following the supplemental brief i will focus on consent and then asportation on consent the common law definition of robbery requires force to be used before or during the taking if force is used after a taping the defendant is guilty of theft and assault but not robbery two eleven is different in two eleven after a taking is over any subsequent use of force will turn a deceptive taking into robbery for example in bailey a group of men tricked the woman into giving them her cell phone they then pointed a gun at her and then drove away at common law this would have been prosecuted as two separate cr fraud and then assaults why doesn't the added asportation element make the california statute not narrow or in generic that your honor to eleven the cooper case established because of asportation two eleven let someone be convicted for robbery without having prior or contemporaneous knowledge of the taking this sounds unbelievable just as canard has twice criticized the cooper because it appears to collapse  distinction between eight years in a betters and accessories after the fact the generic definition requires an element of possession oh wait a minute because there was a dissent but also specific intent is required is not to be convicted is as a abettor and specific intent suggests that this is somebody who just came along and picked up the pieces afterwards but had the intent to accomplish the taking which is at the core of the the robbery charge so  different yes here are the key here is that because of asportation that intent can be formed at any time during the crime but what difference does it make if the specific intent is there if they desired to accomplish the intent of taking why does it really matter that the intent was generated later rather than before it matters because the key issue here is the taking california two eleven allow someone to be convicted for robbery without having prior contemporaneous knowledge of the taking that and  response is sort of the same so what i mean granted we're talking about the categorical approach the logic is mostly out the window but i have no difficulty here understanding why that should matter if if the criminal intent is the same if the culpability and the moral register is the same why does it matter that it was formed later instead of before well your honor is an example california's mada case a driver who gave his brother a ride and then learned that his brother had tried and failed to rob a store was guilty of being an accessory after the fact for attempted robbery this was true because the crime of attempted robbery was completed before the brother got into the car well it's also true because the guy who gave his brother ride was trying to give his brother right he wasn't trying to aid the burglary or robbery of the store that's the difference between aiding and abetting an accessory after the fact and if we go to the supreme court's decision and to our day  they clearly indicate ok used to be there were all these categories they've all merged together and so the prior ninth circuit case law and case law from other jurisdictions that drew distinctions that's all gone accessory after the fact that's still different and so if you have accessory after the fact conviction that's not the same but if you have accessory before if you have aiding and abetting or if you have conviction is a principle that's all the same and so there is a distinction between aiding and abetting and accessory after the fact and i think the main distinction is the specific intent requirement because somebody who gives his brother a ride isn't trying to aid the taking but your client was convicted it appears of having had the specific intent so i'm having trouble understanding i mean this seems to me to be a replay of of dark day and why isn't it a replay of why should we trying to draw the lines that you tell us we should draw well your honor doing us alvarez explains that those who help a thief before taking will be equally liable for possession because a person's intent and assistance prior to during the taking help the thief get the goods however but dell clarified that those who help the thief after the taking out will not have possession because their help occurs after the taking is over as accessories after the fact they quote had no part in causing the crime coming and i may be wrong that california convictions for accessory after the fact are labeled as such and so i didn't see anything like that here so that's the basis of my premise that it's not your client's conviction but it may be if you can tell me or point me to something that shows facts of the specific case focus on focusing on two elevens elements whether it be in the statute or jury instructions is a red herring matthews mathis instructs us to go to case law to understand what the conduct of the elements reach and under california's supreme court cooper case that case established to eleven let someone be convicted for robbery without having prior or contemporaneous knowledge of the taking and other states do not prosecute defendants for aiding and abetting a robbery without prior contemporaneous knowledge of the taking in robinson the washington state court reversed the robbery conviction for a teenager that drove his friend who had just mugged a woman without prior knowledge of the taking the driver becomes at most an accessory after the fact to the crime of robbery this comparison shows that one cannot look to the statutory tax of two eleven alone both washington and california have the same statutory elements but what matters is the substance of conduct that the statute criminal and the reach of two eleven makes it overbroad but your honor even if you disagree the bailey case shows that to eleven criminalize a fraudulent taking that is followed by assault as a crime of robert let me think in one case at a time cooper yes i look at cooper and it tells me it's talking about for purposes of determining aider and abettor liability yes you're trying to tell me and granted the dissents trying to argue this that cooper wasn't convicted of aiding and abetting he was convicted of being an accessory and that's different but supreme court doesn't describe it that way and it's aiding and abetting that he presumably has the specific intent required for the crime ok the majority plainly didn't thank you it was the distinguishing accessory after the fact qualification that she sees there so why should we take cooper's conviction to be an accessory after the fact conviction she e case made that line a little bit more blurry but turning to my previous point your honor the generic theft defense is limited to larceny in korea jaime this court held california's chop shop statute overbroad to the generic offense because it criminalize fraud likewise to eleven criminalizes taking secured by fraud which also makes two eleven overbroad to the generic theft if you're looking at  is it pronounced they can't comp desk and it's reference to the swath of conduct you know sort of dialing back to your your any case where an individual convicted of california robbery did not also commit generic theft nor can he as the elements of california robbery and generic overlap generics after requires a taking so do we know that this conviction was not a conviction for being excess or e after the fact i don't know i start with the supreme court has said that that's different we don't treat that the same and i confess coming  fact under a separate statute it's california penal code thirty two which includes a different intent and different punishment in it's a separate and distinct offenses this court held in gomez mendez and the inten for an accessory after the fact is to assist the defendant in evading prosecution it's not to assist the defendant in committing the principal offense and so the vidar case is distinguish in that case the ninth circuit held that generic theft does not include accessories after the fact and they interpreted the vehicle theft statute in that case to encompass successors after the fact with within the text of the statute by contrast california robbery does not include liability for excess react to the fact in the text of the statute rather accessories after the fact who are simply trying to help the defendant evade robbery before that they reached a temporary place of safety and the looted property was with in the possession of the defendants then they would be liable for robbery  abettor is treated as a principle and is liable for every element of robbery and even if the court were to examine asportation in isolation and decide you know when force or fear or non consent occurs with relation to asportation the government would taking or aspartate excuse me taking or exercising control over power over property and california robbery prohibits the taking of property the caption as well as the asportation which in the government's view is simply an exercise of control over property within the definition of generic theft so petitioner's argument sort of ignores that second part of the generic theft definition that it requires taking or exercising control over property so california robbery the person who's carrying away doing either of those things they are exercising control over property and hasn't the person who says driving the car  law where the person gives his brother right he wouldn't even know that the brother had had committed a theft or attempted that so in order for in that hypothetical to be can of robbery the brother the getaway driver had to have formed the intent to participate in the robbery they he said he at some point before they reach a temporary point of safety they he must have formed this specific intent to participate i actually say that the the case law in california says that in the cooper says that but cooper suggests that this intent can be informed after the taking has been accomplished i mean cooper distinguishes between helping somebody escape and helping somebody escape with the goods but shouldn't that matter i mean if the person who's the who's convicted never knew about the taking until after it happened the distinction being offered by opinion straws here is is that no intent need be formed before the crime and if you go to a jurisdiction that doesn't require the carrying away part of theft in california appears to narrow robbery by requiring both the taking and the carrying away so let's pretend that indiana doesn't require tearing away so for indiana purposes theft is accomplished as soon as you take and the carrying away becomes potentially a separate crime now and so in indiana somebody who's driving without knowing about the theft in advance commits the separate offense that th petitioner talked about why doesn't that take what could happen in california leading to a conviction for robbery outside the generic definition of theft because most states don't have that carrying away part and the intent may want national uniformity such as our immigration laws and we're looking at each different state and how they treat it and it's really troubling to me that someone can be deported for something they did in one state but not in another say well i agree your honor in the generic the categorical approach attempts to resolve that that concern and so my point was that how other states treat robbery isn't the question before us the question before us is how other states treat deft and that led to the generic definition of theft so instead of looking at how other states treat robbery and determining whether it matches california we should be looking at whether california meets the generic definition which is how all the states treat that his if you if you say california which requires this aspirational whether you're arguing that it's narrows the statute or it the asportation is i think unique i don't think every state has asportation with robbery so it's much like how do we look at that new under california law at the time robbery is completed the element of taking is necessarily satisfied and the element of non consent is necessarily satisfied so when it happens in relation to each other is not the focus of the  react to the following hypothetical holding where a state crime includes elements entirely sequential to the elements which constitute a generic crime and the state convicts individuals for the state crime based on actions entirely subsequent to generic crime the state crime is overbroad sorry your honor can you read that again where a state crime includes elements entirely to the elements which constitute a generic crime and the state convicts individuals for the state crime based on actions entirely subsequent to the generic crime the state crime is over  i i would disagree because it's not that the i don't think that notion applies to this case is is how of refreeze it i think that the we can't lose sight of the fact that that original taking is within jeanette the definition of generic theft and so what happens later isn't necessary isn't relevant because the element is a taking and it necessarily occurred at the time the crime was completed but even if we accept that you know there asportation i would take issue with characterizing it as conduct outside of generic theft because asportation is just carrying away property which means exercising control over property under the join yourself arise definition and this court  korea heim if found that owning a chop shop where cars are destroyed dissembled reassembled or stored means exercising control of that property within the definition of generic theft and in fair do garcia the court found that buying receiving concealing withholding selling property is all within exercising control over property under the definition of generic theft so even if we accept that asportation sort of makes the robbery extended that's still an exercise of control over property that getaway driver who's fleeing with looted property is exercising control over that property without the owner's consent within the definition of generic theft thank you very much cancerous and give your cousin counsel two minutes since you went with him and i have two points i would like to make first the over breath of two eleven is two fold on possession the key issue is the taking the framework of joined us alvarez and the da explains that those who promote a crime before or during a taking will match the generic definition of theft and those  promote a crime after the taking will not cooper is an example of an aider and abettor to robbery that can be convicted without any prior or contemporaneous knowledge of the taking on whoever was a conviction for being an aider and abettor which requires the specific count to assist the take in i understand the dissent says no no no this should just be to excess or e after the fact but that's not what the majority says majority speaks very clearly of distinguishing between helping the scape which would be like the brother case we've talked about before and actually helping the crime because that person knew that the whole point of this was to get away with the goods and for california purposes that's enough to aid and abet the taking and i don't understand why it's supposed to be different because of the activity happens later we argue that it is different because the intent is to help the principle of the robbery is formed after the taking is over but even if you disagree with us that would make the person an accessory after the fact as yeah but but he's not convicted for that so the court found not only were they trying to help or the person wasn't  y trying to help the brother or whomever get away was trying to help the crime of taking and if you're trying to help crime of taking why does it matter that the intent to help the crime of taking doesn't arise until after the person has walked out of the jewelry store as this court and the doll how old one who participates as an accessory after the fact had no part in causing a crime but even if you disagree with briefing and work thank you very much