Good afternoon, Your Honors. Mark Greenberg for Saroon Chine. I wanted to speak to all three issues. Actually, let me reserve three minutes for Rebuttal before I start. I'm the involuntaryness issue, which is the first one. We're dealing with the State Court of Appeal decision as to whether that was a reasonable determination of the issue or not, whether the finding of the first part of Mr. Chine's statement was voluntary because all the detective did, Detective Saraeffi did, was advise him of the conditions he was facing in prison. That is the sort of lured picture of the diminutive Mr. Chine going to prison with all these huge fellows. What that doesn't take into account is the further representation made to Mr. Chine that the difference between speaking or not speaking was two years or two months in this place or a life term in this place. Now that, I think, under the totality of the circumstances when you consider also his youth, the amount of time he was in confinement and kept awake, this was coercive. Now, I think no reasonable interpretation of this record could come out otherwise. And I think this is an unreasonable decision that's contrary to clearly established federal law in determining how one determines whether a statement is voluntary or not. Now, if you proceed to prejudice, you take away that statement, there is no prosecution case left. It meets the Brex standard
. There is no evidence that Mr. Chine is in this car. Without Mr. Chine in this car, there is no prosecution case. Now as we proceed to the second two issues, this is a question of prejudice. The State Court of Appeal did find the second part of the statement in voluntary. The Court of Appeal, in fact, found it prejudicial in a non-evidentary sense, a phrase that's not difficult to interpret, it is difficult to interpret, but was prejudicial in terms of the felony murder instruction. And this is where the California Supreme Court comes in. The California Supreme Court then holds, yes, there was error here. There was federal constitutional error in giving a second degree felony murder instruction, but in terms of the instructions given alone, at least, it wasn't, it was not prejudicial. Now, the finding of prejudice or not prejudice, what we're dealing, consult cited Ayala, the new case on how to determine prejudice in Federal habeas. Now, as I understand Ayala, it says different things in different places, it says everything is the same as five versus five, but in other places, it doesn't seem like it's the same as five versus five. They apply the epistandard of deference in determining prejudice. Well, that's fine. So, what that means in this case is, did the California Supreme Court reasonably apply Chapman versus California? Now, what the California Supreme Court did is two things
. It refused to draw any conclusions from the inconsistent verdicts because of the rule that you don't, you leave inconsistent verdicts as they are. You don't draw conclusions from them. The difficulty with that, of course, is that's a rule regarding how one approaches verdicts. Does one let the verdicts stand or not? It's not a rule of interpretation of a record. Interpreting a record under Chapman, you have to take into account what the jury did. The jury here convicted Mr. Chun of murder. They had an erroneous instruction on second degree felony murder. They acquitted him of all the gun use charges. Now, those things are not quite reconcilable. At least there are, it's a true inconsistent verdict. It can stand, but you, in applying Chapman, you cannot draw, you cannot dispel a reasonable doubt that the jury in this case, in fact, relied upon the erroneous second degree felony murder instruction. There is no way to do it. No fair-minded jurist to use the phrase that used in IELA could conclude otherwise. There is, again, no way to dispel the reasonable doubt that there was federal constitutional error, in this case, in relying on the second degree felony murder instruction
. In that case, the California Supreme Court determination that there was no prejudice is incorrect. Now, under IELA, does that mean you also then apply Brecht? I don't know, but if you did apply Brecht after making that determination, what do you have here? You have to give some way to the fact that the jury found that Mr. Chun did not use a gun. They acquitted him of the firing at an occupied motor vehicle. They acquitted him of the personal gun use, the special finding on personal gun use. They convicted, they acquitted him also of another charge. They acquitted him of the first degree circumstance of firing from a motor vehicle and killing someone. One has to entertain the strong possibility that the jury found that he did not use a gun. But then the jury finds him guilty of murder. They find him guilty of murder probably under a second degree felony murder instruction. So that means he had to have aided and abetted in the crime of a 246 firing at an occupied motor vehicle. But then if he didn't fire a gun, what did he do? There is no evidence presented in this trial as to what he did do. He was a member of a gang. That was it. He was in a car with other gang members
. That was it. It's mere associational evidence. There is no evidence of anything that he did that would constitute aiding and abetting. There was no evidence that he said, shoot that gun. There was no evidence that he applauded. There was no evidence that he did anything. You want to apply Brecht that this case meets the Brecht standard as well. Under both those issues, the second issue, the way the Court of Appeal dealt with the involuntaryness, the prejudice on the involuntaryness issue, and the way the California Supreme Court dealt with the prejudice on the instructional issue is unreasonable. It's an unreasonable under Ayala, and this Court should reverse the District Court's decision. I'll reserve the rest of my time for rebuttal. Thank you. Thank you, Council. If it please the Court, Melissa LaPon, for a respondent. How you get one to the forehead, that's how we do it. That's what Mr
. Chun said on January 28th, months after he committed this crime, months after he confessed it. They day before he said, you don't know who you are effing with. Inward, this is TRG, bang, bang, mother, effort. That's how we do it. Wait till I get out, bang. And he makes a motion with his hand at the same time as he's doing this. So not only did Mr. Chun confess to this crime, he owned it. He confessed to it again. A second time. He was not only a gang member, he did not just profess solidarity with their methods. He has a CD that was found in his home where he has snub written on a CD about a crypt killer. This is not some, you know, airy, fairy music loving non, you know, who was somehow misled. This is not even the first time he's heard Miranda. He's been at the rodeo before
. So I will start out with that. And then move on to a dispute, Council's characterization is three issues. This court certified two issues. And it was perhaps my error to respond to Council's argument in the same way that he framed it with three issues. But I thought that would be easier for the court to understand. But really, there's only ever been two issues before this court. And that is the first issue is that it is the Fifth Amendment through the Fourteenth Amendment issue. And that was decided by the State Court of Appeal. That the second sort of sub issue, if you will, that he raises really for the first time here that's never been introduced into, in State Court, would be this idea that the court's decision upholding any part of the confession was prejudicial or was incorrect and prejudicial. And Mr. Chine never bought that issue to the California Supreme Court. That issue before this court is whether or not the State Appellate Court's decision as far as what he raised at the time as his issue with regard to Miranda, which, and his issue with regard to Voluntary Ness. And actually, he did not raise any issue with regard to the Voluntary Ness of his Miranda waiver. He explicitly in his State Court pleadings said that he was not going to raise that issue and that it was not raised below. Although, in fact, it was raised below and the trial court did address it
. And that's in there ruling, it's also in the motions of the parties. But so what we have before the court is the State Appellate Court's decision that basically there was that at one point in the interrogation and under State law, I think it's important to understand that when you look at, let's say, people be Ray, 13 Cal 4th at page 339, it says that express or implied promises of leniency or advantage to the accused, if it is a motivating cause of the confession, are sufficient to invalidate the resulting statements and to make them involuntary and inadmissible as a matter of law. So when you talk about the court looking at these two admissions separately, well, historically, admissions are referred to as a different than an entire confession. But there can be no doubt from this record that the trial court and the Court of Appeal looked at all of the factors. And when you look at a balanced opening brief in State Court, it's important what the court responds to. He does not raise many of the same issues that he raises now before this court. He did not bring that factual basis to the Court of Appeal. Nevertheless, the Court of Appeal did a thorough view of the record and took a look at what the trial court did and they did a thorough view of the trial court's record. And in making their decision, there can be no question that they looked at the entirety of the circumstances first. And then they looked at the two statements that a pellant wanted them to look at. And in fact, in his opening brief, he makes the argument that the first statement made by Sarah Peep is coercive. And therefore, everything, nothing else matters. The entire, so it is a pellant who directed the Court's attention to look first at the statement made by Sarah Peep with regard to whether or not he could serve two years, four years, you know, rest of his life. He made that argument. And then basically makes the argument that everything else after that must be, which would be consistent with California law, which is consistent with federal law
. And then he also makes a further argument, well, if you don't find that, then look at this other statement, it's an implied promise of leniency. And that's what the court did. They looked at the entirety of the circumstances and they followed the argument and they responded as did respond it. And I think also, even in California law clearly recognizes, and the court cited to people V Williams, but people V Williams, sites to, to with row. So I think there can, and the court also cited to, to another Supreme Court authority. But basically, with row V Wilson, Millie, sites to the factors to consider and assessing voluntaryness of an admission. And those are precisely the factors the trial court and the court of appeal relied on in their decisions. And it would be an extremely rare case where a person who has been advised multiple times of their Miranda rights. And in the case, she's not raised before. It's interesting to note that when you look at that Chun's interview with Detective Stanton, he kind of toys with her. She says, hey, what's going on with the gray clothing? You know, you've got gray shoes, you've got gray this. And, and he says, oh, yeah, aren't my shoes really cool? No, I don't think it's cool. I think it's sick. Or, and she's like, yeah, you know, there, I mean, he's, he's toying with her. So when you're looking at the totality of the circumstances, take a look at the transcript from, from his prior interview with Stanton, where they go back and forth and she's asking about his gang clothing
. She even asks him at one point that whether or not, what would he make of a crab coming to him? Well, first of all, what is a crab? And he says a crypt. And what would he make of a crab coming up to him and saying, was up cuzz? And he said, I would probably say something like was a responding challenge of like, what's, what's your problem or what you're doing? Right, but then the second interview occurs much later. Different set of detectives, true. It's not much later. No, it's a couple hours later. It is a different set of detectives, certainly. Yes. So he was interviewed by Stanton at what time? He was interviewed by Stanton at a believe around three o'clock in the morning, but I'm not entirely sure of the time on that. And so when do the next interview occur? There's another interview that occurs, I believe in the later morning and then the last interview that the interview with these detectives occurs around nine forty at night, nine thirty at night. And how long had he been awake? Well, that's, he had nine, almost nine hours of time that was uninterrupted with basically somebody monitoring him to respond to requests where he could have slept. And both the trial court and the court of appeal looked at the video. I don't know if you've looked at the video, but find that he does not appear to be exhausted. And I think that under, I just asked how long he'd been awake. I didn't ask. When he could have slept
. Whether he could have slept, I think. They claim he was, he had been awake for thirty five hours. Do you dispute that? It wouldn't have been thirty five hours no matter what because he was arrested in the early morning hours of the night before. So it would be less than twenty four hours no matter what. And he's picked up around, I think midnight or one a.m. And so that this interview would happen the following night at nine, nine, forty. So yeah, I would dispute that. Now you're down to about four minutes. Do you want to get to the second issue? Yes. To prevail under Edba. Okay. Appellant has aired his grievances in the California trial court, a state court of appeal, the California Supreme Court, again in the California Court of Appeal and in federal district court. The extensive review resulted in a finding of two non-pregidious errors. The California Court of Appeal found that the introduction of a pundit submission that he fired a larger gun was inadmissible because it was in response to the implicit promise of leniency. And the California Supreme Court found that it was already in struck with the second degree felony murder where the underlying crime is assaultive. Now keep in mind that at the time, there was a collateral-appropriate rule. So it was not under the law of California. It was an error because the Supreme Court later found and overruled the collateral-purpose rule. But the court instructed the jury appropriately as to what the law was before the Supreme Court changed the law. Right. But isn't it? So in terms of whether that error has harmlessness, are you down to the question of whether there's sufficient evidence on malice because they, they meaning the jury, did make a specific finding on the firing of the gun? Well, the jury was only instructed as to two possible second degree second degree murder. So they had to have chosen one of those two possible second degree murder theories. The first was that he participated in a, in a willful and malicious drive by a shooting at an occupied murder vehicle. The second was that he participated in an implied malice murder. And with the California Supreme Court said as anybody who found under the felony murder rule that he participated in a malicious and willful shooting an occupied motor vehicle, necessarily found that he committed an implied malice murder because that obviously shows conscious disregard for life. So even in a part from all of the additional facts which they also cite to. What, what do you mean he participated in that? Uh, as soon we didn't do the shooting, what evidence is there as to what he did? Well, so the cars are side by side, right? And he's in the back seat closest to the cars. Somebody shot perpendicular a 38 right across through the bullet, through the victim's skull. Either he leaned back to let his friend do it or he shot it
. And the California Supreme Court found that it was already in struck with the second degree felony murder where the underlying crime is assaultive. Now keep in mind that at the time, there was a collateral-appropriate rule. So it was not under the law of California. It was an error because the Supreme Court later found and overruled the collateral-purpose rule. But the court instructed the jury appropriately as to what the law was before the Supreme Court changed the law. Right. But isn't it? So in terms of whether that error has harmlessness, are you down to the question of whether there's sufficient evidence on malice because they, they meaning the jury, did make a specific finding on the firing of the gun? Well, the jury was only instructed as to two possible second degree second degree murder. So they had to have chosen one of those two possible second degree murder theories. The first was that he participated in a, in a willful and malicious drive by a shooting at an occupied murder vehicle. The second was that he participated in an implied malice murder. And with the California Supreme Court said as anybody who found under the felony murder rule that he participated in a malicious and willful shooting an occupied motor vehicle, necessarily found that he committed an implied malice murder because that obviously shows conscious disregard for life. So even in a part from all of the additional facts which they also cite to. What, what do you mean he participated in that? Uh, as soon we didn't do the shooting, what evidence is there as to what he did? Well, so the cars are side by side, right? And he's in the back seat closest to the cars. Somebody shot perpendicular a 38 right across through the bullet, through the victim's skull. Either he leaned back to let his friend do it or he shot it. Well, the jury said he didn't shot it. The jury said no, he didn't shoot it. Well, the jury's, so would it disregard that? Well, the jury's verdict is confusing because there's only two ways to get to a second degree murder. They were only instructed under two possible theories. Okay, so let's assume that you give some credence to the verdict which was quite specific on the issue of shooting and they say no, no, no, so he didn't shoot according to the jury. So then you would need to convict to sustain the conviction you would have to have implied. Malice and implied malice murder is that what's left? Those were the only two theories upon which the jury was instructed. And what then is the evidence on the second leaving out? He didn't, he wasn't a shooter. Oh, well, aside from his additional admissions which the prosecutor argued at our teach, I believe, 1280 that he made four admissions, there was all of the evidence that the court of appeal, they also cited to the one to the dome statement, but there's all the evidence that the court of appeal relied on. He identified the car before the picture was shown to him. He identified the driver before any picture was shown to him. Well, actually, I think it may have been shown to him, but he identified with Anna Chan as the driver. Are you trying to prove that he was in the car? Is that what the well evidence of identifying with drivers? I mean, what did he do? Assume he was in the car. Is that enough? Was that enough? Just to be in the car. Well, that's not what the jury found
. Well, the jury said he didn't shot it. The jury said no, he didn't shoot it. Well, the jury's, so would it disregard that? Well, the jury's verdict is confusing because there's only two ways to get to a second degree murder. They were only instructed under two possible theories. Okay, so let's assume that you give some credence to the verdict which was quite specific on the issue of shooting and they say no, no, no, so he didn't shoot according to the jury. So then you would need to convict to sustain the conviction you would have to have implied. Malice and implied malice murder is that what's left? Those were the only two theories upon which the jury was instructed. And what then is the evidence on the second leaving out? He didn't, he wasn't a shooter. Oh, well, aside from his additional admissions which the prosecutor argued at our teach, I believe, 1280 that he made four admissions, there was all of the evidence that the court of appeal, they also cited to the one to the dome statement, but there's all the evidence that the court of appeal relied on. He identified the car before the picture was shown to him. He identified the driver before any picture was shown to him. Well, actually, I think it may have been shown to him, but he identified with Anna Chan as the driver. Are you trying to prove that he was in the car? Is that what the well evidence of identifying with drivers? I mean, what did he do? Assume he was in the car. Is that enough? Was that enough? Just to be in the car. Well, that's not what the jury found. The jury found that he either, we're kind of talking, are we past that? Okay. I'm just asking you to sustain a conviction, would being in the car be enough? To sustain a conviction. Okay. If, for a second degree, right, if the evidence didn't show, I mean, if they had not found street terrorism as well, which also, you know, finds that he was an active participant in a gang and that he assisted in criminal conduct of a gang. He was in the car and he was an active member of the gang. Is that enough? And he's a bad guy. Is that enough? That's not the situation here. I'm asking you if that's enough because then we might add to it. Okay. Okay. If the jury had not, I mean, I don't see how you can come to that conclusion when the jury also found in favor of the street, also found him guilty of street terrorism, which, which required that he was an active participant in a gang and that he, what are all of this does that have for proving second degree murder? That's the, the question. Well, if you're looking at what the verdict does show here, it shows that they found that he was more than just merely sitting in the car, listening to music and they found that he was an active participant in a street gang who had the purpose of facilitating the criminal conduct, Follonious Criminal Conduct of his fellow gang members. So he didn't say that in the jury verdict. And with the conviction of street terrorism? No, but all the other stuff he said sitting where he wasn't sitting around just listening to music in the car. That's not part of the verdict
. The jury found that he either, we're kind of talking, are we past that? Okay. I'm just asking you to sustain a conviction, would being in the car be enough? To sustain a conviction. Okay. If, for a second degree, right, if the evidence didn't show, I mean, if they had not found street terrorism as well, which also, you know, finds that he was an active participant in a gang and that he assisted in criminal conduct of a gang. He was in the car and he was an active member of the gang. Is that enough? And he's a bad guy. Is that enough? That's not the situation here. I'm asking you if that's enough because then we might add to it. Okay. Okay. If the jury had not, I mean, I don't see how you can come to that conclusion when the jury also found in favor of the street, also found him guilty of street terrorism, which, which required that he was an active participant in a gang and that he, what are all of this does that have for proving second degree murder? That's the, the question. Well, if you're looking at what the verdict does show here, it shows that they found that he was more than just merely sitting in the car, listening to music and they found that he was an active participant in a street gang who had the purpose of facilitating the criminal conduct, Follonious Criminal Conduct of his fellow gang members. So he didn't say that in the jury verdict. And with the conviction of street terrorism? No, but all the other stuff he said sitting where he wasn't sitting around just listening to music in the car. That's not part of the verdict. They said he didn't shoot. So you have the fact that he's part of a gang. He's a passenger in a car. What else do you have as to what, whatever it says in the record, what he did? Pouch to the, to the forehead, one to the dome. I mean, uh, cryptular. I'm snubbed. I mean, he identifies the type of firearm used as a snub, as a snub firearm, snub 38 before the detectives even know that it's a snub 38. Well, that could make him a be in the car. Yeah, that's okay. So if you just wait just one second. Sorry. Sorry. What we're trying to distinguish between, because you agree that this jury verdict is a little wacky, but we're trying to distinguish, well, if he didn't shoot the gun, what would it take to sustain the conviction under the malice? And we're trying to figure out, well, what were the facts? Well, he's a gang guy in the car. Presumably, if he's there, he could have seen the gun. Is there something else that sure did, that we, that we should look to? Is there some evidence? What he did? I think you have to look at the fact that there were multiple guns
. They said he didn't shoot. So you have the fact that he's part of a gang. He's a passenger in a car. What else do you have as to what, whatever it says in the record, what he did? Pouch to the, to the forehead, one to the dome. I mean, uh, cryptular. I'm snubbed. I mean, he identifies the type of firearm used as a snub, as a snub firearm, snub 38 before the detectives even know that it's a snub 38. Well, that could make him a be in the car. Yeah, that's okay. So if you just wait just one second. Sorry. Sorry. What we're trying to distinguish between, because you agree that this jury verdict is a little wacky, but we're trying to distinguish, well, if he didn't shoot the gun, what would it take to sustain the conviction under the malice? And we're trying to figure out, well, what were the facts? Well, he's a gang guy in the car. Presumably, if he's there, he could have seen the gun. Is there something else that sure did, that we, that we should look to? Is there some evidence? What he did? I think you have to look at the fact that there were multiple guns. Okay, first of all, that they are within arms reach, that there were multiple gunshots fired. It is possible. I mean, initially in the trial, I believe they argued that there were only three people, defense argued that there were only three people in the car. That this demon from Oakland was the third gangster, and there was really no evidence that there was a fourth person at all in the car. So that kind of changes, that the theory kind of changes over time, but the prosecution always maintained that there were four people in the car. So potentially, the jury could have accepted the prosecution's theory that there were four people in the car, based on and Serencian's admission. But I, and then you'd have to look at the circumstances of the shooting. The fact that there are three victims, one is shot twice in the head, not once twice, by two different guns. I mean, that's not a coincidence. Right, but they didn't. You can see the problem with all this is the jury verdict where they said you didn't fire anything. You didn't fire weapons. So, we're just trying to let you argue what else there is that would, that's in the record that we might have overlooked. Well, I think you have to go back to the California Court of Appeals summary of the evidence. And you have to look at the California State Supreme Court's decision that basically any juror who found that somebody participated in this crime necessarily found that he acted with the conscious disregard for life
. Okay, first of all, that they are within arms reach, that there were multiple gunshots fired. It is possible. I mean, initially in the trial, I believe they argued that there were only three people, defense argued that there were only three people in the car. That this demon from Oakland was the third gangster, and there was really no evidence that there was a fourth person at all in the car. So that kind of changes, that the theory kind of changes over time, but the prosecution always maintained that there were four people in the car. So potentially, the jury could have accepted the prosecution's theory that there were four people in the car, based on and Serencian's admission. But I, and then you'd have to look at the circumstances of the shooting. The fact that there are three victims, one is shot twice in the head, not once twice, by two different guns. I mean, that's not a coincidence. Right, but they didn't. You can see the problem with all this is the jury verdict where they said you didn't fire anything. You didn't fire weapons. So, we're just trying to let you argue what else there is that would, that's in the record that we might have overlooked. Well, I think you have to go back to the California Court of Appeals summary of the evidence. And you have to look at the California State Supreme Court's decision that basically any juror who found that somebody participated in this crime necessarily found that he acted with the conscious disregard for life. And I guess the question that I would pose to you is how would he be in the car and not participating in this gang drive by shooting? I mean, they roll up on somebody and with seconds, three firearms come, come out, start shooting. They seriously wound or injure every occupant of the car. And the boxy guy, they managed to hit twice in the head. They really wanted to get him. And the jury heard all that and said he didn't fire a weapon. I mean, that's that's the curious part of the case. You know, we were sitting there, we didn't hear the evidence, we have the transcript. But I think we've taken our questions of taking your time unless you have some others. Okay, thank you, Ken. Thank you. We're a bottle. There's four people in the car. There's three guns. The jury rejects premeditation deliberation. This was a sudden event
. And I guess the question that I would pose to you is how would he be in the car and not participating in this gang drive by shooting? I mean, they roll up on somebody and with seconds, three firearms come, come out, start shooting. They seriously wound or injure every occupant of the car. And the boxy guy, they managed to hit twice in the head. They really wanted to get him. And the jury heard all that and said he didn't fire a weapon. I mean, that's that's the curious part of the case. You know, we were sitting there, we didn't hear the evidence, we have the transcript. But I think we've taken our questions of taking your time unless you have some others. Okay, thank you, Ken. Thank you. We're a bottle. There's four people in the car. There's three guns. The jury rejects premeditation deliberation. This was a sudden event. There's an eyewitness that's behind the assailing car that sees flashes coming out of the front seat and then inconsistent testimony that flashes are coming from the passenger side of the back seat. Chan is on the driver side of the back seat. He could be sitting there without evidence is to something specific that he did other than being a gang member. There is no evidence that he did anything. Now, the things the one to the dome, this is a statement he made later in jail. The attorney general wants to take that as an admission. Well, there's nothing expressed that connects that anywhere to this particular crime. She talks about they found the rap song. I forget what the words are. I got my nine. I feel fine. The gang members have their rap songs. His accord heard the country western song. I shot a man in Reno just to see him die. These are middle class people love that song
. There's an eyewitness that's behind the assailing car that sees flashes coming out of the front seat and then inconsistent testimony that flashes are coming from the passenger side of the back seat. Chan is on the driver side of the back seat. He could be sitting there without evidence is to something specific that he did other than being a gang member. There is no evidence that he did anything. Now, the things the one to the dome, this is a statement he made later in jail. The attorney general wants to take that as an admission. Well, there's nothing expressed that connects that anywhere to this particular crime. She talks about they found the rap song. I forget what the words are. I got my nine. I feel fine. The gang members have their rap songs. His accord heard the country western song. I shot a man in Reno just to see him die. These are middle class people love that song. Gang members have their songs. It doesn't prove anything. It proves that he's a gang member. That is what the court of California Court of Appeal depended on. His association with them being a gang, that's what they cited was the gang evidence. They did not cite any specific act that can be reconciled with the jury's finding that he did not use a gun. Regarding the suggestion that there's some exhaustion problem here, I think I was present in all these proceedings that the attorney general is talking about. Yes, the argument in the court of appeals was that there was a threat of harsher treatment at the beginning that invalidated the entire statement. Of course, that's the argument because it does. The alternative is then at least where the statement where there was the promise of leniency, that has to be suppressed from that point on. So that argument was made. Then we get we the case goes through the system. We get a reversal. The second degree murder verdict is reversed. I have no reason to file a petition for rehearing saying that you have to suppress the gun
. Gang members have their songs. It doesn't prove anything. It proves that he's a gang member. That is what the court of California Court of Appeal depended on. His association with them being a gang, that's what they cited was the gang evidence. They did not cite any specific act that can be reconciled with the jury's finding that he did not use a gun. Regarding the suggestion that there's some exhaustion problem here, I think I was present in all these proceedings that the attorney general is talking about. Yes, the argument in the court of appeals was that there was a threat of harsher treatment at the beginning that invalidated the entire statement. Of course, that's the argument because it does. The alternative is then at least where the statement where there was the promise of leniency, that has to be suppressed from that point on. So that argument was made. Then we get we the case goes through the system. We get a reversal. The second degree murder verdict is reversed. I have no reason to file a petition for rehearing saying that you have to suppress the gun. But then the attorney general files a petition for review and it gets granted. In my answer, I believe actually I filed a counter petition for review. I don't remember exactly where this issue is raised. It was raised in the California Supreme Court. The voluntaryness issue was raised again in the California Supreme Court. I believe they didn't take that issue. But what they did do is they remand it to the court of appeals for a determination whether the combined error on the second degree felony murder instruction and the involuntaryness issue was prejudicial. So this case is properly before this court on all the issues presented. But again, no reasonable jurists, no fair-minded jurists to use IALIS phrase, could have dispelled a reasonable doubt in applying Chapman versus California to this record, either on the second degree felony murder instructional issue or on the issue of the involuntaryness of the second statement, the using the gun. Because I think in terms of using the gun, the jury, though, they found he didn't use a gun, took that admission as an admission that he did something. And I think that's the prejudice that in here is in that. But that's not rational, that's not. It doesn't survive, but with that I'm prepared to submit it. Thank you, Councillor. Thank you both for your arguments this morning
. That's after noon, sorry. And the case just turned will be submitted for decision