this course the grand haven is relieved to mr martinez because a state court decision simply cannot be squared with the entire record and with any reasonable construction of that record the government concedes that mr martinez made a full and complete invocation of his right to counsel during the interrogations so we need to get to what happened post invocation was or continue interrogation and if there was a waiver was the waiver knowing involuntary the california court of appeal found that mr detective navarro conduct was proper and found that there was nothing deceptive or coercive in his response regarding whether he could get a hold of the attorney and that he had no option but to book mr martinez the problem with this conclusion and with the state courts analysis is that omits it leaves out the most important part of the exchange which is when the varo told petitioner not once but twice that he had no option but to book him because he was not talking to him the comment is that because it's the because exactly are you going to be charged with murder because i didn't get your side of the story essentially that's what you're going in on the california court of appeals doesn't address that sentence the california california court of appeals addresses links up whether they can get a hold of the attorney and whether he has an option to book him and and if you just look at that it's i don't think it's terribly problematic but the problem is that's not what detective navarro did detective navarro linked up the invocation of counsel and the fact that he was going to be was going to be booked at that point because he was not talking to them and that's what i think the state court of appeals approach i think to be you know you that if he doesn't talk he's going to be booked and that's the inducement to keep the cases of said you just can't do you you can tell someone what's coming in the future you can tell someone the state of the evidence the government cites a whole bunch of cases where ther exchanges between a detective order or an agent and a suspect in the courts have said that those were ok in those cases but none of those cases have what we have here which is the inducement which is you're going to be blocked because you're not talking to us and that creates the so that's exactly what detecting the varo wanted to wanted to say wanted to imply to mr martinez that's exactly how mr martinez took it and that's the problem we have here which is the inducement the immediacy i cited to the court the rodriguez versus mcdonald case from last what about the statements that your client made afterwards in the aftermath of the house to the to the people right after the shooting on the day he ran to a home there's another mr lopez who testified about about my statements on the jury things but that doesn't mean it wasn't self defense when the event occurred and so you know those came in and certainly didn't paint mr martinez in a positive light but those statements were not inconsistent with having acted in self defense at the scene because because he could have said those things in the context of i shot first i didn't get shot exact argument because they're very callous statements that they're callous they're unsavory right but if you know but that doesn't mean that you know i smoke this guy  doesn't mean that i thought he was about to shoot me and so that's why i think that those are not extraordinarily strong evidence that the government says they are because those are still consistent with  the self defense theory that they had that they had to try your client stayed in that home for a very extended period of time after and in the immediate aftermath of the of the shooting friends did mr lopez the the mr lopez who was an occupant of the home ever testified over that at any point in your client made a comment about seen or been concerned about a gun or were they shot in self defense a lopez did not the one who did a stand of all the the cooperating witness who got a nice deal for his testimony he's the one who testified that mr martinez said that they do it or something like that right before the shooting the person mr look has did not hear anything and that was  address briefly the issue of the statement of facts that the state court had somehow misconstrued the facts and therefore no deference is applied as argument that it was unreasonable and had already argued in my twenty a j letter filed last week that argument now waived it wasn't raised in the just a core wasn't raised in the opening brief so it's a done one but in addition to that even on the merits there was no reason for the state court to have addressed those specific phrases based on the way the argument was presented to the state court on direct appeal it was presented a little different than the way it's been presented so the stay i meant the because they meant wasn't relevant to that analysis and that's why it's not in there there's a place in the transcript where the bend in seems to us he seemed to say i have to call  that part that you're referring to that was the argument the direct appeal counsel framed that the defendant was left with the impression was misled us about the ability to have an attorney that that's not the argument that the really raising here it's kind of shifted a little bit but that explains why the state court of appeal did grapple with the specific language we're talking about right now turning to the  martine's this statement about not having seen any guns martina's in say there were no guns he just said he didn't see anything but then he qualified that and said that there could have been it could have had something that could have had secret of the weapon that's consistent with what every other witness had so his saying that in bringing them in a trial doesn't cause any prejudice it's consistent with the testimony in fact had he said something to the op that said that would have been incredible for him to been the only one to have seen something when all the other witnesses say no we didn't actually see a gun the second thing is is that they had asked him if he felt threatened the viral had asked our team is do you feel threatened he vacillated first he says yeah and then ultimately says no so i mean you don't really get a whole lot from that but most importantly is that martinez is a defense was i wasn't involved in this whole thing this isn't my thing i'm not the shooter so i'm not part of this so the whole question of whether or not he saw a gun or whether how frightened he really was at first yeah i was frightened no i guess i wasn't that's not really helpful to his defense anyways the totality those two things coming in don't really make much of anything now also they also were able to bring in the drinking  he had navarro who testified that martinez had said that he had been drinking and he was belligerent to the result of that we don't know what the jury made of that testimony and someone it is speculative but we do know they did not find him guilty of second first degree murder they did not find premeditation and deliberation as they did for his counterpart that evidence that he was intoxicated a case as this one is it was a review de novo in that particular case after the individual had invoked his right to counsel they continue to interrogate him i mean they're asking him questions so there's a blatant violation right there and second of all when they get to the voluntariness of him they find that it's a fourteen year old boy order line intelligence disability with a low i q suffered from a mental disorder had  respect to the second prong of voluntariness they found that the detectives had said that if you cooperate you'll get better treatment so basically they had phrased it that you're going to be penalized if you invoke your miranda right so the result in that case is not very surprising and much reckon california the the rule on voluntary intoxication is that it can only be considered in a limited way it can be but it's not a defense no but it can deprive the ability of the prosecutor to prove premeditation and deliberation so he can go to that mental state and was the jury which was a jury instructed on voluntary his statement the because statements itself what i think tomorrow is saying here is we're viewing this whole thing in context is he meets with them and he tells them right off look i've talked to the opposing gangs and they're saying you're responsible you're the murderer here so i'd like to get your side of the story but you want to have your attorney percy with you ok we'll do that so you'll tell me your side of the story with p but it's after seven o'clock at night we're not going to get percy here at that hour so he says i'm pretty much done with here which is what he should say so i'm going to go ahead and book you so he's pretty much following the letter of the law here he's telling them i wanted to talk to you you you want percy percy's not here i'm done with you that said so i've got no choice but to book it which is accurate after all all the witnesses it is from navarro's perspective all the evidence is he's involved in the murder then martinez reinitiate and says what are you going to book me for and that's when he says the second same on going to book you for murder because i only have your side of the story that's not an indication of an attempt on the on the part of navarro to say hey but if you tell me a set of the story things could go better for you it's certainly implied though seems to me it's unfortunate choice of words but i think we have to look at it into the context of what he was saying before which immediately before that he just went over it i got their side of the story i want your side of the story you said you'll give me your side of the story if you have percy here we don't have percy here right now so i'm just going to go ahead and book i'm done with you so i'm just going to go ahead and book you and then he says what you going to book me for i'm going to book you for murder because i got one side of the story i mean he's kind of explaining why he's having to do what he has to do he didn't need to say that i think he was trying to be conciliatory like look this is my job i have no choice here i don't construe this as an attempt to pressure him and to somehow say  to cause someone to suddenly blurt out and go ahead and make inculpatory admission you see that the way you interpret it no one first of all the when it's going through the whole transcript and it goes i don't line through line in its analysis basically so what i'm getting at is the distinct court of appeal say enough about that that statement forth all of its analysis indeed sometimes i can just do it with a summary denial and there's no indication that they somehow missed the issue indeed they put verbatim in the entire transcript of the hearing including this language then instead of just focusing on one narrow issue the court goes through it step by step ok he invokes and then this statement happens and then this goes through and then they do an analysis about a seven step analysis of the whole thing they don't break it down into subsets of this particular language but they do start with the interrogation to the re initiation to the ultimate waiver at the end and everything in between they just don't happen to mention this particular sub this salient crucial part of the exchange between mr martinez and detective navarro and twenty fifty four says if there's an unreasonable determination of facts then this court refused to know that's what happened in the rodriguez case and you know the government says well they listed the whole transcript that it's all it's all in there but when it came to the analysis became of the fact finding as to the what the issue was with this read it just omitted awful the that part of those two statements and and that is the most important part of the this appeal here before your honor's but it certainly was it was alive and president and in the state court so i think that the fact that the state court just forgot to deal with that with those parts of the statements is is is shocking and the government he says it  a fortunate choice of words i mean this this was an experience detective doing exactly what what he could to get this gentleman to talk after he invoked his right to counsel he made the initial statement he piggybacked on that with the second statement and there's no doubt that he was doing exactly what he intended to do and the results are not surprising because you know if someone sitting in that room with a detective and he wants to talk about something like this be greatest incentive on  planet to give that person is that look if you talk to me you know you may go home and that's exactly what he did the result was predictable and so i would submit to the court that the standard should should apply in this case under the novo review  where the victim was when he was shot was he running away was was he facing and the forensic evidence show that he was actually facing the person who shot him mr lopez there's an issue about there's an issue about whether he told mr lopez to do it or not mr lopez said no stand of all the cooperated with the said yes there was conflicting testimony and who who got the gun and whether it involved mr martinez so for the government to say that this is overwhelming evidence case this is a conspira liability case for mr martinez he was not the shooter and so they had this gang expert come in and talk about people do things for the gang and you know i think it's a tenuous theory out of the gate that we have this conflict you know evidence tacked on to that saw a gun was devastating it was devastating to his self defense claim and for that reason i think the courts reverse thank you counsel thank you both for the arguments the case has turned to be submitted for decision