good morning may please the court my name is mark i'll be arguing on behalf of the appellant would like to reserve two minutes for rebuttal in this case the california court of appeal correctly found that the prosecutor committed serious misconduct the question before the court is whether the california court of appeal made an objective and reasonable determination when it concluded that prosecutorial misconduct constitutionally was harmless that was an objective   reasonable determination because the misconduct was pervasive and the evidence against mr jackson was not strong and the only thing that we as as i think the government argues is the our certificate of appeal  fairly limited so so what the court of appeals the state court of appeals said was the error was the some statements at the prosecutor made in closing about you know i didn't say at the california supreme court's at it then you begin by talking about an era under darden and that was all had also been raised to the state appellate court so when you say the prosecutor's misconduct was profane is a you're not talking about what the state court of appeals found or what we granted a certificate of appeal ability you're really relating back to a different claim is am i misunderstanding the brace or how this this played out i'm not sure i mean i think that o properly apply darden and to properly determine how much effect the prosecutorial misconduct had both the california court and this court is required to look at the entire trial context in sense of responsibility and didn't look at the at the trial as a whole ok so if the court i mean i think that the certificate of appeal right so i'm not really sure that they need to be separated out in that way though because the california court is analogizing and it is applying the standard not just for caldwell which is using by analogy but that was that was what we certified ok so i think that that doesn't specify that it doesn't that seems to specify it says the statements during closing arguments about the california supreme court in the california court of appeals right i am i'm i'm i'm missing something that's right but then when we're looking at the effect those statements had when we're looking at whether they were harmless and whether the harmlessness determination was reasonable or unreasonable i don't think that there's anything in supreme court establish law saying that you look at these statements in isolation i think that it has to be looked at in the context of the other things that the prosecutor told the jury and the other information that was before the jury so in this case i think that whether it's looked at even if it's looked at in that narrow more narrow view of just as a caldwell question and those three statements i think still the state court determination is objective leon reasonable because what the california court of appeal said is this is harmless because the evidence was so strong and that i believe is an objective leean reasonable determination and i think it's based on  an unreasonable interpretation of the facts what supreme court of the united states precedent you say it's objectively and reasonable interpretation of well i'm saying it's an objective way and reasonable interpret application of chapman which is the standard that the court applied and that is the correct standard for whether the error is harmless whether it's viewed as a caldwell error or a darn error the court's still going to apply chapman and i think that was applied in the objective leon reasonable manner and just isam examples of the facts the facts upon which the state court relied the court said that there was evidence that he had accurately fired the state well it's true he had the window but that's all that the state courts as well as i wrote it i think is that what that statement leaves open is whether you can determine that that's where he was attempting to shoot and if there's no evidence in the record as to whether he was pointing the gun where it might have been pointed what the trajectory was where his vehicle was where the window broke where the ball landed and i don't think there's prosecutor who's saying this third person who's in mcdonald's even though we charged it has nothing to do with her so it doesn't seem like just the fact that you've hit a window and there are people in the building is enough even the prosecutors an evidence of motive to shoot and evidence that again i think is quite weak we have pages and pages and pages of testimony from the gang expert but actually what the expert says is he's never appears to have never committed a crime on behalf of the gang he appears to have never participated so the state court rejected the sufficiency argument of the king anubrata to the district court which also rejected the sufficiency is not before us here right so so we take that evidence is being sufficient at least for the king well i think it is sufficient for those enhanced moments we have to you know treat those decided but that doesn't mean that sufficient terms of the strength of the evidence against him for the judgment and i think that even if it's sufficient to say that under this somewhat technical and broad california statute this counts as for the benefit of the gang that doesn't necessarily mean he is a motive in this instance by wanting to shoot someone that he may or may not think could be a rival gang member if you want to say some time for  to please the court i'm allen crown representing the respondent yes the certificate of appeal was issued on the issue of the prosecutor's misstatements about the not misstatements of law but misstatements in the sense that he should not have told the jury that the appellate court and the supreme court had decided issues of intent in cases similar facts this was found to be misconduct by the state court and then the state court went on to do a finding that it was not prejudicial that was under the chapman standard the highest standard there is for finding prejudicial  and in our view that was not an unreasonable determination the jury did not do what the prosecutor told them to do he told them to convict the defendant of two counts of attempted murder because of the transferred intent because of the fact that he was the defendant was shooting at the window and that the two well three victims were there in the in the space but he the prosecutor asked for attempted murder convictions and only two of them jurors despite what we think is attorneys that we somehow you know cause the jurors to r conclusions because we tell them they should they don't do that they make up their own minds and they did in this case and they convicted the defendant on only one count of the attempted murder and not on both counts as the prosecutor told them to do based on the transferred intent based upon the supreme court and state appellate court decisions on similar facts they just and their what he told them to and so the jury is this is evidence that the prosecutors state in the so in fact that the trial with unfairness i think that's the darden standard can we look at what the jury's conclusion was to weigh the fairness of the trial under guard that's one of the circumstances that exists in the case and you know it certainly shows that the prosecutor was not leading them down the garden path and but they didn't follow they don't follow if not all the way and what they found was based on the evidence and as the state of pollock court said it was overwhelming evidence we have the evidence that the defendant was a north tenure gang member gang member inside the mcdonald's building and he drove out of the the drive through line he went around the building pulled up to the window in and then he was making waving his hands whether he actually made gang hand science or not is not clear but he was trying to get the attention of the people inside and he fired a shot at the window that they were standing behind certainly there's overwhelming evidence here that he intended to shoot the guy and he intended to shoot at those people and the state a public court did not make an unreasonable determination you know applying the chapman standard but even if it did the standard that the appellant has to make meet is the bracks standard and under that standard also the evidence was overwhelming and the result should stand i'd just like to briefly address the question of the import of the jury's verdict according to the brother i don't think that that carries as much weight as the attorney general would have it for one thing this is  argument that the attorney general raised in the state court and it does not appear to have had any bearing on the state court's decision is there any cases says we don't look at it for determining whether the trial is infected with unfairness well there is from the second circuit floyd which doesn't say that you don't look at it at all but it does say it's not determinative ok but it doesn't it doesn't preclude us from considering it no no it should be considered but it should be considered for what it is which is that all of the concerns the state court identified are still present the state court specifically talked about the possibility of the jury wind at least go part way to satisfy what they thought the higher courts wanted they talked about if the jury is close it might tip them over the edge if the jury wanted to send a message and they figured it would be corrected later all of those are still present thank you ok thank you counsel we appreciate your arguments this morning and the matter is