we presumed jurors follow the instructions they are given we cannot equally assume they can sort out legal contradiction but just a minute if you're not objecting to the instructions for which the person was convicted and then i have to find the high standard about eroni s in the context of the jury instructions i don't think you meet they may be a standard with a lesser convicted we are a lot of the cases talk about infecting the jury the case the trial that it's infected to the point where you don't know that you have a fair or correct outcome we think it infects it because when this is presented to the jury they are presented these they are not convicted of any of the crimes for which you feel the instructions were not correct they were convicted of those you do not challenge and now applying the federal assume struction which is a high level of instruction i can't see how you get there well first of all obviously we agree that it's a high standard the problem is the trial court for instance assumes that even if the instruction was given correctly that would matter which i think is what the court is trying to say what i'm saying is supreme court has yet to determine whether the jury should be allowed to consider the lesser included offenses before being convict of the more serious offenses they haven't determined that i mean and i don't know we've got a law that says certain things but the supreme court's never said that and so now here we are in fact they said we express reserve judgment on what the due process requires that and sound now you're saying they don't say whether you've got to have the lesser included first they don't say anything about what the lesser included necessarily needs to say that's all state law the instructions for which they were convicted were approved you didn't object how do i get to a happiest problem when the trial court is instructing the jury and they're instructing them in correctly and when they they can flate these instructions together and the jury is hearing it they're not in the jury room going to count one that the murder charges they're hearing something that is totally conflated and not clear once you do that you're infecting the jury because they're deeper argument that's that's our argument well let me go on it's my understanding california found nowhere in these for think is there one i don't know no there is not so there's nothing the supreme court has said that california made an error in their instructions even if they are the california court said this was harmless that's correct your honor what supreme court case said that this harmless determination was unreasonable i don't how the supreme court that writes it says oh here we are i've gone you know all away through the questions that i wanted to get to high camp find the hey b s well again again your honor what our position is is that what's happened is is that the trial court says well even if it's a correct instruction the jury would have assumed and understood that when they were told or not not told on the omission of the crime commission of an act resulting in murder they would assume that it didn't require conscious disregard of the truth that's an assumption court makes is a factual error it's wrong you can't assume the jury's going to understand that your honor california there's nowhere in california said even if it's there it's harmless it has to be a reasonable interpretation of the facts and the law your honor that's what we don't think is reasonable we think the trial court the appellate court in this case the appellate court made in the sumption it didn't have the right to make that when they went ahead and made that assumption your honor they're simply wrong it's not correct to assume that you cannot assume the jury's going to get these things correct and we think the jury didn't get it correct because a trial court found enough evidence of involuntary manslaughter give the instruction and we argue that it's really an involuntary manslaughter case but at least there's sufficient evidence of that and so when the court makes these assumptions the fact that the jury's going to understand these confusions and understand all of these things and straighten it all out in its mind we don't think that's correct at all and that's really what i think out there was no objection to the first degree murder charge the jurors were who were instructed very carefully on how they were to consider the charges and one of the things i just wonder either you may consider these different kinds of homicide in whatever order you wish but i the trial court can accept a verdict of guilty or not guilty of second degree only if all of you have found the defendant not guilty of first degree murder as to bertha louise that did not happen the juror never got beyond that first degree murder conviction and found all of the elements were satisfied it never reached that second degree murder commented was not a model of clarity the court that i'm sorry the jurors never reached that they did reach it however as to the fetus as to the fetus they looked at the first degree murder instruction they found the elements not met they then went to the second degree murder instructions found the elements met and there they stopped so this is a jury that was very intelligent very carefully parsing the instructions and they applied them without error and because there is no error this does not rise to the level of a due process violation and there is no  relief on this claim the district court was correct and i would ask this court to affirm the district court's denial of the petition i have no course now thank you thank you well again your honour's very briefly is our position is that the conflating of those instructions created the problem that the assumption that the jury handled it correctly that they were nice in order went through through the first degree in the and then didn't look at the second degree the problem is the way the way those instructions came out is second degree was conflated with you know involuntary manslaughter in such a way you couldn't really do second degree with involuntary masseur without doing a second degree murder charge and the problem is is that when those two are conflated together you create all kinds of problems to that jury and that that the assumption that they did it nicely in an order is an assumption that's all that that is and there's no evidence of that we don't know how the jury reacted how they have approach these jurors jurors don't always follow those those particular instructions and we don't know how they in protest proceeded and when they had those two things conflated together and when they were