unreasonable determination of the facts of the meaning of the at the statute and that that's that state law ruling resulted in the near term the predicate offense for felony murder not merging and and therefore the but all that's required in the in that analysis is that he had an intent of valor and the facts here showed that he that he admitted that he knew that he fired a weapon at a blazer the black blazer and he thought you people were inside the blazer or you could also be viewed as an error sufficient overcome the presumption of practice for a state court fact finding and that resulted in an unreasonable application of enraged when ship and the long line of supreme court cases error was the basis for removing an element of the offense of murder from the jury's consideration and that that result violates that one of supreme court cases argument that it has to be an intent to assault under california law is an intent to frighten sufficient to constitute a collateral purpose well one looks at the no no you know if one looks at the  fired shots to hit people but it was the shots fired in the air like what the question is what constitutes a sufficient collateral purpose under california state law and in robertson the defendant fired shots in the air under a long long line of supreme court cases that i mentioned that i cited in the briefs but he has the federal right to have the jury decide every element of the offense and that didn't happen here please the court again rogers deputy attorney general who responded and appellee in this matter i'd like to begin by clarifying a factual point that i think will make it clear that this case the court notes that the two victims in the case and got out of the car and walked away from the car they were not this is not a case of firing at an occupied vehicle it is a case of firing and in an occupied people so they were outside of the car and how much higher the shots he had intended to frighten them he did not aim the rifle after he was found guilty of firing at the on occupy vehicle in robertson he fired into purpose this is not by his own admission his own statements to the police in his own trial testimony this was not the assaultive type crime that was counsel for appellant indicates this is clearly a case in which he was attempting to execute this other purpose if you will as collateral purposes robertson calls and in the process struck and killed one of these individuals robert zimmerman was the law in california at the time this case was decided consequently california court of appeal did not act reasonably in determining that any error in instructing that you sold a firearm which was no that there was an error in your be terminating that there was a collateral purpose and in terms of whether it's an unreasonable application of federal law the felony murder rule california's general rule against excessive petitions i park the district court state proceedings to let him exhaust the felony murder of his human well went to the supreme court and it's him right now i haven't looked at the hay vs petition that was filed but i do know some days that are important behaviors petition and i believe the order denying behaviors petition is in our supplemental excerpts of record i can't give you a page cite right now but i believe that's where it's located and it indicates that the hate b s petition filed would help when his supreme court was denied on march eleventh two thousand and nine the child decision was decided on march thirtieth two thousand so it looks to me just from the dates that perhaps mean i'm a little confused as to the gates but i thought that you'd already cited charms to this and i don't know it may have been pending at the time and the supreme court i'm entering into the dangerous area speculation here i'm sure the supreme court given the proximity of these dates was aware of chung but the assuming he could go back to the california supreme court and that there was there is avenue that excuses him from the general bar against excessive petitions in california and a change in the law would again if he hasn't already raised raised it and without looking at the petition just looking at the dates i don't see how he could cite a decision off because we're not we're not going to get a record i apologize as well and you know all these years see things are on camera you know the he could perhaps get the issue before the supreme court whether the supreme court would find the child decision to be retroactive is another question and i don't see anything in the child decision that suggests that that decision isn't fact retroactive right now so this may be a situation to have to get back to judgments question where california law evolved california over ruled prior cases and he may not get the benefit y