as applied in this case section eleven awake could properly be applied to my client's case but there are a number of points that we agree about and i thought i'd start with one of those because cindy we agree that the test for resolving this question comes from carmel versus texas and that quite test really has two prongs basically crime al says certain rules of evidence may be applied retroactively and those rules are what they are what the court costs ordinary even handed rules that don't impact for alter the burden of proof so it's seems to me it's my burden to show you that this is not an ordinary even handed all of evidence and that it does impact the burden of proof i have been notoriously unsuccessful in doing that to da e but that clearly is my burden so i'm going to i'm going to take it on right now so let's look for a minute at the first of those requirements to be even handed require before i think everything you said extract it comes from footnote twenty three we talked about ordinary and he describes it as a rule that can apply equally to the state and the defendant and we're really not going to have any dispute in this this isn't where the case is it's really not about whether it's even handed i don't think this found solace in a stand up and tell you it was an even handed rule it isn't it was designed to benefit the state it's only used by the state and it only benefits the state so the real crux of this case is the question of whether i can persuade you that as applied in this case section eleven  alter the burden of proof and it did in two respects and let me back up actually before i talk about how it was applied in this case to say there's another area we agree on and that is that before section eleven zero eight was passed before  six in california juries could not rely on disposition evidence no matter how what burden it was proven by what it was by a preponderance of the evidence or by reason beyond a reasonable doubt juries could not rely on that evidence to infer guilt that much we agree on how the jury in this case was given an instruction about how to use this evidence and this is the instruction i have been unable to get and i was frankly unable to get the district court to look at how this instruction impacts the carmel analysis the jury was told in this case it could rely on the prior acts to infer criminal disposition and it could rely on criminal disposition to in for guilt that in two ways through the burden of proof within the meaning of carmel first and this court is familiar with this do you mean does it alter the burden of proof i think it all to the quantum approve necessary for conviction is instruction was developed after eleven o eight and i appreciate your honesty gesture that this is really a complaint about the instruction but what it really is and there's never been any dispute that this instruction was designed to and did reflect section eleven a disposition evidence is simply one piece of the puzzle this becomes a case simply about the admission of evidence and we know from crime other suspects that texas that a rule that simply permits evidence to be admitted that's not an issue the question is does that alter the burden of proof in this case understood and pursuant to section eleven a weight the jury was instructed it could rely on disposition to infer guilt this case is just like carmel because prior at the time this act was committed disposition evidence could play no role in the process that led to guilt and certainly not a jury couldn't be instructed that disposition evidence was something on which they could infer guilt excuse me i mean i understand your argument  raised had the suggestion been raised that we can't consider what the jury actually did with this evidence i would certainly have have looked into that issue that was not a defense that the state ever raised to be sure as i say i've been singularly unsuccessful in getting anyone to talk about the impact of  about what the jury was actually told and how it was told it should actually treat this evidence the state has never suggested that we should ignore how the jury actually treated this evidence and certainly you know i see nothing in common sens that we put blinders on and say well just look at section away and ignore what the jury in this case was told it could do with the evidence now it may mean that the whole thing in this case it's extremely narrow because it applies only to this jury in this case and that certainly from petitioners perspective is not a problem but there is very little of this fused that the jury was told it could do something with this evidence that could not have been done when this crime was charged with allegedly committed i'm sorry and that's that's exactly the type of retroactive application the carmel talks about your honor i see i've only got a minute left i would you it's a purely procedural statute going to be admissible legitimacy and that does not in any way affect the burden of proof of the crimes in this case to include the instruction which by our which first of all it's been approved without this evidence they could not have convicted the defendant and that's what the carmel test looks to without the second corroboration in carmel the jury was allowed to convict now on only one essential one element of an offense that is not the issue in this case there are no there is no evidence of this prior conduct that goes to the elements of the offense it's simply up permissible inference that may or may not be found for an element you must find that if this were an element of this were comparable to a burden of proof the jury would be required to find that this prior quick points to make in forty seven seconds the first point your honor says question about state court decision i did read it last night and i have it here again in fact the state court quotes the instruction in full in the text of it's opinion that's at your page eight they they quot literally full council made a statement about the fact that the amended instruction was given not the one the court considered and gives in and actually it's a bit of a misstatement because the court instructed on this twice prior to the evidence coming in the court gave the exact instruction that was held to undercut the burden of proof in gibson and then at the end of the trial in and the mass of jury instructions that were given to the jury it gave a different instruction the amended instruction