[00:00:07] Speaker 01:
Good morning, Your Honors, and may it please the Court, Michael Peterson from the Federal Public Defender's Office on behalf of Appellant Jose Munoz.

[00:00:13] Speaker 01:
I would like to reserve three minutes for a bottle, if that's alright.

[00:00:17] Speaker 01:
So today, appellant has one certified claim before this court, and that is that when the trial court excluded evidence, expert witness testimony about PTSD, that exclusion violated his right to present a complete defense.

[00:00:29] Speaker 01:
Now, because Jose Munoz admitted to the shooting, the only issue before the jury was his claim of self-defense, both perfect and imperfect.

[00:00:38] Speaker 01:
And in his first trial, there were two trials relevant here.

[00:00:41] Speaker 01:
In his first trial in 2013, four jurors accepted that argument.

[00:00:45] Speaker 01:
They accepted the imperfect self-defense argument, and those jurors voted not for murder, but for voluntary manslaughter.

[00:00:51] Speaker 01:
And that first trial ended in a deadlock jury, so a second trial was necessary.

[00:00:59] Speaker 01:
The second trial began two years later.

[00:01:01] Speaker 01:
Defense counsel proffered the expert witness testimony of Dr. Jack Rothberg.

[00:01:06] Speaker 01:
Now this was an expert who met with appellant, examined appellant, and then diagnosed him with PTSD.

[00:01:14] Speaker 01:
And when his testimony was proffered to the court, it was explained to the court that this diagnosis would be presented to the jury, as well as the symptoms that follow from it, like paranoia, hypervigilance, and

[00:01:28] Speaker 01:
sleep deprivation.

[00:01:30] Speaker 03:
Can I, I mean I'm interested in this, it's helpful although we have reviewed the briefs and I just want to sort of cut to where we're at because your claim now is that testimony was not allowed and therefore that's the basis for the habeas petition, is that right?

[00:01:50] Speaker 03:
Exactly.

[00:01:50] Speaker 03:
And so the first question we have to ask is whether this was a substantive denial or a procedural denial, right?

[00:01:59] Speaker 01:
In the state court.

[00:02:02] Speaker 01:
Yes.

[00:02:02] Speaker 01:
In the state court.

[00:02:03] Speaker 01:
It's the last reason.

[00:02:04] Speaker 03:
So can you talk about that because I mean that goes to whether we're reviewing at DeNovo or whether we give deference and here we have admittedly it's a little ambiguous although we get a lot of ambiguity on these issues you know when they come up to us but where the you I mean the district court excuse me the California Court of Appeals that's the decision we're reviewing right?

[00:02:26] Speaker 03:
Agreed.

[00:02:28] Speaker 03:
they did cite Chapman, and there's a federal constitutional claim at issue here.

[00:02:33] Speaker 03:
So why isn't there a presumption that this is a merits-based decision given that?

[00:02:40] Speaker 01:
Sure, so usually when a claim is kind of not addressed in a court of appeal opinion, there is a presumption that it was decided on the merits.

[00:02:50] Speaker 01:
That presumption is rebuttable when there is any indication that it's more likely that the court did something else.

[00:02:56] Speaker 01:
So I dismissed it on procedural grounds or just forgot about it.

[00:03:00] Speaker 01:
If there's some other evidence that can be pointed to that makes that outcome more likely than a merits adjudication.

[00:03:07] Speaker 03:
And so this discussion about- And that's what I guess I'm getting at is, as you pointed out, if they don't say anything, it can be merits-based.

[00:03:16] Speaker 03:
Here, they did say something.

[00:03:17] Speaker 03:
They cited, we all agree there's a federal claim at issue here.

[00:03:23] Speaker 03:
and they cited to a federal case Chapman.

[00:03:27] Speaker 03:
So why wouldn't that be even stronger evidence than saying nothing at all that this is a claim on the merits, that they're denying it.

[00:03:36] Speaker 01:
I think because this discussion comes in a footnote and it's not

[00:03:43] Speaker 01:
And it sort of obliquely references the error side of a constitutional claim.

[00:03:49] Speaker 01:
It says, because there has been no complete preclusion of a defense, we don't need to look at the harmless error standard under Chapman.

[00:03:55] Speaker 01:
and so you know and into the argument looks at what that phrase a complete preclusion of events means there are two ways to go with this one is this is contrary to federal law that's assuming there's a minute merits adjudication that that is not the federal standard uh... the argument you're alluding to which was also raised is that this is

[00:04:14] Speaker 01:
more akin to a procedural denial, because I guess it's so far off from the federal state.

[00:04:19] Speaker 03:
Well, no, I think I'm actually saying I think it is a merits.

[00:04:22] Speaker 03:
Well, I don't know what I'm positing that this could be a why would we treat this different than a merits denial where they've actually cited to a federal case

[00:04:33] Speaker 03:
and there's a federal claimant issue, why wouldn't we just treat that as a merits-based denial?

[00:04:38] Speaker 03:
And then the standard is a violation of clearly established Supreme Court precedent, right?

[00:04:46] Speaker 01:
That is something that you could do.

[00:04:48] Speaker 01:
And what would your argument be under that?

[00:04:52] Speaker 03:
Why is this contrary to clearly established Supreme Court precedent?

[00:04:56] Speaker 03:
Because they got the standard wrong?

[00:04:59] Speaker 01:
yes yes and they got it wrong uh... significantly uh... because the as the supreme court laid out in chambers in crane and shephard uh... the right to

[00:05:10] Speaker 01:
present a complete defense is different than this complete preclusion issue that the Court of Appeal is talking about.

[00:05:19] Speaker 01:
So in Chambers, they looked at what is the character of the evidence excluded?

[00:05:22] Speaker 01:
How does it fit into the case?

[00:05:24] Speaker 01:
How relevant is it?

[00:05:25] Speaker 01:
How exculpatory is it?

[00:05:26] Speaker 01:
And then how does it fit into the rest of the case?

[00:05:29] Speaker 01:
And the Supreme Court cases on point, that's what they do with the evidence.

[00:05:33] Speaker 01:
Here, in a footnote, the California Supreme Court just says, well, there is no complete preclusion of the defense.

[00:05:40] Speaker 01:
So that's it, we don't need to go any further.

[00:05:43] Speaker 01:
And that's a very different analysis because a complete preclusion of a defense, I guess just in the plain language of it, means that there has been no evidence presented.

[00:05:52] Speaker 01:
And that's a very easy analysis to make.

[00:05:54] Speaker 01:
You just look at what evidence was presented.

[00:05:58] Speaker 01:
There's this expert witness testimony that's excluded, but was there other evidence that may have supported the same point?

[00:06:04] Speaker 01:
And that looks more at the evidence that was included as opposed to which was excluded.

[00:06:09] Speaker 01:
And that is simply the wrong analysis and that doesn't protect the federal right.

[00:06:13] Speaker 01:
to present a complete defense.

[00:06:15] Speaker 02:
Obviously, even with all this, you still at the end of the day have to get over Brecht, right?

[00:06:22] Speaker 02:
Yes.

[00:06:23] Speaker 02:
Here are the arguments made on the other side.

[00:06:25] Speaker 02:
Mr. Munoz put on a self-defense, imperfect self-defense case.

[00:06:30] Speaker 02:
He explained why he did the things he did.

[00:06:34] Speaker 02:
How much would the expert really have mattered, and can we really say that there was a reasonable possibility that it would change things?

[00:06:42] Speaker 01:
I think it would have mattered quite a bit.

[00:06:43] Speaker 01:
And the reason is, and I'm going to kind of limit it to, I think it's most compelling with regard to imperfect self-defense, because he can only provide in his testimony his subjective experience of that morning, of the shooting.

[00:06:57] Speaker 01:
He can explain what he saw, what he felt, what he thought, and why he pulled the trigger when he did.

[00:07:03] Speaker 01:
And that's his subjective experience.

[00:07:05] Speaker 01:
But then there's the other side of it too, which is kind of the other objective evidence that comes in, the physical evidence.

[00:07:12] Speaker 01:
Some of it matches up with his testimony.

[00:07:15] Speaker 01:
You know, the car without headlights, without a license plate, the seats reclined, kind of coming back and forth in front of his house multiple times.

[00:07:22] Speaker 01:
That fits with his account.

[00:07:24] Speaker 01:
What doesn't fit is that he says he saw a gun, he says he saw a gunfire, there was no gun found when the first responders arrived.

[00:07:30] Speaker 01:
And so it looks like, when you kind of look at the situation, that he made a mistake, that there was no gun.

[00:07:35] Speaker 01:
And so we're kind of left with that.

[00:07:37] Speaker 01:
And so the expert testimony, though, is necessary for that, to complete that analysis.

[00:07:43] Speaker 01:
Because we have this subjective experience, but then the jury has to decide, is that credible?

[00:07:49] Speaker 01:
Is he lying, or is that truly his subjective experience?

[00:07:52] Speaker 01:
When they don't have the PTSD evidence about what's going on in his brain, why is he different than, say, the average person?

[00:07:59] Speaker 01:
Why is he experiencing this different than one would expect?

[00:08:03] Speaker 01:
Why is he seeing a threat, or perhaps a reasonable average person would not?

[00:08:08] Speaker 01:
And that's why you need the expert testimony, because you have to explain to the jury

[00:08:13] Speaker 01:
why he's not just lying, right?

[00:08:15] Speaker 02:
You have to kind of square his, these statements about his subjective experience are true to him because his brain is working differently, because he's got this paranoia, because he has this... What about some of these other things that happened that were in the record about, you know, after the shooting, some of the comments that he made, you know, I caught that fool slipping, the escape to Mexico, right?

[00:08:35] Speaker 02:
How is that all consistent with this same theory?

[00:08:38] Speaker 01:
Sure.

[00:08:39] Speaker 01:
I think it is, it's not inconsistent with a

[00:08:43] Speaker 01:
with him truly believing that Someone drove by his house took shots at him and his mother and he fired back and killed that person So he is I will grant that these statements are they don't convey remorse They're not particularly nice, but he does believe that he was just in a gunfight that he survived that gunfight that someone came to his house and

[00:09:03] Speaker 00:
to kill him his mother and then he fired back and he survived this gunfight and these comments are coming hours after the shooting right so he's still in that so don't we look at all those additional factors all those other evidentiary components in trying to decide whether or not it would have made a difference if the doctor had been permitted to testify i'm particularly alluding to the fact that

[00:09:30] Speaker 00:
No gun was found in the car that he had prepared for an armed assault by going out and buying an AK-47 and ammunition.

[00:09:40] Speaker 00:
The statements to neighbors that he thought the neighborhood belonged to him and strangers were not allowed to intrude.

[00:09:48] Speaker 00:
His admissions on the recorded jail phone call that he caught the fool slipping.

[00:09:53] Speaker 00:
accompanying his mother each morning to the car, ordering his fellow, I don't know if he was another gang member, but the other individual that was at the house to hide the gun, and his flight to Mexico.

[00:10:07] Speaker 00:
Aren't all those factors properly taken into consideration and weighing the impact of the excluded testimony?

[00:10:15] Speaker 01:
They can they certainly can be evaluated they do come into play I do think that the majority of what you just listed This is this is all evidence the jury heard and I think this is why the expert testimony is so important because But what I'm suggesting is that the expert testimony is not strong enough to undercut the cumulative impact of all of that damning evidence

[00:10:40] Speaker 01:
I disagree, especially when we're looking at imperfect self-defense.

[00:10:45] Speaker 00:
I caught the fool slipping and so I smoked him.

[00:10:50] Speaker 00:
That doesn't sound like self-defense to me.

[00:10:54] Speaker 01:
I caught him slipping, I caught him unprepared.

[00:10:57] Speaker 01:
They came to kill me, they didn't know that I would be ready.

[00:11:00] Speaker 00:
But we've got to analyze the verdict in the light most favorable to upholding the verdict.

[00:11:09] Speaker 00:
Wouldn't that support a reasonable juror in concluding that he did not fire in self-defense?

[00:11:16] Speaker 01:
I mean, I just I just don't think it's inconsistent.

[00:11:18] Speaker 01:
I think you can say it's not inconsistent with a self-defense.

[00:11:21] Speaker 01:
Well, I mean, I mean, in a shootout, a mutual combat shootout where I got him before he could get me exactly.

[00:11:29] Speaker 00:
Yes.

[00:11:29] Speaker 00:
That's your answer to my question.

[00:11:31] Speaker 01:
It is.

[00:11:32] Speaker 03:
I mean, it's not it's a proactive self-defense.

[00:11:37] Speaker 01:
Well, I mean, he feels he's being shot at, right?

[00:11:39] Speaker 01:
He thinks he's being shot at.

[00:11:40] Speaker 02:
I mean, I think what you're saying is a delusional self-defense, essentially.

[00:11:44] Speaker 01:
Correct.

[00:11:44] Speaker 01:
I mean, this is also the point I'm trying to make, is that these are comments that, absent PTSD, absent this brain,

[00:11:52] Speaker 01:
evidence about why is he paranoid?

[00:11:55] Speaker 01:
Why is he hypervigilant?

[00:11:56] Speaker 01:
Why is he seeing threats everywhere?

[00:11:59] Speaker 01:
You correctly pointed out that when you look at it without that evidence, it looks bad.

[00:12:03] Speaker 00:
It looks like he's... Well, it's relevant to the ultimate question, which is the Brecht versus Abramson determination as to whether it's reasonably likely that this would have produced a substantial and injurious effect that might have changed the result.

[00:12:19] Speaker 00:
And I guess where you and I part company is I'm having a hard time understanding why that standard is met here in the face of that evidence.

[00:12:28] Speaker 00:
It's pretty strong evidence of guilt.

[00:12:31] Speaker 01:
I think it's evidence that he pulled the trigger, certainly.

[00:12:34] Speaker 01:
It's evidence that he is perhaps distastefully celebrating that he defended his life and defended the life of his mother.

[00:12:42] Speaker 01:
That's not how I think we would want someone to react.

[00:12:45] Speaker 01:
And in self-defense, but it doesn't conclusively prove that it's not self-defense.

[00:12:50] Speaker 01:
I mean he didn't say someone walked in front of my house and I shot him he said No gun was found in the car, right?

[00:12:58] Speaker 00:
Right when we don't know whether there might have been another person in the car who took it and got away

[00:13:04] Speaker 01:
But I think that is why, that's where the imperfect self-defense comes into play, right?

[00:13:09] Speaker 01:
Because he can, two things can be true.

[00:13:12] Speaker 01:
There can be no gun in the car.

[00:13:14] Speaker 01:
The person driving in front of his house can be innocent, cannot be a threat, but he can still subjectively think he sees a gun, thinks he sees muzzle flashes, and pull the trigger.

[00:13:25] Speaker 01:
Both of those things can be true.

[00:13:26] Speaker 01:
And if the jury believes that both those things are true, believes that the victim did not have a gun, but also he truly thought his life was in danger, that's imperfect self-defense.

[00:13:36] Speaker 01:
That's why imperfect self-defense exists, to cover that scenario.

[00:13:40] Speaker 01:
And we needed the expert in order to

[00:13:42] Speaker 01:
kind of fill in the gaps and explain that scenario and the plausibility of that scenario to the jury.

[00:13:47] Speaker 00:
But that, again, going back to the Breck standard, that has to rise to the level that we would conclude that his due process rights were violated because that testimony was excluded, notwithstanding all this other evidence.

[00:14:01] Speaker 00:
This is that is true, and I think I think the this expert testimony I mean as trial counsel described it when he was properly evidence was vital I mean it was the most important evidence in the case so even assuming that we disagree with with what you just said even if the District Court of Appeal erred in misapplying the Chapman standard in its footnote

[00:14:23] Speaker 00:
It could still be characterized as harmless under Brecht if we conclude that the other evidence was just too strong in contravention of the excluded evidence.

[00:14:33] Speaker 01:
If we get to the harmless error analysis under Brecht, kind of we get through all that and we're at Brecht, I think everything gets taken into account.

[00:14:43] Speaker 01:
But I think the argument really is,

[00:14:48] Speaker 01:
The exclusion of this evidence had a significant interest effect on the jury's ability to make a finding of imperfect self-defense.

[00:14:57] Speaker 01:
And that was something that jurors had done in the first trial.

[00:14:59] Speaker 01:
And so I think it is true that if the expert witness testimony had been admitted, that there is a very good likelihood that at least one juror would have gone from perfect self-defense as opposed to first degree murder.

[00:15:12] Speaker 01:
So I think that there's a significant culpability difference between those two things.

[00:15:17] Speaker 04:
okay we'll give you some time for rebuttal good morning your honors may please the court deputy attorney general Herb Teddef on behalf of the respondent

[00:15:40] Speaker 04:
The district court properly denied habeas corpus relief because the California Court of Appeal did not contradict or unreasonably apply any clearly established Supreme Court precedent in rejecting the federal claim.

[00:15:52] Speaker 03:
So let me ask you about that.

[00:15:53] Speaker 03:
Do you think we need to reach that issue or should reach that issue?

[00:15:57] Speaker 03:
Because this seems like harmlessness is a

[00:16:01] Speaker 03:
a pretty strong position and you're suggesting we need to say that there was a merits based decision or at least no rebuttable presumption of a merits based decision.

[00:16:11] Speaker 04:
Well I think the harmless error analysis is very strong and there's certainly ample basis to uphold the district court's judgment on the basis that there was no error.

[00:16:22] Speaker 04:
but but i think it is also very clear that uh... the claim fails on a twenty two fifty four d and i'd like to briefly explain why that's the case but again regardless of the twenty two fifty four d we can discuss from us there i think it's it fails underbred

[00:16:37] Speaker 04:
But the California Court of Appeal said that it was applying the state harmless error standard because the exclusion of the testimony did not constitute a complete preclusion of the defense that warranted analysis under the Chapman standard.

[00:16:53] Speaker 04:
that analysis necessarily found that there was no federal constitutional violation that's why the state court of appeal is not playing a champion so we have a marriage decision that there was no federal constitutional violation now that i thought there was one argument maybe i misunderstand that that standard

[00:17:11] Speaker 03:
that was quoted in the footnote did not actually state the federal standard, but stated the state standard?

[00:17:18] Speaker 03:
Am I misremembering that?

[00:17:21] Speaker 04:
So there are two questions.

[00:17:24] Speaker 04:
That question goes to whether or not the California Court of Appeal applied the proper federal standard.

[00:17:30] Speaker 04:
But at the threshold, a merits decision requires, did they in fact reject the federal claim?

[00:17:36] Speaker 04:
So I think at the outset, the footnote is clear.

[00:17:38] Speaker 04:
They're saying,

[00:17:39] Speaker 04:
were not applying Chapman, implicitly saying there's no federal constitutional error.

[00:17:44] Speaker 04:
So that's the merits decision.

[00:17:46] Speaker 04:
Now we look to did they properly apply clearly established Supreme Court precedent.

[00:17:52] Speaker 04:
And the answer to that is this.

[00:17:54] Speaker 04:
The United States Supreme Court has never addressed the constitutional standard governing the admission of expert testimony in support of a defense.

[00:18:02] Speaker 04:
Because there's no clearly established Supreme Court precedent, it doesn't really make a difference how the California Court of Appeal rejected the claim, because it could not be contrary to or unreasonable application of a precedent that does not exist.

[00:18:18] Speaker 04:
But having said that, I don't think they did imply the, or apply the incorrect standard in talking about the complete preclusion of defense.

[00:18:28] Speaker 04:
Again, the Supreme Court cases, there's no case clearly on point, but there is a case, Rock versus Arkansas, where the United States Supreme Court said that a rule prohibiting this post-henotic testimony precluded the defendant from virtually testifying about any events that happened that day.

[00:18:46] Speaker 04:
You can look at that standard and say what they're saying is her right to prevent a defense was violated because she was precluded from testifying about any of the events, which is a complete preclusion of a defense.

[00:18:59] Speaker 04:
So I don't think this is, if we look at whether reasonable minds can agree or disagree, the standard applied by the Court of Appeal I don't think is contrary to any clearly established Supreme Court precedent.

[00:19:11] Speaker 04:
I think it's consistent with it, for example, that Rock case.

[00:19:14] Speaker 00:
He did in his brief to the District Court of Appeals site to both the federal and the state standards, did he not?

[00:19:24] Speaker 04:
In did petitioner in I'm sorry in the district court Yeah, and before the the State District Court of Appeals.

[00:19:30] Speaker 00:
Yes in his brief.

[00:19:31] Speaker 00:
He clearly raised the question Yes, so that so I guess what what I'm really asking is whether or not the footnote is

[00:19:39] Speaker 00:
maybe could have been better drafted to reflect the fact that it was responding to that argument when it relied but only cited on Walton and said it didn't think that Chapman applied.

[00:19:56] Speaker 00:
that kind of a shorthand version of saying we don't see a federal constitution.

[00:20:00] Speaker 04:
I think that's exactly what they're saying.

[00:20:01] Speaker 04:
They're saying we don't see a federal constitutional violation, therefore we're not applying Chapman.

[00:20:08] Speaker 04:
So the state court saw only a state court question, state court of admissibility, and then in harmless error analysis under state court.

[00:20:19] Speaker 02:
Where is this complete preclusion test even coming from?

[00:20:22] Speaker 04:
So again, I think that you can read Rock v. Arkansas as discussing complete preclusion.

[00:20:31] Speaker 04:
They don't use that language, but they talk about how the exclusion of the evidence prevented her from virtually testifying about anything that happened on the day of the crime.

[00:20:42] Speaker 04:
So I think the California Court of Appeal is using these Supreme Court cases, Washington versus Texas as well, where they precluded any accomplice testimony about what happened that day, and these cases sort of

[00:20:59] Speaker 04:
What is underlying these Supreme Court cases is that the defense was really not allowed to present the vital evidence in their defense.

[00:21:07] Speaker 04:
So I think that's what's what it's interpreting.

[00:21:10] Speaker 04:
But again, I don't think we get to that point.

[00:21:12] Speaker 04:
And I think this court recognized it in Moses versus pain.

[00:21:16] Speaker 04:
where the court considered these Supreme Court cases, but ultimately said that because the Supreme Court has never addressed the constitutional standard governing the admission of expert testimony, that there is no clearly established Supreme Court precedent that the state court could have incorrectly applied.

[00:21:32] Speaker 04:
So I think that's the case here.

[00:21:33] Speaker 04:
We don't have to find Supreme Court cases that might be consistent with this complete preclusion of a defense.

[00:21:40] Speaker 04:
Under the very difficult EDPA standard, you have to show that there is a Supreme Court case

[00:21:45] Speaker 04:
on point that the state court contradicted.

[00:21:49] Speaker 04:
And there simply isn't any, because the Supreme Court has never addressed expert testimony, the exclusion of expert testimony.

[00:21:56] Speaker 04:
So in that regard, I think this claim, I think the district court was more than right in rejecting the claim under Section 2254D.

[00:22:07] Speaker 04:
And then moving on to Brecht, I think the claim fails equally under the Brecht standard.

[00:22:16] Speaker 04:
Petitioner's defense was that he shot at the victim because he saw the victim pointing a gun at his mother's car and then saw gunfire coming from the car.

[00:22:26] Speaker 04:
What defense wanted to present as far as this expert testimony was that he suffered from PTSD that made him more susceptible to the fight or flight syndrome syndrome and being a heightened state of awareness.

[00:22:39] Speaker 04:
But petitioner testified that he saw the gun and he saw a gunfire.

[00:22:44] Speaker 04:
And under those circumstances, whether or not he was in a heightened state of awareness didn't matter.

[00:22:49] Speaker 04:
Under state law, if he saw the victim pointing a gun at his mother and saw a gunfire, he was entitled to act in self-defense, regardless of what his mental state was.

[00:23:00] Speaker 04:
Additionally, as far as the evidence that he was in a heightened mental state, even without expert testimony, there was more than abundant evidence that he was, including that he had had a fight with a person in his yard two days before the shooting, where... Can I go back to the other one?

[00:23:16] Speaker 03:
Because I think, as I understood,

[00:23:19] Speaker 03:
uh... the petitioners claim here it's not this uh... i mean there's two i guess we're talking about two defenses one is actual self-defense and one is uh... you know impossible self-defense imperfect self-defense and it just does seem perhaps to go to imperfect self-defense uh... where i mean the example you gave is actual self-defense and that's what was presented the jury in the jury apparently thought there was no

[00:23:47] Speaker 03:
actual self-defense because there was no gun and I mean to the extent you're trying to figure that out but as to the imperfect self-defense this idea that well I mistook that but that was because of my PTSD why would it not be relevant to that?

[00:24:03] Speaker 04:
well defendants testimony was unequivocal that he saw a gun and saw a gunfire he was very specific about what he saw that day the car the white car that was parked without a front license plate with lights off but couldn't the PTSD have caused him to i mean i agree with you and he lost on that but couldn't the PTSD or that testimony have buttressed this claim that even though i'm convinced that i saw that

[00:24:30] Speaker 03:
It may be that I didn't, that I caused myself to see that because I was in this heightened state.

[00:24:37] Speaker 04:
The problem with that is, as the Court of Appeal recognized it's an opinion on appeal, under California law, unreasonable self-defense was never intended to encompass reactions to threats that exist only in the defendant's mind.

[00:24:52] Speaker 04:
So to the extent he's trying to say, I suffer from PTSD, and therefore I imagine these things.

[00:24:57] Speaker 03:
That is it, actually.

[00:24:59] Speaker 04:
That's not a defense under California law.

[00:25:02] Speaker 04:
What's the difference then between actual self-defense and... Unreasonable self-defense is you could have seen a threat and it may have seen like a bigger threat than you imagine, but it's not... You thought you saw a gun and it turned out to be a knife or something like that.

[00:25:22] Speaker 04:
That would work.

[00:25:24] Speaker 04:
And under those circumstances, you don't need expert testimony on PTSD.

[00:25:29] Speaker 04:
And to the extent in this case, you know, the defense wanted to argue he thought that a cell phone was a gun.

[00:25:36] Speaker 04:
That is permissible, and that's also a common sense concept that a jury can understand.

[00:25:42] Speaker 04:
The PTSD is irrelevant to that.

[00:25:45] Speaker 04:
So that's why the expert testimony really was unimportant in this case.

[00:25:50] Speaker 04:
If it was going to go to some, I visualized things that weren't there, not allowed under California law, to the extent he wanted to argue that he was in a heightened state.

[00:26:00] Speaker 04:
And all these factors of evidence were before the jury, so they certainly could have explained why, and that therefore, you know, I thought this was a gun.

[00:26:08] Speaker 04:
I overreacted.

[00:26:09] Speaker 04:
Don't need expert testimony for that.

[00:26:11] Speaker 04:
That's common sense.

[00:26:12] Speaker 04:
That's defense that's presented, you know, typically in cases without expert testimony on PTSD.

[00:26:18] Speaker 04:
And lastly, I would just, as the court has already... No, I just want to make sure I understand your point.

[00:26:23] Speaker 00:
So what you're saying is that if Dr. Rothberg had testified that the defendant was essentially hallucinating as a result of PTSD and thought he saw a gun under California self-defense law, that would not constitute an imperfect self-defense.

[00:26:43] Speaker 04:
That would not, and I would cite the court to excerpts of record at page 69, where the California Court of Appeal quotes People versus Elmore, which again says that unreasonable self-defense was never intended to encompass reaction to threats that only exist in the defendant's mind.

[00:27:00] Speaker 04:
So I think to the extent, yes, if he was saying he was hallucinating because of PTSD, that's not a defense that would be available to him.

[00:27:07] Speaker 02:
Is that not some other kind of defense?

[00:27:09] Speaker 02:
It may not be imperfect self-defense, but is it not some other bucket of defenses one can raise?

[00:27:15] Speaker 04:
Well, in California, you can't set your own standard for self-defense and say, I was hallucinating this, and therefore I saw it.

[00:27:26] Speaker 04:
Whether it could be some other defense, other than self-defense, that's a good question I don't know.

[00:27:31] Speaker 04:
But that wasn't raised.

[00:27:34] Speaker 03:
Yes, that wasn't raised.

[00:27:35] Speaker 03:
No other defense.

[00:27:37] Speaker 03:
Just to be clear, was it only actual self-defense or was it?

[00:27:41] Speaker 04:
It was both actual defense and imperfect felt defense that were raised.

[00:27:44] Speaker 03:
But no other defenses were raised?

[00:27:47] Speaker 04:
Not that I'm aware of, no.

[00:27:51] Speaker 04:
So, and then, of course, as the court recognized, the rest of the evidence was extremely incriminating and inconsistent with self-defense, including that the defendant belonged to a gang that did not like African Americans.

[00:28:07] Speaker 04:
that he had a tattoo on him that said blood killer, meaning he wanted to kill African American gang members, that he was known for not wanting anybody to come on a street unannounced.

[00:28:19] Speaker 04:
And in this case, the victim was African American.

[00:28:22] Speaker 04:
He came onto a street unannounced.

[00:28:24] Speaker 04:
He shot him, and then he essentially bragged about it.

[00:28:27] Speaker 04:
He said, I caught that fool slipping, which means I caught him off guard, which is inconsistent with self-defense.

[00:28:33] Speaker 04:
If you're catching someone off guard, you're not shooting them in self-defense.

[00:28:37] Speaker 04:
And he also said he blasted that fool.

[00:28:39] Speaker 04:
And of course, he fled to Mexico.

[00:28:41] Speaker 04:
All these things are extremely incriminating and inconsistent with self-defense.

[00:28:47] Speaker 04:
So I think under Brecht as well, this claim clearly fails.

[00:28:51] Speaker 04:
Unless the court has any other questions, I will submit.

[00:28:54] Speaker 01:
okay thank you I want to address a few things so first I want to address the

[00:29:09] Speaker 01:
Now the jury explicitly rejected the gang enhancement as to the shooting.

[00:29:15] Speaker 01:
So there was a gang enhancement alleged, that argument was made.

[00:29:18] Speaker 01:
That this was part of him bolstering his gang.

[00:29:20] Speaker 01:
That was rejected.

[00:29:21] Speaker 01:
That gang enhancement was found, this was not a gang shooting.

[00:29:25] Speaker 01:
This was not done to bolster his gang.

[00:29:27] Speaker 01:
So the jury rejected that.

[00:29:29] Speaker 01:
Now I want to turn to the argument of Moses.

[00:29:34] Speaker 01:
Moses isn't as broad as Respondent makes it out to be.

[00:29:39] Speaker 01:
The central tension in Moses is that a defendant has the right to present relevant evidence on the one hand,

[00:29:45] Speaker 01:
and the state can have valid interest in excluding that evidence.

[00:29:50] Speaker 01:
And so Moses kind of, and it cites to Shephard, and it cites to Crane, and this line of evidence, this line of case law is that there are limits placed on the admission of relevant evidence.

[00:29:59] Speaker 01:
And it can be for, because states are allowed to set their own rules as to what kind of experts can be admitted and thus and such.

[00:30:05] Speaker 01:
But that analysis presupposes two things.

[00:30:08] Speaker 01:
It presupposes that the evidence is found to be relevant,

[00:30:11] Speaker 01:
and that there's a state interest that is being balanced against that relevance.

[00:30:15] Speaker 01:
So here, the evidence was excluded as irrelevant right off the bat.

[00:30:19] Speaker 01:
And so the whole inquiry was kind of cut off early when the court said, this is irrelevant.

[00:30:23] Speaker 01:
We're not going down that path.

[00:30:24] Speaker 00:
Well, it would be, would it not, if, as I characterized it, the testimony established to the defendant was hallucinating.

[00:30:34] Speaker 00:
I don't there was there was no mention of hallucination I don't think that's a fair characterization of what well I use the term hallucination which are I concede is a pejorative term but

[00:30:46] Speaker 00:
you know, the doctor wanted to use the term heightened, what is it, heightened awareness?

[00:30:53] Speaker 00:
Right, like heightened response time, heightened awareness, hypervigilance.

[00:30:55] Speaker 00:
But I mean, isn't that sort of a corollary to the defendant has sort of a clouded view of the events that are occurring because of his medical condition and therefore can't see the same thing that a normal person not suffering from PTSD would perceive at the time of the events in question?

[00:31:15] Speaker 01:
well i think this goes to the heart of what is uh... what is a perfect self-defense for it always imperfect self-defense essentially always involves some kind of misunderstanding right that they're wrong about something uh... and this isn't this is a hallucination i mean this is there's a car driving back and forth from his house it's dark there are other sort of suspicious circumstances not that would warrant shooting him but then in addition he thinks he sees a gun and he sees flashes and he thinks it's a muzzle flash and why is his brain making those quick

[00:31:44] Speaker 01:
Like, why is it making those jumps so quickly?

[00:31:46] Speaker 01:
Why does he think there's a gun where his own person might not?

[00:31:48] Speaker 01:
And so I think that's not a hallucination.

[00:31:51] Speaker 01:
That is like, it's a very small point where why is he seeing a gun where someone else might not?

[00:31:56] Speaker 01:
And that goes to the paranoia and hypervigilance of PTSD.

[00:31:59] Speaker 01:
And PTSD evidence is something that comes into trials all the time, right?

[00:32:03] Speaker 01:
I mean, this is not novel.

[00:32:05] Speaker 01:
This is not routinely excluded as a hallucination.

[00:32:08] Speaker 01:
It's kind of, this is normal evidence in California, it's normal evidence in federal courts.

[00:32:12] Speaker 01:
This is the kind of evidence that is relevant to this determination.

[00:32:17] Speaker 03:
Okay.

[00:32:18] Speaker 03:
Thank you.

[00:32:19] Speaker 03:
Thank you to both counsel for your arguments.

[00:32:21] Speaker 03:
The case is now submitted and that concludes our arguments for the day.

[00:32:25] Speaker 03:
All rise.

[00:32:40] Speaker 04:
This court for this session stands adjourned.