unreasonably decided that there was sufficient evidence to affirm ms sage or reader's conviction for second degree murder which arose out of a tragic auto accident it's under skewed in the she has a very severe form of bipolar disorder this resulted in numerous hospitalizations over the years and requires her to take anti psychotic drugs the government the prosecution had to prove a trial that despite this illness she had the subjective mental state of implied malice that is she did an intentional act which she had the actual appreciation that that act would have a high probability leading to the death of than another and yet she continued to do that act with a wanton disregard for human life and a base anti social motive the state court of appeal affirm the conviction only on a theory that took ms sage or reader's undisputed mental illness into account specifically what it found was that she stopped taking her medication with an understanding that the natural consequences of that would be that she would be suicidal or depressed and then drive in a reckless manner without concern for the safety of others and that somehow or another but i don't know i think i know where you're going th medication theory but i guess you know why was this unreasonable under jackson well because well i two things are on her first of all i think that you are correct to mention the knowledge of reckless driving being dangerous but immediately connect that to the failure to take medication so my position is a baby never acknowledge a theory that does not take her medical condition into  account and that's critical because this court under twenty fifty five four d d asked you to review the decision that was actually made by the court now there are there are three reasons why the finding that she was not taking her confort doctor says to moni that she was hallucinating caused this accident therefore you know she should be found guilty or did she do it with knowledge and could appreciate what she was doing certainly looks like a lot of that evidence was based on her prior conduct in some of the things that she said that the jury had both of those theories and they ended up concluding that she did have knowledge and saw it seems like the same you know you're making the same arguments that were made to the jury and just in light of what we have to view here in terms of whether the state courts termination was unreasonable  by was the jury precluding the from believe it precluded from believe the evidence supporting the prosecution's theory because it seems like there's enough here to support the prosecution's theory is there is the other theory wh your honor i there are two different prosecution theories and i've tried to explain briefly each of those what will certainly only then fell or take medication what is relevant given what the court's decision was actually was that both of the theories are not supported by the evidence and with regard to the first three i think this is very important that the theory the first theory was only that she was suicidal and that's why she was driving recklessly and i know that the respondent tries to argue otherwise but what's significant is the same attorney general's office on direct appeal twice that in their brief which is in the exeter record the prosecution's primary theory was that she was suicidal and therefore driving recklessly without concern for the safety of others so you can read that one of two ways either that is as i argue the proper interpretation of what the prosecutor argued in the court in the trial court or that the the prosecution on appeal abandoned any theory that was not willing to suicide and therefore only presented that theory to the california court of appeal which means that the california can't court of appeal cannot have relied on the theory other than that now with regard to that theory even now the government doesn't really argue that the sufficient evidence where a jury with that for the jury to reasonably conclude that she was actually intending to kill herself at the time of the accident and that for good reason because the the undisputed evidence about the accident was that at the time she was flailing her arms around focused on something in the backseat not looking where she was going and she did not break before she was what is her motivation matter at all i mean motivation usually doesn't matter when we're trying to deter to term and whether the evidence supports the elements of the offense motivation is not an element of the offense why does it why does it matter that she was acting in such a bizarre way and acting so recklessly and arguably acting with  awareness of the dangerousness of what she was doing and no regard for the consequences why does motivation matter at all in the you know since because in this case motivation was of the prosecutor's proxy for implied malice again the evidence shows that she did not break before this accident there's two ways to enter but that either she was distracted by something in the back seat or otherwise under the influence of her mental disease and therefore was not aware she was causing the accident  and that's not implied malice or under the govern suicide theory she knew what she was doing she says i'm going to crash into this car to kill myself and my daughter and that's a completely different situation the government wants that to be the inference because that would arguably be implied malice she's doing something with a conscious decision so here the the suicidal motive correct there's case law saying that in general motors and that something needs to be proved but in this case the motive was the proof of the subjective intent she had the government's theory was she had the intent to commit suicide therefore he acted with implied malice and just briefly on the other theory you know there are there are reasons why the the theory that was actually adopted by the california court of appeal that she failed to take her medication is not a viable basis to uphold the conviction first of all a reasonable juror couldn't determine that she actually didn't was not taking her medication the state court of appeal relied on two things the testimony of the defendant's niece the teenager niece who admitted that she was speculating and never even knew whether she ever observed her and without medication and speculation can't be the basis of sufficient evidence to there's no one as a difficult recognize there's no evidence to show that if she wasn't taking a medication that was an intentional rather than a negligent decision and finally the standard for implied malice is quite high there has to be knowledge of a high probability that the act will result in death now given the strain and says speculative series of events is needed to get from a decision to say i'm not i believe that this court must in applying at the this court can only review the decision actually made by the california court of appeal i think to do otherwise would actually defeat the purposes underlying  because if if if we give respect to what the state court did and the state court considered both of the theories offered by the government the prosecution and in my opinion interpreting that decision said well we don't really find that there is evidence to support this is suicide theory we're going to focus on this failure to take evidence theory then i think it would be inappropriate for this court to find some other theory that was good morning david glassman for the respondent not surprisingly i'm going to suggest a significantly different way to evaluate the analysis in this case and i think and this touches on a point judge wardlaw just made this has to do with ultimately how the standard review operates and and what it is that we are doing as the court knows the original question for the jury was whether there was malice established and that was as a practical matter the only disputed issue in the trial and as we know from jackson versus virginia the question isn't what verdict the jury should have reached it's what verdict a jury could reach on the evidence presented and evidence presented it someone has driven a car at speeds up to eighty miles an hour into a stationary vehicle killing one person and virtually destroying the body of another person under the circumstances that were presented in this case could lead to a conclusion of malice now the argument here goes that somehow in spite of the fact that that is that is the jackson standard is virtually the most forgiving or abstract standard with you that it's possible that now the whole process is complicated because of the e p a and of course the a d p a us sensibly is to support the state court judgment not to complicate it and the idea becomes under the a t p a we are now unconcerned with the jury's verdict although i'm going to argue to this court that the jury's verdict is the only relevant decision in this case as a practical matter and we simply focus on the court of appeals methodology i think that that twists the a d p a that is particularly in the specific context of sufficiency of the evidence the idea that well the jury is presented with these two theories and somehow those are the controlling legal concepts in this case the theories are just that they are theories of the lawyer and the jury is told there are theories and the jury is not told that they are bound by theories but they are told that if they find malice they must find it beyond a reasonable doubt and as to this history of mental illness which certainly is not disputed in this case what is true regardless of the exactitude with which we know whether she previously took medication and when she took it we know that after she plows into that vehicle which is three years after she previously drove was attempting to elude police ran several red lights was stopped and was advised of the dangerousness of her conduct we know that in the aftermath of the fatal collision when she has knocked a car a football field away and she is question police on the scene she says apparently calmly i have the right of way i had a green light i was going forty miles an hour i was blindsided that is completely inconsistent with this portrayal of her as delusional as psychotic it satirise so ultimately evidence stablished on the street or did not take her medication on that  of the accident several things one was the testimony that the refilled prescription was unopened second it was the testimony of her niece that she behaved in a certain way when medicated and in a  when not medicated third was her statement her statement to police that she had not taken medication that day so there were a variety of sources and as to whether or not there was conclusive evidence as to whether she was medicated that day there doesn't have to be because that's not the standard the question is was there evidence from which a juror could infer that she was not taking medication and even if not was there other evidence indicative of malice map the cynic one of malice in this case is not whether or not she was medicated it is whether her behavior evidence to the jury satisfaction beyond a reasonable doubt the absence or rather the presence of malice and i would know in that regard because it is relevant here that you had her extraordinarily incriminating ultimately post defense statements she's lying to the police that it's clear she testifies in trial she's lying about the crime that can't be disputed the expert that she calls who is a testifying psychologist  is i think it's it's at a minimum is discredited even by the trial judge for lack of professionalism and by the magistrate so the point is that when we talk about all of this allegedly mitigating are uncontroverted defense evidence there are explanations not only for malice but for why have jury in this case deliberated ninety minutes you don't mention the theories and this rationale is set forth there were bait him and the court of appeal is simply in my view listing evidence and arguments that are presented and they are not endorsing one to the exclusion of another that's number one and number two as i indicated previously a it again if we if we take the a d p a out just to simplify things and we look at the jackson versus virginia question the traditional question is there some evidence that supports the verdict this is an inquiry into evidence not theories not arguments and this is a case of where certainly one could draw the inference of malice that this jury drew whether there was other evidence or another interpretation that a different jury could make we'll never know because certainly her cause wasn't helped by what i think can fairly be described as her own disastrous testimony and her own unfortunate choice of an expert witness in a case in which all we're talking about is her state of mind to argue in this case what was argued at trial which is in the face of an argument about malice to say you know the defense in this case incredibly i think was not only is there no malice this isn't a negligent homicide there's no crime here under circumstances that are extraordinarily sad and brutal why is that such an implausible argument in the if the if the evidence is if if it could be established that she was in such an hallucinatory state that she had no awareness of reality  when that from the defense point of view negate the state of mind that is necessary there for malice or even even arguably for nick with that they want to argue it wasn't negligent homicide it might your honor in a situation where the evidence supported it but in particular the reason that this expert was was called out if you will by the trial judge is that for explicitly he stated that she was delusional in her background in her past and as was established on cross examination of him and in the questioning of her she had been questioned fifty six times in the past about whether she was experiencing delusions she never indicated delusions d were never attributed to her and if we are to say what isn't there wasn't her testimony that she could be in a delusional state and yet not be aware of it and there is often a tendency for people suffering from this kind of illness to deny their illness to deny that they're in the grips of a solution that's that's not surprising is it that you would deny it what well whether it's surprising or not and of course ultimately the question is if the jury understands the the the equation the jury in intact and fortunately the child intact she is lying to the police and describing herself as the victim of the incident and that that's far from a delusion as as i understand the t you first country to a counsel suggest the issue here is not whether there is no crime here the issue is whether she was properly convicted of second degree murder and not the alternative vehicular manslaughter charge that was before the jury second the says alan dealt with a similar case a murder case with a different mental state requirement the court had a long section about how serious the standard of review was and the stephen of the state court had me detailed findings for why the intent was proven the court went through one by one to explain why it was inferences were not reasonable in fact one example is very similar to the report me repeatedly by counsel when it when he cites mistakes or read or statements there's plenty of reasons you can do that you can't just infer of that stuff and then the final point is about this idea that these are just theories that the government either meet at trial the prosecution made a trial or an appeal and that's irrelevant that's simply not true again the government the respondent never responded to my citations in the opening brief of the mccormack ensure releve which says that a sufficiency of the evidence can only be based on theories factual legal that are presented to the jury and then we have here the extra layer of the fact that this court should really only be reviewing the for about five minutes before the next case thank you counsel