of the jury and the third issue is it to process issues related to evidence of sexual misconduct that was introduced in the trial and the second trial not the first trial sorry which created the circumstances a fundamentally unfair trial and the first issue of due process related to notice i think is informed by the fifth amendment right to an indictment a grand jury and engrave you arrange this court discuss the fact that underlin decided by the supreme court and what's what's the relevance of the california via law while wasting well your honor i think that they california law actually sets forth the standard of procedural noticed that is informed by california law in terms of what processes do for a defendant and here the prop my argument is that the process was not followed and that is that is shown by the fact that the california  a different crime instead of sexual molestation why don't you put in robbery would you permit an information to be amended that alleged incidents of robbery over a one year period well i don't know that argument  there were several aspects of sexual misconduct which took place over a year by resident child molester when it was amended there were twenty five specific allegations of sexual misconduct that were alleged and how long before the actual trial  talking about a federal due process and about the purpose of the preliminary hearing is only to figure out whether there's enough evidence to bind him over for trial the purpose of the primary hearing is not to give him a full preview of what the what the prosecution's case is going to be right correct and  well i would submit that the problem is that the believe why the lack of guidance by the courts procedurally allowed for new evidence that was submitted at the second trial that he wasn't even formed up by having an entire first trial i mean that at the second preliminary hearing no i would just submit that if it was a different charge and not based on i think the prosecution here took advantage of the fact that it was a two eighty eight point five allegation which permitted generalized evidence  aspect actually goes back to the generalized lack of notice and that is that at the time when the prosecutor was lying forth his closing argument he received the jury to find the twenty five counts in the individual and in doing so he went he looks back to the record and cited facts that were not in evidence in terms of giving them a calculation method as to how they would go about finding the twenty five counts charged in doing so he said that the calendar you know provides fifty six weekends and they approximated that they went maybe every other weekend to their father's house and that she said that approximately every time she went he performed you know three of lewd lascivious acts are you prepared to say that t the prosecution would give you the witness and everything they were going to say on the stand no but i mean if you're going to have twenty five counts of it and violation of any penal code section i guess you would just assume that there would be evidence related happened within a year time period i mean i think that's really difficult to organize a defense against if someone's you know a robbery charge occurred anywhere from april one nine hundred eighty nine to april nine hundred ninety i mean it's difficult t on a given day and allege that you were you had an alibi now i understand the argument it makes it difficult for him but i don't think you guys supreme court case that so clearly states and the state court so that the lack of notice and the lack of structure provided by the core of the plan in our hearing and as that here the prosecutor was permitted to generalize as to how many counts occurred citing back to testimony which did not occur at trial and that is that you know a violation so the prosecutorial misconduct is hooked to what i mean i would argue first of all that the first time actually is that the california court of appeal you know found evidence is clearly contrary to t of the defendant as garbage as human garbage dehumanizing them and the metaphor extended to the jury being the garbage collectors and it was their job to take out the garbage and well and now when i also think it doesn't  take out the garbage and and in this case since it is such an emotional case with with the witnesses who are young and who are claiming various claims it's difficult to prey on the emotions of the jury the other aspect was the witness vouching and the witness vouching here was particularly difficult because the prosecutor kept personalizing all of the aspects of the case and saying that i pray i pray that i have not done anything i've not withheld anything from you which would make you think of the witnesses as liars and please don't call the witnesses liars here and there is an insinuation underlying insinuation throughout the closing that hung jury definitely played on the the passions and the emotions of the jury and i think that with witness vouching in particular here with with these young witnesses and the fact that they had already gone t trial before and stressing to the fact the fact to the jury that they had already been through trial and that if they were to have again a hung jury or they were to acquit you know there might be you know there's an issue of these portions witnesses having already had to standard permissible in friends and that the introduction denied a fair opportunity to defend against here i guess it's there were there were several aspects of the procedure were not followed and it created the circumstances where evidence was blurred and twenty five specific counts was suffice by one year continuous sexual molestation of two eight point five and in the second trial the young son  son robert got up and testified to three additional counts of sexual misconduct which he had not testified to in the prior trials the first being it an incident where he saw an image of a naked lady on a wall and his father pointed to it and laughed and the second of which that they were rated x magazines lying around his father's apartment and these two obvious there are two entirely irrelevant to the case at hand and don't they're not illegal they don't pose any threat to any prosecution the third of which arguably could have fallen under eleven o eight and that is they count where robert testified that he walked in on this father sister and asked him to join them in this particular case i think i found that the court should have especially given the lack of procedure that proceeded gone through a balancing test in terms of the especially here where it was eight years prior all all of these accounts happened eight years prior to the actual trial the witnesses accounts of them throughout the entire testimony is shaky at best there's several times in which half i want to make sure you have some chance to respond  argument with regard to the ineffective assistance of counsel him on begin with the first argument insurance first argument he basically argues that he didn't get constitutional notice of the charges against him he was actually in the an enviable position of having a preliminary hearing which some defendants waive and don't receive and the first trial in which most of the evidence was presented a at the start of the second trial which is when we must gauge whether or not he received the notice he had had on the first day of the second trial he had the final version of the amended information he had the preliminary hearing testimony which  supported the charges and he had already had the benefit of having that first trial in which the evidence was presented i don't believe that an argument that he was blindsided by the charges can stand in the face of those facts  a little more vague way than then maybe robbery california has allowed this in to define their laws they've they've passed there wasn't such a way that we can't review here on ed and some of the reasons for thereof he was taking the evidence and he was making reasonable inferences there on i don't believe he ever said i believe this is this is how it goes the inflammatory argument it's i mportant to know that i want to quote this to make sure the prosecutor didn't call square and human garbage instead and i'm sorry i'm looking for it right  now he said and i want to get this precisely our oh absolutely but there's an important step there there's a gap to use that and to believe the prosecutor the jury has to first believe quote anybody who could do these things is human garbage they have to believe he did these things and to find them guilty you know but the question is whether or not this was unfairly inflammatory in order for somebody to decide to convict somebody because he's an animal they got to first they got to believe that he did these things so i don't the only question is whether this is unfairly inflammatory to the degree that said he is an animal i would like to have seen his face shot off with a shotgun i would like to see him sitting here without a face in this particular situation the prosecutor said anybody who could do these things so first of the year has to believe that the person who was human garbage did these things but you're arguing also that the defendant did these things are clear on one hand say he did these things and then anyone who could do these things he's obviously referring to the same for obviously he is referring to and that's not what i'm argu position to condone his argument in terms of whether or not he should have done it i think what i'm trying to argue is whether or not it rose to the constitutional violation i don't think i would have done it i can say that but i don't that there was a second trial and unfortunately that evidence was presented at trial several of the witnesses alluded the fact that there was a first trial he was making he was taking the evidence that came out at trial and he was making reasonable allegations were so specific so graphic so involved that it's reasonable to infer that the victim could not be mistaken about such things she had to either be telling the truth or lying it's reasonable to infer that and that's where our standard i'd rather not go into unless the court would like to hear it but we do started out on page forty nine of our brief under the harmless error we set out several of the more salacious facts that were reduced to tr i don't have anything to add to my brief other than what i've stated i would love to entertain any further questions for the court have them for me and for the question of the bench thank you very much the at the standard i wanted to go back to the first argument and that is the california court of appeal decision here found that the defend it was not faced with the possibility of a conviction for an offense entirely separate from an unrelated to the fence described by evidence of  given the evidence so was given that trial given that inflammatory then load of qualities of it courthouse to look for slightly at the procedures given and whether or not the court stepped in to give guidance to the jury here i believe that there was not the ten minute break and reconvene to hear our final two cases on the arguments c