michael crowley on behalf of mr garrett george carob a who is not present before the court this simply is a case in which the federal standard the generic definition does not meet the state the going to put my cards on the table i wasn't persuaded i mean i can tell you why but it seems to me the california who and the common law both called for  and i don't know whether the you know this kill zone business makes what is making a difference well it makes a difference because we take into account when we're doing that categorical approach we take into account many factors for example the u s supreme court in the m case i believe it's the way it's pronounced stated that we take in the sentencing factors in certain aspects so the way the state applies as evidence here by the california jury instructions they apply what they put down in the law is critical to the capital applying the capital of stops for actions one should give me a for instance what is a for instance a hypothetical situation where somebody could be convicted under  it give give me a for instance well for example i mean let me just say you know look we have the financial good lawyers so on i'm just and i forget exactly not phone booths and boats and things of that context which this is and almost all the cases shoot up in the air in fact that was the facts or at least as to some of the witnesses in the stone case there is no intent really but it could be to find intent to kill now they do have to find and they have to find some intent to kill i mean that is gave if the jury's thinks he's shooting up in there because it's a holiday or you know here you know you know but if  says it if there's other evidence of some sort of circumstantial value that would allow them to infer the intent california allows that much broader they put it all in one so dry wouldn't that instruction anywhere for federal or generic definition that allows for this type of kills on this broad definition of what an attempted murder could be that's the difference whereas california specifically puts it in their jury instructions now the court is somewhat mother old in the sense of for example they have a case right now from the court of appeals that's been pending since two thousand and fourteen  definition that they're what they say is is the kill zone properly instructed because they're grappling with it because it is a much broader senses then than any kind of generic notion under any kind of federal law federal court federal law generic definition you need a specific person the intent has to be asked to that person and that person can be convicted then based on that inten attempted murder in the california version you could just have a group of people maybe they fall within that zone maybe they don't there is actually case law about how big the zone might be in this situation it's nothing like that on the federal definitions or instructions or case law that i've seen that would allow the type of thing where as the california courts have said it could just be a bunch of people and they grapple with the saying that that is not an appropriate you know that's true so that's what your case hinges on yes if you can't identify a specific victim so the guy who sends anthrax with a ma krishnamurthy if the united states under california law just like under federal law tent intent cannot be transferred between victims for attempted murder concurrent intent is an exception to this rule it's just a recognition that in some instances you can specifically intend to kill more than one victim at the same time i'm not aware of any rule that says that you have to specifically know the identity of your victim which seems to be mr crowley's making now but that's that's really not quite what the concurrent intent instruction addresses in the first instance it's not necessarily about the identity that it's about the number of potential victims in a situation where you mightn't he want to kill one person but you try to do it in a way that ensures what's the significance of any of the fact that the district court did absolutely zero analysis absolutely no explanation of why he rejected the defendant's argument but simply said it's a good argument but i don't buy at that would say i have no way of knowing why the district court rejected the argument that that's not significant then at this point that the question of whether or not attempted murder it was decided under a different version different provision of the guidelines but nonetheless that case held that attempted murder under california state law was a categorical that should be your defense and that was indeed the whole dade does it make any difference that california law i don't think that's right only got close to right but maybe i could ask you just to respond on the force clause because you also argue that attempted murder qualifies under the fourth clause correct to another person it seems that any attempt to kill someone necessarily involves that type of force because it is capable of killing that person what about the police in the hypothetical that they were i mean in the screams supreme court castlemaine it didn't address this precise definition of force but the reasoning behind that definition was that it it's not the direct force that matters the force that matters is the poisons impact on someone else it doesn't matter if your attempt to inject that person with poison was was forceful it's that would be no different than saying that you didn't throw a bullet something you shot him with a gun so it's the indirect force in that case that still qualifies i'm not i'm not aware of that the decision the california supreme court has before it maybe i'm getting confused with the other case than i thought there was some pending california supreme court case that was going to resolve some tension on the scope of the california law has been fully briefed but there's been no oral argument they set for it and it's the issue that's lifted is was the jury properly instructed on the kill zone theory of attempted murder and a conviction and there is and there is a companion case with discussion of the categorical approach so this court even know the holding of it is that attempted murder in that particular case is found to be a crime of violence the court did not address any of those issues that we're addressing here today so i don't think it's binding precedent in any way rest on that