but the standards are not intermountain ball and i think this case is one that falls within that in not intermountain all standard a particularly in a case where we have a summary denial from the state court we have nothing to know indicated very sharply that there was a need for a gang expert let me let me just ask you this council and let's assume you're absolutely right that the gang expert might have been able to show that because of the breakup of the gangs that this couldn't possibly have been a band for the benefit of the group it doesn't in any way address the in association with portion of the statute as if it absolutely does because the first prong of one  six point two two a the gang statute requires that there be at the direction of an association with a for the benefit benefit of a criminal street gang and then there's all this criteria for what constitutes criminal street gang including proving predicate krasnow dispute that these are the empty thirteen it's a criminal street their windows does the defendant have to be a member of the team in order to commit a crime in association and for the benefit of that gang mixing two different points he does not need to be a member of the gang but there there was not the prosecution has the burden of proving the criminal street gang and the only predicate crimes that were introduced at this trial involved m d k and not m v thirteen there was no evidence presented at trial that either n v thirteen or the riverside skinheads were criminals breaking you can't just say well these are games these are gangs and they must meet the what the magistrate judge he said there is ample evidence to support the conclusion the petitioner committed the home invasion robbery in association with the criminal street gang as he acted with individuals he knew were empty k or  only evidence that was that was brought out at trial it was really related to end the k being a criminal streaking that is all the evidence showed the prosecution's own gang expert called m honor that let me the the when eighty six point three two says there's two elements one is that the defendant committed a felony for the benefit of at the associate at the direction of or in association with any criminal street ga that's one the other is that he did so with the intent to promote further or assisting criminal conduct by gang members two different use two different languages gang members criminal street gangs with the magistrate judge did was coalesce those two california law is clear and if it and if you need to miss distance with it california supreme court in people versus print the prove the case i cited in my reply brief which came out after the opening brief makes this point abundantly clear the court said in honor your simply with all due respect you're simply wrong on the law there's two different elements it's true he didn't do that if he committed this robbery he did it with gang members that's element to the first element requires that he do it even if he does it in association with it has to be a criminal street gang and the only criminal streaking that was established at the trial was m d k but the evidence at trial with fear was that the other four members but it may or may not have been but we don't do jury never got a chance to even consider that as an option because the the trial attorney first of all she never even addressed the gang enhancement in a closing argument not once this is a case where m mr johnson is serving a life sentence as opposed to a maximum term of nine years because of the gang unhandsome and we have all this kind of a asking for mention if she had called an expert in the defense case what with th established beyond what she was able to get out of prospects emanation it seems like there's substantial if not nearly identical complete overlap and she got what she needed out of cross examination you mentioned the standard of review it's double deference as to reasonable miss judgment karna we don't know the full scope of what she could have established because she never did the investigation she never talked to anyone who have similar with riverside gangs who examination so what that x p there's two there's two plus points to that one is that m d k cease to exist by to the year two thousand and three when this crime was committed in dk no longer existed to that the v thirteen associated with mexican mafia and riverside skinhead associate with the area brotherhood would never have committed a crime together as gang members let me ask you this i get your point about the gang expert way that but talking in a court of appeal it's better not to talk over a question i'm sorry i stopped you had ended my apologies and my question is this since the record shows that it was the strategy of the defense lawyer to prove actual innocence on what she her strategy was arguing that he was innocent of the robbery which frankly was never going to fly but that doesn't mean that there's nothing inconsistent with also arguing that there was no gang unhandsome and the gang unhan e was the primary charge that's what got him the life sentence you can't just say well i'm going to argue that you're innocent of the of the of the of the lesser crime and then we're going to leave it at that there's nothing to consistent with saying there's you're innocent of the robbery and there was no gang enhancement nothing wrong with that it's it is a strategy that ended up with mr johnson serving a life sentence if you want to sleep any of your i would yes please oh please oh i'm sorry one question your claim is ineffective assistance of counsel yes and i'm gathering that and it includes not just calling the gang expert but consulting with the gang expert to find out stuff calling the gang expert having information from the gang expert to cross examine the prosecution's expert and making that gang experts attack during the course of the of the closing argument and other portions of the trial that absolutely absolutely if i could add that again at the price at the state hey b s it was a pleading case mr johnson has has regularly both in state court in federal court also sought discovery that his attorney could have sought had she ever employed again expert that might have answered more specifically other items that that that the gang expert that could have been used to either cross examine the gang expert or to put her own gang expert on and give you a little bit of rebuttal thank you let's hear from the government made please the court deputy attorney general katherine cursed for responding the state courts denial of mr johnson's ineffective assistance of counsel claim was not contrary to or an unreasonable application of clearly established federal law under stric vs washington the decision not to call a defense gang expert had no prejudicial effect on mr johnson's trial the only way that a defense gang expert could have had an effect on mr johnson's trial was  what by presenting would be by presenting credible evidence to counter the prosecution evidence as to the gang enhanced and there are two ways that a gang expert for the defense could have done so first by proving that mt k had ceased to exist and was not a criminal street gang at the time of these crimes or by providing evidence that even if and dk existed this robbery did not benefit and dk and was not in association with and what was the government's position though what was the gang of four which the predicate acts were proved and dk the gang expert explicitly testified that  was a gang and was a criminal street gang comprised of empty thirteen and arses each but still existing and still active at the time of the crimes even though members identified with these various groups  dude split along racial lines and what's what would be your cite for that i mean he was somewhat inconsistent it's using and you can do thirteen interchangeably at certain points he said that he did that what's your strongest point that he actually said m d k still exists and this was done for the benefit of him dk at page eleven zero three of the reporter's transcript the gang expert detectives as simons testified explicitly that n d k in its current formation these two branches and the thirteen are says h is a criminal street gang and so to return to the gang expert the gang expert would have had to prove that that was not true or provide credible evidence that mt k had ceased to exist that would have been completely contrary to the facts the the most important fact on that point is that the victim testified that at the time of the robbery more than one of the perpetrators made reference to it and dk at the time of the robbery and that's at s e r forty seven two of the perpetrators mr gove and mr fulton told police that they were members of and d k and one of them mr fulton admitted that he told police that he was a member of m d k and that m d k was still active at the time of the robbery there was also evidence of even after the time of the robbery that he at the time of trial still saw and u k graffiti alongside of our face for feeding so there was ample evidence that mt k was still a gang was a gang at the time of the robbery and so the gang expert would not have been able to have provided evidence to counter that was not the way the prosecution argued the point at closing that these predicate offenses were associated with m d k and despite the fact that they had started to dissolve in the two thousand and to two different groups that it was still an ongoing organization and the robbery was for the benefit of mt k yes it was an argument get to that level of specificity in terms of the predicate offenses i believe it did your honor  prosecutor went to great lengths to prove that both predicate offenses were m d k offenses that came up a couple of times at trial where there was possible evidence that one of the predicate offenses was really an m d thirteen offense and the prosecutor revisited that point with the gang expert and said no no this was before the split this was an m d k crime it's true that oftentimes there was kind of general argument as to these three gangs and there were some some interchange ing of their titles but that's because the prosecution's position was that mt k was a criminal street gang comprised of of two different factions looked in the prosecutor at least a number of times say these were gang members he did this with gang members that's enough that's all we need we need association with gang members and some of those comments it seems were picked up by the magistrate judge in the district court all we need is association with gang members which i think were would you agree actually isn't the right test we need association with a criminal gang the criminal gang that committed the predicate acts i did every different questions in there i agree i did jury was properly instructed on all of the elements for the gang statute and the predicate across crimes the primary activities all of that was met the prosecutor did state in his closing argument in association with gang members rather than in association with the criminal street gang but i think there was no way for the jury to have misunderstood what it needed to do which was to find that this crime benefited or was or was in association with a criminal street to the defense object to any of the jury instructions regarding the definitions of criminal street grabbing or criminal gang no your honor the only other way that the gang expert could have had an effect on this trial and what proposed going expert fact attempts to do in his declaration is say all right even if and u k still existed this wasn't a gang related crime but that testimony if presented wouldn't have been given any credence by the jury there the whole premise of the gang experts testimony is that skinheads and members of a mexican mafia connected gang would never commit a crime together but that fact was under spewed in this case that that is what happened well that they wouldn't commit a crime together as representatives of their gang exact that if they were friends they might be on a little frolic of their own to for example pay back johnson for money that he said huddleston own him the i owed them as opposed to a joint gang joint venture gang activity but if you accept the premise that empty thirteen and are safe each would never commit a crime together just as long as it doesn't benefit us or just as long as it's not in association with us that simply doesn't make sense the jury wouldn't have given any weight to that argument and it was countered by the fact that they were calling out only to do with the timing of it but because of the facts prunty and the pretty court explicitly stated that princely only applied when the existence of a gang was dependent on activities of the subset and that's not the case that we have subset that were involved in the crime in any way and so it's a different factual so it's always hears and here regardless of whether from the applies because of what you believe were proven facts admissions statements during the commission of the crime and so on wipes away any benefit that probably would otherwise have provided even if had been timely correct and even if the applies i think that there's there was sufficient evidence under only talks about needing to provide evidence of some sort of connection or organizational connection among the subsets and that was basically as here since it's an i a c claim he got two problems one whether there was  practise basically and you're saying there wasn't any because based on the law at the time and based upon the facts proven there was no problem and the defense lawyer raising asking for a defense gang expert been able to have had a beneficial effect on mr johnson's trial in light of the facts and the evidence or another remedy that counsel asked for might be an evidentiary hearing to bring out what discovery there would have been had counsel gotten an expert in that sort of thing what would you say to th opportunity to provide everything that he could have said in his declaration without being subjected to the rigors of cross examination the inconsistency is and the factual problems with that argument only would have been highlighted at an evidentiary hearing we don't have the full transcript of the mars than hearing i don't think at least i couldn't find it do you have the full transcript of the marston hearing i do not i believe that only select portions were released by defense counsel  you counsel thank you we'll give you a minute for rebuttal mr hecht was a riverside police officer for almost twenty five years he spent over seven years in the gang he said unequivocally in his declaration that n d k did not exist in two thousand and three be pretty hard to say how you put on an expert that says that at trial and not say that might have given some pause to the jury who had to find that in dk what that that all that all of these other four member people who were involved were page at pages eleven thirty nine eleven forty and eleven forty four of the reportage transcripts he keeps referring to them as m d k slash r s s h he doesn't distinguish them at page twelve forty one in the closing argument the da says the benefits were financial and to increase the street turf of andy k the skinheads m b thirteen he doesn't distinguish between them and mt kay is the only one that mattered mr johnston has presented