happened that was unfair but in this case there's no question there was a gigantic error mr damien was retried on counts for she was acquitted acquitted by a trial judge you have to understand that when mr damien first meet his deal and did a essentially stipulated facts trial the judge found him not guilty of one of the in shooting and how did welling and not guilty of an assault with a deadly and guilty of a lesser the involuntary confession that my client gave when the officers threatened him with a gas chamber the court found that was a little too much so goes back down to the dish to the trial court trial court again introduces the confession and again it gets reversed because of course you know a lot of threaten people with the gas chamber so in the third trial my client goes to trial alone and it happens that they just try him on the original information as  had never occurred and there's just no question whatsoever that's a violation of double jeopardy and that's all there is no question about that the question is really with the deferential standard of review that we're now required to apply well that the california courts were correct and using chapman versus california in a harmless error analysis and you know what the california court of appeal said because the presentation of the prosecution's case would have been identical the error was harmless beyond a reasonable doubt number one you think morris  towards motive opportunity lack of mistake it has to fit within the theory and it wasn't admitted for that purpose it wasn't given the limiting instruction it wasn't a pork appropriately cordiant to with one purpose which would be in this case i mean the only issue that there were some crimes committed that night there's no question these folks were going around they had a shotgun and they were doing bad things however that's a far cry from conceding that he committed had the transferred intent to commit murder because again recall had the transfer of content how does the evidence concede that point we'll never know what i'm saying is that's the only issue alive in the case is whether my client when he was driving sure the intent of the shooter mr vasquez to kill damien has been acquitted of trying to threaten these two girls the first part of the rampage he didn't harbor i mean he was convicted of brandishing so he didn't have an i mean obviously the trial judge found that he was in the vehicle down that he knew about the but did not find the only element he didn't find was his intent to actually intimidate or harm he also found subsequently that he didn't harbor the intent to shoot an inhabited well i mean he's got through i mean that's a big thing i think in this case where you have someone who's convicted in the only thing he's sitting in prison right now on this is it is the murder conviction i think that's what would your side have been entitle to an instruction to the jury with respect to this evidence yes that yes you can and what is your authority for that proposition what i mean what is your view of the instruction would be he's been acquitted of these counts and what  basic fundament of due process is your ability to say hey look jury i was acquitted of this conduct i mean that's not presented at trial that's a pretty big gaffe i mean that's for i mean someone who's going to spend the rest of his life in prison who went to trial when he was what nineteen years old and he's going to deal rest of his life in for them not to present the fact that he was acquitted of the counts and remember this if his lawyer goes about the right strategy there is only one issue in the case everything else is conceded you don't have six counts you have one and in that kind of case that's winnable i mean once i mean the trial judge that's not an easy thing to get in a trial just with clips you brandishing vehicle and lawful discharge of the house and second degree murder so there wasn't one charge there or there were three good remaining charges and of the acquittals one of them he had been convicted of avenue house shooting because a single shot was responsible both for the shooting at that car which was one town in front of that house and that same shot went into the pacific a house so basically that was those were in and indistinguishable activity no way to separate those two acts out anyway so that evidence was not to come in i inadvertently referred to the second house where the unit which prosecuting those counts if you couldn't prosecute on both there was no harm because the exact same evidence he's going to come in either way but wouldn't would it not of come in with an admonition to the jury that for quest that  with respect to the seven and still he was acquitted could you have argued the committed those assaults without evidence came in the well the argument would have been would have been almost the same because the evidence first of all the two requires intent no it doesn't you think that the conviction on brandishing would satisfy one of the elements of murder murder this murder was implied malice second degree murder did not require ten to kill required an intentional act with conscious disregard for the consequences and is that an element of brandishing it's not a specific element of brandishing been a branch of our you are escalating into implied malice second degree murder when you actually discharge a firearm i mean here's here's the logic i think that the the petitioner in this is making which is that for the murder conviction to be sustained you would need an element that can find in the salt that you would not need an element that would you cannot get to a murder conviction simply on the brandishing conviction and that the defendant in the criminal trial below the appellant here would have been able to say i was acquitted on the assault charge and apparently under california evidence rules that would have come in and therefore the jury would have had this very important piece of evidence as that whooshing that they did he did not have the necessary intent or conduct to support the murder conviction but if he had that  is a more lenient standard so quick with a california court did was it did more than it had to do with it not a harmless beyond a reasonable doubt using chapman using jeff and i want to make sure i understand the record said they would dismiss untimely but for the fact that the government waived the issue but i don't think that the supreme court says we only hold that ruling to the term changes that ruling doesn't know what the supreme court of the government and for whatever reason chose not to raise this issue the supreme court held that a court district court can on its own motion you can either they could or they could not have that choice right they don't have to in the magistrate here make the choice since the government didn't again repeatedly through the argument the argument to the jury is that this man is guilty of assault and because he's guilty of assault you can infer this is a growing thing the next thing he's going to do is the murder and that was a major part of the argument to the jury and it was just wrong because they couldn't make that conclusion because they sit on a course with proper for the jury to consider that because those are excerpts from the argument that was there were taken out of the entire argument and i wouldn't bite the court if it's concerned with the issue that the the transcripts are down this record of course you could look at invite you to look at look at the whole argument for what purpose for the purpose was the the the fifteen minute crime spree which included well in this case where the defendant brandishing a firearm the first the f escalate until up to the last crime which is attempted murder which is implied malice murder all of these crimes are committed in gang territory they're all committed for the purpose of getting back at a rival gang guilty of shooting at other individuals and so the next step the next one here and that's not something that could be done because that was barred by the acquittal well the shooting at the recall   you have the same argument that you have escalating crimes committed with a firearm and you don't have this you know he's not that the prosecutor doesn't have to have the theory that this was an intent to kill the murder victim but rather in fact the all the all the the testimony was that the defendant you turned he was that he was the driver by the time of the shooting help point out the person that was shot and then they all say well let's scare and at the end of the perpetrator who's whose remains the largest far as i know had the shot came out the window as a prosecutor and they said let's carry him and he shot the  the victim and we don't even know to this day whether with might a man accidental shooting might have been attention might in attempt to kill a bit use do you have an implied malice theory there that's exact in my view exactly the same pretends like there's no such thing as involuntary manslaughter there is such a crime when you commit some sort of act which is not involved in intent to kill but it's dangerous you know like leaving the shock it around and you end up killing someone there is a crime but it's not second degree murder it's involuntary manslaughter it's important to note i mean remember the facts of this i mean this is a terrible thing and it's very sad what happened here but this was a sawed off shotgun shot at something quite some distance from this kid and it hit him it's very difficult to say whether mike whether you know that is actually intended to shoot the victim or not it's even more difficult to say that my client shared the intent that this guy waving a shotgun from i don't know ten twenty thirty feet away that he shared intent to kill and what do you call that you know implied malice or specific intent to kill is really you know it's a pint gradation and given that we know that the prosecution's whole argument was this is a rampage it's escalating and we know this isn't true we know that he's been acquitted of having an intent to harm the two girls having intent to shoot in have a dwelling that evidence would be important persuasive and perhaps sufficient to acquit him of the second degree murder and in that instance i think the right correct so that no he said the state with where he was right he said i don't have the authority which was the law at the time right and he didn't say anything more and we don't know whether he would have h