and i'm going to focus my remarks on his primary claim which is that the trial court violated his confrontation clause rights when it refused to permit him to cross examine and key at about his probationary status and about his admitted participation in a drive by shooting there were two major mishap we have three certified issues here and then three which you would like us to take another look at that is correct there were two major misapplications of federal law in the state courts resolution of this particular confrontation clause issue and in my fondest dreams i would like the court to address both of them and they were a bold decision the first which was the primary basis of the trial court's ruling is that there is a condition precedent to a defendant's exercise of his right to cross examine about these two areas and that condition precedent is proof positive that there's an agreement between the witness and the state such that the witness is trading his his testimony for for some consideration that's absolutely not the state of the case law the case is uniformly focused on the state of mind of the witness the objective reality of any agreement is not a predicate at all are we talking about the ruling which deny the evidence of that the witness was on felony probation that's where that's part of the confrontation closer to my two claims are that he that the defendant was precluded in two areas he couldn't touch the probationary status of this key witness and he couldn't discuss his admitted determination as to the probationary status but in the district court of appeal right i know i got an unfavorable result across the board the one thing i did get was in the state appellate court they had knitted that there was a confrontation clause violation with respect to the drive by shooting or so i got a reverse ok i got the probation status but the district court of appeal grieg with you on the impermissible restriction on the drive by in sunnyvale yes affirming what on this point about the condition precedent the supreme court case is a uniform that that is not an essential predicate davis says that alford says that and in addition to that i cited a couple of federal t briefs which i was surprised to find deal with the precise same error you know it seems to me it was so clearly an era that courts would not be typically making it but it did happen in a couple of other hay bales cases i cited the worker in case from the fifth circuit and that involves a prison transfer and the prosecution made the same argument in the trial court adopted it that there was no proof that it was part of any agreement with the witness and what the fifth circuit said was and this is the quote what tells of course is not the actual existence of the deal but the witnesses belief or disbelief that a deal exists and that's precisely the reasoning and the district court in michigan in the gonzales case where the issue was a sentencing and handsome and that the witness hoped not to receive and was precluded from eliciting at trial and that court said that even though it wasn't in any plea agreement here's the quote from that case that the witness still might believe he still has something to gain beyond what was contained in the formal plea agreement so it's clear that that's and this application of clearly established federal law when the trial court did that but the heart of the matter is the misapplication of chapman and there were two  state court of appeal made when it applied chapman the first misapprehended standard and of all people it was the attorney general who best summarized and accurately stated what the state  what they did was they put aside the testimony of the witness said issue and then they looked at the rest of the evidence in the record and as in the words of the attorney general the court to determine whether there was other evidence that supported the convictions it looks through the record it found some other evidence to support the convictions on the counts that issue and therefore found a harmless error and then on the loan count where a key has testimony was the only witness it was the only information only testimony on the subject the terrorist threat count they reversed that so what the state appellate court was clearly doing was just looking for some evidence in the record to support the conviction that is absolutely not an appropriate application of the what's wrong with that i mean i i think maybe i misunderstood but i read what the dca did as being carefully applying the chapmans standard to the individual of conviction looking at all of the evidence that supported each count of conviction and making a separate determination under chapman as to whether the restriction  amounted to harmless error with regard to the conviction on each count you're saying that that you can't do that i'm saying clearly you should look count by count and that's clearly appropriate but what the standard almost like a split verdict and in a multi county indictment where the jury acquits on some counts but convicts on others and the claim is made that the jury didn't give individual consideration or sufficient consideration to the evidence then our case law says that well if we look at the fact that the jury acquitted on some and convicted on others that's a pretty good indication that the jury carefully considered the evidence as it related to each count of the indictment is doesn't the same principle applies by analogy to what they did in applying chapman well first of all what the court did in looking at this other evidence was not look to see how the areas impacted the verdict so yes they a second the court noted that mr key yet was not an eyewitness to the actual gang fight because he wasn't there and instead it looked at the testimony of the eye witness and the co defendant participants who testified against him to find that the jury had sufficient other evidence on which to base its conviction what's improper with that analysis that seems to me to be a logical way to look at this at the trial that brings me to pretty much my best point and my argument on what makes this case unique is when the court did that and this is the second part of my first argument is that they miss apprehended the standard but when they looked to that other evidence what the state appellate court did was to credit testimony that clearly had been rejected by the jury and that's what distinguishes this case from the run of the mill hades case because the record is clear that the jury rejected the very evidence that they're reviewing courts here to for whatever and i don't think that response to my concern because if you if you agree with my statement which i thought i read in the d opinion that kiev was not an eyewitness participant and therefore had no competent evidence to offer on the actual counts of the assault and attempted murder convictions because he wasn't there  i don't think your argument is making any sense well there's one other fact that the court's not referencing which is that kiev is the leader of this gang that all of the prosecution witnesses belong to and there's testimony in the record that they all met together and somebody sallust this is key at danny d n and and van and kiev was the one who told the eyewitnesses that the defendant was there so  to say that just look at the testimony and say that he at was and wasn't there and therefore he's less central to what happened this case is is clearly it seems to me wrong in light of that testimony don't forget the jury did the jury hear that was that inquired into a cross examination yeah that's in the record i don't recall the exact cries of the jury the jury heard the defense theory that the witnesses that the witnesses of the rival gangs got together and essentially cooked up the story so that they could do it right to the extent that he was permitted to do that because he was a rival gang member and they obviously had a motive to run test records but apart from that and this is part of the van arsdale analysis when you go through the separate factors kiev was the only one who put the defendant as the planner of the incident he's the guy who says that the defendant called him up and told him to stay there if he can't you know i didn't tell you that you didn't understand the rationale of the state court of appeal when they referred to the overt act that they were they were too overt acts that were found true with respect to the defendant one of them clearly was derived from testimony and do with the defendant all it was was that the two gang members who had the knives were armed that was the overt act that was found true so how you could get from that to say that kiev's testimony was harmless in the jury's mind with respect to the defendant's involvement in the case is really something i don't understand so clearly i assume california law is similar to federal law in that you have to have an agreement an overt act in furtherance of because i believe that's correct and they didn't need  s testimony to show began members showed up at the fight arming themselves with weapons right right but they still had to fly wouldn't that be sufficient independent of whatever it was that t s a had to find the defendant while before because of conspiracy because because it doesn't say anything about the defendant's involvement in the conspiracy my argument and i believe it's the only reasonable way to read the record is that the only way they could've concluded that the defendant was a member of this conspiracy was because if he ad number one testimony and number two molding the testimony of the others and the one thing i really want to stress and i don't want to get lost you know through the cracks is that the district court and the state appellate court expressly relied on the other parts of the record that were rejected by the jury and so they say well d n identified the defendant is being there and the ends testimony was that the defendant was there with a gun and we know as a fact because there was a special arming allegation in an overt act that's asked a jury to find whether the defendant had a gun or not why shouldn't he why shouldn't reviewing court look at the evidence in the light most favorable to the prosecution the fact that the jury doesn't find proof beyond a reasonable doubt does not mean that there is not that that evidence was completely incredible i mean how can we assume by virtue of the fact of an acquittal it doesn't mean  didn't do it it just means that the government didn't prove it by proof beyond a reasonable doubt that's true that is what it means but how could how could a court then look to that evidence to say to to fill in the evidential gap left by taking out the testimony of kiev because the problem i'm having is that without a special verdict form it's very difficult for us as a reviewing court to figure out what it is that the jury credited and what they didn't credit when they simply return a general verdict of not guilty as to warn or more countable multi county guy right but here you do have those for that's my point is you do have the special verdicts you have a specific question what is the defendant there with a gun and that is in both overt act allegation and the conspiracy count and in the special army an allegation and they found it was not true so we you know we know that the jury rejected that not to say that there they could therefore still credit that very same testimony they didn't find true beyond a reasonable doubt to somehow compensate for this constitutional error i just suggest to the court is reasonable in that that's you know the main characteristic of what happens here  that it's not just a matter of the exercise of discretion you know when you apply a multi factor test or you're applying a broad principle like the confrontation clause there's a greater range of of discretion that a certainly in the hay vs cont court would have to say is within the realm of reason my point is that this is not within the home of reason because they're specifically relying on facts that were rejected by the jury and  state please the court peggy rue frey deputy attorney general for respondent your honor i'd first like to correct one point that was that the state court actually did find error but harmless as to both of these  incidents the exclusion of the felony probation and the participation in the drive by shooting they had some discussion about whether he really was on felony probation but then said even assuming that he was then we find that any error was harmless reasonable doubt so our argument as to both those points is that that finding was not an unreasonable application of chapman for the reason that i'm sorry for the reason that the state court specifically applied the van arsdale clock factors listed the five factors and then it carefully went through the evidence it found that there was prejudiced as to the terrorist threats conviction and that was the one where the testimony was the only evidence to support it but as to the remaining convictions it found that the van arsdale factors were met and in response to one point that was made  arsdale specifically says there's five factors and the last one says and of course we review the overall strength of the prosecution's case and so it's certainly legitimate for the state court to look at that other evidence and to see whether that is compelling evidence of guilt and that's what they did in this case first of all they noted that yet was not there during the actual attack witness type stuff that's an eyewitness who was actually involved in the fight and that's not correct and so it was reasonable for the state court to to rely on that that can't you didn't offer any testimony as to the conspiracy charge on the overt act that the the gang members armed themselves that's all you need for the conspiracy count and as a matter of fact i think that if kiev hadn't testified at all there would have been ample evidence of both the conspiracy and the aiding and abetting the assault charges because then you would have had evidence that one of the gang members came and asked if the surveillance camera on went back out and then the gang including several who were armed rushed in and committed the attack he was not an important witness why was the state so interested in keeping from the jury the fact that he was on probation and these other things about his drive by shooting his other behavior why was it was it so important to keep the jury from knowing about him if he's not an important  witness well i think it's it's pretty standard for the prosecution to try to limit the amount of impeachment evidence of its own witnesses so that having good impeachment though this is good stuff to have to tell a jury well going to be prosecuted and the d a confirmed that that they weren't intending on prosecuting him so i'm not sure how much value that really would have had but the state court said even assuming that it actually quoted then our stop which says that the question that the state courts reviewing task is assuming that the damaging potential of the cross examination had been fully realized was the error harmless beyond reasonable doubt they quoted that and then they applied that standard and the extent of cross examination that was permitted is one of those factors and in this case the da started out his argument like on the on the first and second pages of his argument he starts out by saying that if kiev had been successful at retaliation for this incident then he's the one who would be sitting in the defendant's chair so they were under no one illusion that it was somehow cloaked in a false our of credibility or believability he was impeached with evidence of a conviction for attempted second degree burglary he knew they knew he had been in several gangs he'd been in a number of gang fights he said he'd get arrested too many times to remember he had participated in the fight cafe the day before which was the motive for the retaliation the next day the jury knew that his first impulse when he learned that the gang was coming was to go and get a sawed off shotgun and that he was planning on once that happened and he came back and saw that the police were there he was planning on another round of retaliation and when he was first interviewed by the detective he was under arrest for a different incident and was in jail and the jury knew all of that so he clearly was they clearly had a good impression of what this was about all about they knew that everybody involved a gang member they had heard extensive testimony about what that meant to from the gang expert and how these in these gangs in san jose in gauged in retaliation and violent conduct and so i think that's an important factor to consider and again the state court mentioned this that's one of the van arsdale factors it's our position that with an entirely reasonable approach one of the other factors the state court relied on was that there were other people who had identified mr when as being one of the participants and there's been some challenge to that testimony but the fact that the jury found the overt act about mr when having a gun not true doesn't mean that they didn't believe the testimony from d n a that he was there now this was the fourteen year old stabbing victim he testified he had been stabbed four times h long had been punctured he felt like he was about to pass out he went outside and for five to ten seconds he says he saw you know when pointing a gun well obviously there was some problem with that testimony he was he was under extreme physical and emotional distress it was a very brief glimpse so there wasn't proof beyond a reasonable doubt on that particular point whether mr when he was there with a gun that doesn't mean the jury disbelieved that he said he was  there and that's what the state court was relying on and again was that unreasonable which means beyond clearly erroneous but actually objective cleon reasonable to rely on that and we submit that it's not but there's also more mr when personally before this incident and that he was positive he was one of the people that was there now he wouldn't start the picture on the photo id because he was extremely terrified that if he if he went that far that he would be killed by this violent gang and that's also the explanation for why he was facing the trial but the jury understood that those kind of considerations come to bear in this kind of a gang case so you have both of these witnesses identifying him as one of the people who was present and it was entirely reasonable for the state court to rely on that evidence in assessing the overall strength of the prosecution's case i think one of the  instructive case to look at is woodford versus biscardi it was in the strickland context but that was the case where the supreme court said the state court focused on these particular factors in finding harmless error and the court of appeal had focused on other factors the supreme court said it wasn't unreasonable for the state court to take that approach and maybe if we were on direct appeal we would have reached a different verdict but we're looking at the state court and if you look at what they did that was entirely reasonable so i think that's the same situation we have here the state courts carefully going through there looking at all of them are still factors there's compelling reason for each one of those let me also mention the motive evidence which was was very strong it was the defendant's own brother who had been injured the day before there it was clear that these gangs there was evidence that when a gang member is injured or or disrespected in any way then you have to come back escalate the violence and retaliate and if you don't then nobody is going to respect us again a gang member so a very strong motive evidence in this case when you take that all together the state courts finding was reasonable even if it wasn't even if there was some problem with one factor or the other which we don't believe there was then the court also i would point out the very first gang witness that was called by the prosecution after their gang expert if you look at the prosecution's closing arguments he refers to key as testimony five or six times i have the  in my briefs and not only that well i'm not so sure i mean he's clearly an important witness whether you want to label him as a star witness or not but you know i guess we could spend all morning talking about that but what is concerning me and your opponent gave an example of it you know how do you respond to her argument that with regard to the gun count the jury might well have acquitted mr healey and of the aggravating factor of well armed with a firearm but still credited the victim's testimony that your client was present at the scene of the fight now that's an example of what i was trying to get at in my earlier question i understand you can't i don't think you can conclude can you from the quibble on the gun count that the jury must necessarily have found as a matter of fact that he wasn't there i mean they did convict him of assault aiding and abetting an attempted murder so they part company have can you conclude that the jury just believed everything that the end said when all we know for sure is that they entered a finding of not guilty meaning that the state had not proved each element of the middle of the aggravating charge my proof beyond a reasonable doubt i i think there's a difference there and i think it's a difference that makes that difference well i guess i have to disagree with the court i think that the only thing we have to look at is the record in the record and certainly in the defendant's favor but then if you wan that we must presume that there was harm and therefore must overturn the conviction but only if there is these in the objective read to lead to terminable indicia in the record to show what the jury's thinking was and i understand the court's point that finding of not true does not equal an absolute determination by the jury that they rejected everything he said but that's all we have to look at and if that's not enough then look at all of the other arguments i've made it's testimony there was one other point and that should not be lost is that there was an evolution of stories in the year following the incident so each of these prosecution witnesses spoke to the police three or four times each and not a single one references the defendant at all suddenly you know thirteen months later this kiev is the first one to identify him to the police and suddenly all of the others follow suit so what do we do with your opponent's observation which we have certainly seen in game cases before that fear of retaliation against witnesses is a powerful motivator for reluctant witnesses and can explain why the facts factors that are at play when we are dealing with violent streak of course but but it doesn't explain what happened in this case because these witnesses not because they record why can't the jury considerate in evaluating the credibility of the forward they were implicating dangerous gangsters and you know don't don't forget this was a fight between the v g a gang and the ets gang and the n is not it's not an overwhelming case that the end was the end was present and i see that about that and there's a distinction also made in davis between attacks and general attacks on credibility so that chance criminal convictions and attacks that go to the specific case that issue and that's my response to that point thank you for it does not have any further