the court my name is when young and i represent the hideous petitioner gout in this case why this is the first is that constructive amendment issue the second is the batson issue i'm a constructive amendment issue clear i think that it was a constructive amendment and not a variance it was a change in the terms of the charge with which my client was was charged it went from being a mere personal use to being personal and i discharges intentional that distinguishes it leave the trial lawyer i was not your honor so the dividing line between constructive amendment and variance are sometimes difficult to drop but it seems to be whether it's a change in the elements of the crime as opposed to facts that are proven at trial and this is a change in the elements of the crime of the enhancement the trial of twenty two five three enhancement from being as is the intent language so it's not only that it wasn't charged but his son it may not have been found because that is not right that's exactly right you're out of the only time that the words intentional were used including on the jury hearings was in the actual instruction when the court said that the jury can convict if they found that he personally and intentionally discharged the firearm the verdict form only had personally discharged it did not mention intentional and all the discussions and they were lengthy discussions leading about the jury instructions everyone assumed that it was going to be the personal use charge so when i mean once you get into variance and noticed you're in a murk made more has broadened the concept of construct of a man and i think that's continued it wasn't noticed you know fundamental right to the notice of the charges and he was never given that notice and didn't  about it until the court instructed the jury so whether it's fairly it proved under a pretty are the construct of amendment it was fundamentally unfair what would be the consequence if  should've been ten years that's the more difficult question presented by this case the intentional use i think clearly fails but it's really analogous to a situation in which the government for its own reasons the instructions and the colloquy just being so but usually you know i think the argument and i think that it probably has more force in those cases where we don't have a special verdict form because then we're left to sort out we wonder well what what was the jury thinking and we're not supposed to try to think what they were thinking here we don't even have to ask what they were thinking so we even if there had been you know there's an error in the instruction but what good analogy on our special verdict certainly lends credence to the finding that the decision that the jury did find that and i'll just rely on the fact that there was so much confusion between the information the instruction the verdict that the entire more demanding of the government but to demonstrate that three of the eight nine if you use counsel's arguments present threes were used to eliminate black jurors from this case about the overall veneer poundals that matter it certainly would have been better to have to know more about it but my position is that three out of nine is sufficient to raise the original in friends on  put on the record the reason for one of the jurors but it didn't happen for the rest of them so we're left with the judge rather than the prosecutor making an argument if you will but there was a reason given for one of the jurors an african american the court didn't even request a response from the prosecutor but the prosecutor put it on the record anyway right so there it is and now a third black  stricken to get the total of three out of eight or three out of nine you know my argument is under bassett and johnson and by a case of this court caster that's sufficient you not answering my question though maybe and maybe let me be more precise my question is why when's the prosecutor put on the reason for one of those jurors why that juror would then be included in a crime to face a case because the prosecutor gave a race neutral reason under babson which would then shift it back to the defendant so why isn't it rather than three jurors that is the numerator in the  equation i think what the court is suggesting haven't put the reasons on after the second one they start off not with a blank slate but the third one becomes is one more striking of a black sufficient to raise that initial inference on the batson i think you have to look at the you keep saying there's two and then there's three but the second sure there was a reason given and was that sufficient under batson to essentially kick that you are out of the mathematical statistical formula however we may view it well i don't think their reason was deficient your honor and we're getting there and here is why the reason given by the prosecutor and the reason given by the judge after the third strike were all these jurors had traumatic experiences or difficult experiences in some way with the criminal justice system their family who was required victims or their family who were  defendants in case but if you look at the entire ward you're the entire jury pool the veneer here they were all too remarkable expect had had the same kinds of experiences not just those three if only those three  that second juror has to at least inform the discussion about whether they frankly challenge on the third juror was for possibly race related reasons or not it's part of the equation ok the not looking we do we have more information than that and the government sort of puts it together and it's free and says i forget the exact numbers but we do know how many people worldwide here and we know by defense so is that number good enough or do we have to know the larger number i mean what was the people who were struck for cause or with but we don't know why but we do know what we know that they did end up with two black jurors on the panel and we know that i think there was thirty or forty in the total veneer what do you mean by the total failure this is an interesting question because  the other people that were called to the jury room i just sat there but just sat there because we don't have the jury questionnaire what would the that's really the question i have you know eight years after the fact i think we are this mean as a practical matter and we'll also ask the state the same thing i mean it doesn't seem to me to be the kind of evidence we rely on for statistical to have your client say well i think there were four blacks turns out he's actually wrong in terms of the evidence and i think in terms of what he even said in his brief so said well there's just not enough there we can't make that determination is there anything is available records that would reconstruct the pool as a whole and any other do you mind starting backwards since we're on babson now i'd be happy to we're all seem to be the question you know he said the same question i want to ask you as you know what would a ring and look like i think in your made a crime a face a case of discrimination aside i don't think that the support of this record but to answer your question hypothetically if this court finds that the case well then the burden shifts to the prosecution to be able to provide race neutral that would change the statistical analysis in other words he talks about the jury questionnaires but i don't believe they would be asking race yury question so i mean last of that they would  i think well they're relevant because if they accurately reflect the record before this court just because there is no presumption that they're correct there's also no presumption that they're incorrect the scales or even if they accurately correct for reflect the record of five percent if we took it that way or thirty three percent of the strikes were for african americans and that the jury pool if you take it should be the pool we know about which is the all of those people were not african american which i'd say is probably the case just as a guest when you have any i will just parody i think because you have something like thirty seven point five percent the worst thirty three percent stricken and you know somewhere  because nobody's mentioned and passed here and i have a question about that because obviously the state court was wrong as we now know in johnson in terms of that standard under bat relevant for us to look at well i think that the state findings have tremendous relevance and value but they're not presumed correct and you don't apply the death of a death of deference you review them t that is part of what gave rise to this transcript that maybe we will have to look at what we may need to hold in this case i get what you're saying though is let's say that then are there any factual findings here to which we should at least consider even if we don't give them heightened deference is there anything in the record from the california court of appeals that you think relates to a finding on whether there's a prima facia case well obviously there's been findings by the trial court the california court of appeal and then echoed again in the district court that their work compelling race neutral reasons now whether this compelling reasons were the ones given by the judge and those if the price if there is a come out of the prosecutor's mouth with the i guess and then under johnson they say well we shouldn't be looking to the judge we should look to the prosecutor so even though the state court found these compelling reasons i don't know what to do with those well you remove only you remove the presumption of correctness from the trial court's findings but it doesn't mean that you have to ignore those finding reasons to balance out the weakness of the numbers that's to come how in the circumstances yes especially in this case where i would submit that these were not a close call in terms of the compelling race neutral reasons confused but i see that the the facts that are there the poor dear about the structures perspective jurors were highly compelling facts that any prosecutor would be do know that there were other jurors that were struck for similar reasons and i don't know the race of those jervy ok i'm assuming that the only african american jurors who were struck for these reasons are these are the jurors that gave rise admission i think so thank you if i could start that issue by addressing the questions you started with judge garzon you had concerns about the verdict form and the prosecutor's arguments and sort of contended argument not the point the prosecutor's closing argument specifically argued that he fired it this is a murder because he shot her in kilter he was standing over her with a loaded handgun at her he pulled the trigger the gun didn't just  malice of forethought point you know where he would kill her so he said well you might be able to find this but i'm not asking you to find them so then he goes on and says with regard to this particular issue on the absence of the word intentional in the verdict form but the jury instructions are clear they say that the term personally just charge a firearm as used in this instruction means that the must have personally and intentionally fired it they returned the special verdict form when the personal discharge of that weapon is presumed that the jury for all the instructions and there is never been an assertion to the contrary  charging document of the plame unary hearing or whatever notice is given to the senate alleges the facts that he is needed being being accused of and called to defend against the california supreme court made not only a factual finding which is binding under twenty two fifty four that this was a mere numbering error it wasn't some kind of instead it cited the language of b which personal use so that to me is different than these other cases i mean why that's what i find kind of troubling because you look at the whole case and it's it's personal use plymouth hearing there's never been any dispute or any misconception that the defendant here was on trial for murdering someone at the field and that he shot her at point blank range with his hand i think th reasons right from the pulmonary hearing all the way through the evidence and chiefly the ballistics expert introducing evidence from the prosecution that this was not a hair trigger weapon this had to be pulled deliberately right through a closing argument which i've  d my own experts in today to try and give what i think is a more accurate perception of of how the prosecutor characterized this evidence right through to the verdict form the instructions the sentencing at no time did the defendant say hey wait a second i'm being blindsided here everyone knew what he was being charged with he defended that charge as the district court said it's impossible in the situation and to imagine that the defendant would have i think either side would have tried this case any differently at the sub's subdivision d been included in the information rather than sort of vision and overarching principle here is that no u s supreme court