think this case again defense of the offense could in fact be taken into account and did constitute in quote some evidence how do you distinguish this case from that well in a couple of ways in that case to show that it went beyond it was a heinous and atrocious and cruel murder case we don't have the point here because it's nothing beyond stacking the premeditation even though that big council here's a man who went back and waited for some time but a ten thousand dollars piece of jewelry involved and because of his anger over ten thousand dollars he shoots a man in the head individual when he's considered for parole unless and that individual case there's a finding that because of that crime there certainly greed just heinous atrocious and cruel aspects of that attempted murder which shows that he presently presents a risk even the california supreme court noted that the e p a demeanor the paradigm of of due process violation when parole is denied on the basis of the offen is where the crime constituted no more than the basic elements of the offense but the counsel are you not missing something in irish clearly the basic elements offense cannot over a long period of time be the basis of keeping someone from getting parole but your client is up for the first time for the first time this was a premeditated act trying to kill somebody for ten thousand dollars under irons and big isn't that an appropriate appropriate consideration for the parole board well what's an appropriate consideration it's not the first time by the way i mean he stretches regulations of the state that says yes after a while that can no longer constitute some evidence in the face of showing that while that that line that was marked is where the prisoner has served his minimum term that hundred percent time that's not what i have said what big says that they had also served their minimum time if you've got a bracket in the low into the high end and they come up for the early consideration for parole and the offense is one that is of such a nature that the parole board legitimately is concerned about potential record he had no prior criminal history he had psych reports that were totally favorable enough so your interpretation of sas big ironies is that when you get to the the short book and of the sente given by the trial judge that unless there is something that the parole board can point to other than the elements of the original crime that person must be proles on what you're saying i think that my person must have a probate sex form and i believe that's what california law says that's what the what you want as our case law say i don't read i arrange digs in sas the way you do i'm trying to understand why you say that that's an open sesame at that point once the person has reached the lower bookend what irons sassed and big are dealing with is this problem in california where it seems that no matter what you do or what factual showing you can parole the california parole board is just going to deny you parole and when worst comes to worst they do it on the basis of your commitment offense because you do have a serious offense which is why prisoner parole big says it's a careful weighing determination that needs to be done so if you have a skewing of the weighing process then you should reverse at least on the basis of of these arbitrary findings that were made that skewed the process that he needed a new a vocation even though he had four job offers out there that he had this disciplinary in ninety five even though that had been overturned on appeal and the various other bogus reasons what reason was his limited participation in self help in therapy and if you look at the record his self help participation really only occurred in the two years prior to the hearing and even though he'd been in for  available well there's also additional time in the self help programs for example he was participating in alcoholics anonymous and narcotics anonymous which i'm sure as you know can be a lifelong process procedure he had in an inadequate report the prisoner gave and because he had an inadequate report he ought to be denied parole i thought that an odd reasons to apply and i can understand your reliance on some things some of the reasons were being pointed out initially and they are the fact that he drove from los angeles to san francisco trying to retrieve stolen property and once he was in san francisco searched the victim's apartment stayed with his cousin in friend had a gun and discussed killing the victim when the victim showed up at the apartment he pulled the gun out and demanded that the victim go for a ride with him and the victim said if you're going to kill me do it now he then shot the victim in the head the victim fell to the floor pretending to be dead and mr cooke cocked the gun again as if to shoot a second time which he didn't do because he believed the victim was dead and then he turned in fled the a picked up the gun actually in turn of the law and apply it to another area which is what this court has done taking the prison disciplinary test of some evidence and applying it to pearl consideration hearing in fact the only clearly established federal law is that it might be given was whether he would spend a longer time in prison if he were denied decision complies with the clearly established federal law and accordingly the district court's decision should be upheld and i thank you well i think the court's questions may have articulated better than me the point i was trying to make which is that we have nothing more then the fact of an attempted premeditated murder in this case the constant saying that this is worse because ten thousand dollars and that's what the confrontation is about and yes there was some thought apparently given to to murder and that's why we have a finding of premeditated murder in this case but the very fact that you don't render assistance to the person like your honor was saying that you're attempting to kill and has feign death and think is dead how does that show a basis now or that the prisoner presents an unreasonable risk when the whole design of the parole law is to start with the grievous the france and determine whether there's been reform and rehabilitation and change and this defendant has shown that reform and rehabilitate it to stand it we're looking at here counsel whether the parole board had some evidence that this inmate might be still might be a risk to society and under our case law are they not entitle to consider whether the motivation was so callous that it bears on that issue in this case ten thousand dollars versus a human life basically is not an appropriate consideration whether you agree with that or not isn't that some evidence upon which the parole board was entitled to rely i don't think so because any attempted murder is going to have some motive that is very yeah i guess again i agree with that so will it isn't that still something on which the parole board is entitle to rely on your iron sass and not after the prisoner has served his minimum term of confinement and has otherwise demonstrated change in rehabilitation i think big so that's where big drew the line and then the answer then is what how far can you go and can you just go forever on the basis of the offense or now there's got to be a line somewhere at some point and the line stay where it is well big i mean i have says a pretty good job of of laying out the line is after what is that line after service of the minimum term where you have got he got eleven years to life in prison he had served eleven years by that time so after a while after that why you cannot just rely on the expense when everything else is about to anyone who is minimum term entitle to parole no but exactly what you're saying no you're entitled to parole unless unless the board can point to something beyond that a stance to show that you still present a about this particular attempted murder it fits well within the mainstream of this kind of life offense is not the test or the crime itself no every attempted murder every premeditated attempted murder is great but california law has provided for parole for those prisoners who show that they would not present an unreasonable risk example attempted murder with a seven year minimum kidnapping for rob or e or ransom it's a seven to life there are certain offenses that set a minimum term up to life  individual and shall make an exception in an individual case where it would present a reasonable risk in the california courts have been clear about what's happening is the board is making the section three exception the rule