both of the issues raised in this appeal are the result is dictated as to each of them by controlling supreme court precedent indicating that mr taylor is entitled to haiti it's relief  being given in the specific instance of a defend that testimony being part of the case well you probably have to meet the burden do you not showing what the impact or should have been on the jury what's what's the harm here your honor this since it is a burden shifting instruction as opposed to a merely ambiguous instruction err in essence the mr mr taylor was required as part of his defense to prove to the jury that his testimony was probably true instructed that notwithstanding this instruction as it might apply to witnesses in general that where you're talking about not merely a defendant testimony but any witness who testifies on behalf of the defendant you cannot exclude that evidence merely because as a matter of probability you don't find it to be credible right but that's different from the instruction in cool versus united states where the jury was instructed that the convincing that the defendant had to have with respect to an affirmative defense had to have presented something with convincing force beyond a reasonable doubt which the supreme court struck down it also is not  jury as to burden but the net effect here is the same and it's really a difference in degree and not principle the difference here with respect to the instructor when is the net effect was that the jury was entitle to place the burden on the defendant proving more probably than not that his testimony was well founded are credible before it would be considered ice part of the total which it was the two officers word against the defendant's word and for us to be able at this point to say that it was harmless would require essentially this court to place itself in the role of the fact finder now of course one might be able to cynically surmise that well this is a defendant with a lengthy undermined the defense case the same way that the instructions found objectional by this court in gibson versus ortiz and francis versus franklin did and again there's a difference in degree but not in principle  on a winship type argument was given versus ortiz and in that case this court was very clear in finding that the instruction told the jury that they could find  evidence true by a preponderance and then take that evidence and find that the defendant had actually committed the crime hugh we have at best a vague instruction that talks to how the trier of fact and the jury in this case was told that there was a charge of fact how they will determine which facts are true and any ambiguity in that instruction and i'm quoting from page sixteen of the soaping brief where celtic number two point nine he was given in this case it's in a footnote this presumption places upon the people the burden of proving him guilty beyond a reasonable doubt they were very clear about the standard of proof here later on in the instruction and the court instructed the jury that after in entire comparison in consideration of all the evidence that the jury must be left with  an abiding conviction of the truth of the charge in this case a very vague instruction on finding the truthfulness of facts of all the witnesses cannot overcome the very specific language with three he stabbed and killed the victim during a fight and at line eighteen on page seventy three with a codefendant entered the business with a gun threatened the clerk took merchandise and stole a van now in addition to the lengthy criminal history he has also of violence and uses weapons and i believe this isn't even his only drug related offense i believe he was convicted twice potential for all kinds of wild card sentences some of which is problematic in any kind of civilized society one wonders why primary focus has to be the triggering fassel of one can take into consideration the history and here you have your dangerously close to putting someone in jail for life for being a drug addict i wouldn't go that far i believe that the the the prisoner still had the possibility of parole and a fifty and fifty year to life sentence and here we have a twenty five to life sentence and he has the possibility of parole after twenty five years the second thing was that it was just a drug offense if i can paraphrase the arguments that i think i think i'm hearing the california court of appeal in citing i'm sorry harmon versus michigan quotes justice kennedy and says quite apart from the permissions effects on the of individuals who consumes illegal drugs such drugs relate to crime at least three other ways a drug user may commit a crime because of drug induced changes in definitely a joint decision it would be helpful if you file a note to that effect presently this hanging and waiting for a brief that doesn't appear for scheduling purposes and others i believe we did it just the letter was actually called the