double jeopardy violation the first trial which was actually a court trial and there is a minor error in the briefs because i said it was a jury trial it's hard to keep the trials straight in this case the court acquitted section two forty five which is assault with a deadly weapon count five that which was assault with a deadly weapon and count six was shooting at it happened in the well so this is a nine hundred ninety one and the very first thing that happens in this case the case was retried and the court didn't realize until sentencing that the counts four five and six which were i'm not going to call the jeopardy bar and we argued that that that it in fact was a double jeopardy violation and the the court of appeal fourth district division three  california disagreed with us and said it was not a double jeopardy violation mr damien filed a probe her petition in the united states district court for the central district it convicted of the three lesser counts that were not of ultimately set aside and so then the court from the just records denial in part and reversed and remand d with respect to the second degree murder i guess the sticking point for me and and for us is that once there's been a finding that there's a double double jeopardy right it makes sense that you use double jeopardy board material correct ok now if you don't use that that doesn't mean necessarily that the murder charge with the way you got to the marriage i understand that your honor and and my reading of the court opinion and damien versus fine is that the court was going one step further in saying that there one one way to view it why is that not the proper way to view because the language of the opinion went further and said we furthermore think that there was a double jeopardy violation as degree murder conviction then the second degree murder conviction by definition is result of mr damien being twice put in jeopardy well so far neither the state courts nor the court below memorandum disposition which is a good reason that we shouldn't be reading so many memorandum disposition yes you but why this is different than if we said the murder therefore the murder conviction is no good your honor right i don't have an answer to that other than the court's own language says we further determined that their conclusion that there was no double jeopardy violation with respect to the murder however even if yes even if i'm wrong or the superior court orange county went back and retried this case they  mid the three jeopardy barred counts as i'm charged defenses they refused to tell the jury they refused the defense request to tell the jury that those offenses thought that those were something he was convicted of when in fact he wasn't but isn't that a state law evidentiary question that can't be reviewed on federally b s i think it's a due process violation you know if you have any control  not not not at my fingertips i'm sure i could find some but it just seems to defy common sense when when this court's talked about double jeopardy and how these are jeopardy barred counts that that having this having this go into evidence which completely misled the jury and especially because in the language of damian versus von the court this court talked about the fact that that the underpinnings of the finding of implied malice second degree murder were based on were based on these counts because they were they were talking about escalating violence and then that the captain i'm sorry the jeopardy part counts talked were were  familiar with the details of it obviously it was denied so but and then the keep the cumulative error issue is the other thing i wanted da and the and the final the final trial that we're talking about the fourth retrial was able to decided to bring they realized their implied malice theory was a little shaky so they brought in a gang expert for the first time miss miss and the sara was was given a deal and was released and her trial testimony we detailed in the briefs was it was perfected you know it was exactly what the da wanted and it definitely it definitely didn't it was was that the mental the mr damien so so that's the other thing i mean for trials at that point i think the court has to take a look at it  and the fundamental unfairness of it i don't have a case at my fingertips but it seems that this is collateral estoppel perhaps and i think we argued that in the breeze and verdict appellant it seems to be mixing up the remedies offered in morris and also what the goals were in that case in that case the defendant conceded that retrial was permissible and was actually seeking  when the court in that case applied the prejudice standard it determined there was no prejudice and therefore allowed the verdict to be modified in this case this court did find a double jeopardy violation however  appellant is calling this court going one step further and finding it insufficient evidence to terminations was in fact this court applying the prejudice test as articulated in morris and that test is whether the defendant can demonstrate assault from that particular case that it could be assured that the murder conviction would have stood and therefore send it back to try again to see if the elves are lying evidence supporting those assault charges could still support the implied malice  that the new trial was identical to the record deal how would that make any difference well that would make a difference in the sense that in this case in order to avoid the errors of the fourth trial we removed the court and the prosecutor and the witnesses removed any language of assault from that case but as the court of appeal opinion had noted the underlying evidence supporting the assault charges is the same evidence that was also used to convict the brainwashing a weapon charges so that evidence was not only relevant but it's still dealt with convictions for which he was convicted of so the court in an error in abundance of caution did exclude evidence that the two female victims who he regionally brandished the weapon at heard a gunshot that evidence was i go back to the question that's the test for prejudice articulated in the court it's not an insufficiency finding i mean it's insufficiency of sufficiency review is addressing not the government's case was so lacking that it never should have gone to the jury at all this isn't a case like mor where the extra element in getting to the jeopardy by defense was in fact a conviction for aggravated murder the evidence leading towards the implied malice finding here i mean applied malice is the killing result from an intentional act the natural rather than the context of insufficient evidence but there is a statement to have any binding effect no you honor that statement as saying we just can't say for certain that this charge would hold up but in fact it did based on that same evidence the prosecution pursued its case and the jury did find the implied malice wasn't exactly the same evidence and they call a new expert on the new expert on gangs correct ridge's regarding the evidence in terms of the the brandishing and the two female victims and removing any evidence or naming of the assault charges themselves this court in reversing the case that it was unsure whether or not the case would still hold up but in fact it did it was unsure so the case w reversed and remanded for a fourth trial and now we know the prosecution was able to prove its case and the conviction should now be affirmed because the court of the trial court heated this court's direction and did exactly states the united states supreme court did say that the double jeopardy clause is a sufficient protection for concerns of this nature of course it's not ideal to put someone through four trials however the state also has an interest in getting it right and holding people accountable for their crime so being mindful of the depor double jeopardy clause and that there was no violation in this fourth trial the court of appeals opinion should stand in the district court correctly determined the issues in this case dowling is the case the point for the second issue which is that due process does not require exclusion of testimony relating to the alleged crime of which a defendant with acquitted and although there is potential for prejudice admission of such evidence it is ok if it circumstantially valuable to proving a case and also the jury was properly instructed there is no disagreement that the evidence was absolutely relevant under california evidence code eleven  one and the court as noted he did this court's direction and removed all mention of assault from the case there is no prejudice in this case there's no dispute that he was in the car that he was driving that he was with a group of gangsters looking for vengeance and that the victim was connected with their rivals and reversal of his murder conviction in the third trial had no command to exclude evidence of the brandishing with regard to the f honor so also is noted the trial court did exclude some evidence in order to reduce any sort of prejudicial effect and in doing so the evidence was not unduly prejudicial within the realm of calvin or in california evidence code three fifty two as you are mentioned is essentially a state law issue and appellant can point to no case to show that there is this trial was fundamentally unfair as a result of these evident jury decisions in conclusion because the state courts properly found the facts in appropriately applied the law as such the damien cannot establish any merits decision denying him relief is contrary to for an unreasonable application of united states supreme court and the district court properly applied the death penalty you i do have one question on this upon the defendant's cumulative error argument yes what's the state's understanding of their argument because i'm not sure i understand that so we did not bring that issue since it was not certified for review and we'd be happy to provide more briefing on that however there was no chemo to bear in this air this was addressed by the lower courts and found that even though there was a gang expert there was no new sort of arguments or evidence that came in other than his testimony the victim who was killed was not a direct rival of their game that's affiliated with a rival of their gang so there really was no prejudicial effect to that the victim who testified in the fourth trial she had been given a release date but she was by no means released at the time of the trial so our position generally is that there is no king live error and this trial was appropriate and his rights were accurately maintained by the double jeopardy question and he was denied parole but i don't know the details of why but the second the second take away that i would like to leave this court with is that these counts that were supposed to be barred came back into evidence i don't unless i'm missing something i do not see we do not see how how that is honoring the court's decision and damian versus fun when that's  murder finding so with that i would submit thank you can thank you