jury conceded essentially the facts necessary to the conviction of all eleven counts and suggested to the jury the vast mr gowan gora was guilty only lesser included offenses of each of those eleven charges had mr bill are done more he would have essentially played his client straight up to the indictment and he didn't do that with respect to counts seven and eleven the only contested issues that remain for mr billow are to defend after his opening statement and in light of the strength of the case which included a confession by the petitioner and the existence of several percipient witnesses all of whom were going to confirm the truth of mr gore's confession the only defense that mr billard retained after that was the question did mr gora commit crime count seven eleven to further the interests of a criminal street gang so distilled to its essence the only contested element of count seven eleven was that judge duncan in commenting on the strength of respondents case there at the evidence rehearing said the evidence on this element is not overwhelming so the one contested element of these two charges or the one element that remained was contested by the petitioner and the evidence on that element was not overwhelming the question is whether the trial court should have instructed on the definition correctly holstering correct rummel street gang w say yeah right well i wonder if it's a little more nuanced than that i don't know that the jury was instructed that they had to find that he was a member or didn't say and he doesn't have to be a member i mean that he was working in furtherance of a criminal i don't know that the jury was told that i also know for a fact i've read the instructions i mean you were instructed you don't complain in any event that the instruction so your complaint is that the jury that the judge should've instructed what it meant correct ok and so if you focus on on on the definitional error ok why aren't we in the record with respect to a distinction between simple street gangs and criminal street gangs came from detective loose arrow the state's game expert and he himself said of one hundred forty gangs in phoenix fifty are criminal street gangs so just simply as a matter of odds the definition from the other statues i correct that's correct but whatever definition officer was ceral had in his mind and i can't tell conduct well she's generally speaking regarded as criminal i dispute that there is a lot of evidence to that effect oh there was something that's correct all right so the fact that there is some evidence that he was motivated by something other than that that he was a sixteen year old boy trying to impress two girls in the back seat after he thought he was being very cool and he may have tried to argue that but the point is that yuri could reasonably infer from thanks i just mentioned that in fact what he was doing was helping the members retaliate against people who were s n c perhaps perhaps that's true but that doesn't answer the question was s s e a street gang or a criminal street gang and the answer to that is is critical to the constitutionality of his conviction i'm not sure that that was really the defense offered i think the defense offers what you just suggested that is intent was something else he wasn't trying to help them he was trying to show off i'm not sure there was a defense as to the difference between street gang criminal street gang well mr ball are in cross examining officer lou sero tried to point the argument was that the definition of criminal street gang is all over the map and that s s he was not s s he is a group of young hispanic americans who in eighth and ninth grade broke off also in an attempt to be cool and label themselves something that they may or may not have then the legal term of art criminal street gang is nuanced in the extreme and that's the that's because the arizona legislature has made it so but let me ask you this  this is in the pleadings but in mccoury state versus mccoy which is the case that construed this statute back in when it was still  state versus mccoys at nine twenty eight pacific second six forty nine in front of the same question the court of appeals for division two says it appears that the definition of criminal street gangs is not technically apply here but we're going to use it anyway because it's the only one that there is the other thing is the state never until judge said wyck raised it used the fact that this criminal street gang definition did not apply as a defen to petitioners claims for the last eleven years so i would argue that the state or the response have waived that argument i don't think it applies under mccoy versus state versus mccoy it's fairly clear because it was so question is was it plain constitutionally unreasonable for the for the arizona court to determine that it wasn't fundamental or not to give the definition all sorts of things go without definition a stripper judge said work seem to think that when a person a layperson is intuitive understanding of criminal street gang is properly informed by media exposure to what is a criminal street gang  s i find that frightening were a person charged with murder or assault and the court failed to instruct the jury on the meaning of these arguably well understood terms i don't think this court would hesitate to say that the jury was not was unfettered in its consideration of what murder meant and therefore we can't have confidence and in the verdict i am here i believe you and three fundamental constitutional questions was the factual here on why we have to decide whether you're here on the other to ok that's that's correct but i think that the one claim or the three claims having to do with criminal there were clearly several people involved well i'm the statute is more specific than that your honor with due respect to that stop you but i think we must under a court versus state versus mccoy and it's the definition at all this is rather absurd the the question of whether this particular gain was a criminal street gang was never answered by officer of the cerro the state's own gang expert acts but but the definition of criminal street gangs says that the syndicate was formed for the explicit purpose of violating arizona law and that the members there so on a continuous basis this is a very narrowly tailored legal term of art there was no evidence to support either of those definitional prongs of criminal street gang if officer who sero felt confident enough to tell the jury that only fifty of one hundred forty criminal street gangs are criminal street gangs he certainly would have felt in emboldened enough to say this one is one of those but he didn't nor did anyone else nor was there any evidence that this particular group of people did on a continuous basis involved involve themselves in criminal activity there was no testimony either that the gang was formed specifically for the purpose of committing crimes contrary to the statutes of the state of arizona there's a complete failure of proof on those two province of the definition of criminal streaking and because it's such a unfettered jury determination of course they came back guilty of assisting a criminal street gang because that smelled like wine moreover much of the testimony came in and lots of the argument that finds its way to this court involve of criminal street gang activity on the part of s s p the victim gang which isn't relevant to the question before the court there may be an abundance of evidence that says that s s p is a criminal street gang and they may be one but the question before the court is was easy a criminal street gang and there isn't any and there isn't any definition and i think it's dangerous to to simply ignore the real possibility that this jury looked at a young hispanic man associating with a lot of hispanic people and say and allow them to bring to bear on the question of his guilt yeah it feels like again he probably did it for criminal street day when there is no evidence in the record to support it i suggest that the district criminal streaking definition to the case is new and in applicable under arizona state law and to its resolution of the claim that this was a popularly understood the i don't know that the respondents have ever disputed i think this is an element that is an element of b this is to criminal streaking but the definition is not an element the definition simply says what it is so there already acknowledged during questioning of my posing counsel the jury was in fact instructed for this particular these two counts count seven eleven a person commits an misconduct involving weapons by knowingly discharging a firearm at an occupied structure and order to assist promote or further the interests of a criminal street gang the jury was given that instruction and told that they needed to find these elements beyond a reasonable doubt the issue here is whether or not the trial court's failure sponte without being asked to to provide the criminal street gang definition and thirteen twenty three zero one constituted a violation of due process now when you take a look at what a criminal street gang is the way it was you recognize the fact that if the concepts are substantially the same there is no due process violation whatsoever and the dictionary give you an example webster's third new international dictionary of the english language defines the gang as a company of criminals a group of persons acting in accord who are believed to engage in improper acts or be influenced by self seeking corrupt or unworthy motives and criminal of course and when those were criminal means that means involving in criminal activity well the plain definition of course that i've given you from the dictionary indicates that there's an improper motive for criminal but it's bizarre going to the comedy is i don't think those kids were criminals i mean you can't say game by itself means criminal right but it criminal right right and it's modified by the word criminal southgate it was just the gang if the jury was just instructed this was the promoting gang then i'd agree but it was a criminal street gang and you put those three words together you ha basically the same definition of the statutory definition arizona provided now i want to talk about something a little bit different here and i before you leave that down and i'm blanking on the detective's name but now sarah i did her testimony that only fifty of them would qualify he's drawing some distinction there is that a distinction that's she wasn't certain about the or he just gave not at all because the officer was allowed to give a history so to speak of gangs in the phoenix area and that he indicated that that this group s s c broke off from s s p which came from the bloods and i think it's pretty well known that the bloods and the crips are criminal street gangs he also indicated that the bloods and crips were involved in drug had a lot of explicit references to the s s e and the fact is that there were acts of violence between now the officer did not go into detail about that because that was not a contested element that i mean if the defendant had gotten up and said hey look they haven't proved as i say is a crime a street gang in the state would probably go into more detail as to why as i say he had done but we do know that at least three things happened that indicate that yes they were involved in criminal activity above and beyond the can't say that that's what the game does the charge is here he's doing this and further in some of the purposes of the game right but he was doing it at the at the big cast of roman who wasn't as a gang member he was or was not but i think he used his shooting as a a result of these shootings you know no one was injured about this specially the people in the car i know they were afraid they're going to die but the other people weren't aware of that because they were asleep at the time but the point i want  best place to work would be my my brief but i believe that the long the census were eleven and a quarter there were a bunch of other counts that record currently do that and then another eleven and a quarter you know next time so we have twenty two and a half years that's i believe for two shootings involving no physical injuries that's what it would be you must've been a pretty bad boy at sixteen for this to be the sounds well that's basically a decision that the trial court in the state had to deal with and it's not an issue really for him for th over again is that right yes or ok are these associates not necessarily currently involved answer not all the time i'm giving you this lead up to the question that i want you to focus on this later not all the time they just want to be with the gang that's correct are they deal with the gang answer each person has their own reason why they associate with the gang it could be for various reasons question ok so you dealt with gangs yes question by your definition would you be a gang member kno street gangs well if you take a look at what the defendant said to detective emeril and during his his that his post miranda interview basically what this particular defendant told the officer was that had been involved with a fight with another gang a rival gang now you take a look in page eighty eight and the question to officer i'm going from the prosecutor was and did he tell you as to whether he had in response to this question and did he tell you as to whether they had jumped in or from some time ago and berlin responded that petitioner stated that he had realized that the south side s c the gang that these two other boys were talking about actually jumped a friend o gang and he didn't have any he did present it in closing argument just to drive this point home the entire focus of the defense attorneys argument was that my client did not intend to promote they're trying to brush him with the same tar is to say jacob montoya or j j montoya who were members of the s s paid he is not that way he's a young man and and who arrived and got excited because some girls are paying attention to him they're calling him rambo at such a young age that excited him they said he looked good and he made a mistake but it's a steak it's a mistake that he acknowledges and it's a mistake that he says i want to pay for it in the state and on page eighty four it's interesting that the time it's finally reason gentlemen misconduct involving weapons charges i will ask you to find him guilty of those charges as well but he asked the jury not to find it to be a dangerous crime because it involved the weapon the whole of battleground of this case was the intent of to find it basically when it you're dealing with an objective jury instruction you're going to have to find something greater than plain error and you don't have that here and the court also indicated in henderson that when you have an omission eleven years to figure it out  and i want to say it again that this place is the burden of proof in a criminal case this is an element of the offense the only contested element of the offense and the suggestion that it is mr gore's fault for failing to produce evidence that is to see was not a criminal street gang is a violation of the due process clause of the fourteenth amendment i also appreciate judge fletcher's concern about using the street gun gore's and others behavior on the night of the question as proof of the element in question moreover i want to suggest to the court that an appellate court's satisfaction based upon its review of the record that the fact might have or would have or most compellingly would have proved the element beyond a reasonable doubt is flatly in violation of sullivan versus louisiana the wrong answer if he is making a decision on an element and that