sustain those verdicts no rational trier of fact could have concluded beyond a reasonable doubt that there was proof that gonzalez was one of the people who fired a gun at the victims the verdicts were objectively unreasonable because found that he said probative value is not a question for the jury your honor yes but one also has to look at the testimony of the expert witness who describes the gunshot residue he told the jury as well that there was no way to say that gonzalez it handled a gun or even been in the area of a gun based on those two particles found on his right hand so that evidence simply was insufficient to conclude that he was the shooter and the expert witness for the government said trial if they're not married but you can't ok i think on any time and you have two things that i would say are difficult for you first it's under and second insufficiency of the evidence as and so when you discuss insufficiency of the evidence you can't just pick one witness you have to pick at you have to discuss everything that was in evidence and and clearly as a defense counsel this was a decent case to argue as a defense counsel but that being said when you talk about the insufficiency of evidence i think what the jury heard was evidence and solace and two other individuals were in a car in the area at the time of the shooting to consolidate was seated in the back seat of the car he was in saree several witnesses saw one person shooting from the back seat of the car and one witness saw a second person shooting from over the head before hand six a person in the back to the car in question was wearing a baseball cap seven there was a dispute at the party that may have been gang related and which can solace was mingled eight can solace exchanged words with man at the street before the shooting occurred nine someone asked anthony where he was from before shooting and ten in solace tested positive for gunshot residue during his interview with the detect that all that is there ok the jury heard all of that so when we discuss insufficiency of evidence you can argue that's insufficient and that's a reason someone could be found guilty but they found it was sufficient so how do you overcome that your honor because the theory upon which this jury returned its verdict was one which even the prosecutor said didn't hold water the jury returned verdicts finding that personally and intentionally fired the gun that cause great bodily injury to all three of the shooting victims and that exercise record to twenty one three to twenty three the prosecutor explicitly states we don't have that we don't have evidence that a gun even if mr gonzales fired the weapon and was the principal we don't have evidence that it was his gun that shot the victim's that doesn't mean but they get to stay they said we don't have they didn't say we don't have evidence of that enhancement did they  did it's in there it's still my head but not guilty on that he said specifically and as disc in the rec why do you dismiss it then he believed that the jury could have found that only a principle had to fire and that could be convicted based on aiding and abetting theory and so he told them explicitly and i agree with the court i don't think that instruction should have even be given been given given his concession but they did give the instruction and the jury convicted him of personally and intentionally causing those injuries which added seventy five years to his sentence he could have got eighty six life seventy five of that was based on a theory that the prosecutor himself said quote i can't point to any evidence of that he literally said that and if you look at those verdict forms which i included in the excerpts of record as well as a prosecutor statement it is a mystery how this jury could have concluded that there was evidence of that beyond a reasonable doubt the prosecutor's actual theory on that enhancement was that a principal fired call its cause the injuries not that he could prove that gonzales and self did that and yet they still convicted him well if you have but if you have gun shot residue that blows back on his it was on his night where or whatever or something i don't know what was it on there were two particles swab from his right hand twelve hours after the incident which as the expert explained could just as easily have come from the law enforcement environment he was in when he was the government and because it could have come from anything the tabletop ice quoted a study in my brief huge majority of of these particles are blown everywhere and come from a gun absolutely but the the problem with the g s r testing and all all it and the f b i has made the of these statements is that these particles go all over the place and when you're in a police station a police car which he was the likelihood of cross contamination is enormous they did a test with forty people and i believe it was something like twenty one of them who previously had no residue what they were put in a police car came out and tested positive for residue even though they hadn't handled a gun if the jury heard that the jury did not hear that but they heard wrist o's testimony where he carefully explained to them that just because these particles were there didn't mean that  fired a gun it could easily have come from contamination inadvertent they rejected that i guess i'm sorry and they rejected that the jury rejected they rejected that but for reasons that are in explicable which meets the at his standard when the prosecutor is telling the jury we don't have that i can't point to any evidence that this person's gun shot fired and hurt those people it is inexplicable that a jury would nevertheless return a verdict of true on that exact unhandsome and it is people were surprised is that they were there after twelve hours that's correct very unusual probably with the basic case you know with that can you take one of those little part of both of to an expert to say that particle came from a particular done or shell they're looking for the presence of certain elem well there's a risk there's a long there's residue in those shell casings we know that so i'm just asking that whether anything like that was there was no testing that appears in the record trying to tie the residue from mr gonzales his hand to any othe no weapons or any bullets or things like that were found at his house nothing is nothing of his so i went there right away after after he was the rest of the mother let them and yes they went through the whole home and indeterminate term which means that it is a potential to life and as i said the seventy five years is twenty five and handsome it's based on directly and personally causing those great bodily injury which the prosecutor to trial there's really not evidence to support that he only had a theory that someone in the car had caused the injuries and admitted he couldn't prove that it was going solid if those those findings of personal responsibility for the injuries had not been entered or found true his sentence would have been considerably shorter and understanding the court's point that you know the jury is entitled to weigh the evidence and resolve conflicting inference is when you have the government's own representative saying we just don't have evidence of this particular element here and i admit that that's an objective leon reasonable effort it for the interests of the other people i'm sorry there was three thereby your honor the prosecutor's remarks that i'm quoting address address that directly it's at excerpts of record two twenty one to two twenty three he says we do not have evidence that say that this whole came from a forty caliber or this injury came from a thirty two we don't have that so we know that that evidence just wasn't there they did not have evidence tying wounds or injuries or entries to a particular type of weapon on the evidence the defendant didn't testify at trial correct he did not in for a reason no your honor i have the reason i pointed out the sentencing consequences because it's the verdicts that are unreasonable which is what we're challenging is being supported by insufficient evidence there was simply no evidence that mr gonzales fired the weapon that proximately it caused those injuries to those people and so the fact that he was found responsible that there were true findings entered as to his personal arming intentionally shooting and injuring those people i am merely pointing out that the consequences to him of those findings with no evidence behind them was severe with you're not arguing instructional error is their right no your hon i merely point to the instructions and to the verdicts to show the court that there was no evidence to support this element and we have the government's admission that there was no evidence well identified the people who were in the black automobile no your honor it to initially said that it was actually not mr gonzales and then equivocated and said well i really didn't see the face but they gave a partial description they said that they are hispanic or latino and so we know they saw the face to some degree too said not him initially then equivocated and said i didn't really see the face very well the other said i didn't see them can't identify  a half thing right there was a mention of a hat again that was equivocal witness saying i don't know if it was four words i don't know if it was backwards asked a leading question was it a baseball hat well yeah maybe he couldn't say for sure and no one said yeah that's the hat that mr gonzalez was wearing knapp but it looked like nobody said that there were a lot of people at this party described as being about one hundred people all leaving at about the same time the prosecutors argument cars driving on the street at that time when the shots were fired so it just doesn't identify him it's not an identifying fact well arguably when he was his mother was on the phone saying but others said you've been a good boy and words to that effect it's never been a problem and  he said he was in a red cadillac and the new volunteer to take the detective and show him where the people lived who had  the person liberal had the red cadillac all right didn't i didn't see that statement in the in the transcript i don't believe there was an investigation that he gave the names of the other people in the red car and offered to show the detective where they live videotape which is what was lost in the district court it's a transcript but what it shows as well is that mr gonzales was pressured severely not only by the false statement that somebody had died but also repeatedly being told by the officer that they knew that he did and that his only way to help himself was to tell them that he did or that someone else did and so his statement and this  seventeen year old kid over there yes your honor i mean we asked the court to take those circumstances in a consideration and you know it's argued in the briefs certainly he never gave a statement that could be reasonably construed as a confession and never he said to the police and to his mother that he didn't do it and so that's what we can take from that tape he denied it he said that he did not believe he didn't want t sure you don't have to kill just to clarify in my mind that yes if sr were more than one bullet more than one guy that it doesn't have to be he only has to personally fire a firearm in that assault it doesn't have to be that has full what has to hit those individuals for the twelve of twenty two point five three d unhandsome it which the true finding was found on and i submit that the bullet key fires has to actually cause the injury there were three alternatives one of them was the one your honor just articulated which is that he just intentionally fired at the victims but there was a more specific enhancement which required the proof that his bullet actually caused those injuries which is the one i'm referring to the prosecutor statements about that required specifically that his bullet caused the injury that's where three twenty five year stack consecutive sentences came from with those true findings as to those three victims on that and there was simply no evidence of that in the prosecutor admitting that certainly the lesser enhanced ment's which were charged very unfavorable to the prosecution but applying that at the stand to hear a fair minded jurist could reasonably agree with the state courts that petitioner was one of the shooters in the car based on in part five pieces of  five facts here first of all witnesses described a young hispanic male shooting at them while wearing a baseball cap from the back seat of a black cadillac second petitioner admitted to that they were all white they all hispanic males that were at the party your honor the record doesn't add up that they were all hispanic males there's no doubt that the victims and the victim's friends  seem to be of hispanic origin you know and a lot more perhaps what again that is not in the record but that may very well be the case but that is not all of course your honor in this case the petition admitting to the police that he was wearing a pittsburgh baseball cap while sitting alone in the back seat of a cadillac this and i used to wear a pittsburgh baseball cap you know because when they were in the world and my wife goes to pierce college so i had that he and i've even had people stop me open or go and they thought that i was in the baseball percent certain you would however however have not been considered a suspect in this case had you been at that party because again that gives me great comfort to know i am curious exactly what the evidence is on the sufficiency there and and also to if you can after you i think you are going to make five points or whatever but after you do that also respond to a talent's council's argument that the prosecutor said there was no evidence of the the personal lives yes ron or the twenty five year hands that's so first to continue with the five pieces of the five pillars i suppose of evidence here that the third is that the witnesses in this case described being hit up or asked for their gang affiliation from the rear passenger of that cadillac shortly before the shooting and then fourth petitioner in this case had needed to the police that he was a member of the playboys criminal street gangs and that he had been confronted by a rival l a gangs shortly before the shootings took place and then fifth there was the gunshot residue which this court has already discussed  surprised you know on him but if you read that opinion well you know court of appeals do that all the time when the supreme court takes one of my cases it comes back to me it's not the same case  you know they rewrite the facts of the time but when i read that i couldn't believe it because it was nothing there just two little particles and your honor the jury could have concluded that those two particles came from a table and from the police department they could have also concluded that it came from a person who shot a thirty two caliber weapon and had significant residue put on a person such that even twelve hours later after washing their hands but they could have you could have taken those particles and match them with the particle in that thirty two  casing your honor those particles are still in that shell casing your honor my experience with science is largely limited to the social sciences and i agree with opposing counsel that i am not aware of any but again applying the the double decker of deference that is required in this case of the correct phrase is double dose cases may well ok still in terms of the question that i have used in terms of their not claiming instructional er so the jury was so i taking that to the jury was properly instructed as to what the elements of the enhancement were in the room and but what i'm hearing appellants counsel argue was saying that even though the prosecutor didn't dismiss those charges cept i have no evidence of that so how i completely and respectfully disagree with my opposing counsel assessment of what the prosecutor said but as a prosecutor say from your perspective what the prosecutor said was that if the jury did not find that he was in a gang and that he didn't shoot that in that situation it would be problematic for them to find  the multiple gun and handsomest in this case true but the statement we don't know which bullet shot whom and i'm paraphrasing here of course that was not the equivalent of saying we have no evidence attempted to shoot these three individuals there is is no doubt that the jury in this case found that petitioner was a principal he was a shooter he shot at the three individuals well i heard coun that his full it's had to hit but if it's an attempted murder you don't even have to hit someone to be guilty of attempted murder that is correct and i mean you have to try to help them that is correct and in california he can be guilty of attempted murder simply by being an firearm enhancements in this case one of them does require that he be the principal and that he be the person who shot the gun during the commission of the attempted murder but again that does not require that he actually fired a gun in where the bullet went into all three of the victims that is absolutely not required in this particular case because it's attempted murder it has to be tested yes if it were murder standard of proof either have to trial or at this juncture the jury found that he was the shooter who attempted to murder the three individuals in this particular case so the only question before this court is whether the  evidence at trial was so absent if you will that a judgment of acquittal was required that is the adverse standard that we are applying here we have no doubt of course as your honour's had alluded to before the magistrate judge made some sort of a statement acknowledging that the evidence in this case was not overwhelming but on the other hand still sufficient it doesn't have to be overwhelming it can be on the thin end if you will of the spectrum so long as it meets the level of sufficiency required in this particular case even know the other individuals unfortunately who were in the car in this particular occasion but the jury could have easily concluded that petitioner had intended to shoot and did shoot all three of the individuals if you look at all the evidence in the light most favorable to the judgment shortly before the shooting took place he said to the police that he was confronted by this l a gang they you know hit them up but not they had some sort of a verbal kerflop hole and then afterwards this shooting took place it certainly suggests that he had the motive to enhance his own reputation within the gang and so the shooting in this case it is easy to conclude that the multiple shooters were working in concert because as the gang expert testified gang members usually hang out together and they're going to do these types of shootings together to convey we don't know the size of that point event three which could tell you what the caliber of your honor's my best recollection is that there was at least one thirty two or forty  caliber weapon that was found last in one of the victims bodies i apologize that i can't be more precise than that at the moment if that if the jury believes that he was in fact in the car then the jury could also believe that he knows who else was in the car and if other people were at the shooters as well that he would know that right absolutely your honor that there is every reason for the jury to not have taken the petitioner's denials seriously he said to the officer i can't tell you the truth he said i can't snitch on no one repeatedly suggesting at the very least that he knew the individuals who engaged in the shooting if it was not that's what that's the code of silence right yes yes and that's not limited to gang member no but i think that the gang expert properly testified that it is certainly a much stronger now i think that but you can bet but the jury is instructed you can believe or disbelieve what the experts say so that's part of the body of evidence that they have to consider and deciding reaching their verdict and one final thing george prager said you had asked opposing counsel with regard to what he said as to helping the police to identify the source of that so called red  cadillac my recollection of the record is certainly that at no point did he offer any names of the individuals who were in there when he said that he was in a red cadillac at no point did he attempt to help the police  to help them locate this so called you know bullet ridden red cadillac that would help corroborate his story that was not in the record what he said was bull at some points and again going to first yes then later on in that same interview though when the officers asked him were you shot at he said probably when asked whether the vehicle had holes he said probably  who happens all the time unless your honour's have any further questions we submit on the briefs and thank you for one of us to handcuff record of them the source of little purple they could have your honor there was an absolutely nothing in the record suggesting that an officer had ever touched his handcuffs or that they had been transmitted in that way that would be well there's like speculation handcuffs go and a lot of the do but but the jury was free to conclude that that was not how the gunshot residue was transmitted in this case there is no doubt that the source of the residue could have come from multiple sources and we do not suggest that we know for certainty that the residue here stems from a gun however in light of all the other f and and no one no one no witness identified the people in that black  what they saw were hispanic males because and they did they didn't take any waiver of their constitutional rights they did properly mirandize well it was kind of  providing the video to the court neither my person counsel nor i have seen it however we had it sent directly from the san bernardino county d a s office and as you might imagine they've been a little busy during the last couple days and they haven't been able to send either of us demeanor which of course the jury was decided was allowed to assess but his own admission that he was in the back seat of a cadillac wearing a baseball cap he was alone in the back seat  favorable to the judgment there is no doubt that a reasonable juror could conclude that he was the shooter unless your honour's have any further questions we submit i thank you for your time thank you specific unhandsome and i'm referring to that added three terms of twenty five years he said excerpts of record two twenty one did he discharge causing the great bodily injury to each individual well i can point to any evidence that says the gun in this defend its hand is the one that caused the bullet injuries on those victims i can't do that that's not their bullet through and through the hole in this guy's leg that's a thirty two or forty we don't have that but what we do have is he says the fourteen zero two and he argues an alternative theory that the jury could find that a principle i've had in mind if you don't even have to hit someone on an attempted murder you just you don't does your honor is correct of the attempted murder no nobody benefited by that's what he was convicted of attempted murder with these allegations which added an enormous amount to a sentence and the reason i pointed to this in my brief and why i'm returning to it now is because the case law says that when there is a sufficiency of the evidence challenge that the court must review the verdict actually returned by the jury not alternate possible theories here the jury returned a verdict that was objective le enhancement i'm sorry i read me the enhancement the enhancement is in the excerpts of record i don't have it in my in front of me right now but i know the elements which it requires that he intentionally shoot at the victim and could caused the great bodily injury of the victim those are the elements and the jury was given specific verdict forms which are in your excerpts of record where they found true that he my client had done that caused the injuries after intentionally firing the gun the prosecutor admitted in these pages a transcript i just read they had no evidence of that he was actually trying to argue an alternate theory that a principal an unspecified person had caused those injuries had directly caused the injury but that wasn't the verdict the jury returned inexplicably they found there was sufficient evidence to identify mr gonzalez as the specific shooter who caused the injuries when in fact there was absolutely no evidence of that even under the government's theory of the case so as i argued in the brief mitchell versus pretty one of these one of the court's precedents addresses the idea that the court should not affirm conviction based on a theory that has no factual support if that's the scary that the jury used to convict him and here one can speculate about all kinds of possibilities because there just wasn't evidence about what actually happened but this jury  objective leon reasonable factual finding based on evidence that simply was not there and i would urge the court to look at the excerpts the statute the government's argument because we can see from that that this isn't a  the government and the defense closing arguments where you can see what was discussed and that it was absolutely a verdict that was not supported by the evidence presented