they please the court my name is wayne young i represent mr hersh in this appeal i appreciate the clarity there are two related issues in this case the first is whether the hearing conducted by the court into mr hirsch's competence satisfy the statu competence for certainly welcome questions on the rule thirty two question and they specific issue isn't whether the court probably found that mr hurst confident of whether the hearings that the court conducted complied with not satisfy the statute or the order of the court had an obligation at a subsequent time to conduct a subsequent hearing well i think there were three hearings here three different dates on which this was discussed if not for all of those together did not satisfy the to work with on the issue of competency you have two different diagnoses so there's disagreement by government psychiatry and lose this list of symptoms again the second report by dr mad to find them competent but there's some question about it at examined examine this to her all three of them are agreed that while he has it's evident that he has mental problems but those metal problems do not affect his ability to understand the charges and to aid in his defense if he's willing to wait in his to certainly could have raised a question about confidence competence and the evidentiary hearing but chose not to and this is where the duty of the judge gets triggered and that brings us to the crucial three days before the guilty plea on the seventh this is the thursday before the trial supposed to start on tuesday there's a threat of suicide and i was serious that was you know that's the first event and then on monday the day before trial judge hatter himself s state and he wanted that he heard from an outside party and disclose it to everybody that there was a claim of innocence and the government because it seemed the third report had asked for an independent evaluation generally the grounds for twenty to fifty five because you're stuck with the record so pretty for that reason and because of time in which imposes you certainly could argue plainer you could argue find out and that's that would be the rule eleven you know is it annoying involuntary cleavage that gets stock comp and so i think ultimately however you approach it it all comes back to the quality of the inquiry into conclusion and counsel and this is not a single it's not a single attorney we have a series of counsel each one of which has come to the conclusion have a damp like that there is no grounds at least that they're not willing to challenge the medical expert  cooperated with them but more importantly my argument is here why hearing that there were three proceedings that was competency was discussed but there wasn't this inquiry into all these personality disorders that were identified by the three government psychiatry that's certainly raise questions even in our mind about competence they concluded he was competent but there was some hesitation there and i guess from the defense point of view if you wanted to challenge competency there's an awful lot to work with and those reports and someone had to make that inquiry and because it's a mental health issue to myspace clearly that it's not the judge should not accept unquestionably the opinion of defense counsel question his comments really i mean they say there's some question about it but they are not serious enough that they asked for a hearing or they have their own last word or anything i mean they had the one expert who he was used to talk to that will what's the rule you want to impose here the first part of the rule enough to trigger the inquiry and then that includes if that really is a difficult question of the judge supposed to cross examine at a minimum i think this type i just have to be asked to report perhaps the appointment of a master to make that i and you would have a determination of competence now because he would be subject to a new trial confident as the court is certainly aware court orders to respond take to competency evaluations under section forty two forty one having found reasonable cause to believe that there might be a problem if the primary focus of the district t clearly that the court has some role here affirmatively to take action are you saying that the statute simply only requires judge hatter to have ordered the reports and his suit was fine the obligations are over or does as counsel is suggesting once those reports come back and there's anything on the face of those that would raise support further questions about actual competency in light of the judge's own perception interaction as he's having with this defendant to take the next step to go ahead and cross examine and ask questions the first was he was crippled by the delusions that that called into his question his decision to go to trial instead of accepting a guilty plea i believe was the bank robbery case he was on the evidence was overwhelming but he's delusional that were should be suspect well i posit that in any event you may know you may disagree but at least that undercuts if there is some doubt about the relationship and vege hatters acknowledge that the perspective oak a drugs not a perspective of a doctor who's looking at mental competency that's an important aspect of society you know the medical judgment but that's the court itself would have some independent obligation to make sure he's observing in court and the things that have caused him concern and what the doctor has reported just as bottom line conclusion but what he's reported don't dissipate or dispel all and all of the concerns about how this of mr hurst and that is going to further inform the dish record when it is evaluating and has the opinion of the expert as to the discreet issue because the district court had the report disease or of his psychiatric issues it was disagreements over strategy but in any event it was not a disabling factor as far as his competence to proceed and with those two conclusions by the something that i think the district it can factor in deciding whether or not he is in fact confident and those reports coupled with defense counsel's silence indicates that there was no disagreement government's psychiatry's thing i'm not sure what it is if he can't cooperate with his council maybe because he's not trying to but it might be a function of his personality characteristics which go back to that isn't it sort of true of all of us who don't get along with people with often the function of our personality characteristics that i'm not sure i'm not sure what that what that demonstrates what it demonstrates is because of the diagnosis that he had a personality disorder maybe not a full blown axis one disorder but a personality disorder that's a minimum amount to trigger concern about his competence and then the doctor says and that might prevent him from being able cooperate with his counsel it required further inquiry and i disagree with with the government about you can rely on the guy on the defense counsel's representation i find being a problem is not necessarily in the client's best interest because it may trigger the labyrinth of going to springfield and this is a case in which there's a relatively small threat and so there's all kinds of reasons the fence counsel might not want to challenge the question of competence and that's what triggers the duty upon the dis for the next case on calendar does not say anything about the fact that the jury can consider the self defense claim when there are other motions other than fear that  one of which was fear at the time he pulls the trigger under your understanding of what california law is what did he have to show to have any perfect self  so you're saying that at least the jury to believe that if he had anger at any time leading up to this confrontation that he can't prevail on the self defense because they would have understood that at some directive must be acting out of fear or love and i think it would be almost impossible for a jury to make the distinction i mean if they know this guy was very angry but he also testified that he thought he was  also claim that he was not angry yes he did well he claimed that he was not angry how can he complain about a jury instruction the fails to instruct jurors on what happens if you feel thank her because i think that a fair reading of the record discredits that comment by him i mean there was a lot of backpedaling with respect to who was angry and who wasn't angry but there was so much there was such an undercurrent of anger and so you just entitle to th there was some evidence in the record to have the jury constructed on his defense and i don't think they were i think they were fact they were precluded from considering his defense and i think i think that's  fairly apparent from the jury the jury deliberations they spent two full days deliberating and wound up second degree murder i think that the the evidence of anger that clarify though one reason he may have this of anger was so that he could try to persuade everybody that he acted out of fear alone given the thoughtful law in california the other may view that he disputed but as you say there was other evidence that he was angry so however it got injected into the evidence i'm just trying to understand how time i pulled the trigger that was all a product of fear alone isn't that how the cases get tried in california and i think don't you go to the jury and argue that yes i was angry but you know you've got to that didn't he argue at all that was argued at all to the jury that that there was anger and but whatever anger there was involved here was superseded if you will could have adopted this theory right from other witnesses so in the record their ears evidence of anger i'd like to just if i could back you up a little bit just and we're going to a sense of trying to understand how these cases get tried in california when it serves the planet must act out of fear of alone is that is that make can counsel make it clear is it made clear to the jury that that relates to the that that is actually results in the killing if i start out angry and we have a fight and in the court which happens all the time ok unfortunately kids get angry with each other on the schoolyard and one pulls out a gun and blows the other away but it started out as anger but at the yeah the guy with the kid was fearful because you were killed picked up the knife or a rock or something like that does the fact that anger that by its language that the defendant must have acted under the influence that fear alone what's the point of the qualifier alone what's the point of that in the instruction preclude a range of emotions wouldn't that be the equivalent to instruction to make clear to the jury just the response you've given to me which face of acting out of mple evidence that he was that he's angry why can't the defense come back and say look we want to construct it on the on the no anger defense but if the jury doesn't find that out in california there is still an imperfect self defense and one side of the special instructions  russians that counter the prosecution's theory those are those instructions are considered argumentative what is important is that the defendant is entitled to instructions pinpoint or otherwise trevino could have requested additional instructions with regard to his feeling anger toward blanton as well as fear what with regard to a situation where anger and fear were both causal factors he did not do so and given all the instructions so that pertained to his defense he was not deny his opportunity to present a defense not at all like i said he was given the full  defense instructions that apply to his theory he's not entitled to argumentative instructions and the bottom line here as the court pointed out initially by the special instruction feel that i was angry that does not preclude self defense he was free to argue that in chose not to watch because he did not want to focus on the anger because the theory of the defense was that he was not