of opinion testimony that this court on a peer review and percent of recess scribner held to be essentially useless in proving the specific intent prong of the game has meant and i think that this case actually goes beyond the problems that were addressed in percent my most recent because the opinions here weren't just generic they were on supported all the way down for example mendez the officer meant as the gang officer testified or as and asserted that again member would have to deal with any degree of disrespect immediately usually with violence but he didn't give a single example so you've got one claim basically on this efficiency and then you're trying to raise an uncertified that's right don that's right so so he said that disrespect would need to be dealt with immediately but gave not a single example of actual violent retaliation any boys member or any other game for that matter he asserted that gang members carry themselves in a certain way that would get them recognized but again he didn't give a single example and in fact here it's of effectively refuted by what happened we have the gang enhance the officer that testified but there's actually there's other evidence in the record so why don't you address it well i i'm not you know think and something might come up and he's it's undisputed that he's a gang member right he does it's beat that it's it was undisputed below and i can't dispute it now ok right he came he was he's a gang member he came with a gun but case charge offense is not enough to demonstrate the specific intent necessary for the gang enhancement i could do with you that this is not the most compelling transcript i mean it's weaker than many many cases that that we've seen  but we are at review and there are some pieces of record evidence that the government relies on to basically tie into the expert testimony to bolster it and the most significant piece of evidence  me is the fact that there's indication i think it was the shot caller on a phone call indicating that your client actually bragged about the shooting afterwards and things  really tough or forget the exact words things he's really bad for committing this crime so i think that really does tie into the gang experts testimony that bragging rights enhanced as the proceeds of the individual gang member and it creates fear in the community right so how do you deal with that evidence i think the government might have cited one or two other albeit we thought facts as well but given that there's some evidence in the record that operates  young experts testimony isn't that enough to get this passed that by reviewing this case i think if they were there if there were actual evidence that reliable evidence that jugglers had bragged about the shooting afterwards that would be something i'd have to do it but i think  jury determination right so there is evidence in the record that he did brag about the shooting after the i so i disagree with the premise first of all there's what what what is the caller said was that he said he said that flores wanted to brag he didn't say that he did brag and he didn't drive in any supporting facts so that's i mean the first thing is that he didn't actually say that floors were broken indeed he didn't say anything that  attested to his having witnessed flores brack he said flores wanted to brag and so that's the first thing in the second thing is that it's a legal determination whether the that kind of evidence is reliable evidence so and it's not an ad to review categorical unreliability of that evidence particularly given that maurice ray has testified in court and was never asked about this supposedly important evidence the prosecutor never relied on in closing argument the court of appeal never relied on it and i don't think that should this court can reasonably rely was this court will do it it can't will do it will but i don't see how a rational jury could rely on this evidence having all this other evidence presented at trial in an expert purporting to provide reasons opinions to rely on that statement here raise was never question about it in court seems beyond the pale and i just want to also add that mendis key testimony was about this ultimate question right he testified that that again member would benefit the gang and further its purposes by pulling a gun and shooting an unarmed party who assaulted him now again there's not a cent he provides not a single example to support that and it's positively repudiated  shock collar at trial who said that the gang members would never do that there's a deeper problem though which is that it's based on the idea that flores had ordered the brothers to stop fighting and there is not a whit of evidence in the record it's not even in the hypothetical so it there's and there's controlling supreme court california supreme court case law that says opinion testimony is not entitled to any reliance if it's based on enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was committed for the benefit of criminals treat gang within the meaning of one eighty six twenty two wasn't really as a light late that it was for the benefit of again i'm i don't think so you know but i'm i'm focusing on specific intent because i think that's an easier question for the court i mean i would grant that's an easier question for the court and also if there's a failure proof on the specific we at least judge one has expressed agreement that the evidence of guilt on the game has been the special circumstance or are very weak so i had to urge the court to keep that in mind when it's considering the darn thing because all this gang stuff all this unsupported gang good morning good morning ma'am please the court in council telling us to build deputy attorney general on behalf of the respondent as the court's already noted the precise issue here is whether the california court of appeal reasonably applied jackson when he relied in part on the gang expert's testimony to find that there was sufficient evidence to support the gang sentencing and handsome and special circumstance but the sufficiency of the evidence didn't hand solely on getting expert testimony because the gang experts testimony's role at trial was really to put in context the evidence that the jury already had before it that that the lady i don't even find it helpful on a sufficiency of the evidence obviously because your asking us to affirm is tell me every piece of evidence that was there that a jury could have that that the jury could have can give me your strongest case because we have to look at your strongest case ok what i'd like to do is  the hypothetical given to the game expert that's one five ninety three of the excerpt because it has all of those facts in there and i'm a go ahead and give you the testimony that supported those hypothetical facts well i want to know what evidence was in ok we know what the gang expert said and california allows the gang experts testimony to come in what other evidence was there in the trial that a jury could infer from that i mean essentially the expert gets the jury help in understanding the gang culture and what those things mean but what were the pieces of evidence that were there right what helped to corroborate the gang expert testimony about spreading fear and intimidation and in the community that comes from that supported by david resists testimony where he testified that when he did go speak to the police about what happened to his brother that he was afraid and he was asked why was he afraid he said he was afraid because again members shot his brother and another one put a gun to his head and then you also have sorry rayas is one of the shot callers a bad boys who corroborates the testimony with regard to how important feel and respect and intimidation is to how beginning operates ray has also testified about how petitioner when he entered into the fight and asked them to stop that he was bringing the impacts of the gang with him and that any that a gang member one of their gang members when he's disrespected he needs to follow that up with some sort of quick action to remedy the so grass is sort of his own expert witness well he's a he's a leader of their gang so we have brian peck who knew that position was a gang member and he saw him at the party and that lends credence to the experts testimony that this shooting was attribute begin and as such that but the gang would have its reputation enhanced we also have there were some testimony and i'm not sure who it's from that said something like if if a gang member enters the fray they know that the other gang members present have their back and that there was testimony that he was not the only gang member there  that more than that he brought a gun and a few others brought a gun to the party yes your honor there were three people at the party who were armed they were all members of bad boys as petitioner michael korea oh david reeves testified that he saw him protection and we believe that's game related as well i mean most people don't bring guns to the party they did go through a number of the witnesses and asked them whether they brought a gun they said no the people who are not gay members didn't bring a gun it was the gang members who brought guns to the party thank you ok and that's on seven hundred one of the excerpts of record he talks about how he at his trial everyone had come in testified and said that petitioner was the one who committed the crime and then re assert yeah he bragged about being the killer he thought it was great and of course maloney and reyes didn't think it was great they thought he was a coward for doing that but nonetheless but titian or was was bragging about it afterwards and that goes to show that he did have the specific intent to increases reputation their recording of the bragging or was it just to sound was it just for paul or was there recording it was just it was bragged to he record the jury can consider it all right so it's not really her say exception it's just in the record if someone doesn't object it becomes that's true as well the other compelling pieces of evidence tying the expert testimony directly to florus right that the next pieced was about the gang member who commits a crime he's going to expect backup from his fellow gang members that was the court of appeal use that to determine that it would be evidence was fishing on the in association element of the first prong and that was corroborated by the fact that nathan maloney did come to petitioners rescue and held a gun on david reeves and according to flores picked him up and got him out of that situation after he had shot sa so that's another area where the gang expert testimony was corroborated by lay witnesses i believe that's all that goes to pretty much all the facts that were in the gang experts testimony and that supported his opinion and as the court said in the california supreme court said an elbow or that the gain experts testimony alone can be sufficient to support the gang sentencing enhanced meant and it can also supporting inference that there was intent to aid the criminal conduct of gang members it can although it's got to be tethered to some record tying it to the petitioners right  that the problem with gang experts is that there tends to be very generalized testimony about the gang in their reputation and how how committing crimes could sophie you're in the community it's very general and sometimes bordering on the speculative that's why there's civic intent requirement and you've got a situation here where gang members went to a party the petitioner was armed he got knocked out and even reyes who cooperated that it wasn't something that was planned he got knocked out he woke up he pretty much reacted to the situation and so you know that's that's why i'm focusing on specific intent type of evidence that ties the gang expert testimony to what florence said and what he did or other indications of what his state of mind was and since this is on my review i think it's a sure has a tough road to hoe but overall it's not the most compelling case of the work i know that's true and again on the specifics and what we have is the bragging that malone happen to the life without the possibility of parole the special circumstance then the the gang sentencing enhanced in the ten years could then become operable so it's not ripe for review the evidence on the special circumstances that led to the sentence that's the same evidence that's what the trial court must a belt in order to stay in number six fifty four because that's the standard that if that's part of the same now i see where you're going with that order with the right in this question so so we didn't get it i think in our briefing just that neither party really addressed the heart of that i was struggling to understand we actually spoke about it and we right writers for that for that reason about three things one about the bragging again if you pay close attention to that testimony i don't think it's even evidence that he was bragging and second under novo review which that fact would be reviewed under i think you can categor record and i actually pulled up the transcript because you were saying well that's not bragging and i thought it was clearly bragging in the testimonies that he he's running around he told everybody what he did he told everybody everybody knows he thinks he's bad for that fool he wanted final point so this is critical the gang expert testimony about the that hypothetical that council was mentioning it can even be traced to the gangs primary activities because despite what i mistakenly wrote in my reply brief a page for murder is not among the gangs primary activities so it's completely opposite of cases like weddington or go to dealey where the expert at least had some basis for opining that that get to the underlying conduct the charge conduct related back to