content prong because i think that's the easiest basis on which to decide this case you have to prove the specific intent element the prosecution was supposed to present enough evidence so that a rational juror could conclude that mickey's committed the two thousand one robbery with the specific intent to promote further or assist in criminal conduct by gang members there is just not a shred of evidence of that in this record there was evidence that committed the robbery alone and there is evidence that mickey's was a member of a gang but under binding support california supreme court precedent that's clearly not enough to bring this robbery within the gang hence so i think the only real dispute in this case is whether the gang officers opinion testimony makes any difference on that sort and at least so as far as the specific temperament goes it clearly doesn't because the gang off the beaten purport to give an opinion on that element so the record couldn't possibly be more bereft of evidence and it's just a total failure of anything that even resembles proof so i think for that for those may please the court daniel roger step to tourney general for the warden your honor in this case your honor so in this case there were certain facts related to the robbery outside jennie's restaurant that might appear to the lay observer not to be gang related until explained by the gang expert those include the fact that it without without the gang expert we would not have been able to prove the gang allegation i think that is corrected those facts include who committed the robbery in this case seventeen the expert says i want people to know you're the ones that run that area and you don't want to mess with p m t you know because we're the ones that are in charge of this area this is our turf  we have the type of crime this is an armed robbery the experts testify is that this is a primary activity the paris mars paris tomorrow via the p m t gang given all of that the expert explains that the material you have the increase in fear and respect in the community that is produced by committing armed robberies in gang territory and you also have the material proceeds of the robbery with material proceeds went shared with the gang we have no evidence of that doing well we have the experts testimony that and i would  refer the court to excerpts of record one seventeen first of all to to more directly answer question we have no direct evidence that we have an inference from the experts testimony that and i'm quoting here he's going to share those things with other members of the gang but that's just general testimony about what gang members generally do so let me ask you this hypothetical question if we assume that someone in mr mchugh says position wanted to commit in armed robbery in that area totally for his own benefit and without any intent to benefit the gang without any desire to tell the gang what he was doing without any desire to share the proceeds of the robbery with the gang what would the facts of that case look like and how would they be different from the facts of this case but i think in one sense mr m likely to go to the courts hypothetical make some effort to disguise his identity he made no effort to disguise himself in this case p m t is the largest gang in the area the people that live in this community know about the game bait i mean that's the whole point of the respective shoe he made no and now i will admit that the record contains no evidence that he used gang signs or anything of that to conceal the fact that the gang was involved and that he was involved with the gang from the deputy brewers testimony it's clear that you're putting a burden on the defendant theorem and the way i read the california supreme court's decision in people versus not every crime committed by gang members is related to a gang and i asked what is the evidence that this crime was related to a gang when you tell me it was committed by a gang member in gang territory and it's the type of crime that sometimes gang members commit now we know that this man committed other crimes earlier for the gang in the presence and with other gang members but this particular two thousand and one i asked myself where's the evidence that it's not a solo adventure and i guess other than your saying well he made no attempt to disguise his identity there's no other evidence that would support a conclusion that it wasn't a solo adventure my how my looking at it incorrectly well your honor i'd make two points in response to that question first of all if i could go back to the the hypothetical of what a solo adventure would look like more than just disguising his identity he could also commit the crime outside of gang territory  commit commit an offense in pasadena for instance where p s v has no presence so there it is conceivable that a defendant can commit a crime outside of the gang not for the purpose of benefiting the gang i think addle are makes that clear as does the court's hypothetical but to go to the the last question that the court asked i would say that there is an inference that can be that a reasonable jury could be drawn and again this is a jackson case under twenty two from so well so usually in the gang expert testimony you get all these generalized opinions about this is the gang territory hears who controls the territory they usually commit these sort of crimes respect is a big deal but the but that generalize gang expert testimony is usually tethered to something in the way that the nature of the crime was committed itself and there's an absence of that in the record here so it's almost as if the expert is saying well he's a gang member and that's the only link despite the fact that nobody knew none of the victims knew that he was a gang member he wasn't wearing gang clothing he didn't flash bangs signs nothing ties the expert testimony to the crime itself other than his opinion that he's a gang member so in all likelihood he would have discussed it with the gang it must be for the benefit of the game where is that connection that nexus that usually pre even on the jackson standard well your honor i don't think that the california courts ever be choir to any specific type of evidence so i don't know that i can point the court to do anything additional facts that i've not already mentioned the on his membership the location the type of crime i don't think the california courts have ever required direct evidence in the sense of of you know gang holding the intent to gang signs that sort of thing i think there is an inference can can be drawn i think that another court might reasonably conclude that those inferences are are so we can offer not to satisfy the jackson standard but that doesn't result in relief under twenty two fifty four in this case because again i think the jury could take the the facts sparse as they are and with the experts testimony that this is what those things mean with  that's anough to satisfy the jackson standard wouldn't satisfy every court hearing these these facts in the first instance maybe not satisfy every jury in the first instance maybe not but it's enough to satisfy the jackson was the subject of the twenty eight jail letter found by counsel where it gang member went outside of gang territory and committed a violent offense at a party  in that case i think that case is the hypothetical that your honor was asking about earlier here again we have not just a gang member but a gang member committing one of the primary types of crimes this gang commits in gang territory i think again it is enough to satisfy the jackson standard so if that's what the take the stand then said every single gang member who commits a crime within this geographical area therefore must be committing it for the purposes that the gang with that be too speculative or would that be sufficient to support the conviction that would likely be too broad again  well it's the what's different about that in this particular case isn't that tantamount to what this particular expert is saying this particular expert to get particular types of credit in your honour's hypothetical any crime there's no there's evidence from deputy brewer that specific types of crimes are committed by the gang this isn't the situation where the a gang allegation was made as to a dui charge or something where there is absolutely no evidence that the gangs involved in that kind of himself that he stayed within the gang territory and that he intended to commit an armed bank robbery why isn't that sufficient especially under a doubly differential standard to be circumstantial evidence of specific intent was so that first there's no evidence that robbers can see systematically conceal themselves and i can tell you from personal experience that they frequently don't and i just try to bank robbery case were put on a surgical mask big sunglasses and a baseball it happens it happens around believe and i don't recall your honor sorry but i'll say about it about territory territories makeweight because you know if it's in territory that the experts will testify well that shows that he was relying on the gangs control of the territory if they if the if the if the crime was committed outside territory or rival territory the expert will say that well that shows the gang is trying to expand its operations and i'm not exaggerating for people versus franklin is one such  case so i just i don't think territory gets you anywhere and it certainly it might speak to the first element in some cases particularly where there's a gang rivalries involved right that's when territory becomes relevant i don't i've read the fifty or fifty five or so published cases dealing with the sufficiency of substance the substantive prongs of the game has been i don't think i've ever seen a case i'm sure that i've ever seen a case where territory made the difference except where there was a gang rivalry and it was a dispute you know the crime arose out of a dispute over territory the spoils testimony was you know the idea the idea that he was going to share the was an inference it was just speculation it was in the language of speculation right so i mean i could go on but i