for rebuttal if it pleases the court keep in mind if i could just have a couple of minutes to set this case out the fact of the case are there was a probation search at my client's residence during the course of the search my client's defense was that he had thought it was eastside riba criminal street gang members who had broken into his home and were there to kill him they had made prior attempts on his life he fired off two or three shots from a forty five caliber handgun with a laser sight the laser sight becomes important when you calculate or attempt to calculate prejudice in this  when the prosecutor stood up at opening statement told the jury that the defendant and his lawyer were going to fabricate a defense after that there was objections admonition from one and so forth no  california court of appeals which accepted the curate's action was reasonable well you know sounds to me like you're talking an aspect of prejudice did it cure any harm and that's why i wish i could have got to my last instance in my initial presentation because you have to what happened at the last instance go ahead you have to calculate in with the first instance to get an accurate measurement of prejudice because in the last incident she told the jury that the defendant had never mentioned his fear of the east side riba criminal street gang at the time of the incident in question and that is simply a false good that was just not true he had told investigator clare about it there is a and then the state court of appeal in newton ruled that the judge abused his discretion by not allowing out the happened that's exactly what happened in this case and that's why given you know in this case it does not appear that the record here well first of all it wasn't in the record because it didn't need to be the defendant himself testified that's why he had the fear and it was in the record at the preliminary hearing so the prosecutor knew about it look lar wasn't i'm not saying and i'm just saying it's your job to put it proud of us for a week so that we could see we have to go by the record and to understand you know which what your argument is and i was just having trouble following her argument when i'm looking the defendant to require and i'll just pick up that was there's quite a few oh pick up the most obvious ones volume two number nine page all three that's why i fired off two or three warning shots now of course the situation venture me disintegrated into a suicide by cop episode when the defendant funny realized it was the cops and so on and so forth but no more shots were fired and so this is what he told investigators will claire at the time of the incident this interview was done i believe maybe at the jail but it was on the same day now and here's my point about the and so i think my position is she took advantage of that to tell the jury that oh he didn't tell anyone that he thought it was the side rebus and the of course that's speculation on my part but it is not speculation that the statement is false or technical misstatement and it all boils down to is do we know the difference between a law and the truth and that was a lie and it went to the heart of his defense and now we're back to the laser sight on the handgun he was convicted matter of how good a shot of use anything else so might i submit to you any slight prejudice would have had a major impact in this trial we have five instances of it and under those circumstances to me anyway california law on that subject and that subject is it is an objection the came late as the jury was deliberating is that timely and under new it is time is not only timely it's an abuse of discretion for the court or not to have granted it an he's limited on his ability that's why he asked the judge hey you know considering this when we give him a clear statement and melendez is a case of a delayed objection not you know there's case and it was under california law which are compelled to follow that objection was time under newton and there's just no way around that so the procedural default is going to fly good morning your honour's clears the course turn you general christer beasley on behalf of the respondent we agree that there are two errors that the prosecutor committed here the first error being that in the opening statement the prosecutor said quote i anticipate that you're going to hear some excuses from the defense some made up stories that is argument it does not belong in opening statement it should have been reserved for closing statement what would have been a better thing for the prosecutor to have  case is going to turn on credibility it will be up to you to decide credibility that would been the better thing for the prosecutor to say fail to do that but here as judge bear has pointed out there was an objection and there was an curative admonition and instruction given to the jury where the court identified the errant statement and directed the jury specifically the argue the statements of counsel argues of counsel are not evidence and to the extent that any inferences could be drawn negative inference is could be drawn from this statement that was errant you are to disregard that and we presume that the jury follows the court's instructions so that was an error that was cured the second error that we agree occurred in this case was that in closing argument the prosecutor did say he's never seen the defendant has never told anyone until trial that he was afraid of this again the problem with the statement is that in the in the entire scheme of facts in the real world that is a misstatement because the truth is that the part that the defendant did tell leclaire that he had been scared of of potential gang reprisal but that evidence was not before the jury at all so the correct argument that the prosecutor could have made and should have made it was ladies and gentlemen of the jury you have not heard evidence in this case that mr meant to told anyone that he was scared of the game because that would have been a correct statement of the facts before the jury and i think that that shows why that's not even prejudicial to what this prosecutor actually said which was not correct in the reality of things was not positions the fact that there was no objection raised just one more yes you pointed out there was no objection here until two days later if this was so significant if this was the linchpin then there would have been an objection at that moment but there wasn't one it was until two days later and this is why it is procedurally barred  friend across town here says that people versus newton melendez i think is what he says addresses that what's your position on i think that a proper reading of newton is that when an objection is late the trial court has discretion whether to reopen in this kind of case where that objection happens during jury deliberations two days into jury deliberations the trial court is vested with discretion whether to permit the reopening of evidence get deliberations to stop the deliberations reopen the evidence and and then have the jury start deliberations a new because there's a discretionary decision there the court then has gets to rule and say no i think this is too untimely and because the court has that  discretion and the courts here decided this is on time we that's what the law of the case in this case and that's what's binding on and so i don't think that newton really supports the position that that that that you have to let it open you have to open it up when there's an objection that's late it's a matter that there's discretion in the truck or here exercise discretion in rejecting the invitation to reopen the evident i also note that had the trial court entertained that invitation to reopen the evidence and had the trial court admitted the look claire interview what's interesting is that it would not have endured to the benefit of the defendant the look claire interview had the defendant telling the claire i heard the pounding at the door and i thought it was the police it sounded like the police he multiply mentions that several times in that interview later in the interview he does say i also thought that you know that the east side reverse gang was after me and it could have been them too but the fact that he made the statement of a clear identifying that i thought the police were at my door that undercuts his defense and had the hint that additional contemporaneous objection rule in this court has followed it and has clearly established that it's adequate and independent and because there was no timely objection here i think the fair backs the fair fairbanks decision does rule here that this is procedur y defaulted that that's my question in this case if we're read beyond to follow fairbanks no matter what here because it's got to be clearly established federal law that's twenty two fifty four right right yes that's correct  this case there is not good cause to set aside the procedural default we wouldn't have here a fundamental miscarriage of justice we would not have here a a due process violation even if we were to look at the at the merits of those of this claim of this kind of prosecutorial error because as i said what the prosecutor argued was was really a reflection of what was in the facts before the jury while that may have been incorrect looking at the whole universe of facts the facts before the jury were such that he hadn't ever told anyone else and so as i mentioned earlier the prosecutor should have simply confined it to members and late late isn't all of the jury you have not heard evidence his testimony are meant to testify that he had the he was scared of the side rebus and that he had told the police and the prosecutors assertion in an argument is you haven't heard any of well he didn't say it that way but there hasn't been any evidence that he told anyone other than his trial testimony here other than what you've heard here and in trial so he's telling us now for the first time and that's what that amounted to is so it was really a rebuttal to what his his trial testimony was what what about made with respect to this gang fire that had taken place and the trial court's initial ruling was i don't want any evidence coming in of the victim the status of the homicide victim that was a four year old bystander there was additional argument and additional discussion with the court about what the what the testimony could be but it wasn't exactly the model of clarity as to what could come out and there was never a statement by the trial court you may not introduce evidence that our mental was the person who fired a shot that ultimately resulted in death there was never any sort of ruling like that it was an unclear ruling it was discussed enough that you would think that a prosecutor would ask for a side bar to clarify the best in hindsight i think that's correct i think in hindsight that might be true but in the heat of the moment in the trenches there was enough that the prosecutor was i think there was enough question in what the trial court's evidently ruling was that the truck that the prosecutor proceeded in good faith with what the prosecutor believed it could do and then later when it was further hashed out and discussed after the fact the trial court said well had i known what you were thinking i'm not sure how i would have ruled about it but i think i would have still allowed evidence to come in and that's ultimately a factual determination that was then upheld on the court of appeal and that becomes a really a question of state law as the district court found whether that was what the interpretation was of the trial court's ruling and so i think a fair assessment here is that the prosecutor was not trying to engage in any sort of missteps here the prosecutor had a ruling that particular prejudicial evidence when you can but when that is weighed against the weight of everything that's going on here and and so i don't think that that would have had any sort of effect on this on this case so counsel makes the argument that you tell you have to look at everything in the aggregate and this is true you have to make accurate and he criticizes the way that the court of appeal the state court of appeal went through the analysis here by going step by step from one assignment of error to the next assignment of art to the next assignment of their will the response is that the only way that you can possibly logically aggregate anything is to understand what the parts are you can't agur it components without understanding what the components themselves are and so the court of appeal went step by step in figuring out well what does what does this first assignment of our amounts to what is the second assignment paramount to and then once you have all of those assignments of error and you know what they are you can  cumulatively assess all right what is the whole weight of all of this the court of appeal here found that there were only two errors the first being the opening statement and the last being the what the court of appeal termed the technical error with respect to the closing argument as to the fact those two errors don't cumulated to much of anything because those two errors were first cured and second  correct reflection of the evidence that was actually in front of the jury it wasn't it doesn't take rocket science for the jury to look at the evidence and realize ha yeah there really isn't any evidence other than his own testimony that he never told anyone else  there's no prejudice when you take all this together and the court and and fundamentally under under twenty two fifty four the question really turns on was the court of appeals decision an unreasonable application of  control united states supreme court authority or based upon an unreasonable determination of the facts and we can't say that that's what happened here the decision here of the court of appeals to court of appeal was reasonable in light of the controlling authority and in light of the evidence that was presented on was that to be the entire statement or a redacted portion i think that i think that the whole statement would have needed to have come in and i suppose that the product of the defense would have argued for the redacted portion and then under the law of completeness the prosecutor would ask for the entire statements to look clerics have come in had that command that state until clare come in what would it have included with regard to the defense background in connection with the gang and possibly shooting a four year old child the statement to the clear i don't think we did anything with respect to that the shooting of the four year old the statements to the clare were pretty confined to the incidents in the house and what happened and what was going through his mind when the when the police were knocking on the door and when the police then finally came into the house and it was it was pretty limited to that it did talk about how he had been involved in a gang many years earlier and with the east side with us but he didn't talk about anything with respect to the shooting that happened between where a procedural default does not apply when objections are made not immediately but still during trial and at a point when the trial judge relist bickley could have considered their melendez is the controlling authority no s in terms of this isn't prejudicial how could this not be prejudicial his whole defense was that these are the individuals the side revisit thought was in his home any slight deviation from that could have a major impact because we have a case where a guy allegedly took a forty five caliber handgun with a laser sight and couldn't hit any cops that he allegedly was trying to kill in a well for all and deliberate premeditated  manner newton the reason the court needs to follow newton is because newton is so closely parallel with this case the idea that we would just jettison newton and say well that doesn't really matter i still don't understand what the grounds for that would be but newton is worth reading in that regard and to see how closely identical ideas and in terms of what the judge should have done under california state law and i'll submit that under newton again it was an abuse of discretion for him to do what he did and in this case all finished if we look at that what do we do with the question of how late this was i mean i think the temporaries jackson rule is good law it's can't state law it doesn't violate any federal law constitutional or otherwise what are you saying there are there  and this was not too late yeah no of course not it comes into flavors for this court heirs which would be no objection of all and melinda's which considers when there was an objection but the allegation is it was too late for purposes of the behind that ruling and find that somehow this violates federal law no newton doesn't address itself to the federal question of procedure will fall but isn't that the issue here no the issue under newton was did the judge have the have the discretion to let him i you'll see that you see the difference between the two and in my reply brief or i replied what the attorney general is arguing they argue melendez but then they come to a conclusion that is different than the holding melendez it's kind of prosecutor would would stand up after hearing that and ask the question did she ask you to defend it without at least trying to get a clarifying willing if she was if she was confused about what it was just would be i think you've been a prosecutor i don't know that