my name is david porter and i represent eric curtis i'd like to address my remarks to the first issue in our brief whether the evidence was insufficient to support the possession of a firearm by an ex felon and i'd like to read from refly from the reporter's transcript at eighty five this is the closing argument of the government well let me try to reorient us for a second that really isn't the issue is it because this  evidence that's what the end we don't get a complete run at sufficiency of the evidence we're examining how california treated that are we not under and i agree your honor that this court looks to the anti terrorism and effective death penalty as actually right and so we can conclude that california was wrong but that doesn't make any difference so long as they were not on reasonable in their determination is that right you know i i  believe that the standard in the ninth circuit there is the one h d case the talks about how this court on hay vs under the a t p review sufficiency of the evidence claims and they say it's just  jackson versus virginia analysis right so counsel the real issue is whether or not the state court reasonably applied the jackson standard in this case that's correct right and what is it about what the state court did it was unreasonable well the there was insufficient evidence in this case of the possession of a weapon though the prosecutor said to the jury this is a tough one i'll tell you that right now a felon in possession of a gun he says well we have to show the prior and they say there's a stipulation on that so that's not disputed but then he quotes the test had in his possession or under ever in actual possession of that gun so then he goes on to constructive possession and he says who is the driver he is who takes them and choose the place the driver takes them to the bowling alley who's making all of these strange and bizarre actually pretty good driving on the road the driver who's controlling the situation from dropping them off to picking up the car driver the question is did he have constructive possession and the answer when you look at all the evidence when you examine everything the question this was a communal gun i don't think that he in which is the same analysis that the california court of appeal did they said he was the driver of the car this was a car he had borrowed from his girlfriend he had control over that car right but you can so this was a this was this was a long gun right this was a shotgun ye obviously the driver had to know that there was a shotgun getting into the car in the first place right it's not something you can he can see oh like a pistol or some other small gun right you know your honor he was the show that he would have all right and the car was running as i recall once the robbery had taken place right he was already running and sped away right before people even got into the car he said that either way but the car did start leaving before the passengers were fully into the car yes all right and even after the gun was thrown out the window of the car being driven by mr curtis continued to flee the police is and i'm not sure if that's correct ok but the important point though is that when the people got into the car that was part of the robbery of the s n r convenience store unwinding  that mr curtis was actually acquitted of the charge of robbery and so we have very very thin evidence at that point and then we have the jury coming back acquitting him of the robbery and this was a very very difficult case for the jury they went to deliberate at two thirty five pm on may third an hour later they asked for the read back of three witnesses pregnant donald officer show you  kimberly hines the jury deliberated all that day they deliberated all the next day on may fourth they deliberated all the next morning on may fifth and it wasn't until three forty eight th trial well let me ask you a question who do you think is in the best position to evaluate whether or not there was sufficient evidence in this case or the where the trial court court's granting insufficiency of the evidence or courts on direct appeal granting the important point here is that this is a this is a very technical legal issue about what is constructive possession and in those are the kind of constructive possession the california courts this is from the showers case that the contraband must be immediately and exclusively accessible to the accused and subject to his dominion and control when you have the driver in the front evidence of the prosecution's evidence i don't believe there is but a look in the clerk's transcript during the i think there was an ok and there was deny and right well you don't remember ok i will accept your word for beyond a reasonable doubt of possession of a firearm correct that's what he did ok and and you disagree with that because i mean what's what's your basis for disagreeing with the with the judge's finding in that regard because the evidence was so insufficient in this case i mean you know the defendant testified the defendant what was the acquittal motion made after the people's case or after that at the end of the on evidence in this case he did he testified himself he stipulated the prior his girlfriend testified and so there was substantial evidence that was presented after the people's case and i think that's why the jury was out for so long trying to deliver i must not have believed in it didn't your honor because i think this is a very technical point of law about where what driver in a car has constructive this you've read it many times sort of really and they say there's circumstantial evidence of constructive possession including and then they lay it all out and you say that's simply and reasonable i do in when you look in our brief what the california court of appeal in the passenger seat of a in the driver's car can he exercise constructive possession over a weapon that is in the back seat of the thank you counsel thank you we'll hear from the other side actually that is not what was exhaustive in state court in state court rather than being merely a question of if you look at all the evidence it's tradition the question was if you exclude all inferences from the evidence which we think are inconsistent with an  not right what are the consequences of what you're saying oh i'm sorry that you don't have properly before you a straightforward insufficiency claim rather you have before you claimed if indeed we can we exclude all the evidence relating to who we think should i don't think so given that well as the trial counsel said we don't have any evidence at all that the shotgun was ever in his hands that would mean well yes now would be a difficult case for direct possession and did the did the shotgun come through the front door of the car and transported them well but there's got to be a knowing element of that too and he's in a place in the front driver's seat in the shotgun comes in on the other side of the car if we're talking simply about common sense isn't it possible probable that he didn't see exactly what it was that was coming through the door well i suppose it's only possible that he did but the window was thrown out of the driver's window well no it would have been on the ever thrown out of the right side as well of the car  what is it that points to his constructive possession and knowledge that that shotgun was in the car when he did testify that he knew the shotgun was in the car he claimed that he wasn't in control of the stock on he claimed that that was why in fact he was engaging in felony invasion is that no he was certainly aware the gun was in the car but it wasn't under his control with the track being directed against him so the question of whether he knew it was in the car was resolved entirely against him and we know that the jury didn't believe his theory as to why it was in the car i even someone else had it because if they do believe that they would acquitted him on the felony even if your theory of the state's theory was that he knew it was in the car as opposed to merely a robbery right well the fact that he knew what was going on when the person came running out as evidenced by the fact that he was do you think you could have been found to be in constructive possession of the other drugs by virtue of the fact that he was the operator of the vehicle and they were inside the passenger compartment it's hard to proceed on that bare hypothetical beacons we would have to know what evidence there was if any that he was aware of the presence of the drugs in the car if certainly he was aware of the presence in the car then yes if you see if he has control over the