resolved by the california supreme court the issue of that was raised in the case of school which counsel relies upon is currently before the supreme court so they may have the opportunity to question related question is in this manner your honor there is a case that coming out of the circuit the ninth circuit i think what the court is making a distinction is between the concept of a mandatory presumption in the midst of inference or not a presumption that's not mandatory that can be  mandatory presumption in that case and i'll give you the cite for it in hannah versus riverland as the leave the facts of the case the case it was a manslaughter case in which the element which needed to be proven in order to establish the manslaughter was a reckless driving on the part of the defendant and the jury was instructed pursuant to a statute i believe that if the team did a certain limit then the jury from that point may  the court it is certainly our strong position that the jury in this case was instructed that if you find that there's there are different ways perhaps of finding the specific intent element the officer during which time three or more violations committed their side a traffic violation point counted or twelve ten or damage to property occurs could they have just that that's a felony they clearly have the ability to make that a felony why isn't exactly what they did here because what we have two ways to get there you can either be willful or walk or you can commit three of these violations on usually we have to make a distinction between the point in which the statute was allowed to  higher intent element and we would suggest to the court that this is not a situation where this was just an alternative means of producing it this was at the legislature intended it had it wanted to craft the statute that the court describes it certainly could have done that instead what the legislature did and we believe this was kind of a gimmick was to take a statute that already existed and made it easier presumption was raised in our brief before the state court we raised that we cited essentially the argument in the state court was that this felony of twenty eight hundred point two may not be used to support the second degree felony murder rule and that that's directly a question of state law or federal law control law i believe that's a question of the federal constitution or under the under the jury's sixth amendment right to have the jury determine the facts and also the fourteenth amendment right to due process cases make that clear but the characterization this particular extract whether or not it can properly be viewed as a mandatory presumption that you think it's a federal question rather than a state this is not a test that is applied differently depending upon whether you're in state or federal court the simple test for whether or not this is a mandatory presumption is any when you instructed yours that they need only find certain instruction in the record instructions that were given yes those instructions have been lodged and i believe they're included in the record your honor why isn't this the answer to your contention the california court of appeals says misreads vehicle code section twenty eight hundred point two which is a felony because it has the added element of driving the pursuit vehicle with a willful and wanton disregard for the safety of persons or property subdivision a subdivision b statute does not make the commission of three or more traffic point violations an element of the offense rather it provides that commission of three traffic point violations and is one method of proving proving the pursuit vehicle was driven with a willful and wanton disregard for the safety of persons or property and then they cite school and i say this being merely described a couple of non exclusive acts that constitute cry for the safety of persons not presumes but hey the legislature said these acts constitute will for wanton disregard i'm not sure that that's not our argument your honor i believe that we have consistently said that when they say you misread it it's not a presumption at all these are just non exclusive acts that prove one and well f make the critical point with was the work presume you may presume that the defendant's driving was wanton and willful if you find the case that the defendant committed the following three i'm not sure that the term presumed is such a that's the instruction and we believe that by including the term includes the critical point here is your honor your honor to be made to make this additional point the instruction in the presumption in this case was far more significant because of the nature of the higher intent according to the un contradicted medical evidence and so the prosecutor told the court before trial that he was proceeding on the theory of the three traffic violations he submitted the special instruction three point three three which told the jury that these offenses are strict liability offenses that they could essentially find the intent to commit a felony which was the intent which is what made this qualified this case for murder prosecution by the commission of three strict liability traffic infractions and that point again was argued to the jury to the extent that hypothetically under a different scenario had there been a different driver that was perhaps  more had a higher i q some of the arguments that you're saying i think might be more legitimate but in this case with this defendant and with the way that the were given including the instruction using the word including we believe that here if we find the three point traffic violations do we need to go any further and also would you please do us a favor and give us a clear definition for the higher it's a complex mental state that's required prior to the nine hundred ninety six amendment and they said we need additional information on conscious disregard can you please give it to us and the court responded by reading the that the three point traffic violations and responding no i will not tell you further so that the jury needed to know whether they could go any further and they were told essentially since they were confused as to one point and we should all put ourselves in the position of the jurors in that situation if you do not understand when you're deliberating in a case the higher intent and somebody tells you you may resolve that by  simply finding the three infractions i think that it's a foregone conclusion and then the guilty verdict was rendered shortly after that which means they just felt their confusion which means that they decided to put their confusion good morning your honor deputy attorney general ran a line or not behalf of respondents in f l heath with respect to the issue that we pretty much talked about thus far the district court here properly concluded that petitioners claim dealing with the interpretation and application of twenty hundred twenty two a vehicle code section of california does present only a matter of seeing if this record also correctly conclude that in any event in the state court reasonably why was it only  wanton conduct which can be shown either by conscious disregard or by the violation of the traffic points and that is tracking the exact language of twenty hundred point two a and b parent's right so i mean you didn't delve into that niche of whether this is mandatory presumption but you know since in rejecting his argument i suppose we can say that the state court found no clear that that is a matter of state law or for purposes of the federal constitutional questions may be a federal question how on how one gets how one characterizes what the state has done and it's if it's not final what good is it well i would submit that that that the case is a sort of i thing on the cake so to speak to support the argument that it's not a mandatory presumption but but that the state courts hear that argument was presented to the state or in this case a bunch of traffic violations that involve no men's rights all and convert them into second degree felony murder under california law well not exactly you can take three or more point violations and combine that with intentionally evading an officer and it becomes a felony offense and thereafter he kills someone instructions to the jury the jury hasn't commented on that and then the judge just directed them to the count that was no longer there and the judge told the jury i'm not sure i understand your question now if you want to reformulate a question go ahead and write it down it's a minute and we'll try to come up with an answer and as an aside there after i think one of the jurors had to be dismissed because they had to travel and any alternate was put in and they were told to restart deliberating from a new and there was no further question ever submitted to the court so the implication that there was some confusion i don't think is necessarily supported by the record  the speeds the climate's attained while being pursued by a police car with lights and siren reckless running a stop lights driving up an investment driving down the middle of a two lane road straddling double yellow lines at high speed and during the school zone without slowing down all despite the urges of this passenger stop amply demonstrate not only his attempt to evade the police officer but also demonstrates recklessness and a willful and wanton disregard for the safety of persons or property that isn't a person of normal intelligence and mental capacity though and that's the problem in this case you've got somebody with serious brain damage who doesn't have normal mental capacity well i thought i would submit to the degree of the gree flees further that that sort of undercuts some sort of quick rationale and thinking nine capacity was there any evidence in the record of what he said or did immediately when he was apprehended after these go after her i was wrong i take full responsibility i was running from the police i don't know why i just didn't want to get caught and again if you remember it was related to another issue that wasn't on this was not contrary to or and reasonable application of federal law is clearly established by the united states supreme court or an unreasonable determination of the facts we didn't really go into the second considers this to be an important issue and the fact that the state who are ignoring federal constitutional issue i don't believe can be seen to be a ruling that the court understood and dismissed the issue instead the court in that regard was confronted with an initially a state court issue which is whether or not the felony qualified under the felt the felony murder rule and the alternative argument was that if it did qualify that  violated the due process clause i believe that the states argument in the the courts to this point have been a little bit confusing by referring to this issue as a state court as a state issue when i think that what they were for him to clearly was the initial point that was raised in the argument in that it was whether or not the section twenty hundred point to qualify we do not challenge that here we concede that point for the issue of this discussion that  the state law was properly applied the question before this court as it was before that court as an alternative or as a backup was whether or not assuming that that application of that statute complied with state law whether or not the constitution the federal i'm sorry and say that i'm running on a little bit but they all share the element of instructing the jurors that if they found pretty good facts that they could assume that