[00:00:00] Speaker 00:
God save the United States and this Honorable Court.

[00:00:10] Speaker ?:
Thank you.

[00:00:10] Speaker 04:
Please be seated.

[00:00:10] Speaker 04:
Good morning and welcome to the Ninth Circuit Court of Appeals.

[00:00:12] Speaker 04:
Counsel, I have to do just a little bit of housekeeping, so it'll be just one minute if you don't mind.

[00:00:18] Speaker 04:
My name is Morgan Christen.

[00:00:19] Speaker 04:
I'm one of the judges on the circuit court.

[00:00:21] Speaker 04:
My chambers are in Anchorage, Alaska.

[00:00:23] Speaker 04:
I'm sitting this week in San Francisco with my colleagues to your left, Judge Lee.

[00:00:29] Speaker 04:
whose chambers are in Southern California, and Judge Bress, whose chambers are right here in San Francisco.

[00:00:36] Speaker 04:
We have a few cases that I need to note for the record that are submitted on the briefs.

[00:00:41] Speaker 04:
In these cases, we will not hear oral argument.

[00:00:44] Speaker 04:
The first is 23-3559 Carrillo versus Madison, and the second is 24-3858 Singh versus Bondy.

[00:00:55] Speaker 04:
The first case on the argument calendar,

[00:00:57] Speaker 04:
is Rashal versus Fox 24-1722.

[00:01:00] Speaker 04:
So now we're ready to hear your argument.

[00:01:05] Speaker 00:
Good morning.

[00:01:06] Speaker 00:
Good morning.

[00:01:06] Speaker 00:
Jeffrey Jones for the appellant, Andrew Rashal.

[00:01:09] Speaker 00:
I would like to reserve five minutes for a battle if I could please.

[00:01:12] Speaker 00:
Sure.

[00:01:12] Speaker 00:
Just watch the clock, please, sir.

[00:01:14] Speaker 00:
Absolutely.

[00:01:14] Speaker 00:
Mr. Rashal's defense counsel was ineffective by refusing to allow the trial court

[00:01:25] Speaker 00:
to instruct the jury on the Lesser offense of imperfect imperfect self-defense as a basis for voluntary manslaughter And the California Court of Appeals unreasonably applied Strickland in finding that that was a reasonable title trial tactic And it couldn't be seen it should not be say it cannot reasonably be seen as a reasonable trial tactic because first it violated California law Attorneys aren't allowed to gamble with an all-or-nothing verdict and

[00:01:53] Speaker 04:
Especially under these facts that was that was an unreasonable decision I don't understand this argument because it seems to me that especially under these facts It would have been an impossible argument.

[00:02:04] Speaker 04:
So can you help me out?

[00:02:05] Speaker 00:
I'm speaking of the forensic evidence, of course, you know, I Think perfect self-defense was an impossible argument.

[00:02:11] Speaker 00:
There was evidence.

[00:02:12] Speaker 00:
There was evidence that

[00:02:14] Speaker 00:
The victim, Mr. Patterson, attacked Mr. Rushall in the bedroom with a knife.

[00:02:19] Speaker 00:
It was undisputed that the fight began in Rushall's bedroom, and there was evidence that Patterson attacked him with a knife.

[00:02:26] Speaker 04:
But he didn't... Hold on, hold on.

[00:02:27] Speaker 04:
But there's a whole lot more forensic evidence, right?

[00:02:29] Speaker 04:
And that's what's the focus of my question, because the evidence is that that fight continued throughout the house, right?

[00:02:37] Speaker 04:
And the victim was, I think, the logical inference, you know, trying to escape.

[00:02:43] Speaker 04:
And then I think that Mr. Rashal's footprints, of course, coming and going.

[00:02:49] Speaker 04:
So he can only use, to paraphrase and to summarize, he can only use the amount of force necessary to protect himself.

[00:02:56] Speaker 04:
So how is this a viable defense?

[00:02:59] Speaker 00:
I think that's precisely why unreasonable self-defense applies here and reasonable self-defense.

[00:03:04] Speaker 00:
Reasonable self-defense doesn't have a chance for the reasons you're saying, because the lethal force was applied

[00:03:11] Speaker 00:
in the kitchen, that's where the fight ended, the fight raged through the house.

[00:03:13] Speaker 00:
It could have been that the victim was trying to escape, that Mr. Patterson was trying to escape.

[00:03:20] Speaker 00:
It could also be they had engaged in mutual combat throughout the house.

[00:03:23] Speaker 04:
So for imperfect self-defense, you think there was a viable shot that the jury would, I mean, that has to be argument, a viable shot that the jury would decide on this evidence that Mr. Rushall, sincerely but unreasonably, believed that this amount of force was necessary.

[00:03:39] Speaker 04:
Yes, Your Honor.

[00:03:41] Speaker 00:
play out well he's attacked in this bedroom and the prosecution has the burden to negate imperfect self-defense as it does with self full self-defense he's attacked in the bedroom and

[00:03:53] Speaker 00:
He reasonably perceives an imminent threat there.

[00:03:57] Speaker 00:
But he's engaged in mutual combat throughout the house.

[00:04:02] Speaker 00:
And he would be in a very distraught emotional state, where he could unreasonably perceive Patterson's to still be a threat, even though he was too wounded to actually be a threat.

[00:04:12] Speaker 04:
Maybe for part of it.

[00:04:14] Speaker 04:
There's a final blow.

[00:04:15] Speaker 04:
I think the imprints was a final blow to the back of the head.

[00:04:19] Speaker 00:
There was evidence that suggested that possibility, yes.

[00:04:22] Speaker 04:
How was that necessary?

[00:04:23] Speaker 00:
I don't believe that was necessary, which is, again, why unreasonable self-defense.

[00:04:28] Speaker 04:
No, but how would the jury likely decide that your client thought that was necessary?

[00:04:37] Speaker 04:
Maybe incorrectly, but that he reasonably believed that that use of force was still required?

[00:04:43] Speaker 00:
He could unreasonable if he was that if he was in an extreme an extremely emotional state that he could Unreasonably think that if he got caught up in the heat of combat, okay, but reasonably no I agree that reasonably there's no argument that he could reasonably Think that it was it was necessary to strike that blow in the kitchen I think that's one inference from the evidence that but definitely

[00:05:06] Speaker 00:
There was a lot of fighting in the kitchen, and that was the end of the fight.

[00:05:10] Speaker 03:
Couldn't defense counsel have just felt that the imperfect self-defense theory just didn't really match the facts?

[00:05:16] Speaker 03:
That if there was a self-defense here, it was a true one, because it was a real fight, and that's what he was trying to do, as opposed to saying he was in a fight, but he unreasonably perceived that the fight would be dangerous to him?

[00:05:30] Speaker 00:
I think that would be reasonable if the fight was limited to the bedroom.

[00:05:34] Speaker 00:
If there was evidence that Patterson attacked Rishal in the bedroom.

[00:05:38] Speaker 00:
Rachele kills him in the bedroom in self-defense.

[00:05:40] Speaker 00:
But with the fight ranging through the house and Patterson being stabbed 30 times, I think unreasonable self-defense fits the facts, and reasonable self-defense is simply a non-starter.

[00:05:50] Speaker 03:
But is an excessive use of force part of an imperfect self-defense theory?

[00:05:55] Speaker 03:
If you unreasonably believe you're under a risk of death, but then you use excessive self-defense,

[00:06:05] Speaker 03:
Is that part of this theory?

[00:06:08] Speaker 03:
Does that take you outside the theory?

[00:06:09] Speaker 00:
I don't believe so.

[00:06:12] Speaker 00:
I think, I mean, Rashal applied deadly force in the kitchen, and if he perceived, at some point, if he continues to apply force, that needs to be, under self-defense, that needs to be justified.

[00:06:27] Speaker 03:
So what was the defense that was actually put forward then?

[00:06:30] Speaker 04:
Perfect self-defense that mr. Shaw had a reasonable that had a reasonable he had a reasonable fear of Death or bodily injury imminent fear and that he acted reasonably in response to that it was the idea that he that it was unreasonable or perhaps unreasonable but but Sincere if he sort of got it caught up in a frenzy and just couldn't stop Yeah, essentially because it went from room to room was there any testimony about the about Temporally how long this would have taken?

[00:06:57] Speaker 00:
I don't believe anybody suggested that.

[00:07:00] Speaker 00:
It was clearly that the fight happened in multiple rooms.

[00:07:03] Speaker 00:
There was blood everywhere.

[00:07:05] Speaker 00:
I don't recall anybody theorizing about how many minutes passed.

[00:07:11] Speaker 00:
But apparently, I'd say it was at least a few minutes.

[00:07:16] Speaker 00:
It would have to be.

[00:07:17] Speaker 04:
One would think.

[00:07:20] Speaker 03:
What about the issue of the

[00:07:22] Speaker 03:
The jury instruction that everyone concedes is incorrect?

[00:07:26] Speaker 03:
Yeah, yes.

[00:07:27] Speaker 03:
Can you address that?

[00:07:28] Speaker 00:
Absolutely.

[00:07:29] Speaker 00:
I think the potential there is simply that it could confuse the jury.

[00:07:34] Speaker 00:
The instruction is supposed to say either he intended to assault with a deadly weapon or he formed that intent after he either entered the house with that intention or he had it all along.

[00:07:51] Speaker 00:
Turning that from a disjunctive to a conjunctive requirement, I think, I mean, the argument against it is, well, under the defense theory, he would have to have formed that intent before.

[00:08:03] Speaker 00:
But there was no evidence what Patterson's intent was before he entered the house, or how he got in the house.

[00:08:08] Speaker 03:
There was no evidence that he was... Right, I mean, that's one of the oddities of the case, is that the circumstances by which he entered the house or why he entered the house are not clear.

[00:08:18] Speaker 00:
Very unclear, yes.

[00:08:19] Speaker 03:
But which way does that cut?

[00:08:22] Speaker 00:
Prosecution has the burden.

[00:08:23] Speaker 00:
I think it cuts in that the prosecution didn't show that there was no evidence that Patterson lawfully entered the house.

[00:08:34] Speaker 02:
There wasn't direct evidence, but there was circumstantial evidence that Patterson was angry at Rachel and that he wasn't coming in to just a friendly visit.

[00:08:46] Speaker 00:
Indeed.

[00:08:46] Speaker 00:
There were really no reasonable inferences that they would engage in a social visit since they hated each other.

[00:08:54] Speaker 04:
Right.

[00:08:56] Speaker 00:
So what Patterson was doing there, there wasn't any, as you said, no direct evidence as to that.

[00:09:02] Speaker 00:
But I think you could reasonably infer that he visited for a hostile purpose.

[00:09:07] Speaker 04:
In large part, though, I struggle with what the jury was left with by way of theory, defense theory.

[00:09:13] Speaker 04:
And I appreciate your point that the prosecution had the burden.

[00:09:17] Speaker 04:
But we're looking at IAC claims, and it just seems to me that there's pretty strong evidence from the post-conviction phase about

[00:09:25] Speaker 04:
the extent to which defense counsel's hands were tied by his client.

[00:09:31] Speaker 04:
I mean, there's certain evidence that Mr. Rushall didn't want to introduce.

[00:09:37] Speaker 04:
So the jury was left without a coherent theory, it seems to me.

[00:09:41] Speaker 04:
Why was he there?

[00:09:42] Speaker 04:
How did he get in?

[00:09:43] Speaker 00:
Just that they had been feuding.

[00:09:46] Speaker 00:
And again, yes, there was no evidence as to why Patterson went there or how he entered the house.

[00:09:54] Speaker 03:
Was there witnesses that could have testified to this that trial counsel made a decision not to?

[00:10:04] Speaker 00:
Which came in in the habeas the habeas proceeding the four witnesses that yeah, can you speak to that yes?

[00:10:11] Speaker 00:
That would bring in a whole different theory that those witnesses Would have test would have testified that apparently those witnesses would have testified apparently that the two were friends And you know on for each of those witnesses.

[00:10:22] Speaker 04:
There's a essentially one page summary It's from the da's the da's investigator But we also know from defense counsel why they weren't used and it seems to be a tactical decision to not use them and

[00:10:33] Speaker 00:
Yes, yes.

[00:10:35] Speaker 00:
That does seem like a tactical decision.

[00:10:38] Speaker 03:
I think... I thought you contend that that, too, was ineffective.

[00:10:42] Speaker 00:
I do.

[00:10:42] Speaker 00:
Yes, that's... So why was it ineffective?

[00:10:45] Speaker 00:
Well, I think presenting those witnesses' testimony and negating the apparent... One of the main prosecution witnesses testified regarding this feud, and that's all the jury heard was about the feud.

[00:10:58] Speaker 00:
These witnesses would have refuted that testimony.

[00:11:00] Speaker 00:
It refutes the prosecution's theory of motive entirely.

[00:11:03] Speaker 00:
Then we're in a whole different case if there's no evidence of motive.

[00:11:08] Speaker 00:
But a reasonable defense attorney would have refuted the prosecution's case about murder.

[00:11:15] Speaker 00:
And there was some conflict between client and counsel about presenting that evidence.

[00:11:21] Speaker 00:
But I think it's clear that Mr. Rushall wanted his attorney to conduct that investigation.

[00:11:27] Speaker 00:
And it's a failure to investigate.

[00:11:30] Speaker 00:
There's no reason not to interview those witnesses and see.

[00:11:34] Speaker 00:
Maybe it wouldn't have panned out, but the attorney never even, the attorney just based on the DA's investigator report, he simply didn't pursue the matter.

[00:11:42] Speaker 04:
Judge Lee, do you have questions?

[00:11:44] Speaker 04:
Judge Russ, do you have additional questions?

[00:11:46] Speaker 00:
I'm okay for now.

[00:11:47] Speaker 04:
Okay.

[00:11:47] Speaker 04:
Do you want to reserve the remainder of your time?

[00:11:49] Speaker 00:
Yes.

[00:11:50] Speaker 00:
Okay.

[00:11:50] Speaker 00:
Thank you.

[00:12:02] Speaker 01:
Good morning.

[00:12:03] Speaker 01:
May it please the court, Jill Thayer, for the respondent appellee.

[00:12:07] Speaker 01:
I think this court is obviously very well aware of the facts, which at this point, once you're aware of the facts, it's very hard to find that Mr. Limpert rendered ineffective assistance.

[00:12:22] Speaker 01:
I'll just add that there's no clearly established authority anywhere that says that a defense attorney must request

[00:12:31] Speaker 01:
Lesser included offense instructions That's all you know, California law, and it's very clear that mr. Limpert thought about this long and hard and it does make sense certainly another attorney might have chosen a different approach, but His idea was that he was going to rely on the he came at me with a knife and the circumstances that was that mr. Rochelle was in his own bedroom and

[00:13:00] Speaker 01:
to try and then turn that into, OK, if you believe he said he came at me with a knife in my bedroom, because that was where it happened initially, and then to try and say that it might have been unreasonable for him to defend himself when he was being attacked with a knife in his bedroom by a larger man.

[00:13:23] Speaker 01:
He'd have to make that argument, and that argument

[00:13:30] Speaker 01:
I'll just say difficult to make.

[00:13:33] Speaker 01:
Absurd, really, to say that it would have been unreasonable for Mr. Rochelle to have defended himself.

[00:13:41] Speaker 01:
And that is what imperfect self-defense voluntary manslaughter is.

[00:13:46] Speaker 03:
I mean, if he used an excessive amount of force in responding to a reasonable threat, does that get you within imperfect self-defense?

[00:13:56] Speaker 01:
That's a whole other point, is that

[00:14:00] Speaker 01:
I mean that would have just worked maybe in the bedroom, but of course in the facts of this case Mr.. Patterson Obviously was the one who lost a lot of blood in the bedroom So even if he had been attacked you know attacked Rochelle Which is doubtful

[00:14:19] Speaker 01:
Then Mr. Rochelle was able to stab Mr. Patterson many, many times.

[00:14:26] Speaker 04:
Well, Mr. Patterson made it down the hallway and into the kitchen and I think ultimately to the driveway.

[00:14:31] Speaker 04:
So, right.

[00:14:32] Speaker 04:
And then there's the very problematic blow to the back of the head after he was down in the kitchen.

[00:14:38] Speaker 04:
It just seems very likely that a jury was not going to go that route.

[00:14:45] Speaker 01:
No.

[00:14:45] Speaker 01:
Not at all.

[00:14:46] Speaker 04:
What about the imperfect jury instruction that was error?

[00:14:51] Speaker 01:
It was error.

[00:14:52] Speaker 01:
And the state court noted that it was error and recognized the error and reviewed it under Chapman and said that it was not prejudicial under Chapman.

[00:15:06] Speaker 01:
And there's just no way that their conclusion that it was not prejudicial, the error was not prejudicial, was

[00:15:15] Speaker 01:
Unreasonable I mean for one thing there's the whole Used excessive force part right because if you're attacked in your home you cannot use excessive force and there was obvious obvious obvious evidence of him using excessive force on Mr.. Patterson you know he was Incapacitated and crawling down the hall until he got to the kitchen he had already lost a lot of blood and

[00:15:44] Speaker 03:
But wasn't Rochelle injured, too, in this?

[00:15:47] Speaker 01:
Well, his blood was not found in the bedroom.

[00:15:51] Speaker 01:
His blood was found in the kitchen.

[00:15:53] Speaker 01:
And the evidence seemed to show that when Mr. Rochelle stabbed Mr. Patterson in the back of the head, he broke the knife blade.

[00:16:03] Speaker 01:
And he stabbed him so hard that he cut his own hand.

[00:16:07] Speaker 04:
His hand slipped on the knife.

[00:16:09] Speaker 04:
Yeah.

[00:16:10] Speaker 01:
And I will note that there was one knife.

[00:16:13] Speaker 01:
It's not 100% clear, but I think this court has probably looked at the actual testimony, which is even more horrible.

[00:16:22] Speaker 01:
But there was just one knife.

[00:16:24] Speaker 01:
And the blade was found in the kitchen, and the handle was found in that garbage can.

[00:16:30] Speaker 01:
And they matched, and it was a kitchen knife.

[00:16:33] Speaker 02:
And under Chapman, the error has to be harmless beyond a reasonable doubt, right?

[00:16:39] Speaker 01:
That's correct.

[00:16:40] Speaker 02:
And can you address that in the context here?

[00:16:42] Speaker 02:
That's a pretty high bar to show that every reasonable jurist would find that this error was harmless beyond reasonable doubt.

[00:16:49] Speaker 01:
Yes, it is a high bar.

[00:16:51] Speaker 01:
It is a very high bar, and the Court of Appeal recognized that.

[00:16:55] Speaker 01:
And it looked at, first, the amount of error from the instruction.

[00:17:00] Speaker 01:
And we don't know what happened, precisely what happened between the time Mr. Paterson went into the home.

[00:17:15] Speaker 01:
But we do know that the defense theory was that Mr. Paterson intended to assault, came in with evil intent and then proceeded to

[00:17:29] Speaker 01:
come at him with a knife.

[00:17:30] Speaker 01:
That was really all the very slim evidence they had.

[00:17:34] Speaker 01:
There was no argument that Mr. Patterson initially had planned to have a nice meeting and then suddenly in the middle of something happened and then he turned on him and then came out with him with a knife.

[00:17:53] Speaker 01:
There's Mr. Rochelle with a knife

[00:17:55] Speaker 01:
There's just no evidence.

[00:17:56] Speaker 01:
There's nothing to hang your hat on.

[00:17:59] Speaker 01:
And that's what we're stuck with.

[00:18:00] Speaker 02:
What was the prosecution's theory about Mr. Patterson coming into the house?

[00:18:03] Speaker 02:
Did you guys address that at all?

[00:18:05] Speaker 01:
Well, the theory was that essentially that he was lured in.

[00:18:11] Speaker 01:
And the facts in support of that.

[00:18:14] Speaker 03:
How was he lured in?

[00:18:15] Speaker 03:
What did the record show as to why that would be?

[00:18:17] Speaker 01:
Well, because Mr. Patterson's truck was parked in the driveway.

[00:18:23] Speaker 01:
with, and it was locked, and there was a club lock on it.

[00:18:27] Speaker 01:
And Mr. Rochelle's truck was parked blocking in Mr. Patterson's vehicle.

[00:18:32] Speaker 04:
Well, that goes to the victim not having a plan to make a quick getaway.

[00:18:36] Speaker 04:
But I think the question is, what was the evidence about him being lured in?

[00:18:42] Speaker 01:
Oh, well, just that he thought he was, you know, they were having a conflict.

[00:18:48] Speaker 01:
We know that.

[00:18:50] Speaker 01:
Mr. Rochelle had said he could kill him.

[00:18:53] Speaker 01:
But then they were communicating a lot.

[00:18:55] Speaker 01:
So some of the evidence is all those phone calls that they had.

[00:19:00] Speaker 01:
There were many, many phone calls in the days leading up to the murder.

[00:19:04] Speaker 01:
And honestly, that could go any which way.

[00:19:09] Speaker 03:
There was some evidence that, obviously, they had a dispute over a construction project.

[00:19:13] Speaker 03:
But there was also evidence, I guess, that they were friends and would go out drinking together even?

[00:19:19] Speaker 01:
And doing drugs together.

[00:19:22] Speaker 01:
a lot of drugs together.

[00:19:24] Speaker 01:
Yes, there was evidence of that.

[00:19:27] Speaker 03:
Was there an alternative narrative that defense counsel could have put forward with other witnesses that the jury didn't hear about either some sexual relationship between the two or the conflict over the construction project being over by that point?

[00:19:42] Speaker 01:
Well, I'll start with the sexual relations and it's obvious, it is just truly obvious that

[00:19:50] Speaker 01:
introducing evidence that Mr. Rochelle had made sexual advances towards Mr. Patterson would not have assisted in his defense.

[00:20:04] Speaker 01:
It was entirely reasonable for him not to want to introduce that evidence.

[00:20:09] Speaker 01:
even if it was all by himself, let alone the fact that Mr. Rochelle said that he would fire him if he tried to do that and insisted that he had never made unwanted sexual advances to Mr. Patterson.

[00:20:21] Speaker 01:
I mean, that was just, they absolutely did not want to introduce that evidence for multiple reasons.

[00:20:26] Speaker 04:
What about the narrative about the business relationship?

[00:20:32] Speaker 01:
Well, that was all very confusing.

[00:20:37] Speaker 01:
Mr. Rochelle did not manage to prove that it had all been resolved or resolved in his favor or anything else.

[00:20:45] Speaker 01:
And that is what the Superior Court found.

[00:20:47] Speaker 01:
The Superior Court looked at all the evidence and said, this really doesn't show what you think it shows.

[00:20:54] Speaker 01:
And it was very far afield from what happened.

[00:20:58] Speaker 01:
Well, Mr. Rochelle's one of his many, many problems, in addition to all the horrendous, grotesque physical evidence

[00:21:06] Speaker 01:
was that he couldn't testify because of course if he testified then even more evidence of his background would have been admitted and so Mr. Lempert did not have a lot of choices.

[00:21:19] Speaker 04:
Judge Bres, do you have additional questions?

[00:21:21] Speaker 04:
Okay.

[00:21:21] Speaker 04:
Judge Lee?

[00:21:22] Speaker 04:
Okay.

[00:21:22] Speaker 04:
I don't think we have any additional questions.

[00:21:25] Speaker 04:
Thank you.

[00:21:25] Speaker 04:
Thank you, counsel.

[00:21:34] Speaker 00:
First, if I could

[00:21:35] Speaker 00:
Address the concern you've raised judge breast about excessive the use of excessive force and how that can fit the doctrine I think here it's a question of force being applied over over some period of time in a fight that ranged through the house and the question then becomes not whether the force was excessive looked at in total, but whether when the lethal blows were delivered in the kitchen which for the final lethal blows whether there was a sincere perception of imminent threat at that point and

[00:22:04] Speaker 03:
I mean, I hear you, but how does that get to the debate we're having about whether he should have asked for a voluntary manslaughter instruction?

[00:22:14] Speaker 00:
Well, I think because since Mr. Rochelle needs to have it under perfect self-defense, he'd have to have a reasonable perception of an imminent threat in the kitchen, and Mr. Patterson was simply too wounded for that to be reasonable.

[00:22:30] Speaker 00:
given all the physical evidence in the case, that there's going to be a reasonable threat in the kitchen when the prosecution has the evidence of 30 knife wounds.

[00:22:38] Speaker 00:
And it's unreasonable because he was in an overwrought state.

[00:22:46] Speaker 03:
And I guess the question one would have is, is this just a problem for your client's case, regardless of the theory that's advanced?

[00:22:56] Speaker 00:
Yes, it isn't a good fact for the defense, but it fits imperfect self-defense.

[00:23:04] Speaker 00:
It doesn't fit perfect self-defense.

[00:23:07] Speaker 00:
I think the perfect self-defense is simply out of the question.

[00:23:11] Speaker 00:
Imperfect self-defense is a viable theory, I think.

[00:23:16] Speaker 00:
It's still, of course it's not a great, the physical evidence isn't great for my client, but I think there's a reasonable probability that the jury could reach a different result as to if they have an unreasonable self-defense option.

[00:23:28] Speaker 00:
And California requires them to give an option, which isn't, I'm not arguing a violation of state law, but that it's deficient performance to take that gambler's approach, especially under these facts.

[00:23:43] Speaker 00:
The jury could have been given an option.

[00:23:44] Speaker 00:
Counsel can still pursue perfect self-defense if he actually thought that was viable.

[00:23:48] Speaker 00:
It's hard to imagine.

[00:23:49] Speaker 00:
But in perfect self-defense, the jury should have been given a choice.

[00:23:56] Speaker 00:
The jury was, you know, given a choice.

[00:23:57] Speaker 03:
And the consequence if they had found him guilty of voluntary manslaughter, what's the difference in the sentences that he could?

[00:24:03] Speaker 00:
Eight years as opposed to eight years as opposed to, well it would be eight years plus the knife enhancement I assume.

[00:24:09] Speaker 00:
And since it's involuntary, since it's imperfect self-defense.

[00:24:14] Speaker 00:
So he would have got nine years as opposed to getting 26 to life is what he received.

[00:24:22] Speaker 04:
Questions?

[00:24:24] Speaker 00:
I'm okay.

[00:24:25] Speaker 04:
Doesn't seem that we have additional questions, would you like to wrap up?

[00:24:28] Speaker 00:
Yes, I'll wrap up.

[00:24:28] Speaker 04:
Thank you your honor Okay, we'll take that case and thank you both for your advocacy.

[00:24:33] Speaker 04:
We appreciate it very much.

[00:24:35] Speaker 04:
We'll take that case under advisement