good morning i'm john we're here on behalf of mr garcia and to talk to you further about gibson and a former now discarded version of celtic two point five  point one in this case the trial judge in california wisely in the event declines to add the preponderance of the evidence gloss to two fifty point zero one so in fifty point zero one was a prior offense of which for which mr garcia was acquitted and might well they're basically to argue this case that even apart from the preponderance of the evidence think i have i have given and i have the other wrinkle which is what i want to talk to you about today which is the fact that the prophecy that was used was prior allegations for which he was acquitted in other words the only prior crimes evidence that was admitted in this you're the analysis here an acquittal does not mean that he's innocent it means that the jury was unable to conclude by proof beyond a reasonable doubt that he was guilty if the jury had been told that they could find  preponderance of the evidence and then use that as evidence of a propensity in considering proof beyond a reasonable doubt of the crimes on trial how is the government jeopardy closet and well that i think the case that really swenson in the sense that and and also dolly even though dialing goes the other way in the sense that if you know prior proceeding the ultimate issue is resolved then those facts cannot be but the issue in ash was identity because there was a significant problem with regard to the robber was here is there a difference where the jury there's no question  because it's unimpeded was lee true that under the discarded version of two point fifty point zero one crime can be a proxy for the normal route to prove which is every element of the offense the other is that of a law in this case they offer crime name and tell the jury if you're convinced beyond a reasonable doubt there's no other standard of proof was given if crime a stands for a proxy for a crime he then telling the jury if he committed a crime if you're convinced that he committed a crime a then he committed a crime he is the same thing as putting him in jeopardy again for know i don't think this is a problem about the jury i think this is a straight double jeopardy collaterals swenson problem in other words you can't put it i mean you can't put a person on trial twice for the same offense because of this instruction that's what happened here in other words if you are on the same page about the fact that yes this was a band in force they should have been allowed to sue to do this then what they were given what they were g as their tool to do this was not some allegation or some prior conviction ok that creates a whole raft of other problems that you've been discussing all morning what it creates is he's been found not guilty of that that's now they're taking that same offense and saying it can't be used here again to convict him when you find the under reasonable doubt that he did it the crime it yeah but another jury has already found the other reasonable doubt that he didn't do it equally serious that because of the why in the world they ever seized upon this language and that rather than just in the federal courts i think what's done is to say you considered and what they do now in california is they say you can take this propensity evidence and at least back then they insisted on this language that you made if you find that he was so disposed you may conclude that the that he committed the without any other evidence and that's the difficulty i also argue as a fallback  position that regardless of the fact that the preponderance of evidence is is missing in this case that the mere use of crime they as a proxy for for proof beyond a reasonable doubt winship would you agree that the at had crime and been used by a preponderance standard and had both of the instructions been given and the jury told that they had to find the elements of the instant offense by proof beyond a reasonable doubt that there would be no double jeopardy problem that i lose in my question if the jury was told two things about the prior crime first he was acquitted and secondly if you find nonetheless by a preponderance of the evidence that he committed a crime m dowling then there wouldn't be a double jeopardy would be it would be hard to argue that if they said if they said look here's this other thing he was acquitted true but you can look at that and if you find by the i'm just sort of i think let me see if  reasonable doubt rather than by a preponderance of the evidence you know i think that he he was we avoided one problem but fell into another problem was there that really wasn't address which was the core of two fifteen point zero one which is that you can use crime a as a placeholder or whatever word you might find on the object of a proxy let's say for and the supreme court said well in the bank robbery case it came in under four one as identification evidence by the preponderance and they said look if you're really dealing with them was the collateral acquitted him on the subsequent home invasion burglary charge but the bank robbery jury was nonetheless permitted to hear the evidence of the home invasion because the m o was the same to determine whether or not he was in question as to crime was put to the second jury to use in determining where the crime was put was committed in the first year we haven't found the crime  of the charge offenses without finding each element each element of the charge of answers true beyond reasonable doubt the state court the district court below rejected these claims because in light of the remaining instructions and in reading the jury instructions the whole founder of the instruction did not offend you process also the courts found that it was not reasonably likely that the jury and constitutionally misapplied the instruction and this was a reasonable application of the then and then i suppose that the jury went into the jury room and found that the charges against the current charges were true given timeframes given specific victims given specific touchings it couldn't do that  remaining instructions because of the burdens of proof as we're just saying but here the challenge instruction can be read harmoniously with the other instructions the challenged instruction informed the jury that if they found appellant had the propensity to commit to commit certain sexual offenses the jury could infer that appellant was likely to commit and did commit the crimes of which he was accused the remaining instructions set forth the crimes of which part was accuse the instruction set forth that on or about certain dates appellant violated california penal code section two eighty eight the jury instructions go on to explain the elements of a violation of section two eighty eight consequently the challenge instruction read in light of the remaining instructions tells the jury that if they find the propensity evidence to be true they may infer that appellant willfully committed a lewd act upon the body of the victim who was under fourteen with a specific intent of sexual arousal read together  is reading all of the instruction in light of the other there are the remaining instructions and the instruction therefore reads instead of the crimes of which he is accused with plug and the definition of the crimes of which he is accused and it reads if you find the pre fense and so i think the problem i'm having with your argument even listening to the instruction is if the jury was told that you have to find a crime by proof beyond a reasonable doubt and when the jury got into the jury room they concluded that that was still in this instruction and as you just read it sounds to me like it's telling them you made then convict him of crime v you me find that he did command each element of the  charge crimes true but the evidence that then we go into a a reasonable likelihood standard under still versus mcguire and what a reasonable juror take slowly evidence of tiffany and her prior misconduct and of his prior misconduct for chip any and find specific dates specific touchings specific victim no the jury has to look the other evidence has to it's logically impossible for the jury just for the prosecutor to come in and say listen appellate touched him funny he's guilty of two eighty eight here the jury the jury is not going to know that there's a new victim but there's a new specific time period which they were all and they  instructed to find the truth of the current charges true within a specific time period i would find your argument much more persuasive and maybe i'm falling into the same trap that you're arguing the gibson panel fell into if as soon as the trial court had said if you find the defendant have this disposition you made but are not required to infer that he was likely to commit and did commit the crimes of looking specifically in the clerk's transcript ok this is a clerk's transcript page one forty four it's a california jury instruction number four point seven point one i'm sorry four point seven one point five and it reads defendant is accused in counsel one through seven of the information in the information of having committed the crime of child molestation a violation of section two eighty eight of the penal code on or about the time between september ninety six and december of ninety six in order to find the defendant guilty of any crime it is necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act constituting that crime and in the next instrument very next page it's a california jury instruction ten he did commit the charge crimes and we go to this instruction and we say well what are the charge crimes because you know helen is assuming that we don't have any other evidence other than the past condoms when we since we don't have any other evidence in the hypothetical we have to go to this to find the char she addressed the proof with regard to the element absolutely the prosecutor went through each of the elements of the crime and and correlated the evidence and the at the current charges and and argued to the jury that for each one of the elements that he had to prove beyond a reasonable doubt the the evidence of the current charge crimes met that sta that's not good enough you have to you have to explain that and here they were given to pass one fine one not fine and there was no explanation of how to harmonize it and that's really the problem and in my reelection i did this state i feel in my recollection of the prosecutor's argument was that nothing bad nothing good i mean he didn't really save or or or sank this issue language which contradicts in this case the language which contradicts