cannot be done you have to have the person testify cannot introduce testimonial evidence and the court made it clear the testimonial evidence if any evidence by the claimant that objectively would be seen as possibly being used at a future trial and of think i don't want to talk about it this is certainly not an element of a crime in california law it's extremely clearly delineated that there are crimes that have elements and in california since we bend over backwards to have due process there are certain sentencing and handsomest that have always been given to a jury but there's never been any doubt in california law never any doubt at all that these are sentencing factors that only arise after substantive criminal charges and charged and proven to a jury sense of justice fryer and then blakely justice pryor is criticizing the majority opinion at for all the three topics that it doesn't determine and one of the things he states is are the numerous cases of this court holding that a sentencing judge may consider virtually any reliable information still good law when juries not judges are required to determine the matter he's putting his finger exactly on this point that the supreme court has never determined that point nor under williams previously prior to blakeley judges could consider any reliable here cite after blakeley judges don't do that anymore juries do that but likely did not talk and in the sums before justice breyer specifically refers to crawford and says it is crawford implied that implicated here is a confrontation clause issues implicated here it is not it was not admitted for the truth of the matter i think the evidence we're talking about which is the admission by william and by tyson that they were gang members pichon or never was never admitted that he was a gang member but the admissions by william and by tyson that they were gang members was part of the expert's opinion of why and this was the element the element was this crime was committed for the benefit of the gang the gang members being gang william and tyson being gang members those weren't elements that was just information used by the expert for the actual element which which opinion the way the acts were tied petitioner to the gang or just so that he was helping out the gang certainly because william and tyson were gang members that was necessary to his opinion and obviously robbery is a very complicated very unusual thing and you don't just pick some guy up off the street and go in and take over a round table pizza and risk the cops coming with guns blazing stay in that and that restaurant for twenty minutes unless you have real trust with your cohorts on i can't i seldom seen a prior that was more admissible on more different grounds it certainly was not admitted on identity the jury was specifically instructed it was not instruct him it on identity was admitted for i intend or for comm and plan it could have come in for identity with the count to three hundred before you leave a bunch of guys around table pizza within a week or so taking it over i think that would be easy to say that it could come in for identity but it didn't can if i don't for intent for counsel to continually say that there was no issue of intent it was only an identity case particular got up and said i was at the back door of this roundtable pizza just before i got robbed but i knew nothing about it even though i was at the back door this roundtable pizza closing time with one of their guys they they went in and they took it over they robbed it and then the way out they said count to three hundred and oh what a coincidence four days previously i was at the back door of a round table pizza parlor around closing time when three guys route took it over robbed it and you all as they went out count to three hundred before you call the police that shows when he was at the back door of this roundtable pizza the charge crime it's not an identity issue  intending by going to the back door of that roundtable pizza restaurant common sense tells you that somebody else might have done the right back or right before you got robbed and say i had nothing to do with it but not him because the last time he was at the back our roundtable theistic restaurant if somebody had this can't have this scheme four days before and he showed up at the back door of a round table pizza restaurant right before he got robbed he's there to carry out the scheme again it shows his intent it couldn't be more it just couldn't be more admissible and no probative value whatsoever because when the kid stab somebody and they went in and searched his apartment they found a knife no connection with the crime clearly wasn't even the crime weapon no program value whatsoever that's different from