good morning ma'am please the court my name is stephanie attractive and i represent byron to chilla mr to ensure i was convicted of four counts of attempted premeditated murder based on an incident where his codefend fired four shots at a group of men pursuing them on foot and in two cars welton shell and sotelo fled on foot scintilla as trial counsel was prejudicially ineffective when she failed to request a jury instruction as to the lesser included offense of attempted voluntary manslaughter the jury could have convicted chinchilla of that lesser offense if it had found the sotelo fired due to a sincere that and reasonable belief that that was necessary in self defense so your contention is that her the counsel failed to request the imperfect self defense that's correct you on that she did counsel requests on members here she did counsel request the perfect self defense she did not in the jury and so the trial judge decided to give the instruction and as a result there was no tactical basis to not so but and did so tell us counsel ask for the imperfect no her strategy isn't that the reason why she didn't request the perfect self defense instruction either no your honor if one reads the counsel's closing argument which i provided in the supplemental exercise record she very clearly was asking the jury to find  tell it fired in self defense she emphasized that point she said he was scared he was afraid he was being pursued by two harlow that's not a system which with her own theory which is whatever sotelo is doing it's to her benefit if that happens for is he has all his along he's along for the ride as misbehaved a little bit stolen a cap but he didn't realize these guys were going to these guys were going to fire that was if anything a sub argument and one that was destined to fail because it was very clear that the basis for mr chinchillas liability was wholly based on him as an aider and abettor of natural and probable consequences of the robbery and you know the preceding as well but he doesn't he doesn't know that they've got a gun to tell us as gentilla didn't know it had a gun but under the under the law that was given by the judge to the jury that didn't help mr chinchilla very much if at all because by the time mr sosa required the jury could have come back and said sotelo is guilty of murder but gentill is not an aider and abettor they could've but the argument that he didn't know about the gun was a complete losing argument because  had already produced the gun during the robbery that that happened minutes before the attempted murders were nobody's nobody according to tell him nobody's going to be more surprised than chinchilla that he's got a gun but that argument just couldn't apply to the attempted murder counts it could have only applied to the robbery because when the you don't think a jury could have been discerning enough to say so tell it so tell a gets it here but you tell it doesn't so tell us what testifies the chinchilla as actually ahead of him he's not right with it now the other guys testify that they're that they're together again but the tell us says no he got ahead of him because i'm talking on the phone trying to get the car here yes it's possible that a jury could have said well he was a you know a few yards ahead and didn't know it but the natural and probable consequences rule that the judge explained to the jury undercut that argument and there was no legitimate reason for counsel to bypass the opportunity to argue that to tell its belief in the need to defend could have also been a reasonable and that on that basis the court or the jury could have convicted them both of the much lesser offense of attempted voluntary manslaughter here we're talking about four life self defense is a actually a lesser included offense it's a doctrine by way by which you get to attempted voluntary manslaughter and so there is this kind of tactical all or nothing possibility is actually for counsel and not inappropriate for counsel to try an all or nothing strategy it was inappropriate to not give the jury the opportunity to consider the lesser included offense my understanding is that you're saying that she didn't in fact  her strategy it was consistent with her strategy she should have asked for this instruction because she one of the parts of her argument that was least effective is when she said well but his belief had to be reasonable and the  prosecutor seized on that too in his closing remarks well you know they're saying that he was afraid and you know maybe was afraid but it wasn't reasonable and if the prosecutor it had to concede well you know you have to convict him of this much lesser crime and he was afraid even if it was only reasonable that the way just because i encountered i'm not i don't understand what was the basis for the accomplice conclusion the accomplice i mean i understand it with regard to the robbery but on on the verge of closing aiding and abetting liability as it is based on the natural and probable consequences doctrine which is a way of assigning liability to the but that the shooting was a reasonably foreseeable event following the robbery is the way that it works there's a lot of that on the precious question assuming i did given that unreasonable but they said that it was not prejudicial and they had reasons and why is that was reasons on reasonable two reasons one is that the rationale that they used was well the jury convicted these guys of the greater offens differently from the washington supreme court and grace in cray's you have an attorney who didn't wasn't aware of the law in washington and we had a we had this bizarre facts situation with a very with an equally strange law in virginia problem it just said was there evidence to support the jury's verdict yes end of end of story and increase we said no that's not an adequate answer now here the california court of appeal did something different he did say was there evidence to support this it said is the jury's ultimate finding inconsistent with that is they cannot exist simultaneously with the theory of imperfect self defense and said that is true by finding what it found the jury could not have found imperfect explained in the break premeditation it's an issue that the jury should not have reached if it had been properly instructed as to one reasonable self defense but as an adult that's not the question i'm precious right i mean the question  and doesn't depend on crace right right exactly it's a different point but i tried to explain this in the brief and i cited a case i think is very apt of a california case talking about a young man who clearly had premeditated and planned using a weapon to e saw these people coming after him and he took out the gun and decidedly decided to shoot him because he was afraid of him that would be premeditated but it could still be so it could be but if one looks at the prosecutor's closing argument he is clearly relying on this idea that the premeditation occurred because you tell o'bryant the gun with him and was thinking about the fact that he's going into this dangerous place so the premeditation we don't know what the jury actually relied on when they said yes this was a pre playing meditation simply from the fact that after thank you so people started chasing him he said i better do something about this and they could but the bottom line is it didn't drive the verdict such that one could say oh well because they found premeditation they part i mean they may have said they may have bought the idea that hey if you rob someone and then run away you're not entitled to defend yourself not that's not true i mean but the judge's instructions are included in the first aggressor if they they do recover the right to defend themselves and this is probably a tough issue for a jury to wrap their heads around and especially then when you get to the step of it even if it's a reasonable one that  one believes unreasonably but sincerely that one has to defend oneself then the that mitigates the offense from murder to manslaughter the separate instruction about being a first aggressor which the jury found here that mr c tello and mr chinchilla were the first aggressors because they convicted him of the robbery that that instructs the jury that if the person who is the first aggressor stops fighting and you know being an aggressor and shows by their words or contest not apply them when the defendant through his or her own lawful contact has created circumstances with justify his her adversaries use just trying to set up a situation where he's provoking someone and then shooting them supposedly in self defense he is of that that might that might turn on the question as to whether the jury thought that chinchilla was ahead of sotelo is that it was talking on the phone therefore that the chinchilla was trying to get away from the situation quickly or whether he was right there with with with the tell all so to tell that's what so tell us so tell us as he's ahead of him the other guys say no they go to him right together they were together but i don't think that mr chinchillas liability derived from a direct aiding and abetting theory as in direct physical assistance or even standing by i mean this was a natural and probable consequences case where the prosecutor was really arguing well he he knew about the robbery and he participated in rock taking this guy's baseball hat and his key chain and so it's foreseeable that mr sotelo would use the gun against the others and that too is is the second basis for the court of appeals holding that jeff to billion reasonable because they're saying well the jury found that mr scintilla robbed those guys of the hat basically they rejected the key chain theory they didn't  didn't believe the witness who said his key chain was taken and they found him not guilty of robbing and that that particular witness but the other one who said well then they all agreed sotelo said gentilla took this so i took out my gun to you know show him to leave us alone and then as we were leaving chinchilla took the guy's baseball hat that's the robbery and that's the only one that the jury said was a true robbery the one the other one that they were trying that the other two into and they just didn't buy it and so in this instance in that case the court of appeal said oh well they found him guilty of robbery and so that's why it was inevitable that they would have rejected on reasonable self defense that's just not the case that was essentially this is trivial taking that you know at the end of a disputed honestly all about it if you got your two guys against him you don't take the guy's baseball cap and walk off he shouldn't have done it but  dispute about them identifying that they were playboys when they got there and that they said that after that as they left after chinchilla take the guys you know the defense attorney are you the one first to tell oh that he was actually trying to hide his gang he said these guys didn't want to be known as playboys they covered themselves up completely they were just going to the party to be at a party and they didn't want to be known as a playboy because playboy is don't have any allies and they knew that they could get in a situation like that so that was a disputed point whether they had said they were playboys or trying to  that they said they said they were playboys on the way evans that they were playboys on the way out yeah that's what i mean defense counsel argued that prior to this you know confrontation that he had been trying to hide it but be that as it may it doesn't it doesn't save the court of appeals analysis that simply assumes that the jury would have rejected a reasonable self defense when there is no logical connection between the facts that they cited and the and the decision that the jury would have had to make if they had gotten the instruction that ok now their time is good morning may it please the court scott taylor deputy attorney general for appellee in responding you know that the court of appeal the supreme court the magistrate and the district court all got it right when they said that the telo said was the other people hit them up they were messing with chinchilla he brought out his gun to defend them he put it away as they were walking away and that's when chinchilla took the hat that's not a robbery for sit tello if you look at the if you look at the elements of a robbery that's not him taking a hat by force not him aiding and abetting which is what the argument was by the prosecutor that as to the robbery the teller was the aider and abettor of that but that's inconsistent with what's the telos said about how that developed and right if the jury had contact has come even at a sideways match well if the jury rejected that testimony there was absolutely no basis to differentiate between his testimony about what happened after and what happened during the robbery they just rejected it and found him not credible so they found him not credible then not only happened that's the sara lee they could have displayed the meth or robbery but thought it was i mean of it doesn't much to do with the other point well it does here some objective evidence there about the fact that there was something to be afraid of well it does because they reject that all of his testimony about what happened at the robbery and keep in mind that the four victims and an independent witness that chinchillas attorney said during argument this is the credible person this is a person you can rely upon in terms of their testimony which is mr good boy he says no they're not chasing after him they're going five to ten miles an hour chasing i think he said that they were just doing it slowly i thought the distinction was between they were doing it in a ski and they were going to five to ten miles an hour with a calling twenty twenty five miles an hour but there's no doubt that they were i mean the one thing that is true here is that chinchillas involvement in the shooting was pretty peripheral yes and he got four life sentences for murder  and if he had had an option which didn't have him walking away altogether the jury might have bought it for him so that's what they argued and that's why while they argue that it was as i understand it they argued for self defense which would have meant he's dissolved altogether well now we're talking about even a noble review whether or not there was deficient performance and in fact i'd invite the court look at the argument he didn't argue or she didn't argue self defense in the first she did i looked and i'm sorry she well several different times you're out of the argument was five or six times she didn't know that five or six times around or what she said was that self defense they were both scared but the very beginning of the closing argument was these are two people don't convict chinchilla for all these things that  because they're two different people and you have to look at them differently and i say yes and she said it again where she said so tell us guilty of a lot of things here but that doesn't mean chinchilla is and she even said you know chinchilla might be guilty of a because he took the hat and he might be guilty because it's obvious he's a gang member but that doesn't mean he's guilty of everything else and what she was trying to do there was to separate the two based outside tell us are almost said for  example when we talk about self defense required how about why you have to consider his means to tell us perspective you're in mistress tell us position cars are coming down right after you've had a confrontation and you have to ask yourself to see scares you better be scared one piece scared exactly essentially mention this case but it works both ways a gun is a toll right and then she goes on that's one time that you know i'm she says let's see they got pissed off and started following them because they're going to get back was drunk how and would you keep going after these people with a gun again and even and again even after you get the police that has to money was that the victims were not credible that wasn't self defense and then he goes on and says  your honor my point is that the argument was don't convict look at them differently chinchilla didn't have a gun he was up ahead of mr so tell there was no gesture there was no looking back by chinchilla and you argument was that chinchilla should be looked at independently also keep in mind by arguing self defense she was arguing acquittal the same way she was arguing acquittal on aiding and abetting i didn't do the math because my math ability is is shaky but i believe that on an imperfect self defense mr chinchilla was looking at over fifty years that would have been four counts of attempted voluntary manslaughter along with the gang unhandsome and that's ten years as to each count so to suggest she was unreasonable for argument not asking for the self defense instruction not asking for the imperfect self defense instruction and not arguing imperfect self defense when he was going to do have over fifty years as a result she was trying to minimize exposure so could she have could counsel for requested an imperfect self defense instruction or some tell yes because i think because chinchilla itself what the lawyer could have done the lawyer could have asked for either self defense which he didn't or imperfect self defense were holding for home for conceivably both of them so imperfect self defense so maybe the court of appeal is wrong on that point well no because they don't have that option according to california law if the evidence supports a lesser included offense or self defense it's required to be given by the court because what we look at in terms of a strickland analysis and we do this with a significant amount of deference we also have to remember that we presume that counsel was competent and unless there is evidence to show that it wasn't a tactical reason we have to presume that it was a tactical reason and here there were many different reasons for defense counsel not to ask for one of them up not to ask for it but that according to the state court it should have been given whether she asked for it or not right but we're not but what difference does it make if she asked for it because the analysis is whether she was incompetent for doing it not whether the trial court was was erroneous for failing to give it she the trop or it has to give it regarding tristan that but there is something peculiar about saying that she and then in may cut against prejudice against that it and it reared way it wasn't prejudicial that she didn't ask for it because it should have been given whether she asked for it or that there is something that that there is something about the prejudice issue here that's different because it's i'm wondering whether there can be prejudice from not asking for something that you had a right to anyway yes there could be but th that the district well the analysis the district court did when it said she could have had tactical reasons for not asking it that goes to the deficient performance bright promise of strickland another words we presume she's competent we aspect of it now the prejudice aspect i started to get to first of all you have the fact that they rejected his testimony secondly you have the fact that if they believed the telo and thereby actually chinchilla ansa tello committed a robbery then under those circumstances there's an instruction they would have had to give if there was a there was an if there's an instruction they would have had to give which basically says if the defendant by his own wrongful contact commits an unlawful act that makes it so that the victims then i don't have the exact wording he's not entitled to imperfect self defense so by virtue of the jury finding it says it's wrong for conduct it's a robbery that jury decided they committed a robbery if they commit a robbery that that entitles the victim's then to use force which is to go get their property they're not entitled to and want to read said if they are justified they're not they're not justified in using extreme force to recover the baseball hat that's the problem and at that point then i think the imperfect self defense may still be available all right that that's my that's my understanding of what judge garzon ok just read let me move to the premeditation into liberation now i agree in the abstract you can possibly have premeditation and deliberation but what we're looking at here is the court of appeal saying it's not reasonably probable that once they find premeditation and deliberation that they would have also found imperfect self defense and if you look at the instructions on premeditation and deliberation and also those on imperfect self defense you'll see that premeditation is a carefully weighed consequence cold calculated decision to kill wow the imperfect self defense talks about an imminent and present danger must be instantly dealt with i think it's reasonable for the trial court to say once they find premeditation and deliberation the idea that they would have also found imperfect self defense doesn't make sense while in the abstract it's possible that could occur under these factual circumstances they're certainly completely inconsistent with each other those states of mind and you know going back to the idea of deficient performance it seems to me that if you look at the the the attorney's argument if you look at the amount of time he was facing under an imperfect self defense which was a lot of time if you look at the civilian witnesses testimony good boy who she says and that's another way you can tell what is the tactic here she says good boy he's credible what he said makes sense and what could do what he said is there back there going five miles an hour very slowly not an imminent situation so all of those put together you have to look at this and say yes of course her tactic was she wanted to get off the hook in terms of everything or maybe even self defense but concurrent or consecutive but even with that you're not at fifty years i mean it's just and it's a determinant term instead of getting life with the possibility of parole which is what he got four times he would have had a determinant sentence where he would have had an outdated and not have to face the parole board so it's very significant that would not have been a reasonable tactical to her ass from where she to testify is that right she didn't she declared a conflict of interest after the trial until another lawyer took over on behalf of mr chinchilla he filed a motion for a new trial arguing that this was ineffective and there was no testimony the trial judge just treated this in a very summary fashion and said well i shouldn't have even instructed on self defense in the have given it even if asked and he should have given it all not asked what's the precious from our not asking the court of appeal held that he should have given it so i mean i think where we are is that she should have asked he should have given it it he says he won't have given it even if asked and the court says he should have given it all for not asked so what difference does it make that she did ness that the problem the trial judge had with the rationale that he gave is under california law if you give a self defense instruction which he had to admit he did because he did he was obligated to give the lesser and i so tell us obligated so therefore what has a matter that she then asked if she had asked because he didn't choose to give it is mind set was clearly different during the trial that it was after the trial if she had asked during the trial and she had showed him the authority that he was bound to give it he would have given it because he gave the self defense instruction i mean his mindset changed after the trial he didn't want to grant a new trial during the trial he gave a self defense instruction he was obligated and this is a hybrid of two things it's partly a defense but it's also a lesser included offense and as counsel discussed the judge is required in california if there's if there is a lesser included and they have to give that even if the parties are objecting so this was clearly an oversight in my view looking at the entire thing the trial lawyer did not recognise but she should have asked for this instruction and she got that but that only gets to the prejudice question of those right yes and as to prejudice counsel argued that well premeditation in the self defense there are just completely inconsistent well because they have nothing to to do with each other the absence of self defense is an element of the crime of murder in california and and manslaughter the absence of self defense so these juries this jurors are going to have to consider at the beginning of the analysis was this self defense or was it reasonable or unreasonable if they had been given all the instructions they never would have reached the issue of premeditation the idea of thinking about something beforehand if arming yourself never would have come into their thought process because it's not relevant the only way that you get to premeditation is if you've already decided that there was no self defense and then you have to look at intentionality you have to look at thought process you have to look