yours michael drake for ron johnson let's start with his jackson claim which i think is much more straightforward than i realized when i wrote the briefing he didn't commit the robberies in association with game because he wasn't a member of the gang and because there's no evidence that the gang knew anything about him or knew anything about these robberies and he didn't commit the robberies for the benefit of the gang because even if you give the gang officer testified his generic promise that violent crimes by gang members benefit the gang by making the community fair there's just no evidence that the community was ever going to learn that these robberies had anything to do with any gang the tattoos were never seen so that's not just the tattoos that they were they were in they were in the gangs territory right well it was it was broad daylight it was a fairly brazen robbery right well robberies are often brazen but that's there's no connection between that cases involve crimes that were committed within gang territory and it's just not an important factor i think not an important fact no i mean it can be in cases where there are there is a me that if you weren't in gang territory that would be a really important factor if you weren't well yeah well there's always a r even probable that given the way the california courts of appeals are just signing these cases now most of the courts of appeals would have found that there was that this was not sufficient that we haven't had that problem so i think  right well i think that double deference triple deference there's no way to make this evidence work because anything times zero is zero i mean there is nothing here and i mean just to go back to territory territory can be an important factor in some cases and is important and it's when there is some indication that there's again rivalries and so there's territorial disputes that sort of thing that's when territory becomes important there's not a single case that i'm aware of and i don't think the warden cited a single case where the territory was a you know was  it dismissed all of the negative evidence that would usually be dispositive in a california case the lack of gang signs being symbols of shouting gay names and so on the lack of i mean the lack of anything that would indicate that there was anything gang related about this other than the gang again right right it has to be association with fellow gallus religious say so presumably we could say that that's just doesn't but you see the other problem here is that we're joe the state statute right so we have to be able to correct errors that california's declined to correct indeed your honor i mean i think the question is whether there's any convincing evidence that whether the california supreme court if it had had heard this had heard this case and considered it more than just the california court of appeal one of two several things one was the tattoos even though they weren't seen by the victims the fact was that the tattoos were invisible places they said on the hands and on the faces membership and they pointed out that it was there was indeed in gang territory now those are the things the california court of appeal thought significant enough to qualify under california law so what in california law would tell us that this is so wildly wrong that forgets the fact that they he's not in the game so if he has tattoos from a different gang right because they're quite clear about the fact that the gang that's being benefited is the project watch scripts right so if he's walking around with right so but but i mean it's like cases in the briefing i think it's all show i'm not sure and i think there might be one of the case i sat where they they say the touch the fact that tattoos are visible even if they were gang tattoos weren't gang tattoos wouldn't be enough the word cuz doesn't tell us anything that we didn't know we don't we don't the victim the victim thought he was saying it to the victim so here's so here's the problem the arguments that you've made are really good arguments they're good arguments it should be made to it to a jury should have been made to the trial judge they should make the court appeal should made t california supreme court the one court that took two of those three courts have looked at that and said this is sufficient to satisfy california's standard how do we correct that he corrected by i about about the sufficiency of evidence sure and it's a standard about what it's and it's not a no evidence standard but how does not contradict a california court interpret in california law on when it says this is sufficient under california law  merits punishment and how do we come back and say oh no it's not well so that i mean it's the bottom line is it we are and we're not interpreting california law when we say that this argument is not sufficient bring the conduct right steve actress's hardison six five eight f third eight ninety eight nine o seven that's ninth circuit two thousand and eleven and basically it says that part of deciding whether the procedural rule is adequate is deciding whether it's been properly applied in this case also done ok thank you they knew each other when they would do crimes together but not why they would do quite as together for the for the benefit of somebody else's gang well i think the way i think the way that the crime was committed kind of sheds light on that because this was committed on project what project wants territory and  project what's going on over and as judged by he said if this was in broad daylight in a committed and very brazen as was nine o'clock in the morning in the residential area where there's presumably there are people walking around people in the neighborhood who can see them it was with a member of the same gang and are member of a different again i mean it's one thing to infer that when two people who are is there any case in which was inferred from the fact that it was a member of a gang that he was not a member of that he was showing an association with a gang not that i know of not on because again this is a brazen public crime comic committed on going territory and what the officers testified was the sense of message to people in the neighborhood that fear and intimidation it sends a message to other gangs  it's not language but go ahead ok but in any event the way that the crime was committed shows that now only was he committing it with a gay member he was taking advantage of the king's apparatus and this is something that face he made no attempt to cover his face and just to come back to the specific intent category or vision is to promote further or assist in any criminal conduct by bank gang that person doesn't say anything about for the benefit  now well i think you have to be aware that you're working with another gang member or you're working on behalf of the king right we have before that so what's the evidence of that what evidence again is he was working with a gang member that's any evidence they told anybody that there was a gang that was doing this doesn't matter because they were just they were doing this so as they were we know who they were or that they were doing it for the gang but of course if they if it's not known that they're doing it for the gang  then that means it's not for the benefit of the gang because nobody's going know it's that the gang was involved so how does that make any sense so there's several completely nonsensical well first i think  in which they didn't care if anybody saw them and in fact they wanted people to see them and if you're someone who's living in a gang member neighborhood in a gang infested area that's controlled by the project what scripts you know you know not to talk to project asking them that but one of them was a member of one of them was the second person was actively helping him in fact he was a person holding the gun and so when they are acting like they can do whatever they want territory if you're somebody living in that neighborhood what you're going to what you're going to know is that that was a project and you can do that with out any evidence and i didn't know any of that or did make that inference hard or and any anybody at all ever said concluded that this person is not a member of the gang was doing this to benefit again i think the key evidence is not that no whether anybody knew about it that he acted in a way that he didn't care if anybody knew about the key evidence or it's not that anybody in the neighborhood knew about it is that these defendants acted in a way in which they did not care if anybody knew about and they wanted people to know about it because again this was not a clock in the morning but the residential area they made no attempt to cover their faces broad daylight and i would also point out they were arrested the very next day driving the same car in the same neighborhood that they used to commit and what they did here you know the way they committed this crime increases the level of fear intimidation in the neighborhood and it also sends a message to other gangs that these are people who don't care who are willing to commit public violent of two different games cannot commit crimes in association with each other the factors you look at is whether they again use the common gang apparatus and also just the certainly commit crimes association with each other the question is why that means that the person was not a member of the gang associating with the gang that was a member of the gang i think because he was he was acting in a way again on gang territory and in a way in a way committing the crime in a way that shows it was a gang related crime and i think again this is where the officers officers testimony is important because he said it's association or been in that case despite the same script that the officer there was reading off of but he says the officer said well you know this is brazen they didn't there's no one there there were they cased the area three times they drove by if they drove by three times and there was there was no evidence that anyone else was there to be to see them so the idea that this was a brazen crime that was intended to you know for service certainly made an impression on the gardeners and i would think that they're not they're not exactly a great source of cash for these guys right that show sophistication your honor it does yeah i mean it may also show the brutality of the gang that they're willing to knock over just about anywhere that robbers are you know willing to rob people or that they're sending a message i mean any robbery sends a message the question is what the message was here and there's no evidence that the message here robbing someone who doesn't have any money sends a different kind of message as well the message was not received here your honor so