regarding the weapon charge but i'm going to focus my argument today subject to the court's questions i'm going to focus on the britten error and specifically the harmless harmless error of the prejudice aspect of that argument so turning to the prejudice piece of the issue by all it wasn't but i'm asking if that matters it does matter and i think for two important reasons one is that the prosecutor in the case specifically argued that or essentially conceded arguing that it was it was a br and we have to find a federal constitutional there and do we do you have any case law for the proposition that we apply some form of way or to the government i mean it's really an argument a by the government both conceded point below and i think that both the doctor in a low that's the problem that wasn't below it was in the just state court say court is below in the original proceedings i should say and so it is essentially that that the california courts have any support for that proposition the support your honor is turning to the doctrines i think of judicial stoppel and of waiver but stop all requires that they have gotten some advantage from this one advantage to get the advantage disadvantage shouldn't get an advantage the advantage it was obtained was that throughout the trial in the argument to the original trial court and throughout the trial the prosecutor argued and frankly claimed to the jury that it was a testimonial statement by the codefendant and argued that to that to the trial court in order to obtain admission of the will itself and argued that point to the jury very forcefully in in supporting the persuasive value of the evidence which i think there is no just well it testimonial in the sense of crawford though was it was in the sense of crawford that it was prepared in anticipation of testimony or for some kind of law enforcement or court use well your honor i think under this court's precedent in terms of the testimonial question that the case that i cited to actually is very useful on this point to your point about testimonial that was the case in which the the evidence at issue was a statement given to the d m v and the  it to the d m v but in this case it wasn't submitted to a government agency and moreover it wasn't part of an investigation by any government agency well i think the important facts your honor in addition to it having been a submitted to the to the government agency was it wasn't solicited by the government it was it was simply prepared by the seller of the car in the same way i think analogous to this case that the wheel was written by someone after the investigation had already be distinction that in a spars way you're talking about preparing something for a government agency everyone knew that was the purpose of that here this was prepared as an interior agency memo for a gang there was never any anticipation that it was going to be used for the government for an investigation so i'd like you to address how would it meet crawford even if i think that we have to apply across her how would the that was prepared by a gang member meant to be sent to another gang member how is that prepared in anticipation of testimony so your honor turning again back to the to the point that the investigation had been concluded i mean had it been initiated the immediately after the assault in this case it was investigated evidence was collected from the gang members clothing was taken the quarters were evaluated investigated search for weapon was conducted and so the i guess i would make under it being testimonial is that even though it wasn't solicited by the government concede that point it certainly was not it was prepared by an a proport a gang member neither was the statement in a spars a solicited by the government and so the point i think that the most analogous  taste so so that's that's the where i would say that a testimonial in addition to the fact that the government in the original state court proceedings argued very persuasively and consistently that it would have been a brute an error to admit it because it was a testimonial statement by bryant that was all adjudicated in two thousand and six the trial in this case didn't happen until two thousand and seven the appellate proceedings to place in two thousand and nine that doctrine was very well established and again i would turn back to the point that none of the arguments were raised in the to utilize the statement that there would have been no error if i'm sorry that the question is if under if you conclude that it was not testimonial as as defined under cross for then i think testimonial versus non testimonial so yes i would i would concede that point if you find that as a legal matter overcoming both judicial a stopper stoppel and waiver in this case which i think there are very strong factual bases to exercise this court three with respect to the possession of the weapon you know our argument is that no rational jury could have found absent to wheel evidence that there was a possession of a shank that under california law which applies in terms of the constructive possession doctrine there or something like that is that construction position and others and the brief reads is this if there was some agreement that this shank would be used among the three or four of them then that was constructive possession is it constructive possession or california law requires knowing control it's a control question and so it and its control over the particular use of the shank it enough that that that a bunch of people get together and agree that somebody is going to use a so there's a difference between a constructive position that says i can take this shank and use it and it's in my constructor position even though i don't have a net right question so the way that this is treated as i read the california cases and having the gated issues similar to this again it really focuses on control and it's not so much the theoretical question about a group agreeing it's automobile then the then courts have found that they're exercising control over whatever that object is but here again the evidence is so thin because it really the only evidence of this is this inferential evidence about the nature of the injuries and then the one statement in the wheel itself about about it being flushed the the shank essentially being flushed and so there's no evidence to make that logical leap of a dominion or control over something that there was such flimsy evidence even existed that answers your question the expert testimony that it was a policy of the getting to keep weapons at the ready and that they would have known that often are fatal if they involve quote unquote degenerate acts again it was all tied to itself and and so the argument is argue our position is that that's not enough to prove the element of dominion or control over the object itself that that is highly disputed ever existed so all i can i know i've gone over  want the first california authority that i'm specifically aware of california as opposed to federal court that specifically tied crawford to britain would have been in two thousand and eleven well confrontation clause understanding and i've heard some constitution well no i mean we all follow the constitution your honor well excuse me there is a state constitution and there are many instances in which the state constitution is different and i'm asking you whether it could be true and it's additions oh what protectively i'm not aware of any difference between the state and federal confrontation clauses with regard to this all right well go ahead i mean this is a thing because this document kind of reads like a it's sort of this testimonial it's just within the gang rather than to the government i mean it was a testimony given to the gang members right for their own internal governance purpose as a substitute for in in quote is kind of was but within was in the gang rather than in in the larger society right within the gang that has nothing to do with whether it was  document and if it had been a routine administrative document it may very well not have come in or crawford however the circumstances in aspies are quite different because they personally prepared this form of the the puncture and nobody ever said it was necessarily and it was very superficial and then carney just scabbed over and we know that he was hit in the chest so i don't know why why necessarily has anything to do with as a shank but moreover if one person this is what i was asking for if one person has a shack why does that mean then another person has a i understand he could have had control over it but why does that give rise to the notion that he did have control over i think first of all with regard to the injuries it's not just the puncture marks we also have the slice marks well take excuse me but skip the injuries it has nothing to do with whether or not this person had knowledge and intent to possess that weapon he has to have it doesn't or he does what proof was there that he did we have the gang experts testimony that first this weapon that was used at that time what proof is there what would be the proof again first of all they were all involved in the removal that's clear from the circumstances where they invite invite him to this card game and this is why i'm trying to understand what constructive possession means if one person has a shank and they all get together and they say we're going to have this attack and he says and the guy says well look this is my shank and i will use my shank but i'm not letting anybody else use my shank but i'll use my shack to the other people have th had constructive possession of his shank constructive possession of his shack all being members are supposed to have access to weapons that's different but that's a different weapon and there is supposed to have a weapon he didn't have more but there's no evidence that he did so we're not talking about some other weapon that he may have had control that he may have had possession of that's his weapon and that theory you could arrest any gang member anywhere for having a weapon because they're supposed to have a weapon we have no evidence of that that weapon the one that was his weapon well we're we're sort of using that analysis we're picking evidence part with if we put that's what does when one tries to figure out what whether there's evidence of something right but another another question would be are you saying that the only evidence that was in the record regarding any knowledge or intent to use a shame would have been the expert testimony that gang members in general would keep weapons is that what you're saying was the only evidence that mr le ciro had knowledge and intent and the ability to have access and control of this shank is that the only evidence i disagree with your honor simply because i mean asking you is that the only evidence is there not only evidence if that's not the only evidence what other evidence is there no and the answer is we have the this is what i'm trying to understand constructive it is constructive possession if one per if they get together and they agree that one person is going to use that persons  and that that's your position i don't know if it's right or wrong because no one's really told me what constructor position is under california law but that that's your understand it doesn't matter whether this whether alou sero himself had any authority to either use the shank or to tell the other guy how do you use the shack as long as the other guy was using it as part of a joint attack well no i might assume california laws that there has to be meet in and betting that you think you have been convicted of aiding and abetting the constructive possession of a possession of fish and i would think so well even so he has to have intent and knowledge to exercise dominion and control over the weapon and i've asked you before if there's anything other than the expert testimony you said it was the coordinated nature of the attack but that goes to an attempt to attack it doesn't go to an attempt or an intention to possess a weapon what evidence do you have that this defendant had the intention and the knowledge to possess a weapon it would be the nature of the attack plus the expert testimony very briefly on the first point i'd just like to point the court to two areas in the briefing that i think will be helpful with respect to the testimonial if you in the opening brief at page thirty two i cite the prosecutor's language in it to the jury where the prosecutor said being characterized it as a quote unquote first person narrative by local has which was an admission by him quote unquote i i did this that's how the prosecutor characterize truth of my understanding is that if  after the you know after a murder somebody goes to their girlfriend and says i did this and tells them in great detail what happened that is not testimony under the the law as i understand it your honor it depends again as we discuss the circumstances so for example there are the cases i think it's the davis case where there is a domestic abuse situation and it's an interview right by officers in that situation the question is the husband and wife are doesn't i think it goes back into the point below that this everyone agreed and the prosecutor strongly characterized it again as a first person narrative as a quote unquote testimonial admission by the codefendant and i think that that the question is whether or not it was testimonial at the time it was made at the i was made not the time it's later offered in trial of course when it's offered in trial it has a testimonial purpose to it that this is whether the party who made the statement and the other party is  making to that that was part of the anticipated testimony or not and again that the closest analogy i have is that as far as a case where the investigation had already been initiated just as this case the statement was made