jury must unanimously agree upon beyond a reasonable doubt when you plot apply this clarification of the california penal code two forty five it is now clear that that offense is not a crime of violence in order to be a crime of violence in this context there must there must be an element of the intentional use of force against the person of another but in california juries are routinely instructed according to calcutta eight seventy five that the people are not required to prove that the defendant actually intended to use force against someone so there is a mitch match elements with with this offense after these cases it says a jury must  and this court on bonk says jury instructions approved by courts are now dispositive  that basically said it worked because there's some ambiguity they said a violent act some language in the supreme court case is that that you had the intent of violent act but then they came across the jury instruction the jury instructions doesn't mention violent act it only says an intentional act the natural probably consequences and the jury instruction says there does not have to be an intentional use of force and go ahead and said that's not dispositive we're going to go with the prior language of some confusing language of the california supreme court but what alonzo comes on and says is no what is the spas of our court approved jury instructions in this case that don't have the language that great it was worried about so you had greater relying on something that's not relevant  scamps and mathis there say no and element is something that has to be proven beyond a reasonable doubt and it's kind of like it's almost the same situation in military cammy they were using a situation where what was  absolute immunity and they had a direct case regarding social workers and all the supreme court had done is changed kind of the test of how you determine absolute immunity just as here they kind of change can clarify the test of how you court in this court has said those are reflected in jury instructions whereas and so you had a jury instruction back in the day after heda which says intent does not need to be proven and so because if you instead of simply ignoring morning of your honor's may please the court more crazy for the united states to get right to the issue on the merits to cop is not clearly reconcilable with gray heda i think the flaw in my opponent's argument  is he takes one sentence from cal crewmate seventy five which says that a jury does not have to prove the defendant actually intended to use force and suddenly finds that dispositive doubt instruction was before the court  the statute specifically acknowledged that this is a general intent crime and as we cite cases in our brief multiple times this court has said even general intent crimes can meet the requisite standard and that's the important thing to keep in mind here lida kell the supreme court case in two thousand and four set the baseline of intentionality for crime of violence and what it said it said if something has to be an act of employment a force great one sentence of gray hated at the end talks about eight seven five which is the entire linchpin of my defense of my opponent's argument but it said in light of the california supreme court's holdings that this is a general intent crime that is why they have instructions not dispositive it was never a question about what's an element the whole point of to come to congress or shoreward to resolve a split over whether the modified categorical approach can be applied to an indivisible statute gray heda never reached the modified categorical approach it held is a pure categorical matter that this statute qualified in the reason why it still requires sufficiently intentional conduct i would ask my point in his rebuttal to try to you know instead of just focusing on the one sentence in the application notes to eight seven five talk about what elements are required and asked restated by the california supreme court in williams and assault be negligence or accidental it has to be an act of employment of force california defines its general intent as an intentional act and actual knowledge of facts that this will directly and probably result in application of force the government submit that satisfies the active definition of or the active employment of force definition at lee account set forward now again this court isn't addressing this issue in the first instance this is a very narrow standard before you today the only way you can ignore the binding precedent of grenada which incidentally every other year has been supposedly implicitly overruled by one case or another and yet this court has consistently rejected that it's a very high standard it can't be enough that a new case causes doubt or abstention under that high standard there's this isn't even a close case to come first of all wasn't even dealing with the statute two forty five it was dealing with focused on elements that's always been the case since nine hundred ninety one taylor was decided if you really read grade a every other sentence says element what's required judge pires wrote a very thoughtful opinion at the beginning uses the for range of conduct has to satisfy the categorical definition and what that opinion does for pages it talks about the evolution of california supreme court first in one nine hundred seventy one people versus roach i specifically said recklessness is three united states at page nine it says you need a quote active employment end quote a force in other words more than negligent or accidental conduct in our brief we cited numerous cases where california courts have repeatedly said that is exactly what this statute does and again this one sentence from eight seven five which simply says the people are not required to actually you know you don't have to prove that the defendant actually intended to use force just means he doesn't have to specifically much he and i were on grenada together every few years you know these other attempts like last year you sat on a panel jimenez are where you know what i'm getting to is that all these part temps the defense usually submits an evidence of california state cases and then we have a little debate about whether that's this is now a new one that somehow shows less than intentional conduct i would point out in this case they haven't even attempted to do that there is no citation of any new case issued by the california supreme court since williams in two thousand and one that changes california's upon strike so here again i mean it's just based on the cop which had nothing to do with the intentionality requirement that we're talking about was devoted almost exclusively towards the modified categorical pro choice this court knows probably too much in your docket now it is spent on cases about well can we apply the modified approach because is the statute divisible or not i'm just one ask your point of view one of the main problems with my opponent our argument here is you keep saying it's an intentional conduct intentional conduct but this court is clear from fern and as a recent it's not just an intentional act it's the intentional use of force against the person of another and that's what fernandez reese calls the bedrock principle of this use of force that the intent has to be to intend to use force against someone where california what they've said in jury instructions and what williams actually says is all you have to do is have an intent to do an intentional act which a reasonable person would say the direct consequences would result in a battery and that's the difference the person does not have to have any intent that his actions actually result in the use of force and in this story he's talked also about all the cases that there are plenty that perfectly resembles many of the cases that this court has said aren't use of force for example there is an unpublished decision where someone shoots a b b gun and they said even if you're aiming at the tree the fact that someone was around a reasonable person could glued that they're using force and that's the key difference here of what's going on and they finally concluded that california in light of california's supreme court statements other statements requires proof and in tension no violent with a deadly weapon and that's