to an element of of the offense what i would like to focus on for a few minutes here is that even if we go to the breast standard for harmless error this has to be a case of reversible error because the california court of appeals district court unreasonably applied the applicable law to the facts the district court of the california court of appeal saying that no reasonable juror could possibly have failed to find implied malice under the statements are very very different from that that the defense is saying the police i didn't realize this was going to happen i had no conscious appreciation that this was a life threatening act this is a tribal issue a factor that was taken away from the jury which would make it involuntary manslaughter i submit to this court that when the trial court tried this case agreed to instruct on involuntary manslaughter without objection from the prosecution is based on the other base but that shows that the evidence presented was ambiguous as to whether this was the second degree murder or whether it was involuntary manslaughter that shows that the people closest to the evidence the trial judge the prosecutor  this attorney out there because he had institutional stake in having an involuntary manslaughter instruction but the other two didn't they were calling it much straighter and they agreed to instruct the involuntary manslaughter if there was no evidence whatsoever to support of a verdict of involuntary manslaughter and the only evidence available conclusively showed implied malice and second degree murder then the trial court would have said i'm sorry defense counsel you don't get your instruction on a lesser included offense but  yes i disagree with all due respect your honor i think that if you look at meter what the court said was we're not going to look at how instructional error is classified because you could just as easily classify something as in this description or as an omission or as a rebuttable presumption or whatever and that's what the california state court and the district court in this case held they said that this kind of error could just as easily be described as an omission because what was happening enough that if you draw the worst possible inference was that the jury was not required to make a finding on implied malice  in other words if there's been multiple predicate acts to a felony murder or rape or robbery and you couldn't tell whether the jury was unanimous that would be even under your construct problematic but because there  yeah that's true but for our purposes here today i think that i've made my point that there is a legitimate question when when it's not clearly established because there are courts have t to places it never just fine and drove his head down into his neck those are the facts of what this what what happened in this case and what the state court found beyond a reasonable doubt and what the  question was never raised how acted without conscious disregard that simply wasn't an issue in the case he was going for an acquittal there was all this evidence introduced that are the defendant the kid had come at are as well on the issue of implied malice in terms of not a matter of intent but the other considerations i don't really think so if i understand your question correctly because the question simply when you perform that act and whether it's a reaction to someone coming at you with a knife or whatever when you perform that act you understand that it's dangerous to human life and that you're acting with a conscious disregard for it here there's just not enough frying pan skillet homicides in the country to court to rationally conclude that anybody with somebody in the head with a frying pan necessarily means necessarily disregards the feel possible