good morning writers may please the court i represent i merely marshal i represent mr grass and i'm trying to do the impossible task of convincing the floor that the opinion of the state court was in this instance and reasonable under even within the meaning of the depth of this this case is so clear cut you could you move the microphones closer to each other so they'll be closer to you sure i can talk louder to get this case is so typical of  travesty that preceded the choo case where we have a person who had obviously no intent to kill a child a teenager who was ready to engage in a and again fight with fists takes office jack and under the national probable consequence theory he's convicted not just of murder first degree murder and then a special circumstance when i first took this case he was doing life without the possibility of parole plus god i don't have very much time so i think we know all of this and so we know he got he's not on why he's not on our walk anymore because of that it went back on that so now we're really talking about the probable consequences and the interplay between the two jury instruction yes they are but he is still he still has a special circumstance which makes him eligible for her all because of the graces of the court and subsequent legislation but if the circumstance special circumstances eliminated by this court he would be in a totally different position where he would have a second degree murder maybe probably he could argued i don't want to get involved in this tangent but as i see it there's differences between twenty years to life and twenty five to life twenty years it's if it's attempted murder i'm twenty five it's murder  doesn't have that anymore he's eligible for parole at twenty five right well yes but he has the disadvantage of the special circumstance which he doesn't have to be proven to twenty five even like he would be otherwise but  so in this case so what the state court found was that the special circumstance which specifically says you have to have the intent to kill to be found guilty or found true they said that that tells us that the first degree that that the jury knew that he had to be that they found the i why how do you get around that when we look at the jury instructions as a whole and the arguments of counsel and it was so convoluted largely because it was tried based upon a natural probable consequence theory and a conspiracy theory also based on the national probable consequence theory the prosecutor kept on using terms like well most serious will step into the shoes of the perpetrator when he so there was never any real clear cut because they were neither of them were the shooter right that's correct munson ari's was the person who called in the gun because there's no evidence that my client even heard the gun he took off his jacket don't take off your jacket to go to a gun battle you that ours had a different instruction on the special circumstance where that said that the it had to be the shooter had to have the intent to kill right it didn't talk about it but i don't want to tell the court this was wrong but i don't believe that that's accurate i believe the instruction i looked at it was exactly the same the problem is that they said defendant and they didn't say which defendant and in my case the court found that harmless because but in minutes months or nurse case i think because he testified he said well when i called for the day i thought the guy would just come and you know scare that rival gangsters that they wouldn't use it and so the jury of the court felt that well perhaps they could have believed that responses to the facts presented in this case now there is the point regarding the one point one one which is the instruction that's given in radio's this case that says that the both and again weeks versus saying we own says that jurors are presumed to understand and apply the instructions given to them now even though we all know they're totally confusing but the law does say that a person that they follow them yes and the california law is in lockstep with weeks on that point california courts also make that same presumption and the question again under ed is you know even if this court or another court on direct review might conclude that these instructions were confusing or something like that is it outside the bounds of reason that the state court here could conclude that these jurors would have looked at one point one one which said the word defendant means both defendants and then looked at calkins seven three six which is the instruction on the special circuit which uses the term defendant applied one point one one to that instruction and said this instruction is referring to both defendants not just there where there were about seventy pages apart these two instructions and th murder one of the special circumstances required and term and this summation just continue to harp and harp and harp on natural and probable consequences i suggestion that they could apply to the murder one to the special circumstances of page one fifty five of the special are the prosecutors says sometimes the law is a little bit redundant you don't it sounds like the same you just say i've got this feeling i need to make for this count counts guilty i can make this determination i mean and almost su gests you could transfer your verdict from the murder one to the special circumstances after all we're talking about the same and each each one requires an intent to kill and  prosecutor is arguing over and over again natural and probable consequences probably because the other theory was quite weak i suspect and that's why he was constantly arguing about about the natural and probable consequences and repeated it over and over again and it just seems to me that if the special circumstance is really a the handsome it then hangs on the validity of the murder one care murder one count goes out here and therefore you have the special circumstances  which which in which it seems to me the jury to say that the verdict on the special circumstances cures the error in terms of the  is problematic because it's invalid fine to but also it seems to me and i thank you know your response it makes it more likely that the jury impermissibl shoes when decid for the purpose of this gang and hansen what is your response you're out of my responses first of all the jury was never instructed that the natural consequences doctrine applied to the special circumstance three six makes no reference to the natural probable consequences doctrine so what you do can see the prosecutor kept mentioning it and mentioning it and mentioning it i can see that the prosecutor spent a significant portion of his argument arguing the natural probable consequences doctrine as a theory of light a lady for murder now you know order for us to assume that the jury even though it was  instructed to apply the natural and probable consequences doctrine to this national circuit nonetheless based on the prosecutor's argument ignored essentially calkins seven three six extent an attorney's argument conflicts with the instructions given the instructions of the judge control that's it essie are katrina was no conflict because the judge was silent there was no conflict the suggestion is that the judge didn't say anything about it he didn't say he didn't give for example there's a california charge that that says however if you find that a defendant was not the actual killer of a human being or if you are unable to decide whether the defendant was the actual killer an aider and abettor you cannot find the special circumstances to be true is that the defendant unless you're satisfied me on the reasonable doubt that such defendant with the intent to kill aided and abetted were assisted any other actor during the commission of the murder and in the first degree that's a clear instruction that that and  believe it may even be error of the california one not to give it but that would of there was no conflict between this between the charge and the summation because the judge didn't give such an instruction respectfully your honor i disagree with that statement i think that telkom number seven three six provides the findings that the jury has to make to find the special circumstance for what it has been better to provide that amplifying instruction possibly certainly but under seven three six if the instruction doesn't hello me as a juror that i can apply the natural probable consequences doctrine to this charge even though i don't have an instruction expressly telling me that i can't do it its absence from the instruction i would posit is contradictory to the interpretation that it seems the bench is taking if there consequences you could consider natural and probable consequences on the special circumstances you would say that didn't matter because that because because the jury is the in thanks so for follow the judge's non instruction if that happened and there was no objection and the court didn't correct it i think then the question becomes if that is sufficient to rebut the presumption that the jurors understand and follow if you're answering my question with a question you  you this question and it it's not relevant in a way but just because munson r s went a different way and so he got relief on the first degree murder so as a practical matter if that were to occur then he's faced with a new trial or did did the monsoon arce court just say that did they enter a verdict did they enter a second say either take second degree murder or go to trial back on first degree murder or what happened with him anyway you know your honor i do i don't specifically know the answer to that i believe under california law the court of appeal could reduce the charge to second degree without any trial in that circumstance whether they did i'm not i i fifteen yes sure if i was i was a state prosecutor in life they've changed that but then he still has the twenty he still has the twenty yes and so but right now with the first grade he's got twenty five to life so he would still have the twenty right because the twenty's on the is that on the end as he attempted twenty attempted which is concurrent with all of that so he would be eligible for parole sin or not and not and not in terms of but i think usually when they reduce it i think usually but they say either that's it or you go to trial something like that because i the prosecutor could decide to retry him on first again yes ok your honor if i may i know i'm over my time well i know we didn't we asked a lot of questions go ahead because we're going to want to have our questions answered don't want to be disrespectful to  and that a court could find that a jury was not confused by these instructions and these arguments put together this the jury one but at doesn't last decided in the first instance and i realize that your hon saying is that no reasonable jurist and no reasonable jorth in either in the first instance or the second instance not the jury could not possibly reasonably have applied these instructions in a reasonable manner and no reasonable jurist could have found that they did the jury need to be instructed that the natural probable consequence i think a number of jurists disagree with you so i would have to find that they're not fair minded  reasonable which i would have to find it just to court i'd have to find a three court of appeal justices plus i'd have to find the california supreme court right well i mean it's not it's not something that couldn't happen but that's what the standard means i wouldn't say the i think the supreme court cases are confused but i think you know most of the ninth circuit's most recent case they said that the breadth versus abraham standard for a b s in fact supersedes because it's even a greater standard than episode we're not doing so much with the epicenter but with the supreme court's view which comes down to whether we would have a grave doubt as to whether the error was