taylor comes along where the specific crime is i believe sale of heroin resulting in an overdose that kills kills the victim well there is an ambiguity then if you use the term inherent part of the act of homicide way i see it what they did is they determined on the abstract elements of a two forty six that you could have a clue at all funniest intent but when you have a specific case like wellesley where the man shoots into the building in order to kill someone or  this case where you shoot into the motor vehicle in order to kill someone you don't have anything different from the ireland situation where the man shot at his wife she just happened to be sitting on the couch instead of in her  think there's a lot of this which is going on with the hanssen case and a lot of it arises from this problem that i talked about the first issue about judicial legislation but one of the suits which is which in dealing with these problems you see it in the smith case smith case justice must said and i think this is true impliedly approved of wesley in one thousand nine hundred four smith dealt with the crime of abuse of a child now the supreme court so there's many abuse of the child will be able to predicate second degree felony murder because it won't merge so as i say the switch from the facts to the elements is something that was not announced enhanced but was something that they did so what you're no i don't believe there was i believe that what there was was two formulations of the same test that the california supreme court treated as the same up until hansen which would be the panel that really agree with you i don't know they didn't say justice march certainly would agree with me they say what they think about wesley they say that they say that correct they say that wesley is disapproved because two forty six was not the type that they don't apply apply this sort of i call it's not a rule it's a rationale may well be that you're going in a long way to say that there was not a just two distinct lines of cases that were emerging in  federal question which is was once an unforeseeable expansion of the slot now i think if you look at all the cases and we've traced the history in the briefs all the cases treat the two formulations i don't think it's two lines of thought or two formulations of the same thing whether it's the ireland language or the taylor language these are two formulations the same thing they are treating these yes consistent they're treating these it seems to me if there are two strains of thought going through this apology structure which is not which occurs not infrequently in california that you could say that sooner or later someone's going to choose one side or the other and therefore it interferes with your argument i understand you have to overcome that theory but what i don't understand is how you can say that the hanson court at least has set up the specific theory when they say that they're rejecting wesley well they are they say they're rejecting the ireland formulation they call taylor which is the source of this little folly rule colony intent rule they're calling trying to formulate hanson as clearly as i can i don't think it's a very clear case so i don't think you're dealing with two lines of thought in the sense that you're dealing with two separate tests that come out differently apply chance and hanson lives to the facts of violence you come out with the same result applied to the fact of wesley where that where you're shooting into a building at someone in order to kill them you come out the same it's all apply both tests both formulations to this morning your honour's eric share for the people of california i'll start with that first issue we just left with his asking this court to do something that no california court has done in the hundred thirty two years since the act i think the term i used in my brief is there's been some judicial hand wringing about the second degree only murder all in california but the fact remains that no court has ever held that it is unconstitutional opinions most of them don't even discuss second degree felony murder because it wasn't an issue in that case so yes there has been some language in the opinion saying you know we're not sure about this maybe the legislature has taken a look at it but the fact is the legislature has not the legislature has been satisfied that the courts have interpreted code section one eighty nine as incorporating what was a common law the second degree felony murder al haven't seen any need to revise the statutes and given again this long over one hundred year history we think that is telling on the second issue  two lines of cases as if they were really competing winds of cases that were also complimentary so that they could stand with one another the fact is wesley came out and i wasn't your honor mentioned within a week another case came out saying no no no wesley read ireland broadly the tests that it positive for ireland would do away with the second group following murder rule and that's not what the court in ireland intended so then you have announce a new rule and hansen they never would have been able to apply it to mr hanssen in that case because it would have violated his rights of ex post facto but the court hasn't no problem with that because as it says we're not announcing a new so we're dealing with a situation where they're not they're not being explicit about what it is they're doing this is not to say they're doing anything dishonest but what's happening in it is we see often in the in the