Legal Case Summary

May I please the court, Lauren Eskenazi, a perpetrator, Abokuk, Quavera? Like the case that was just argued, this is a confrontation clause case. However, really the only issue here is whether the unconstitutional admission of a preliminary hearing statement, which violated the Constitution, was in fact harmless, underbracked, and under the AEDPA. I think a primary importance here, not just to this specific case, but actually a problem in the state courts in general, is that the state court opinions often and often apply a substantial evidence test to the prejudice analysis. And that's a huge problem in this case and a really a bigger problem in the California court, so it's really important that we address this issue. You know, when I saw that in your brief, and I went back and I read the California decision again, and I see how you could draw that conclusion, but I don't think it's necessarily accurate. It seems to me what the California Court of Appeals said forth was equally applicable to either a jacks and against Virginia analysis, or a harmless error analysis. You know, the test is different, but the considerations that you lay out would be the same. So I'm not sure this is the case to make that point. I appreciate that feedback, but I think that it is, and here's why. The ideas and the identifications in this case were extremely problematic, and rather than evaluate the strengths and weaknesses of each identification, the court simply said, because the identifications were admissible, and because they were admissible, then, you know, the jury had every right to make its decision based on those identifications, and therefore it's not harmless. And in fact, just one specific quote that's so critically important in the Court of Appeal opinion at ER6667 is where when they say, we conclude as discussed above that the testimony of Poplin and Munez were properly admitted at trial. Therefore, we must, must, and that's wrong. If you're applying Chapman, must is only applicable if you're doing the substantial evidence test. We must conclude that any error in admitting April and Romero's preliminary hearing testimony and her statement to the police was harmless beyond a reasonable doubt. So they use the language of Chapman beyond a reasonable doubt, but it's absolutely crystal clear because of this must, one, the way they frame the issue, that is, because the identifications were admissible, there's no harmless error, and two, the use of the word must, absolutely, conclusively shows that they use the substantial evidence standard here and not the Chapman standard. Well, go ahead. I guess it seems to be that that's pressing the point just one not too far. Why can't we read that to say we are compelled to conclude? We must conclude. Well, compelled suggests that we're convinced and we have the discretion to make this call must suggest by law we have no other choice other than to make this conclusion. And they did have the discretion. They didn't have to decide that it was harmless error, that it was harmless error

. They had discretion to, or they could have been compelled to, based on evidence in the case. So I think the must really ends up being very demonstrative, one, and two, it's also how they frame it. They never discussed the identification, the weaknesses of the identifications, and the weaknesses of the identifications are glaring in this case, glaring. We have in the middle of trial, the prosecution just talks to a witness who was talked to at the scene of the crime, who saw the shooter, and was able to, saw the shooter, knew the petitioner, excluded the petitioner as the shooter, and then over a year later in the middle of trial, we hear about some ten-year-old girl who says it was apacook. It was apacook. And that's admitted. Now maybe that's admissible. But that's a very suspicious, problematic, questionable identification. And yes, the jury had every right to rely on it and make their determination. But when you're doing a harmless error analysis, you have to point out that that is a very weak identification. A very suspicious identification. Well, counsel, if we're applying the Brecht standard, you would have to establish that there was a substantial and injurious effect of the admission of this testimony. Wasn't there plenty of other testimony and evidence sufficient to sustain the conviction here? Well, yes, there was evidence to sustain the conviction that that's not the test under Brecht, and that's not the test under Chapman. Even under a substantial and injurious prejudice test, you still have to weigh which is Brecht. If you look at all the evidence, absent April Romero's testimony, it all is extremely problematic. Does it depend that the jury couldn't have reached, it's not that there wasn't substantial evidence, but you have to look at what was the weight of April's testimony? Was that the piece of evidence that helped the jury quintessentially resolve the conflicts of the identification? You know what, testimony. As long as the evidence is sufficient, it's up to the jury to decide, is it not? I mean, the weight is something that the jury will take and do a consideration I would expect. With all due respect to her, that really was how the state court framed the issue, and it is the wrong application of law. It's not a substantial evidence test. And that's what the problem I have with the response you just gave to Dr

. Schellman's question. It seems to me that that is quintessentially the problem, that as opposed to looking at what evidence was properly admitted and which may or may not have problems with it, and I fully appreciate that your position is that all of the other evidence had problems that made it wobbly. Isn't our task to look at the evidence that was incorrectly admitted under the confrontation clause and determine how much effect that had? In other words, a focus on April Romero's testimony. Isn't that the point? We want to do both. I don't think you're limited to one type of analysis when you're trying to figure out whether the error was harmless or not. I'm looking at the Ocampo case. And there's a five, there are five factors that, that case identifies that we have to look to for Judge O'Sgahnlin's question, right, to determine whether there was a substantial and injuries effect as a result of this improperly admitted testimony. And then there are three other factors that really go to the, just drills down on the collaborative evidence. The other four witnesses in this case. And it says, while collaborative evidence may as a general rule, make the wrongful introduction of other evidence harmless, this concept has no application where. And it gives three instances where there's no application. One, there's a reason for the jury to doubt the only eyewitness testimony to the third party testimony was not exceptionally strong and three, the physical evidence, connecting the accused to the crime was limited and explained by the defendants theory of the case. So it seems to me that your argument about these, this cooperative evidence really goes to one of the five prongs that were to consider under Ocampo. Would you agree with that? It's probably fair statement. Was there any physical evidence connecting your client to this crime? There was absolutely none. In fact, they never recover the gun in the case. There's inconsistent testimony actually about, at the scene of the crime, there's clearly 45 caliber bullets that are associated with a semi-automatic. One of the witnesses, I think you told me no, and I'm just worried about your time. So can I, that's okay, this is only one speech to my question. Thank you, Your Honor

. I appreciate your indulgence. But so, in other words, I'd give you all three of these factors for sake of argument under Ocampo. If I give you all of those, instead of the cooperative evidence, was really problematic, because that's what your brief cries out to me. Then, then, counsel, would you just indulge me and speak to the other four factors that Ocampo instructs us to look at? Because I think that's judges' endless question. Because that's what I would be left with if I buy the rest of your argument. Certainly, Your Honor. Okay. The importance of the testimony. So here we have straight from the prosecutor's mouth. April Romero reports an admission of a double murder from Petitianar in her statements given to the police. When you say straight from the prosecutor's mouth, I think you're referring to the argument. The prosecutor said in closing that the told the jury you could rely on this alone to convict. Yes, Your Honor. Okay. What about the next factor? Whether the testimony was cumulative? Was her testimony cumulative? There are aspects of it that certainly were not. And so far as she gave testimony about the efforts that Petitianar and Arturo took to take the tensing off the car immediately after the murder. That's not cumulative. That stands alone. All the gun evidence. All comes from April Romero

. No other witness talks about it whatsoever. Now, what about the identification? I'm sorry, Your Honor. What about the identifications? Weren't there three ID witnesses? There are three ID witnesses. I mean, this goes back. It certainly is. We can't ignore that. Obviously, there are suggestions of weaknesses in any one or maybe all three. But we can't ignore that. Can we? You certainly can't ignore it, but you have to weigh it within the totality of the evidence. The question is not whether there was substantial evidence to convict Petitianar. The question is whether the error was harmless. So how much weight to give April's testimony in contrast to how weak the other admissible evidence was. And here, the other ID evidence, although admissible, was substantially weak and problematic. Moreover, the IDs are also unclear. There's two people there. What they see, two people going to... So we don't know if our tro is the shooter, even if you think Petitianar was there with our tro. You're still not sure who is the shooter

. A lot of people make an ID and say that the shooter is short with short hair, which is inconsistent with Petitianar's identification. He's six feet. He's right-handed. The shooter is left-handed. So there are these IDs. There's no one that looks at the six-pack and says he's the one. The identifications are not Petitianar's the one. They are... So there's the ten-year-old girl. The ten-year-old girl that says it's Abacook. And even then, I wonder if the she-mean he was the shooter or the she-mean he was present and our tro was the shooter. And we didn't hear it. She doesn't say he's the shooter. He's the one with the gun. She just says it's Abacook. So maybe he was present. Maybe he was the non-shooter. Because there's two people there

. And all we have is the Mismunio's testimony that this child is riding the car. Across examine her, it's an excited utterance and probably made an emergency situation. All right. But what about the man who... Was it hangus or hangus? I'm just... Miss pronouncing his name. Who saw this person across in front of his car. He'd gone to high school with him and ultimately did identify him in court. Well, he identifies him in court, but he doesn't match the identification given on the day of the crime. On the day of the crime, he describes somebody, first of all, carrying a huge gun, which is inconsistent with the murder weapon. Looks like a paint gun. A paint gun. Huge, he says, which is inconsistent with the murder weapon. So if it is petitioner and he's not carrying the murder weapon, he also describes himself as short hair, which is also inconsistent with petitioner. At that time, petitioner was bald. And most importantly, I can't believe I forgot these back

. Petitioner doesn't just have bald. He's not just a bald, he's a spanic man. He has a tattoo, a crosses forehead, and on the back of his head. So he's easy to identify. Shoot or I think it's... Shoot your shot and like doke on the back. And nobody... Nobody sees any of these tattoos on the lead shooter that they saw. This is not some person that's hard to identify. You get two tattoos blaring on both sides of his head. So the shooter that hanges describes the day of the crime actually does not meet the description of petitioner. It does an short hair. He's carrying a gun that's not the murder weapon. Can I ask you the question this way? What suppose you have 100 pieces of evidence, disconnected pieces all pointing towards guilt, but all of which have some warts. They all have some problems. Then you add April's testimony to that

. And it has warts too. Certainly. Is April's testimony with the warts sufficient to upset the jury's verdict on the 100 pieces of evidence that also has warts? Well that's why I think you have to look at how problematic the other identification are. No piece of evidence is perfect. And always subject to cross-examination and is... You know, when you be with it maybe with the exception of DNA evidence and maybe not even then, do you have a piece of perfect... a perfect piece of evidence? And I completely understand that. And I'm not arguing differently. So you have to look qualitatively. That's what I'm saying. You need to look qualitatively at each ID. And I think they're extremely problematic. Wait against the weight of April's testimony, which is so compelling. She's a girlfriend. She's saying, I saw him right after the crime. First Arturo has the gun in the hand

. And he has the gun in the hand. And then the cops coerce her. We're going to take your children away. You're an accessory of murder. Stop lying to us. She's ready to identify someone else. The rumors are that a black man did it with a Spanish man. And all of a sudden the cops keep telling her. But all of a sudden the story changes. Sorry to interrupt you. I'm sorry. All that information makes her testimony less probative, right? The fact that the police allegedly browbeat her into making the identification. And that goes before the jury, too, right? Does that really lessen the prejudicial impact of her testimony? In part it does, but you need to make a judgment call about how much you think the jury really put weight on April's testimony. That it was in fact much more compelling because of the details that had. And because of the relationship she had to the petitioner versus the other identifications. And that's the quality of analysis that you have to do when you're doing harmless error analysis. It is not a substantial evidence test. And with that, I'll use the rest of my time for a bottle. Thank you. You're honest

. He actually used your time, but we'll hear from opposing counsel. Thank you. Sure. Good morning, Your Honour. Please the Court. Deputy Attorney General Theodore Crawpley for responding in the Pellee. First of all, in this case, the California Court of Appeal actually did do a chapin analysis here. It looked at the evidence as it, as that is the way to determine whether there is an error under chapin. Look at all of the evidence and that's exactly what the California Court of Appeal did. It's use of the word must. I think it is appropriate because it's concluding based on its review of all of the evidence that any error that may have been committed was harmless beyond a reasonable gap. But the petitioner would seem to have asked this Court to examine each piece of evidence in isolation. However, that's not what a jury is instructed to do and that's not what a court does on harmless error review. Instead, the jury is instructed to look at all of the evidence, good and bad, and make its conclusion. But there is problems, right? There's problems with every other piece of evidence, isn't there? There are as Judge Collins said, there are words on all of it. And that's not uncommon in a criminal trial that there are certain words that's right across examination can bring about those words. But looking at the evidence as a whole, what the jury was faced with was three separate identifications as a petitioner as the sewer here, as well as evidence linking petitioner to the gun, to the getaway car, and giving a motive to commit these crimes. So what did the jury hear about the fact that Ms. Munoz had not mentioned this 10-year-old child until just before trial? The jury knew about that. Certainly did. And that was... So did it was a late discovery after you got out? Yes, it was a late discovery after you got out. And I think Ms. Munoz said, well, she thought the police had contacted Regina and testified and things of that nature. So the jury, one of the words on this is what Munoz heard that this identification of Aboku was kind of late in the game. But it's important that Regina, a. 10-year-old girl with no stake in this, said it was Aboku. Didn't say Aboku was the accomplice, sorry. It was Aboku was there. It was Aboku. But that only gets in on a hearsay basis, right? The very opinion you have been excited about hers. Well, I'm not saying it's not admissible. I'm saying that that kind of hearsay may in fact be less probative than the little girl testifying herself, saying I said it was Aboku because it was Aboku. I saw him shoot the guy. Certainly, Your Honor, could it come through through normal Nino's analysis? I guess we need not spend too much time on what I've called the warts because we all know the warts are there. We just need to focus on the relationship between April's warts and everybody else's warts. And my question to you is, if April is just.

. And that was... So did it was a late discovery after you got out? Yes, it was a late discovery after you got out. And I think Ms. Munoz said, well, she thought the police had contacted Regina and testified and things of that nature. So the jury, one of the words on this is what Munoz heard that this identification of Aboku was kind of late in the game. But it's important that Regina, a. 10-year-old girl with no stake in this, said it was Aboku. Didn't say Aboku was the accomplice, sorry. It was Aboku was there. It was Aboku. But that only gets in on a hearsay basis, right? The very opinion you have been excited about hers. Well, I'm not saying it's not admissible. I'm saying that that kind of hearsay may in fact be less probative than the little girl testifying herself, saying I said it was Aboku because it was Aboku. I saw him shoot the guy. Certainly, Your Honor, could it come through through normal Nino's analysis? I guess we need not spend too much time on what I've called the warts because we all know the warts are there. We just need to focus on the relationship between April's warts and everybody else's warts. And my question to you is, if April is just... I'm doing a little too many analogies today, but if April is just the flea on this dog as you portray her, then why did the prosecutor on closing say you may convict just based on April allows? You didn't say that about any other witness. That's certainly true. The prosecutor emphasized that particular piece of evidence. Have a look at trial. Absolutely. And you know, that's what prosecutors do. They pick what they think is strongest evidence. And they don't know what will have the most impact on them. I want to know what you just said. He said the prosecutor thought April was the strongest evidence, right? That's true. That is true, Your Honor. But again, the prosecutor didn't realize solely on the emphasized that. But what also is in what the jerk had in front of it is all of the other eyewitness identifications of this. And as the court said to April Romero's testimony is as good as it was for the prosecution, certainly did not come forth unchallenged here. In closing argument, Defense Counsel talked about how the police lied and threatened April, who initially about 15 times denied that it was petitioner, finally under threat of prosecution and prison time, she implicated the petitioner, told the police told her what they wanted to hear, be let or be let out her. So this wasn't just a straight confession from petitioner. This came in with exactly how this identification was up there. And it wasn't a sense cumulative to the other pre-identification. How was it cumulative to the extent it constituted a confession? How was it cumulative? A confession is identifying petitioner as the shooter after the police had done all the gates at the April during the interrogation

.. I'm doing a little too many analogies today, but if April is just the flea on this dog as you portray her, then why did the prosecutor on closing say you may convict just based on April allows? You didn't say that about any other witness. That's certainly true. The prosecutor emphasized that particular piece of evidence. Have a look at trial. Absolutely. And you know, that's what prosecutors do. They pick what they think is strongest evidence. And they don't know what will have the most impact on them. I want to know what you just said. He said the prosecutor thought April was the strongest evidence, right? That's true. That is true, Your Honor. But again, the prosecutor didn't realize solely on the emphasized that. But what also is in what the jerk had in front of it is all of the other eyewitness identifications of this. And as the court said to April Romero's testimony is as good as it was for the prosecution, certainly did not come forth unchallenged here. In closing argument, Defense Counsel talked about how the police lied and threatened April, who initially about 15 times denied that it was petitioner, finally under threat of prosecution and prison time, she implicated the petitioner, told the police told her what they wanted to hear, be let or be let out her. So this wasn't just a straight confession from petitioner. This came in with exactly how this identification was up there. And it wasn't a sense cumulative to the other pre-identification. How was it cumulative to the extent it constituted a confession? How was it cumulative? A confession is identifying petitioner as the shooter after the police had done all the gates at the April during the interrogation. But we also, so April is identifying her boyfriend petitioner as the shooter. And we also have three separate implications, or identifications, implicating petitioner as the shooter. The only evidence that we have contrared to that being petitioner is, certainly, Desiree Robles, who denied she hold Mr. Poplin, who was him, and Norma Munoz, who said she didn't get a good look at the guy. But what's important about Norma Munoz's testimony, not only that Regina A identified Abacugue as the shooter, is that Norma Munoz said, we live in a place where the less said the better. And I think that could have a profound impact on the jury, as to why people won't take the stand with petitioner looking at them and point the finger. Rather, identification comes through people that don't have the sphere, Thomas Hangez, who, a new participant from from high school, seen in a couple of times, a Regina A, 10-year-old girl, that it was Abacugue, it was Abacugue. And Desiree Robles, telling David Poplin in a living room somewhere, what actually happened? But the prosecutor didn't say you may convict solely on the basis of any one of those pieces you've been denumerated. Or even all of them. The prosecutor said you can convict on April. Our mayor is testimony alone, right? Correct. The difficulty for us is when we do this Brett substantial and injurious inquiry, we're looking back and hindsight and trying to figure out what was important and what wasn't. And when you have the prosecutor telling you what the most probative evidence is in the case from the prosecutor's opinion on the scene, we've got to give that some weight. You do, and I'm not shying away from what the prosecutor said, what the prosecutor relied on. But what the jury is instructed to do, also, they're presumed to read and understand these instructions, is to look at the evidence as a whole. And so in order to find that April Romero's testimony had a substantial and injurious impact on the jury, the jury would have to ignore the other three, I went as identifications, the connection evidence connecting petitioner to the gun, the getaway car, to motive. The jury would have to disregard all of that in order for April's testimony to have that significant impact on it. But here, although it was good evidence, the prosecutor emphasized this evidence, the jury was instructed to look at all of the evidence, and here in determining whether the erroneously admitted evidence, the state court found, had the substantial injurious impact, that's to find that the jury didn't basically just believe everything else. And here we have powerful evidence identifying the petitioner and connecting into the crime. Looking at the Ocampo case, I think it's important that does give us some general principles, but in Ocampo, where this court, or panel of this court, found that an erroneous testimony did have such a substantial impact on the jury, Ocampo was very different from this case

. But we also, so April is identifying her boyfriend petitioner as the shooter. And we also have three separate implications, or identifications, implicating petitioner as the shooter. The only evidence that we have contrared to that being petitioner is, certainly, Desiree Robles, who denied she hold Mr. Poplin, who was him, and Norma Munoz, who said she didn't get a good look at the guy. But what's important about Norma Munoz's testimony, not only that Regina A identified Abacugue as the shooter, is that Norma Munoz said, we live in a place where the less said the better. And I think that could have a profound impact on the jury, as to why people won't take the stand with petitioner looking at them and point the finger. Rather, identification comes through people that don't have the sphere, Thomas Hangez, who, a new participant from from high school, seen in a couple of times, a Regina A, 10-year-old girl, that it was Abacugue, it was Abacugue. And Desiree Robles, telling David Poplin in a living room somewhere, what actually happened? But the prosecutor didn't say you may convict solely on the basis of any one of those pieces you've been denumerated. Or even all of them. The prosecutor said you can convict on April. Our mayor is testimony alone, right? Correct. The difficulty for us is when we do this Brett substantial and injurious inquiry, we're looking back and hindsight and trying to figure out what was important and what wasn't. And when you have the prosecutor telling you what the most probative evidence is in the case from the prosecutor's opinion on the scene, we've got to give that some weight. You do, and I'm not shying away from what the prosecutor said, what the prosecutor relied on. But what the jury is instructed to do, also, they're presumed to read and understand these instructions, is to look at the evidence as a whole. And so in order to find that April Romero's testimony had a substantial and injurious impact on the jury, the jury would have to ignore the other three, I went as identifications, the connection evidence connecting petitioner to the gun, the getaway car, to motive. The jury would have to disregard all of that in order for April's testimony to have that significant impact on it. But here, although it was good evidence, the prosecutor emphasized this evidence, the jury was instructed to look at all of the evidence, and here in determining whether the erroneously admitted evidence, the state court found, had the substantial injurious impact, that's to find that the jury didn't basically just believe everything else. And here we have powerful evidence identifying the petitioner and connecting into the crime. Looking at the Ocampo case, I think it's important that does give us some general principles, but in Ocampo, where this court, or panel of this court, found that an erroneous testimony did have such a substantial impact on the jury, Ocampo was very different from this case. Ocampo, the defendant, had an alibi. In this case, it doesn't have an alibi, it's a many defense. Ocampo, the other properly admitted evidence, included a accomplice testimony. Here we don't have a accomplice testimony. We have three separate, separate identifications, again, words and all, that come through identifying petitioner. But more importantly, Ocampo, one of the eyewitnesses himself confessed to committing the crime, twice the law enforcement, once to his girlfriend. And so certainly all of that evidence in front of the jury, in determining whether the erroneously-edimited testimony had had an impact, certainly that's a far stronger case there to say, because the other properly admitted evidence included some questionable testimony about whether a petitioner in that case actually did it. So what is your answer to the question I asked about Ocampo, about the three-part testinal campo, the circumstances under which we should decide apparently, and are obligated to, by our precedent, that corroborative evidence has no application where. There was reason for the jury without the only eyewitness testimony. The third-party testimony was not exceptionally strong, and there was no physical evidence tying the defendant. Well, taking the last first, there was some physical evidence. Not quite the same. The 45 that was used as the murder weapon was not recovered, but there were casings from a 45-calibre semi-automatic. But what tied that to the defendant, though? Well, the defendant had shown about a week earlier, shown in acquaintance, Mr. Monreal. A gun that, at trial, Mr. Monreal said was at least similar to a 45-semi-automatic gun that he was shown. It was silver, and other witnesses put a silver gun in that of the shooter. So certainly, it's not as if the actual weapon was introduced and identified. But as far as is there any physical evidence? Yeah, the weight of that perhaps might not be particularly strong, but we do have some physical evidence

. Ocampo, the defendant, had an alibi. In this case, it doesn't have an alibi, it's a many defense. Ocampo, the other properly admitted evidence, included a accomplice testimony. Here we don't have a accomplice testimony. We have three separate, separate identifications, again, words and all, that come through identifying petitioner. But more importantly, Ocampo, one of the eyewitnesses himself confessed to committing the crime, twice the law enforcement, once to his girlfriend. And so certainly all of that evidence in front of the jury, in determining whether the erroneously-edimited testimony had had an impact, certainly that's a far stronger case there to say, because the other properly admitted evidence included some questionable testimony about whether a petitioner in that case actually did it. So what is your answer to the question I asked about Ocampo, about the three-part testinal campo, the circumstances under which we should decide apparently, and are obligated to, by our precedent, that corroborative evidence has no application where. There was reason for the jury without the only eyewitness testimony. The third-party testimony was not exceptionally strong, and there was no physical evidence tying the defendant. Well, taking the last first, there was some physical evidence. Not quite the same. The 45 that was used as the murder weapon was not recovered, but there were casings from a 45-calibre semi-automatic. But what tied that to the defendant, though? Well, the defendant had shown about a week earlier, shown in acquaintance, Mr. Monreal. A gun that, at trial, Mr. Monreal said was at least similar to a 45-semi-automatic gun that he was shown. It was silver, and other witnesses put a silver gun in that of the shooter. So certainly, it's not as if the actual weapon was introduced and identified. But as far as is there any physical evidence? Yeah, the weight of that perhaps might not be particularly strong, but we do have some physical evidence. All right. What about the other two prongs? There was reason for the jury to doubt the only eyewitness testimony. It sounds up here, conceding there's some reason to doubt all of the other testimony. Well, I think, you know, as the Campbell said, there's reason to doubt the only other eyewitness testimony. You're right. You're right. Here there are three, at least three, separate, or three separate eyewitness identifications. And which of them is free from doubt? Looking at them in isolation, they all have worked. They're not strictly free from doubt. And the prosecutor, or excuse me, the defense attorney, in cross-examination brought those forward. But again, in looking at this in the harmless error analysis that determined whether April or Marrow's testimony had this substantial and injurious impact, the jury would have had a disregard. The physical evidence, the freed eyewitness identifications, the other evidence linking the shooter, the case near to the getaway car, giving a motive to commit these crimes, and looking at this evidence as a whole, which we must do in determining whether the erroneous submission of testimony with what's harmless or not. If a rational jury would not have ignored all of that other evidence, and concluded that it wasn't prepared here. But our question is whether or not the admission of April's testimony had a substantial and injurious impact, in light of everything else that's on the other side of the scale. Right. And the only way that that admission of that testimony could have a substantial and injurious impact, is if the jury ignored everything else. Well, I don't think that's correct, counsel. We just said some of our why, I don't think that's correct. The prosecutor, this is going to Judge Kogan's point, the prosecutor told the jury you could convict on the basis of this testimony alone. And it was a confession by his girlfriend

. All right. What about the other two prongs? There was reason for the jury to doubt the only eyewitness testimony. It sounds up here, conceding there's some reason to doubt all of the other testimony. Well, I think, you know, as the Campbell said, there's reason to doubt the only other eyewitness testimony. You're right. You're right. Here there are three, at least three, separate, or three separate eyewitness identifications. And which of them is free from doubt? Looking at them in isolation, they all have worked. They're not strictly free from doubt. And the prosecutor, or excuse me, the defense attorney, in cross-examination brought those forward. But again, in looking at this in the harmless error analysis that determined whether April or Marrow's testimony had this substantial and injurious impact, the jury would have had a disregard. The physical evidence, the freed eyewitness identifications, the other evidence linking the shooter, the case near to the getaway car, giving a motive to commit these crimes, and looking at this evidence as a whole, which we must do in determining whether the erroneous submission of testimony with what's harmless or not. If a rational jury would not have ignored all of that other evidence, and concluded that it wasn't prepared here. But our question is whether or not the admission of April's testimony had a substantial and injurious impact, in light of everything else that's on the other side of the scale. Right. And the only way that that admission of that testimony could have a substantial and injurious impact, is if the jury ignored everything else. Well, I don't think that's correct, counsel. We just said some of our why, I don't think that's correct. The prosecutor, this is going to Judge Kogan's point, the prosecutor told the jury you could convict on the basis of this testimony alone. And it was a confession by his girlfriend. Well, it was, again, it was through April saying Petitioner told her he had done this. Right. None of the other evidence came close to that in wait, didn't it? Well, it didn't come close to that in so far as Petitioner telling this person he did it. However, as I mentioned earlier, this, the introduction of April's testimony certainly was, was, was, was challenged. You know, how would that injurious impact? So your point is it's probably two. That's your point. Well, you probably, probably the most problematic. Even though the prosecutor, and I, I, I agree completely with the prosecutor's data, I'm not, not, trying away from the petitioner, and I've indicated you're, you're, trying away from that. Absolutely not. The prosecutor said what, what, what he said. But here, looking at the vigorous challenge to this, not only through detective's testimony, but in closing argument, where April was, was bounding by, by the police threatened with prosecution, denied it was Petitioner 15 times before she finally said yes, yes it was. That too was something the jury looked at and the considered, along with everything, every other piece of evidence. So unless the court hasn't even further questions, we have to check. Just check the judge of scandalous. Sometimes it's hard to get an award, had to write. I'm sorry. Anything for the judge? I have one more question I want to ask you. There seem to be some confusion in the briefs about the applicable standard of review. In your argument today, and I think in your, in your main brief, you agree we are doing a straight, wrecked analysis, and that an Ed Putte different standard does not enter into this at all. You know, there's, we are not looking at whether reasonable jurors could disagree with the Chapman result reached by the state court

. Well, it was, again, it was through April saying Petitioner told her he had done this. Right. None of the other evidence came close to that in wait, didn't it? Well, it didn't come close to that in so far as Petitioner telling this person he did it. However, as I mentioned earlier, this, the introduction of April's testimony certainly was, was, was, was challenged. You know, how would that injurious impact? So your point is it's probably two. That's your point. Well, you probably, probably the most problematic. Even though the prosecutor, and I, I, I agree completely with the prosecutor's data, I'm not, not, trying away from the petitioner, and I've indicated you're, you're, trying away from that. Absolutely not. The prosecutor said what, what, what he said. But here, looking at the vigorous challenge to this, not only through detective's testimony, but in closing argument, where April was, was bounding by, by the police threatened with prosecution, denied it was Petitioner 15 times before she finally said yes, yes it was. That too was something the jury looked at and the considered, along with everything, every other piece of evidence. So unless the court hasn't even further questions, we have to check. Just check the judge of scandalous. Sometimes it's hard to get an award, had to write. I'm sorry. Anything for the judge? I have one more question I want to ask you. There seem to be some confusion in the briefs about the applicable standard of review. In your argument today, and I think in your, in your main brief, you agree we are doing a straight, wrecked analysis, and that an Ed Putte different standard does not enter into this at all. You know, there's, we are not looking at whether reasonable jurors could disagree with the Chapman result reached by the state court. We are simply doing a wrecked analysis. Are you on board with that? You're on, not, not, not, let me explain that just take a second to explain. Certainly, Circuit Authority says that this, this court directly applies the, the breft analysis. However, the, my office in the past has, has argued that that is a, I'm, this reading of, a fraud, that the Court of Appeal would only directly apply, wrecked when the state court had not done any harmless error analysis. And so, not conceding that ADPA doesn't, doesn't apply in this case, but recognizing that, that Circuit Authority holds otherwise. Okay. When you say, Circuit Authority now, I think is, is the case that talks about, because Brecht's subsumes chance, Chapman on review, to do it directly is what means the Court has done that in other cases. Kelsa, you said that the State Court was a prying wrecked? No, you're not. It's really our task to apply Brecht, is it not? That is correct, Your Honor. If I'm to spoke, I apologize. This, the State Court applied Chapman. And again, the state's position, my office's position in the past is that on, on habeas review, ADPA applies, and it has to look at whether the Court of Appeal reasonably applied Chapman. But under any standard or review here, whether whether this Court does an ADPA analysis of the Court's Chapman, State Court's Chapman analysis, or applies Brecht directly, which it has done in other cases, given the evidence that was presented, the totality of the evidence, that the introduction of April were a mirror, preliminary hearing testimony, did not have a substantial injury impact on the public. So, Kelsa, could you just answer Judge Kogan's question, what's your office's position in this case, please, about the appropriate standard? In this case, I know you think it doesn't matter. Yes, Your Honor. In this case, we would urge the Court to do an ADPA analysis. So, to look at the State's Chapman, Honours Chair, analysis, and apply ADPA. But you're just staking out that position because you recognize under Ninth Circuit Pressive that that position is foreclosed, right? That's correct. This Court has foreclosed that in the past, and there are four. Maybe in your future briefs, you can just note your position in a footnote

. We are simply doing a wrecked analysis. Are you on board with that? You're on, not, not, not, let me explain that just take a second to explain. Certainly, Circuit Authority says that this, this court directly applies the, the breft analysis. However, the, my office in the past has, has argued that that is a, I'm, this reading of, a fraud, that the Court of Appeal would only directly apply, wrecked when the state court had not done any harmless error analysis. And so, not conceding that ADPA doesn't, doesn't apply in this case, but recognizing that, that Circuit Authority holds otherwise. Okay. When you say, Circuit Authority now, I think is, is the case that talks about, because Brecht's subsumes chance, Chapman on review, to do it directly is what means the Court has done that in other cases. Kelsa, you said that the State Court was a prying wrecked? No, you're not. It's really our task to apply Brecht, is it not? That is correct, Your Honor. If I'm to spoke, I apologize. This, the State Court applied Chapman. And again, the state's position, my office's position in the past is that on, on habeas review, ADPA applies, and it has to look at whether the Court of Appeal reasonably applied Chapman. But under any standard or review here, whether whether this Court does an ADPA analysis of the Court's Chapman, State Court's Chapman analysis, or applies Brecht directly, which it has done in other cases, given the evidence that was presented, the totality of the evidence, that the introduction of April were a mirror, preliminary hearing testimony, did not have a substantial injury impact on the public. So, Kelsa, could you just answer Judge Kogan's question, what's your office's position in this case, please, about the appropriate standard? In this case, I know you think it doesn't matter. Yes, Your Honor. In this case, we would urge the Court to do an ADPA analysis. So, to look at the State's Chapman, Honours Chair, analysis, and apply ADPA. But you're just staking out that position because you recognize under Ninth Circuit Pressive that that position is foreclosed, right? That's correct. This Court has foreclosed that in the past, and there are four. Maybe in your future briefs, you can just note your position in a footnote. So, if it comes to less than a thank you, we have to search. You're certainly under an eye apologize for that. That will be... We are not an in-bank court, are we? That is correct, Your Honor. So, a fine line was locked, but I appreciate the Court's concern. Thank you, Counsel. Let's hear from the Opposing Council, please. We asked an awful lot of questions and took up a lot of her time. Please put two minutes on the clock. Thank you, Your Honor. I think what's undeniable in this case that April Romero was the main prosecutor, prosecution witness. It's campy denied, and she wasn't present. She wasn't present for the trial. And the confrontation clause isn't about whether she was cross-examined at the preliminary hearing. The confrontation clause is about her being present so the jury can see her. Can look at her face and decide, you know, based on her facial expressions, whether she's afraid of the petitioner or trying or self-interested in herself. We don't know. And we can't figure it out simply based on her preliminary hearing transcript and the cross-examination that happened there

. So, if it comes to less than a thank you, we have to search. You're certainly under an eye apologize for that. That will be... We are not an in-bank court, are we? That is correct, Your Honor. So, a fine line was locked, but I appreciate the Court's concern. Thank you, Counsel. Let's hear from the Opposing Council, please. We asked an awful lot of questions and took up a lot of her time. Please put two minutes on the clock. Thank you, Your Honor. I think what's undeniable in this case that April Romero was the main prosecutor, prosecution witness. It's campy denied, and she wasn't present. She wasn't present for the trial. And the confrontation clause isn't about whether she was cross-examined at the preliminary hearing. The confrontation clause is about her being present so the jury can see her. Can look at her face and decide, you know, based on her facial expressions, whether she's afraid of the petitioner or trying or self-interested in herself. We don't know. And we can't figure it out simply based on her preliminary hearing transcript and the cross-examination that happened there. We have to see her. We have to look at her. And so the question is, how important was her testimony? And she was no doubt the main prosecution witness in this case. And she wasn't there. And that was a violation of the Constitution of the Sixth Amendment Confrontation Clause. And it harmed petitioner. It was a substantial and serious effect. And for that, the conviction needs to be reversed, even under the AEDPA. Thank you, Your Honor.

May I please the court, Lauren Eskenazi, a perpetrator, Abokuk, Quavera? Like the case that was just argued, this is a confrontation clause case. However, really the only issue here is whether the unconstitutional admission of a preliminary hearing statement, which violated the Constitution, was in fact harmless, underbracked, and under the AEDPA. I think a primary importance here, not just to this specific case, but actually a problem in the state courts in general, is that the state court opinions often and often apply a substantial evidence test to the prejudice analysis. And that's a huge problem in this case and a really a bigger problem in the California court, so it's really important that we address this issue. You know, when I saw that in your brief, and I went back and I read the California decision again, and I see how you could draw that conclusion, but I don't think it's necessarily accurate. It seems to me what the California Court of Appeals said forth was equally applicable to either a jacks and against Virginia analysis, or a harmless error analysis. You know, the test is different, but the considerations that you lay out would be the same. So I'm not sure this is the case to make that point. I appreciate that feedback, but I think that it is, and here's why. The ideas and the identifications in this case were extremely problematic, and rather than evaluate the strengths and weaknesses of each identification, the court simply said, because the identifications were admissible, and because they were admissible, then, you know, the jury had every right to make its decision based on those identifications, and therefore it's not harmless. And in fact, just one specific quote that's so critically important in the Court of Appeal opinion at ER6667 is where when they say, we conclude as discussed above that the testimony of Poplin and Munez were properly admitted at trial. Therefore, we must, must, and that's wrong. If you're applying Chapman, must is only applicable if you're doing the substantial evidence test. We must conclude that any error in admitting April and Romero's preliminary hearing testimony and her statement to the police was harmless beyond a reasonable doubt. So they use the language of Chapman beyond a reasonable doubt, but it's absolutely crystal clear because of this must, one, the way they frame the issue, that is, because the identifications were admissible, there's no harmless error, and two, the use of the word must, absolutely, conclusively shows that they use the substantial evidence standard here and not the Chapman standard. Well, go ahead. I guess it seems to be that that's pressing the point just one not too far. Why can't we read that to say we are compelled to conclude? We must conclude. Well, compelled suggests that we're convinced and we have the discretion to make this call must suggest by law we have no other choice other than to make this conclusion. And they did have the discretion. They didn't have to decide that it was harmless error, that it was harmless error. They had discretion to, or they could have been compelled to, based on evidence in the case. So I think the must really ends up being very demonstrative, one, and two, it's also how they frame it. They never discussed the identification, the weaknesses of the identifications, and the weaknesses of the identifications are glaring in this case, glaring. We have in the middle of trial, the prosecution just talks to a witness who was talked to at the scene of the crime, who saw the shooter, and was able to, saw the shooter, knew the petitioner, excluded the petitioner as the shooter, and then over a year later in the middle of trial, we hear about some ten-year-old girl who says it was apacook. It was apacook. And that's admitted. Now maybe that's admissible. But that's a very suspicious, problematic, questionable identification. And yes, the jury had every right to rely on it and make their determination. But when you're doing a harmless error analysis, you have to point out that that is a very weak identification. A very suspicious identification. Well, counsel, if we're applying the Brecht standard, you would have to establish that there was a substantial and injurious effect of the admission of this testimony. Wasn't there plenty of other testimony and evidence sufficient to sustain the conviction here? Well, yes, there was evidence to sustain the conviction that that's not the test under Brecht, and that's not the test under Chapman. Even under a substantial and injurious prejudice test, you still have to weigh which is Brecht. If you look at all the evidence, absent April Romero's testimony, it all is extremely problematic. Does it depend that the jury couldn't have reached, it's not that there wasn't substantial evidence, but you have to look at what was the weight of April's testimony? Was that the piece of evidence that helped the jury quintessentially resolve the conflicts of the identification? You know what, testimony. As long as the evidence is sufficient, it's up to the jury to decide, is it not? I mean, the weight is something that the jury will take and do a consideration I would expect. With all due respect to her, that really was how the state court framed the issue, and it is the wrong application of law. It's not a substantial evidence test. And that's what the problem I have with the response you just gave to Dr. Schellman's question. It seems to me that that is quintessentially the problem, that as opposed to looking at what evidence was properly admitted and which may or may not have problems with it, and I fully appreciate that your position is that all of the other evidence had problems that made it wobbly. Isn't our task to look at the evidence that was incorrectly admitted under the confrontation clause and determine how much effect that had? In other words, a focus on April Romero's testimony. Isn't that the point? We want to do both. I don't think you're limited to one type of analysis when you're trying to figure out whether the error was harmless or not. I'm looking at the Ocampo case. And there's a five, there are five factors that, that case identifies that we have to look to for Judge O'Sgahnlin's question, right, to determine whether there was a substantial and injuries effect as a result of this improperly admitted testimony. And then there are three other factors that really go to the, just drills down on the collaborative evidence. The other four witnesses in this case. And it says, while collaborative evidence may as a general rule, make the wrongful introduction of other evidence harmless, this concept has no application where. And it gives three instances where there's no application. One, there's a reason for the jury to doubt the only eyewitness testimony to the third party testimony was not exceptionally strong and three, the physical evidence, connecting the accused to the crime was limited and explained by the defendants theory of the case. So it seems to me that your argument about these, this cooperative evidence really goes to one of the five prongs that were to consider under Ocampo. Would you agree with that? It's probably fair statement. Was there any physical evidence connecting your client to this crime? There was absolutely none. In fact, they never recover the gun in the case. There's inconsistent testimony actually about, at the scene of the crime, there's clearly 45 caliber bullets that are associated with a semi-automatic. One of the witnesses, I think you told me no, and I'm just worried about your time. So can I, that's okay, this is only one speech to my question. Thank you, Your Honor. I appreciate your indulgence. But so, in other words, I'd give you all three of these factors for sake of argument under Ocampo. If I give you all of those, instead of the cooperative evidence, was really problematic, because that's what your brief cries out to me. Then, then, counsel, would you just indulge me and speak to the other four factors that Ocampo instructs us to look at? Because I think that's judges' endless question. Because that's what I would be left with if I buy the rest of your argument. Certainly, Your Honor. Okay. The importance of the testimony. So here we have straight from the prosecutor's mouth. April Romero reports an admission of a double murder from Petitianar in her statements given to the police. When you say straight from the prosecutor's mouth, I think you're referring to the argument. The prosecutor said in closing that the told the jury you could rely on this alone to convict. Yes, Your Honor. Okay. What about the next factor? Whether the testimony was cumulative? Was her testimony cumulative? There are aspects of it that certainly were not. And so far as she gave testimony about the efforts that Petitianar and Arturo took to take the tensing off the car immediately after the murder. That's not cumulative. That stands alone. All the gun evidence. All comes from April Romero. No other witness talks about it whatsoever. Now, what about the identification? I'm sorry, Your Honor. What about the identifications? Weren't there three ID witnesses? There are three ID witnesses. I mean, this goes back. It certainly is. We can't ignore that. Obviously, there are suggestions of weaknesses in any one or maybe all three. But we can't ignore that. Can we? You certainly can't ignore it, but you have to weigh it within the totality of the evidence. The question is not whether there was substantial evidence to convict Petitianar. The question is whether the error was harmless. So how much weight to give April's testimony in contrast to how weak the other admissible evidence was. And here, the other ID evidence, although admissible, was substantially weak and problematic. Moreover, the IDs are also unclear. There's two people there. What they see, two people going to... So we don't know if our tro is the shooter, even if you think Petitianar was there with our tro. You're still not sure who is the shooter. A lot of people make an ID and say that the shooter is short with short hair, which is inconsistent with Petitianar's identification. He's six feet. He's right-handed. The shooter is left-handed. So there are these IDs. There's no one that looks at the six-pack and says he's the one. The identifications are not Petitianar's the one. They are... So there's the ten-year-old girl. The ten-year-old girl that says it's Abacook. And even then, I wonder if the she-mean he was the shooter or the she-mean he was present and our tro was the shooter. And we didn't hear it. She doesn't say he's the shooter. He's the one with the gun. She just says it's Abacook. So maybe he was present. Maybe he was the non-shooter. Because there's two people there. And all we have is the Mismunio's testimony that this child is riding the car. Across examine her, it's an excited utterance and probably made an emergency situation. All right. But what about the man who... Was it hangus or hangus? I'm just... Miss pronouncing his name. Who saw this person across in front of his car. He'd gone to high school with him and ultimately did identify him in court. Well, he identifies him in court, but he doesn't match the identification given on the day of the crime. On the day of the crime, he describes somebody, first of all, carrying a huge gun, which is inconsistent with the murder weapon. Looks like a paint gun. A paint gun. Huge, he says, which is inconsistent with the murder weapon. So if it is petitioner and he's not carrying the murder weapon, he also describes himself as short hair, which is also inconsistent with petitioner. At that time, petitioner was bald. And most importantly, I can't believe I forgot these back. Petitioner doesn't just have bald. He's not just a bald, he's a spanic man. He has a tattoo, a crosses forehead, and on the back of his head. So he's easy to identify. Shoot or I think it's... Shoot your shot and like doke on the back. And nobody... Nobody sees any of these tattoos on the lead shooter that they saw. This is not some person that's hard to identify. You get two tattoos blaring on both sides of his head. So the shooter that hanges describes the day of the crime actually does not meet the description of petitioner. It does an short hair. He's carrying a gun that's not the murder weapon. Can I ask you the question this way? What suppose you have 100 pieces of evidence, disconnected pieces all pointing towards guilt, but all of which have some warts. They all have some problems. Then you add April's testimony to that. And it has warts too. Certainly. Is April's testimony with the warts sufficient to upset the jury's verdict on the 100 pieces of evidence that also has warts? Well that's why I think you have to look at how problematic the other identification are. No piece of evidence is perfect. And always subject to cross-examination and is... You know, when you be with it maybe with the exception of DNA evidence and maybe not even then, do you have a piece of perfect... a perfect piece of evidence? And I completely understand that. And I'm not arguing differently. So you have to look qualitatively. That's what I'm saying. You need to look qualitatively at each ID. And I think they're extremely problematic. Wait against the weight of April's testimony, which is so compelling. She's a girlfriend. She's saying, I saw him right after the crime. First Arturo has the gun in the hand. And he has the gun in the hand. And then the cops coerce her. We're going to take your children away. You're an accessory of murder. Stop lying to us. She's ready to identify someone else. The rumors are that a black man did it with a Spanish man. And all of a sudden the cops keep telling her. But all of a sudden the story changes. Sorry to interrupt you. I'm sorry. All that information makes her testimony less probative, right? The fact that the police allegedly browbeat her into making the identification. And that goes before the jury, too, right? Does that really lessen the prejudicial impact of her testimony? In part it does, but you need to make a judgment call about how much you think the jury really put weight on April's testimony. That it was in fact much more compelling because of the details that had. And because of the relationship she had to the petitioner versus the other identifications. And that's the quality of analysis that you have to do when you're doing harmless error analysis. It is not a substantial evidence test. And with that, I'll use the rest of my time for a bottle. Thank you. You're honest. He actually used your time, but we'll hear from opposing counsel. Thank you. Sure. Good morning, Your Honour. Please the Court. Deputy Attorney General Theodore Crawpley for responding in the Pellee. First of all, in this case, the California Court of Appeal actually did do a chapin analysis here. It looked at the evidence as it, as that is the way to determine whether there is an error under chapin. Look at all of the evidence and that's exactly what the California Court of Appeal did. It's use of the word must. I think it is appropriate because it's concluding based on its review of all of the evidence that any error that may have been committed was harmless beyond a reasonable gap. But the petitioner would seem to have asked this Court to examine each piece of evidence in isolation. However, that's not what a jury is instructed to do and that's not what a court does on harmless error review. Instead, the jury is instructed to look at all of the evidence, good and bad, and make its conclusion. But there is problems, right? There's problems with every other piece of evidence, isn't there? There are as Judge Collins said, there are words on all of it. And that's not uncommon in a criminal trial that there are certain words that's right across examination can bring about those words. But looking at the evidence as a whole, what the jury was faced with was three separate identifications as a petitioner as the sewer here, as well as evidence linking petitioner to the gun, to the getaway car, and giving a motive to commit these crimes. So what did the jury hear about the fact that Ms. Munoz had not mentioned this 10-year-old child until just before trial? The jury knew about that. Certainly did. And that was... So did it was a late discovery after you got out? Yes, it was a late discovery after you got out. And I think Ms. Munoz said, well, she thought the police had contacted Regina and testified and things of that nature. So the jury, one of the words on this is what Munoz heard that this identification of Aboku was kind of late in the game. But it's important that Regina, a. 10-year-old girl with no stake in this, said it was Aboku. Didn't say Aboku was the accomplice, sorry. It was Aboku was there. It was Aboku. But that only gets in on a hearsay basis, right? The very opinion you have been excited about hers. Well, I'm not saying it's not admissible. I'm saying that that kind of hearsay may in fact be less probative than the little girl testifying herself, saying I said it was Aboku because it was Aboku. I saw him shoot the guy. Certainly, Your Honor, could it come through through normal Nino's analysis? I guess we need not spend too much time on what I've called the warts because we all know the warts are there. We just need to focus on the relationship between April's warts and everybody else's warts. And my question to you is, if April is just... I'm doing a little too many analogies today, but if April is just the flea on this dog as you portray her, then why did the prosecutor on closing say you may convict just based on April allows? You didn't say that about any other witness. That's certainly true. The prosecutor emphasized that particular piece of evidence. Have a look at trial. Absolutely. And you know, that's what prosecutors do. They pick what they think is strongest evidence. And they don't know what will have the most impact on them. I want to know what you just said. He said the prosecutor thought April was the strongest evidence, right? That's true. That is true, Your Honor. But again, the prosecutor didn't realize solely on the emphasized that. But what also is in what the jerk had in front of it is all of the other eyewitness identifications of this. And as the court said to April Romero's testimony is as good as it was for the prosecution, certainly did not come forth unchallenged here. In closing argument, Defense Counsel talked about how the police lied and threatened April, who initially about 15 times denied that it was petitioner, finally under threat of prosecution and prison time, she implicated the petitioner, told the police told her what they wanted to hear, be let or be let out her. So this wasn't just a straight confession from petitioner. This came in with exactly how this identification was up there. And it wasn't a sense cumulative to the other pre-identification. How was it cumulative to the extent it constituted a confession? How was it cumulative? A confession is identifying petitioner as the shooter after the police had done all the gates at the April during the interrogation. But we also, so April is identifying her boyfriend petitioner as the shooter. And we also have three separate implications, or identifications, implicating petitioner as the shooter. The only evidence that we have contrared to that being petitioner is, certainly, Desiree Robles, who denied she hold Mr. Poplin, who was him, and Norma Munoz, who said she didn't get a good look at the guy. But what's important about Norma Munoz's testimony, not only that Regina A identified Abacugue as the shooter, is that Norma Munoz said, we live in a place where the less said the better. And I think that could have a profound impact on the jury, as to why people won't take the stand with petitioner looking at them and point the finger. Rather, identification comes through people that don't have the sphere, Thomas Hangez, who, a new participant from from high school, seen in a couple of times, a Regina A, 10-year-old girl, that it was Abacugue, it was Abacugue. And Desiree Robles, telling David Poplin in a living room somewhere, what actually happened? But the prosecutor didn't say you may convict solely on the basis of any one of those pieces you've been denumerated. Or even all of them. The prosecutor said you can convict on April. Our mayor is testimony alone, right? Correct. The difficulty for us is when we do this Brett substantial and injurious inquiry, we're looking back and hindsight and trying to figure out what was important and what wasn't. And when you have the prosecutor telling you what the most probative evidence is in the case from the prosecutor's opinion on the scene, we've got to give that some weight. You do, and I'm not shying away from what the prosecutor said, what the prosecutor relied on. But what the jury is instructed to do, also, they're presumed to read and understand these instructions, is to look at the evidence as a whole. And so in order to find that April Romero's testimony had a substantial and injurious impact on the jury, the jury would have to ignore the other three, I went as identifications, the connection evidence connecting petitioner to the gun, the getaway car, to motive. The jury would have to disregard all of that in order for April's testimony to have that significant impact on it. But here, although it was good evidence, the prosecutor emphasized this evidence, the jury was instructed to look at all of the evidence, and here in determining whether the erroneously admitted evidence, the state court found, had the substantial injurious impact, that's to find that the jury didn't basically just believe everything else. And here we have powerful evidence identifying the petitioner and connecting into the crime. Looking at the Ocampo case, I think it's important that does give us some general principles, but in Ocampo, where this court, or panel of this court, found that an erroneous testimony did have such a substantial impact on the jury, Ocampo was very different from this case. Ocampo, the defendant, had an alibi. In this case, it doesn't have an alibi, it's a many defense. Ocampo, the other properly admitted evidence, included a accomplice testimony. Here we don't have a accomplice testimony. We have three separate, separate identifications, again, words and all, that come through identifying petitioner. But more importantly, Ocampo, one of the eyewitnesses himself confessed to committing the crime, twice the law enforcement, once to his girlfriend. And so certainly all of that evidence in front of the jury, in determining whether the erroneously-edimited testimony had had an impact, certainly that's a far stronger case there to say, because the other properly admitted evidence included some questionable testimony about whether a petitioner in that case actually did it. So what is your answer to the question I asked about Ocampo, about the three-part testinal campo, the circumstances under which we should decide apparently, and are obligated to, by our precedent, that corroborative evidence has no application where. There was reason for the jury without the only eyewitness testimony. The third-party testimony was not exceptionally strong, and there was no physical evidence tying the defendant. Well, taking the last first, there was some physical evidence. Not quite the same. The 45 that was used as the murder weapon was not recovered, but there were casings from a 45-calibre semi-automatic. But what tied that to the defendant, though? Well, the defendant had shown about a week earlier, shown in acquaintance, Mr. Monreal. A gun that, at trial, Mr. Monreal said was at least similar to a 45-semi-automatic gun that he was shown. It was silver, and other witnesses put a silver gun in that of the shooter. So certainly, it's not as if the actual weapon was introduced and identified. But as far as is there any physical evidence? Yeah, the weight of that perhaps might not be particularly strong, but we do have some physical evidence. All right. What about the other two prongs? There was reason for the jury to doubt the only eyewitness testimony. It sounds up here, conceding there's some reason to doubt all of the other testimony. Well, I think, you know, as the Campbell said, there's reason to doubt the only other eyewitness testimony. You're right. You're right. Here there are three, at least three, separate, or three separate eyewitness identifications. And which of them is free from doubt? Looking at them in isolation, they all have worked. They're not strictly free from doubt. And the prosecutor, or excuse me, the defense attorney, in cross-examination brought those forward. But again, in looking at this in the harmless error analysis that determined whether April or Marrow's testimony had this substantial and injurious impact, the jury would have had a disregard. The physical evidence, the freed eyewitness identifications, the other evidence linking the shooter, the case near to the getaway car, giving a motive to commit these crimes, and looking at this evidence as a whole, which we must do in determining whether the erroneous submission of testimony with what's harmless or not. If a rational jury would not have ignored all of that other evidence, and concluded that it wasn't prepared here. But our question is whether or not the admission of April's testimony had a substantial and injurious impact, in light of everything else that's on the other side of the scale. Right. And the only way that that admission of that testimony could have a substantial and injurious impact, is if the jury ignored everything else. Well, I don't think that's correct, counsel. We just said some of our why, I don't think that's correct. The prosecutor, this is going to Judge Kogan's point, the prosecutor told the jury you could convict on the basis of this testimony alone. And it was a confession by his girlfriend. Well, it was, again, it was through April saying Petitioner told her he had done this. Right. None of the other evidence came close to that in wait, didn't it? Well, it didn't come close to that in so far as Petitioner telling this person he did it. However, as I mentioned earlier, this, the introduction of April's testimony certainly was, was, was, was challenged. You know, how would that injurious impact? So your point is it's probably two. That's your point. Well, you probably, probably the most problematic. Even though the prosecutor, and I, I, I agree completely with the prosecutor's data, I'm not, not, trying away from the petitioner, and I've indicated you're, you're, trying away from that. Absolutely not. The prosecutor said what, what, what he said. But here, looking at the vigorous challenge to this, not only through detective's testimony, but in closing argument, where April was, was bounding by, by the police threatened with prosecution, denied it was Petitioner 15 times before she finally said yes, yes it was. That too was something the jury looked at and the considered, along with everything, every other piece of evidence. So unless the court hasn't even further questions, we have to check. Just check the judge of scandalous. Sometimes it's hard to get an award, had to write. I'm sorry. Anything for the judge? I have one more question I want to ask you. There seem to be some confusion in the briefs about the applicable standard of review. In your argument today, and I think in your, in your main brief, you agree we are doing a straight, wrecked analysis, and that an Ed Putte different standard does not enter into this at all. You know, there's, we are not looking at whether reasonable jurors could disagree with the Chapman result reached by the state court. We are simply doing a wrecked analysis. Are you on board with that? You're on, not, not, not, let me explain that just take a second to explain. Certainly, Circuit Authority says that this, this court directly applies the, the breft analysis. However, the, my office in the past has, has argued that that is a, I'm, this reading of, a fraud, that the Court of Appeal would only directly apply, wrecked when the state court had not done any harmless error analysis. And so, not conceding that ADPA doesn't, doesn't apply in this case, but recognizing that, that Circuit Authority holds otherwise. Okay. When you say, Circuit Authority now, I think is, is the case that talks about, because Brecht's subsumes chance, Chapman on review, to do it directly is what means the Court has done that in other cases. Kelsa, you said that the State Court was a prying wrecked? No, you're not. It's really our task to apply Brecht, is it not? That is correct, Your Honor. If I'm to spoke, I apologize. This, the State Court applied Chapman. And again, the state's position, my office's position in the past is that on, on habeas review, ADPA applies, and it has to look at whether the Court of Appeal reasonably applied Chapman. But under any standard or review here, whether whether this Court does an ADPA analysis of the Court's Chapman, State Court's Chapman analysis, or applies Brecht directly, which it has done in other cases, given the evidence that was presented, the totality of the evidence, that the introduction of April were a mirror, preliminary hearing testimony, did not have a substantial injury impact on the public. So, Kelsa, could you just answer Judge Kogan's question, what's your office's position in this case, please, about the appropriate standard? In this case, I know you think it doesn't matter. Yes, Your Honor. In this case, we would urge the Court to do an ADPA analysis. So, to look at the State's Chapman, Honours Chair, analysis, and apply ADPA. But you're just staking out that position because you recognize under Ninth Circuit Pressive that that position is foreclosed, right? That's correct. This Court has foreclosed that in the past, and there are four. Maybe in your future briefs, you can just note your position in a footnote. So, if it comes to less than a thank you, we have to search. You're certainly under an eye apologize for that. That will be... We are not an in-bank court, are we? That is correct, Your Honor. So, a fine line was locked, but I appreciate the Court's concern. Thank you, Counsel. Let's hear from the Opposing Council, please. We asked an awful lot of questions and took up a lot of her time. Please put two minutes on the clock. Thank you, Your Honor. I think what's undeniable in this case that April Romero was the main prosecutor, prosecution witness. It's campy denied, and she wasn't present. She wasn't present for the trial. And the confrontation clause isn't about whether she was cross-examined at the preliminary hearing. The confrontation clause is about her being present so the jury can see her. Can look at her face and decide, you know, based on her facial expressions, whether she's afraid of the petitioner or trying or self-interested in herself. We don't know. And we can't figure it out simply based on her preliminary hearing transcript and the cross-examination that happened there. We have to see her. We have to look at her. And so the question is, how important was her testimony? And she was no doubt the main prosecution witness in this case. And she wasn't there. And that was a violation of the Constitution of the Sixth Amendment Confrontation Clause. And it harmed petitioner. It was a substantial and serious effect. And for that, the conviction needs to be reversed, even under the AEDPA. Thank you, Your Honor