evidence when i understand the supreme court there has to be some relationship in order to justify the admission of the evidence and so how did the district court here in abuse its discretion in excluding them crime in this case there was no as evidence whatsoever that anyone other than the petitioner was at the scene of the crime or of was the shooter there was direct evidence from the victim mr jame trying efficient as the shooter the man who was with the patient earlier that evening his friend also testified that he overheard mr tames and petitioner arguing in the bar before the shooting and he was president and walked watched the petitioner walked up to the car he did not actually see the shooting but he heard the gunshots and then  fishnet came back to the car and told his friend i finally got it and there was no evidence describing any other car at the seen no evidence describing anyone else arguing with the petitioner or any excuse me with the thirty seven and thirty one one thousand eight thousand one decision you know basically stands for the proposition as i understand it that it's for a jury to decide what is believable or not believable what is court might be investigating a corruption of the administration of justice in which the lawyer might be involved it may not be the same line or i do believe counsel needs to be present and making appropriate yes in all instances lawyer should be present but i do believe tombs that we know what it is that the jury is going to tell the court right i mean how is the judge going to make that determination to like find out what it is that's bothering the jurors well that's true that we don't know what it is quite during the court may not exercise it very often or if it does exercise it it has to meet a fairly strict statutory yes it is a conditional discretion in the subject to defendant having made a motion guess my question again how is that the trial judge's statement to the juror was not true it is hypothetically possible that the judge would have some kind of sentencing discretion but in order under the law under the california penal code and i believe that section twelve thirty seven as well as sixty seven through i the court does have no discretion  set aside the conviction on the on the grounds that the judge essentially erred in what he said to the jurors i can't answer after the fact why he didn't do it perhaps it was part of  to reiterate you're not supposed to pay attention the punishment juror number nine continue to say if it turns out that he gave a number of scenarios if it turns out the court doesn't have discretion then i can't render  join him and that's why i believe after the trial when he did get a copy of the transcript it was really too little it was too late to do anything what would have been appropriate would have been a motion to discharge the jury perhaps a motion for a clear perhaps a request for clarifying instruction and your honor i haven't formulated what that would have been i just know that also could have responded at a moment when the need arose not after the conviction occurred t convey to the jury the proper scope of his discretion but i don't think that finding is is possible under california law the california court of appeal found as a matter of fact that the jury was concerned that the judge would have no discretion and under california law this judge certainly has discretion to strike a strike or to strike two strikes and three strikes prosecution so i don't think there was anything sleeping in what the judge told the jury  since you would you would agree that yes a defendant is denied counsel and has not effectively waived counsel that that failure to a critical stage so radical the issue here is whether or not this is a critical state yes and that's and that is an issue that the u s supreme court explicitly left open in russian versus faith and under the  the kinds of cases the supreme court has deemed to be structural or are those where the courts is there it would not be worth the inquiry into whether or not the er then the lawyers entered the room the judge repeated to the lawyers that that's what he had told the juror and the your counsel both of them had an opportunity specifically to question as your further on the subject so i think even if limit i guess the analysis to the structural there conclude there was no structural or concede there might have been constitutional error of the nonstructural nature but would argue that it was harmless based upon the opportunity to talk to the jury which nobody took to judge oh well i think i think that would be a perfectly reasonable know i was i was a little bit puzzled by the position of the state truck but well when it seemed to me that you did concede for purposes of the harmless error analysis that there had been an error i don't contrary to or an unreasonable application of supreme court holdings i think that under the circumstances was sufficient to should be deemed sufficient to preserve that issue you and particularly in light of the fact that we would prevail in the party below i little for your argument this modern matter just argued will be submitted