good morning honors dennis riordan and more exhorter smith for petitioner vasser smith i think the first time i heard the adage hard cases make bad law was in law school i'm not sure i knew what it meant but i've taught some  and if i were going to give my class an illustration of the principal this would be this is a very hard case that i submit a very very bad law it's a very hard case because although nothing is more fundamental to our constitutional system of criminal justice than the rule that you can only be convicted of the crime with which you are charged this was a case in which a an avalanche of evidence concerning offenses that could not be charged because they happened twenty five years before the charged offense and outside the jurisdiction was admitted against defendant he admitted on the stand that he had any number of acts of pedophilia with underage boys twenty five years prior to the charge here just was going to be a very hard case for a jury to focus on the specific charge crimes and decide guilt or innocence even though evidence of the charge crimes was certainly certainly debatable in a way that the evidence of the un charter was not and it was going to be a tough case  california the fact charge crimes were committed within the statute of limitations must be pled in the information and they must be proven to a jury under proper instruction in the court held that the last is verses ryan that was a case that was affirmed because structures were given they were proper the issue of statute of limitations was decided by the jury in this case it's conceded that the statute of limitations issue was not charged even though every charge to get was i pled in the information every crime charged against defendant either clearly was outside the statute of limitations or arguably could have been and depending on the evidence outside the for the first time contrary to every california decision that's ever existed that if you don't have a jury trial if it's not pled it's not instructed on we the court of appeal can decide the issue do novo well that means you have no right to a jury trial because if you not given the right there is no remedy court of appeal besides the statute of limitations issue no vote which means that it's a judicial decision not a jury trial right even though state law has always given a right to a jury trial as this court held  so it's not a winship element but it is a fact that must be proven to the jury this court noted california law last week and said you have to plead it and you have to prove it jury in that case they did so it is not something that doesn't matter we need judges on appeal haven't even you know the evidence will decide the question to know of or ourselves that's to say there is no right to a jury trial as opposed to a court the statement of the state court of appeal is we will that were barred by the statute of limitations there were fifteen offenses that there was some evidence that they could have occurred outside some incidents outside some instance inside the statute of limitations because everybody in the trial court had just you saying that the court misapplied well these supreme court cases which hold that you have a right to a jury trial california supreme court case oprah i'm thinking of standard that process right if the state of florida you procedural right or trial you have a due process rights protected by the constitution to that right in that case it was a sentencing hearing so what we are is the supreme court has has always recognized as this court has said that the statute of limitations is something that has to be proven at trial and i submit a supreme court law that says if they take away a perce think the court is referring to a case called frasier williams was a case that said even if it's not raised below you can raise it on appeal and they reversed and remanded it back for a decision on the statute of limitations they have said and  let me be crystal clear no one is claiming here that the state right to a jury trial on the statute of limitations is a right winship element of the offense but we are saying that you have a are going to be in conflict with those two cases we are going to announce a new rule which says that you don't have a a right in california to a jury trial and in doing so they relied on the williams case and williams was a case in which the court never addressed a jury trial it always had held that there was a right to a jury trial and the statute of limitations because because williams was a court trial reverse  certainly was the case that required the present california instruction which says that you cannot convict a defendant based on an charged offense evidence instead what was given in this case w avalanche of one charge defense evidence and the jury was told you may if you believe that evidence you may find the defendant guilty of the charged offense that that sentence should be no instruction anywhere in this country because it basically says if you find on charge their character evidence it is it is a basis for the charge current thank you and i appreciate that given every bottle and i will submit these to the courtroom thank you it please the court peggy refrain deputy attorney general for respondent your honor counsel just delivered the argument that he gave to the california court of appeal on this issue he argued that these particular state law authorities should allow him to get reversal of his case and the california court of appeals rejected that argument as a matter of state law it's found that there's no suits buntay right to an instruction on the statute of limitations when the defense does not request it and it held that if it's raised for the first time on appeal then the reviewing court can look at the record to see if there is sufficient evidence of the statute of limitations how it decided that as a matter of california law the california supreme court denied review and that means that it's the end of the matter if for purposes of this court this court can't reevaluated an issue of state court law and if that's the case then there's no hicks violation because the state weren't followed it's a law and it followed the law that it made in this case it's true but just last year in bradshaw versus ritchie the u s supreme court reaffirmed that a state law is binding even when it's announced in the case on appeal and it's found that the sixth circuit which had issue here six said that although the defendant cited cases in an attempt to show that the state's issue was incorrectly decided the california supreme court denied review and under those circumstances the federal court couldn't reevaluate i don't see how an opinion from this court would look if it was trying to go back and look at those state cases and decide which one was right and which one was wrong it's just not the kind of decision that the federal court can do and i can discuss whether or not this talmud is the answer just can you give me a quick answer does california law guarantee right through a jury trial wrong well i don't think that's the specific question presented here and i'm not trying to avoid your question but i think that the question presented by this case is whether there is the suicide on tape duty to instruct on the statute of limitations in the absence of the of that request by the defense and the answer to that is there are no state cases whatsoever that deal with that issue at all there are some cases that talk about where the jury wasn't instructed although those cases in really the fact that the jury was instructed it is incidental to the court's opinion  the main case that the state court relied on in this case was williams california supreme court it says that the statute of limitations can't be forfeited but if it is raised for the first time on appeal then the reviewing court can review the record to see if it  if it is not that's exactly what patrick did in this case yes it found that the statute was extended under eight zero three f and that itself is a determination of state law that the statute was extended by that tolling provision which this court can we evaluate as well i wanted to mention one other one other issue that was raised really for the first time in the reply brief this there is some kind of retroactivity problem with this case  citing the louis case and i have several responses to that first that was never exhausted and you have the petition for review in the supplemental excerpts of record that was never raised in state court that there was any kind of retroactivity problem and if that was what they were hanging their hat on they'd have to raise that mistake court but in any of that it does not apply to this kind of procedural right but we just said that the state court can't change the definition of a crime so that the defendant was in on notice of what constitutes criminal behavior in that case that wouldn't be fair that's not the case that we have here this is this is a procedural right it's not it's not the definition of the crime but even if the court got over all of those hurdles the state courts conclusion in this case was unforeseeable because it was a direct result of the williams case where the court said you could review the record to see if the statue of limitations with that i'll briefly address the second issue it's an i that we are very interested in it's pending in a couple other cases before the court it's gradually working its way up in the district courts and we think that the revised jury instruction adequately states the constitutional standard  now but i don't know i guess it does by now i have some sympathy with the statement that first paragraph i think that you you can infer that he has a disposition you can if you think you committed these at that in a vacuum though because i don't think that the jury but i'm looking at it yeah you can have a sentence in the next paragraph that says you know remember that he's supposed to be convicted beyond a reasonable doubt or something like that but that are given including the instructions on the elements of each offense and the general reasonable doubt instruction the propensity instruction itself as revised states if you find by a preponderance of the evidence that the defendant committed a prior sexual offense that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charge drives and particularly as in other w i don't think it's quite not a i mean i think that when you read that it's a it's reminding the jury that the reasonable doubt standard is the one that the jury has to apply that maybe they did overcomes it but it's certainly be a lot better practice not to create confusion in the first place a standard of deference does apply and the state court and the california supreme court in rufford subsequent cases they have held that this instruction passes constitutional muster and the court would have to overcome that hurdle in order to find that it does not i don't think that's met here and if you look at the arguments of counsel in this case which i have in the supplemental excerpts of record both the defense attorney and the prosecutor repeatedly stated you have to look at this particular charge and find him guilty beyond a reasonable doubt so really when you look at that there's no chance that the jury was in any way confused even though there was this evidence of the prior crimes now so argues that there's almost a due by due process violation i think he said that isn't actually one of the issues that's before the court but the the evidence in this case the prior crimes evidence was clearly relevant to show intent that was the only disputed issue whether he was introduced to show that's it unless of course as any other questions thank you for a very quick but important part specifically people versus c eight second seven thirteen page twenty four of our brief california supreme court quote the defendant's plea of not guilty puts this allegation an issue and the prosecution has the burden of proving it to the jury california supreme court has never retracted one word one step from that the williams case where they said they reversed they remanded it back to the court of appeal to the trial court said well a reviewing court can look at that that was because that was a jury trial so they never had the issue of what happens when a jury has never been given the opportunity to decide the statute of limitations issue secondly it is true that this court can find that  williams case williams was decided after the trial in this case is over so it can't possibly if it takes the position that there's no longer right to a jury trial it's definitely attempting to apply  retroactively and the right to a jury trial is not something that can be taken away without causing ex post facto problems so we do rely on so we have conceded their best argument appears to be that williams justifies what