may please the court mark him for appellate gray maria with the court's permission i'd like to reserve two minutes for rebuttal and begin with the ineffective assistance of counsel claim this is a troubling case creamery a had a documented history of schizophrenia including hearing voices commanding him to harm him self on one occasion he attempted to kill himself by jumping off a hotel window i'm sorry off the hotel building because the voices commanded him to do so when this to maria committed the crimes issue here he was it was because he was hearing voices commanding him to to harm others it's undisputed in this case the mr maria heard voices that he interpreted as angels commanding him to kill his disabled and paralyzed cousin because it would send her to a better place the state's own expert in this case acknowledged that mr maria that felt compelled by these voices and that he heard voices counsel let me just yet rights of the part of the case that i find the most difficult to to analyze and that has to do with california law on what it means to engage in the liberation of for the purpose of first degree murder and as i understand the cases and this is where i would like actually both of you to respond to this question it appears to me that the cases suggest that a person who is suffering from hallucinations and delusions is still capable of deliberation if they think about it in the context of their crazy delusions that is a person who is entirely unable to deliberate maybe he gets no specific intent and gets down to second degree murder but a person who says ok well the angels are telling you to do this but i wonder if that's really the right thing to do and that seems to be what happened factually here because it sounds like he debated with himself quite a bit as to whether he should follow or not follow with the angels saying having an internal debate with himself as to whether trying that's why he was he sort of looked at her and you know sort of thought that her silence meant that she wanted him to do it and so he thought hard about it but he thought hard about it in here if the evidence points towards the inability to to form this intent that if if the if the if the delusions that mr maria was experiencing that if had actually blocked his ability to appreciate this center of the form that intent i'm sorry appreciate may be the wrong word because that goes toward sanity and question but in terms of his ability to feel compelled by these by these voices that that was that that was what would have resulted in him fit in not being able to deliberate and not be put out if you're not answering my question which is specifically discount for new law require to get one notch below first degree murder that you not be able to deliberate at all or that you not be able to deliberate rationally because those are two very different things clearly he didn't deliberate rationally to the extent that this kind of deliberation is over what one could call rational but he thought hard about it and debated so he guess the reason i'm asking the question is that history of mental illness that wasn't presented would seem to have very little bearing on the question if if if california law is what i think it is well on your honor to answer a question i'm not aware that of a case that quite defines defines the question as you as you're stating it i think the issue in this case is that counsel failed to present an expert that would have explained to the jury how it was that this that the delusions in this case negated the premeditation and the deliberation but don't we have the experts in the sanity phase largely in agreement as to what the process was that mr maria went through they just come to different conclusions as to whether or not that means he's legally sane or known in this case is what would have happened had these had at least the defense expert testified during the guilt phase and that's where i don't we have to give deference to the california courts that found that that wasn't ineffective and maybe wasn't prejudice was prejudicial correct prejudice and that is a key point here your honor is that the state court made this ruling on the i a c claimed strictly on prejudice grounds so this court actually can review the deficient performance pro there's no question about that  both the experts i think you agree that both the experts defense and prosecution agreed that mr maria knew that what he was what he was doing when he killed mara and that is he knew the nature and quality of his actions yes right right yeah ok so then looking at premeditation and looking at deliberation i think that's what judge graber is asking that could allow reducing first degree to second degree or involuntary manslaughter so if that's the  case how was there prejudice here by not putting on the experts at that stage at the at the guilt stage well your honor there are there is there is or there are examples in the california case law of of talking about this overlap in the evidence so one case is people the chains and it's a twenty fifteen case out of the california court of appeal in which the same defense expert testified both in the guilt phase and the sanity phase on appeal the state had argued that the guilt phase that the expert should have been are allowed to argue in the guilt phase because the evidence was the same as to sanity and evidence of insanity cannot be presented in the kill phase but the court found that even though this evidence was largely similar that it was still relevant because it was presented for the issue of whether whether it negated the intent during the guilt phase and that's what we have here is that even that the evidence that d defense expert considered here while it may have been largely similar to what he would consider for the sanity phase that evidence would have been relevant to this key question of whether he was able to deliberate in premeditated in what way in what way  been that would have done much to explain to the jury how they could how they could reach innocuously verdict with the facts in the record show that he did deliberate or that he did actions that constituted premeditation he got up from after talking to his his cousin went over to the scene can came back and asked the cousin questions about you know mara and then said that look like mario wanted him to kill her and it seems like california law says that if he is able to deliberate at all and show signs of premeditation even within his delusion i mean i know that seems remarkable but that's what california law seems to say that that's that's that's sufficient and so i'm trying to figure out because it's an area that concerned me initially before i delved into california law as to whether or not the lawyer should presented more evidence in the guilt phase and that's i think what you're arguing i think it's you know it's a good place to have an argument that i'm trying to figure out now after looking at some california law how that would have made a difference because we're looking at prejudice at this point i think oh well your hon i wonder if they have a recent case i'm not of this court we can be johnson would be instructive because that's another case in which a lot of intent a defense was presented and this court found that testimony from a qualified expert would have added an would have informed the jury's consideration of the specific intent there i think it underscores the fact that in this case the jury was considering this question of whether mr maria had the intent but they did it with virtually no evidence the defense didn't put on any witnesses or any evidence on its own and then only argued weakly in closing argument that mr may have lacked intent but that was after the jury was instructed that evidence is or the arguments of counsel are not to be considered evidence and then what do we do with the whole strategy sort of argument that maybe it was to strategic for defense counsel not to present any of this evidence during the guilt phase because if they present it burden of proof right the the the state had to prove in the guilt phase beyond a reasonable doubt that mr maria had the intent for first degree murder but by waiting until the sanity phase they the defendant had to actually prove by a preponderance of the evidence not that the fact that he forego you for when the possibility of taking advantage of the highest standard or the highest burden of proof that we have on the beyond a reasonable doubt standard and having the ability to raise any evidence that would have raised any reasonable doubt that doubt would have that that's unreasonable and we also know that this isn't a case where he considered a strategy and discarded it for sure teacher reasons because he did use the strategy used the lack of intent defense he just didn't present any evidence in support of it and we can also tell from dr jaffe's testimony that he was and that he was not asked to consider the guilt phase when he when dr jeffrey testified during the sanity phase he he he testified about what he was asking mr maria in his examination and he said that he was asking him about whether he knew the difference between right and wrong and the mor morning your honor supervising deputy attorney general bill builder back on behalf of state to get right to the question that the court directed to my point it seems like we're talking about the intersection between it's sort of the legal concepts of deliberation anation and i want to be clear that it's one hundred percent correct there is no dispute that the defendant in this case was a paranoid schizophrenic who was responding to command hallucinations at the time of the offense so that's that's really there's no real factual dispute here i think that on the question of premeditation deliberation specifically the both the defense mental health expert and the prosecution mental health expert came to the same conclusion on that question which that this was an intentional act that he carefully considered before undertaking that's the definition of premeditation is crazy is alone to use a you know lay person's way of thinking about it and it absolutely is troubling it absolutely is troubling and the question that remains was whether or not he was insane at the time of the the crimes whether it was his motivation for committing this crime was based upon a whole new summation that he was receiving commands from angels or it was an actual command that he received from a human being he still went through the mental processes that the law contemplates before he undertook the action and again there's no question that he appreciated what he was doing that he considered what he was doing and that he nevertheless undertook the action and and then we get to the heart of the issue that was before the state area of whether or not his counsel was ineffective for not presenting mental health of events in the form of the expert during the guilt phase to negate the intent and light of how severely mentally ill this men was and so that to me i want to get to the core of that what your best response is to that this special e especially in light of the fact that his defense counsel mentioned in closing statement mental illness i think that undercuts your argument regarding the strategy he mentions it but he never put on any evidence so let me give you an opportunity to respond thank you and the reason that he didn't put on any evidence was because all of the evidence that he had which is to say the report from his mental health professional proved beyond a shadow of a doubt that his client premeditated deliberated and acted with m could not put that evidence in front of the jury if he had any prayer at all of course we all encountered situations where the best available defense on guilt is a pretty poor defense this was that case there really were was no defense the defendant committed the crime the identification was non issue and after we have both the confession and we have the reports of the mental health professionals where the where it was the conclusion of the defense mental health fashion all that he premeditated in the liberty the crime acknowledging he didn't use those words but that's the only rational legal construction of the conclusion of the defense mental health expert he couldn't have put that evidence on unless he was just going to plead guilty or or tantamount to pleading guilty at the guilt and then proceed directly to the to the sanity phase he elected to at least contest the question of guilt and that was a reasonable decision certainly not one that we would normally fault counsel for doing and he  attempts to persuade the jury albeit with minimal evidence but again there really was no evidence no evidence no there was no evidence well there was evidence in fact there was a ton of evidence it wasn't for the jury it was in defense counsel's pocket he knew it wasn't  well he mentioned the notion of mental health and i think that that was reasonable under these circumstances because the the bar the course phrase that he was crazy which treaty evident i think from even even the limited picture of  the defendant that was presented to the jury during the guilt phase so since since we have that atmosphere at least he was attempting to exploit it to the best that he could again if he had actually developed the evidence on the mental health issue it would have been utterly devastating he was crazy but not saying i think that was that was their their bet well again at the guilt phase we don't talk about sanity at all it's not a thing you can bring out  excuse me equal protection argument has to fail because he's only ever comparing california defendants to not california offend ants and california can define its crimes in any way it sees fit it no more than he could argue well a california defendant didn't commit burglary because it didn't fulfill the arizona his definition of burglary of course that's not the law so there is no equal protection concern here if i get in this insanity the prosecution expert admitting that he couldn't medical certainty right ok and i'm going to put a lot of weight on medical that's why and but he acknowledges that maria suffered from serious mental health issues is that not enough to a reasonable jury could conclude that that maria was you know singer not sane at the time of the crimes base i mean to question that that testimony by the doctor if it was to a high degree of medical certainty well if if the jury had come to the other determination you know i i don't think i get to appeal that nor would i appeal that i would be that would have been irrational determination based upon the state of the evidence we had the opinion of dr jaffe that defendant was insane and then like you said there was there was the split of opinion with dr my hope but the jury did resolve that factual question and they resolved it in the manner they did and they resolved it based upon i think not just the opinion of dr mode but i think his i think superior  accounting for the circumstances preceding the crime and at the time of the crime to finance behavior which was more suggestive of an understanding that what he was doing was wrong then then i think  jaffe's opinion which i think discounted some of those important facts my question is going back to the guilt phase should we even be discussing whether this was a strategy or not a strategy when that was not the basis of the california courts to the california court looked exclusively as whether there as to whether there was prejudice for failing to present any supreme court not right now called wilson versus sellers and wilson they are trying to decide it's not in my briefs because it has been decided yet but they're trying to decide whether you do look through silent denials to lower merits determination so but i don't think it makes a great deal of difference in this case and the short answer i think to the question is you don't need to because this case fails on prejudice regardless and so while you could undertake an analysis of the performance prong at the end of the  the trial council's decision making was the product of it was a reasonable decision and especially when we're as we are in this case we're dealing with the situation where we all know that trial counsel undertook the investigation i would point out that every case that my opponent cited including the case in this twenty a j later we all of those cases when there are cases where there was no mental health investigation undertaken that's a very different situation once you have the investigation we're into that meditation piece has distinct from the insanity right and wrong piece so why isn't that somewhat analogous to you know invest in the allegation at least is that the investigation was insufficient well i would say in this case because we did have a a a number of examinations of the defendants mental state not only  the examination by the defense expert by the prosecution expert but we also have the thirteen sixty eight reports we also have the prior mental health reports from from the prior periods of hospitalization and care so it i not a situation where defense counsel it would be reasonable to say the defense counsel was ignorant of the defendants mental state it was thoroughly fully developed and they were keenly aware of it and so the determination about whether or not to pursue a particular strategy i don't think hinges on whether he phrased the question to one of the half a dozen or so mental health experts who examined the defendant too to see whether it fulfill some legal definition of say premeditation the lawyer is perfectly capable of determining that based upon his their own review of this mountain of mental health evidence that we have as as to this defendant so especially again when when we indulge the presumption as we must that that trial counsel decision making is reasonable that no we get it would not be fair to fault counsel for for not investigating his mental state in this particular case and because we did have that full throated investigation it becomes conscious decision making becomes as the cases say virtually on a salable toward toward the end of petitioner's argument he said when we looked at the record we should infer that this wasn't a strategy i heard you say just the opposite my correct well again the the case instruct us that when we're examining trial counsel's yes is the short answer your question the cases instruct us that when we are examining trial counsel's performance or any attorneys performs their windows the presumption that those decisions are the product of reasonable strategic decision making so we shouldn't draw to the extent that the inferences to be drawn we shouldn't draw a sit in especially as my opponent suggesting draw a negative inference that would suggest that the presumption can be overcome that that seems to defy so much if we were to undertake the first prong of the stric that's exactly what cases instruct us is that we have to assume in the absence of some of countervailing evidence i guess it's a presumption so unless the presumption is overcome i think it probably is a better way to say it that there's a presumption the trial coun reasonably diligent advocate under prevailing professional norms and in the absence of evidence overcoming that presumption then the presumption to maintain and that's the end of the inquiry for the first promise trickling but again i think that this case a thoroughly fails on the second  that the prejudice issue here was overwhelming but actually from the link that there were deliberations i think the opposite is true and that the at the guilt phase the jury deliberated for over a day and considering the fact that there was a detailed confession and that defense the defense had presented no evidence in the guilt phase that shows oh and they were considering the only issue in terms of the defense being lack of intent that shows the jury was troubled by it and  difficult time getting to that issue even in our sanity determine a state court remark at all about the length of the deliberation known there's state court did not but i think just given the fact that this was so one sided in what counsel had presented in the guilt phase and the fact that again that that the defendant had given this detailed confession about what he had done and that that is an indication that this was a difficult a difficult case and that expert testimony from dr jaffe could reasonably expected to have turned the turn the tide here we can also look at the sanity deliberations and and see that there was prejudice here too because in the sanity phase that is where dr jaffe was testifying in even though he was testifying to a different issue and the jury there didn't reach a verdict until the third day and in their deliberations they sent a note to the to the judge asking