determine whether there was an unreasonable application of either fact or law and with respect to the jury instruction issue and mr turner space we look to the last recent state court opinion it was not only on reasonable it was dead wrong it's completely wrong  jury instruction challenge to the preponderance lading pre disposition instruction was rejected and it's actually in the excerpts on page forty four they found that that instruction did not lessen the prosecution's burden of proof because the jury instruction quote closely resembled the instruction approved in people versus fish in fact it didn't if you find by a preponderance of the evidence that the defendant committed a prior sexual offense that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charge defense that's the instruction they use now in california so if find by a preponderance of the evidence that he committed the prior plans ok then the next step is the one with a stark in trouble because the next one they start saying if you find that he committed the offense then that can prove the prosecution can meet under this instruction the prosecution can meet its burden of proving the elements of the charge the fences with the preponderance of the evidence we're also concerned that the timing which also was some versus new york in which the supreme court says the due process clause of the fourteenth amendment requires the prosecution to prove every element of a criminal offense beyond a reasonable doubt so that's the clearly established supreme court law did we have we have no way of knowing how this affected the jury and this really goes to that the actual crimes to the core it's far more structural defect that a harmless eric effect in this case because if you can't told is the government has the burden of proving the fans the charged offense beyond a reasonable doubt ok the troubling thing i'm having here is i think the jury could very easily and fact that's really what it says it could very easily have said the prosecution only needs to prove specific intent five her father because the judge has told you the jury that the character traits the character traits of intending to commit sex with an under age to him and there's no examination of that unfair prejudiced by the california courts they don't filter that out in their practice at all they don't even look at the right prejudice one of the actions were made in that direction well what happened  very very briefly talk about how it was  point seven one where you got three consecutive sentences for exactly the same thing and there's not it's a witch worth of indication that the california legislature has ever authorized that they can't cite an opinion  to have a prior plus one conviction in this case then twenty five a lot so he has he got that one time he got it but with the judge did he get in twenty five to life double that on instructed the jury that they could reach a guilty verdict only if they were convinced beyond a reasonable doubt that its mission or committed the offense charged in the present case so that was that was an extremely clear instruction that was given to the jury instructions and the parties arguments to show that pesky instruction does not violate due process and the same is true in this case we can look at the other instructions that were given for example that the jury was have to prove guilt beyond a reasonable doubt they were instructed that if there's reasonable doubt the defendant has to be acquitted they were instructed that there has to be a union of x and intent which clearly means that the prosecution had to show something more than there was a prior of proving the offense beyond a reasonable doubt he emphasized that a couple of times very strongly at the end of his argument also importantly the prosecutor in his rebuttal argument eg knowledged that the defense attorney's description of his burden was correct he did not dispute that description of his burden so that's an important point also sterling indicates that if the majority of the evidence concerns the current offense that would also suggest that the jury understood that it was supposed to find that the to spend it guilty or not guilty of the current offense beyond a reasonable you know guilty beyond a reasonable doubt likewise in the present case of the bulk of the evidence concerning the current d along with all the other evidence to determine if the elements have been proved beyond a reasonable doubt also smith said that the state courts denial of relief was reasonable based on a common sense understanding another point i wanted to mention was the you know the controlling a us supreme court precedent you know whether whether the state courts disposition the state courts in iowa belief in this case is contrary to or unreasonable application of u s supreme court precedent well the bottom line here is that the u s the crme court has not decided if a state law with violate due process if it permitted prior crimes evidence to show  discretionary exclusion of evidence safeguards the right to a fair trial ensures that devastating evidence with little probative value won't go to the jury likewise california evidence code section three fifty two is similar to federal rule of right that's that's actually incorrect according to murphy the california supreme court case that i cited in my brief according to murphy section six six seven point seven one authorizes separate consecutive is one or more specific felony convictions there is nothing in section sixty six seven point seven one that precludes additional consecutive terms when the additional terms arise from separate independent that missouri v hunter actually helps us because it says this as the federal defender pointed out that where the legislature specifically authorizes cumulative punishment under two statutes so that takes care of those two issues we understand you're ok all right cases and made them what we now have this coral for being other act evidence opportunity intent between saying two people in the same x the reason there is no supreme court case no no no but we're not going to reach the other one because it could never get to them so that may be a catch twenty two that i can't get over with the a deviate but that's the problem it's the fact that this whole court says we have never held that doesn't mean ok so this is the university of san francisco law school international students and they've had a tour of the court  ways i don't want to upset the man over here but in many ways the women are better federal grand jury and well there's been a lot of changes a lot of progress and i think it's a good thing with other circuits and i like every place i go everybody is very courteous and helpful and perhaps you might be interested in understanding that in the federal system so long as you're on the stand which my colleagues this morning are the rules with minor exceptions not permit you to sit outside your own jurisdiction but when you get older like i am and become a senior then you're permitted to go other places if you are invited to come and i thank jane schroeder in the ninth circuit for inviting me to come we don't have a lot of medical marijuana cases out in the rest of the don't have a comparable statute but well i'm not sure if you mean you know the fact that to use it an earlier time and made ruling we get along nothing rigid about it and what was gone on and so she told me she'd like to come to san francisco well i knew she'd work for a district judge and then she worked for another one and i said well canceling it's time for you to go she's been here and she's been a great asset to us we'll go back go back to your countries and help people to think premium to think for themselves and and the most important thing that we have to do in this stay home and let the women work