offer that is or having a client accept the offer to the nine year electorally offered by the trial judge in this case this case i think is the way that you say counsel failed to communicate well suggesting then the council had the duty or the burden of persuading her client to take the plea i think the crux of the problem in this case is the council did not understand the ramiro case in other of the of the prosecutor it's all questions explicitly a list of it a response whether or not talk ounce understood that this was in fact a power that a court had and it was simply not a indicated sentence as defined standard which is in california simply a craze i promise that can be breached by the trial judge upon receiving additional information and or a suggestion this might be a sense for just to give me some help with the sequence here the the offer was made by the district attorney's office and but it it appears this is where i need some help was the offer withdrawn at a certain point the trial was made by this  unclear as to whether or not it's some point just to look he offered me that offer himself as a result the court of appeal remand this matter for the evidence rehearing following the petition previous corpus explicitly asking an answer to the question why seven it appears clear from the record from numerous entries which i can refer to the other in the briefs at the trial court that the trial attorney was not aware of this power by any judge because he she consistently says s record not the it's the fault of a poet but due to the fact that this question was never explicitly answered by the trial court by the court holding it in three hearings and that is that is really the crux of the problem on this issue  because they couldn't figure out why that happened either at the of injury hearing and i misstated by saying it was in the us during the same big it was of the court didn't allow explicit questions to that answer to that question in all other respects totally giving a version that was impossible for it to be to be litigated trial that's clear as well but i'm not arguing that here in the context of what your question is or what law yes that is part of the problem she didn't understand the law on the other hand she never even explained the facts if you didn't understand it to the client and never got explicit answer from him without he accepted it so those are components of it although that may be proof perhaps of her lack of understanding herself rather than separate aspects of  ineffectiveness but i'm still a little mystified by this and maybe maybe you can help if she didn't appreciate that the judge had the power to make such an offer why did she go to the calendaring judge judge who pray or have that power because that is where the one year off was made when you say the offer was made and this is where i go back to my regional question i thought the offer originally was made by the deputy da appears to than made by the yank and later withdrawn and she thought it was withdrawn seemingly was wrong the work is not totally exposed on that point but seemingly was withdrawn and as a result of that she felt that back to the calendaring judge to make the request at that time he learned about it later no he apparently understood that the time of the before the trial began because they left the courtroom presumably in one of someplace to do that but he you know stated why she did that because it's just one last side why would she do that if he had made the offer and that's proof of the fact she didn't understand the offer or  offer and in a plea bargaining setting the district attorney makes the offer the judge ratifies it and if it's accepted by the defendant then there's a plea bargain and there are no appellate remedies by the prosecution there saying we will accept this sentence for this offense now you know alameda county the reason that you that you plead bargain is to reduce the burden on the trial court so when you come to the calendar department you're offered a plea and it's a good while your encounter department if you're sent out for trial then the prosecution says the police not good outside that courtroom because they're trying to resolve the case they don't want to have to go and occupy a court room occupy a trial deputy call in a jury and then have you decide so that's the way that the system is set up are you saying then it is sort of the offer automatically expired after the coll that's right was it was it fit was it literally withdrawn by the d a s office it was the terms were it's good in this court room in master calendar once you're sent out for trial then the off may seem silly to me it may not be something that every defense lawyer would do but that's the reason that she did it but what's most important what is the reason she did it as she did it because she was her count her her client was saying can i get a guarantee at this point there's no guarantee because the prosecutor is going to pop up and say they weren't warned the trial court there's no deal here we're not making a deal you can't give him nine years we disagree we're going to pursue our remedies and so if but if you go forward and you take the nine years and it's not a plea bargain agreed to by the prosecutor then you do have some risk and you are not guaranteed so that's why she did it but what's important is that  she said more or less yes well what's the less well this is that this record is is not the best record that i read there are a lot of transcription problems that a lot of people talking over each other but if you look at the at the the colloquy about why did you go she said i was seeking the guarantee i wanted to see if the offer was still good she understands that there's no plea bargain without the prosecutor being involved in california law is clear on th reply brief on page sixteen working with draws that statement from his opening brief there is no declaration by mr martinez i wanted the nine years i would have taken the nine years  prejudice on those facts he got this offer of an indicated sentence and if you wanted it he was free to take it now this this man had seven prior felony convictions two prior prison terms he's been in this situation before in the court before he knew a good deal when he saw it and so if you want to take it he had an opportunity the lawyer in this case to been in practice how long the trial counsel a little over ever conducted a plea bargaining negotiation like this before my understanding is that one of her two prior felony felonies was resolved by plea and it actually was the same charge fel has this idea in his mind about this issue this offense which i think is frankly absurd if he had known of the nine year offer guaranteed who knows what he might have the side to do is counsel said he was a savvy individual he had another case pending he might have cut his losses and done that to suggest that he wouldn't play that is pure speculation and puts the cart before the horse the problem is we don't have any finding of whether or not truck counsel was ineffective because of the way that evidence rehearing  held the other thing we have to remember is that judge the lesson the defendant in the presence of judge delucchi a number of things are off the record according to the transcript counsel says a couple of times that when she went back to the  read the evidence you're hearing about what her tower testimony changes first she says that digital he never made the nine year offer at the new trial motion then at the at the evidence you're hearing she says well the kind of my understanding that he did was off the record but then she never conveys it to the clients it's equivocal testimony and it's belied by the repeated statements on her part that she did not believe that he had the power that he could guarantee it the fact that she did not know the remarriage decision is this clear is a possibly could be but for the fact of unsure hearing the not to permit specific questions on that point but to suggest that he would have gone to trial anyway is pure speculation and the california court of appeal implicitly realized that that question can't be answered without knowing to the answer to the first question whether or not she was ineffective for doing what she did and i think it's unfair to try to guess i now after the fact that he was going to trial and what we don't know that had he been given the true law it might have been a different situation i think you counsel your time's expired t just argued will be submitted for decision