and it relates to basically the second half of my brief relating to the issues of whether the jury charge getting here by the state district court in permissibly lowered the doesn't it also help me with my final point of what prejudice i have to show and that it recognizes i think understand that it's a structural error and that this court shouldn't try to guess what the jury would have done had it been charged correctly but the problem i have with you with this point is that it appears that you're the victim the lack of a better word a procedural default and so we don't even have jurisdiction to look at this issue because you never raised  constitutional terms at the trial level not you you probably went to trial or it wasn't raised and when that issue then became an issue up above in the court of appeal and later on the court ruled it out adequately and independently state ground base that they wouldn't hear it because you you forfeited your opportunity to pursue it so why isn't that a procedural bar that's used that separates this case from gibson right you know totally when i think it's in your honor and this is my reasoning to be an adequate bar as this court has recognized another case is it has to be clearly consistently applied and well established and there seems to be a well established rules of the contrary in california state courts that the court of appeals in california seems to me to say we can save you on appeal if you didn't object in the trial court which is separate from the federal line of cases which is if you didn't raise a constitutional to say failure to raise a constitutional question in the state court can be overcome and we can still hear the federal constitutional claim in federal court if i might break that because it is i believe a fundamental miscarriage of justice under coleman in that it did lower the burden of proof in this court in gives and recognize of the error was so fundamental that it structural so we have that i think through that although i i still think that the california courts in their language when you can raise these issues when jury such as the first i'm going to peel off it's unfair to then say well but you should have done you should have done it when i think the california courts last recent opinion of the california court of appeals but i think the california court of appeals did look at this issue that i understand the rule is that doesn't mean that i win on the procedural bar just because they looked at it alternatively but the issue was presented in the california court of appeals that was ruled on and i think i get around the preclusion issue with this understanding that california court of appeals and supreme court will look at jury areas for the first time on appeal pointed out there are several independent bars that that come into play in this case first of all we had to be independently applied and regularly pride state that you must make an objection and a constitutional through by the district court in this case as partners also pointed out you have an independent federal rule that says in order to raise a federal constitutional challenge that federal constitutional challenge must be presented to the state district court and there was absolutely no attempt to do that or to hold it in advance in the district court so in that sense i think it would be it would be waived at this point in the litigation if i may also make a quick i'm trying to in this court in that sense it's not exhausted because he hasn't gone through even raised in the state appellate court a constitutional challenge to the instruction that lower the burden of proof he can argue that in the federal district court in the federal district and i apologize that it is confusing i mean in one sense we've we've addressed what i think are the procedural default claims and that there is certainly in the body of the text relating to the instruction of that very explicit discussion about the fact that this is the first time in this proceeding that he's challenging this instruction on the question of burden of proof the more you ask us to do more well your honor i'm asking you to deny obviously his claim for relief and uphold the district nine and a case presented here involves that modified instruction not the original instruction so based upon the instruction that was given in this case the jury was clearly told that it could not rely solely upon the evidence to find the defendant guilty of the charged offenses and also that the elements of the charge defense must be proved beyond reasonable doubt in addition and mike in gibson the trial court went on in this case to give her the clarifying instructions above and beyond those that were standard by preponderance of the evidence i want you to clearly understand that although the burden of proof as the prior and charged offenses proponents of the evidence that does not last and anyway the burden which which must be satisfied by the prosecution as to the current read and then and in the end of her opinion she squarely addresses the issue on her page seventeen extra to record eighty one the instruction did not so in fact the trial that the resulting convictions violate you cross that's correct statement of california his argument and focused it but i think he did raise it and the district court certainly reached it so and there was no objection below there was no motion for a clarification saying wait a minute you should even be reaching that because that was not exhausted do you have any response to what the attorney general wrote us from the case it does seem that this case stands on a completely different footing because the trial judge whether the trial judge used interesting language or not made a very deliberate attempt to clarify the difference between the other evidence and the and the requirement of guilt beyond a reasonable doubt you want i think it's to something gives him a clear those instructions even as given here are just inherently contradictory telling the jury find these facts beyond by a preponderance which is really just more likely getting there when you add up all the facts in the black or that show him whether he's guilty these facts have to be proven beyond a reasonable doubt but you can add some more facts that are just been proved by a preponderance and what kind of facts we talking about  raiola versus mark