and also that the the second issue this court is certified the expert opinion of sergeant radke that there was an intent to kill necessarily when a gang member fires a weapon discharges a weapon that that violated a policy process rights in connection with the yacht required element under state law for attempted murder that the murder be that there be a specific intent to kill and i would like to address th different ways i'm looking at one eighty six twenty two b and it appears to be in the disjunctive that is a person convicted of a felony committed for the benefit of at the direction of or in  association with criminal street gangs you focused on whether this benefited the gang could have been established by showing that mr greene acted that the direction of gang members or in association with gang members it would be reasonable for a jury to say that's not gang related this is the way that the people who are in these kinds of situations unfortunately sometimes behave but we have four members of a gang go out and commit a premeditated robbery how how are that is their evidence that would have supported a jury finding that mr green was acting at the direction of others whom you conceded were gang members well i mean we're not we're not arguing kill when it's a sewer or kill or be killed so are you in every situation not only against other gang members but with nine gamers and that leads to the functional equivalent we have the prosecutor's expert testifying that all four gang members when ever again member shoots it was that it was another one of the gay members of the five that fired the shot what this court is probably interested in that requires the specific intent to promote further or assist in any criminal conduct by gang members and california case law holds and is consistent with that meaning in any including the charged criminal conduct on this case the defendant and his three blue beggs and least one guy then shot and rob one owner and rob this his wife as well and then attempted to flee back there was extensive testimony by the gang expert that predicate crimes committed by this criminal street included robbery attempted murder and that it was typical of a gang him no in the sense that you wouldn't even know they were gang members without the let's make such a film you knew they were gang members but you didn't have a testimony about spreading the love or sharing the proceeds with you  they were gang members if if and in that scenario you knew they were gang members and and also i'm assuming you knew that their criminal streaking committed crimes such as this one attempted murder and robbery if you knew those and the game expert had not testified at all you'd still have sufficient evidence to support the gang has because jurors could easily infer from the from the evidence presented that these gangsters increased their own heighten their own status within the gang and heightened there's gang status by committing these crimes together in other words the other three gangsters you knew th knew that the the other three gangsters knew that the gangster in question and gangsters appear in the generally applies to different kind of criminal and gang members and i think it's it's greatly  appropriate to refer to these individuals as gangsters criminal street gangs and in order to be a gang it has to commit criminal offenses and or and those criminal offenses have the violent criminal defense of fences that's the california legislature chose to protect members of gangs in california are going through active gang members are gangsters yes and well very of all criminal streak because in order to be again under one eighty six twenty two year one twenty six twenty two way it has to be a criminal streaking whose predicate activities are crimes and violent crimes against the other people in the territory they were always poor and minority by the way i'm concerned with the sweep of the argument that you make it sounds like in any case where two or more gang members commit a violent crime this enhanced would apply according to your view aren't there are cases where two may say to one another let's go rob this place then let's keep it a secret we don't want to share this with anybody but i think it was suggested by another judge on this panel  that if it was a crime of passion and and and the other gang or gangs gangs you happen to be there wasn't it a predicate crime it wasn't a crime that could obtain loot for the gang and so forth that that to the jury could easily find that not true if it is aren't is that the only exception let's talk about property crimes like burglaries and robberies is it your position that if that shown that the perpetrators of such crimes are a member of a gang members of gangs that in each instance then this enhanced it would apply and convert the penalties three extra years they could defend against the enhanced meant by arguing they just happened to be there at the same time that it wasn't premeditated they didn't go from one area to the other together in concert they didn't try to leave together in concert and show there for that they were committing the crime in order to further promote or assist in any criminal  conduct by a gang members seems like that turns the burden of proof around though the prosecution has the burden of proof of the stand which think that they were trying to further the interests of the game they don't have the burden of this proving that simply because of their status is going members the reason why this statute would apply was because number one you can prove and it has to be like you can prove any sensitive crime with circumstantial as well as direct evidence and remember to get to what he six point twenty two b and the issue of intent you've already shown that the defendant in this case is and active gang member or an associate of a gang member you've shown the predi i'm going to i'm going to add in the gang gang getting experts testimony here even though i originally left it out you've got extensive testimony which is perfectly admissible that that gangsters  criminal street gang now has somebody certified the eighty four main street crips as a criminal street gang does that does that have to be proven by those that have you proven each time to the jury or does a california attorney general certify that or does one finding in one  be proven now the defendant can try to stipulate to it maybe try to vie for kate the case nathen by stipulating to it but unless he stipulates to it the prosecutor has to come forward and prove that the gang commission of a crime when two or more with two or more members involved i'll give stipulate a property crime and premeditated you know is it isn't that is that sufficient for the enhancer i do i think it's sufficient for the enhancement and that's not to say the the you know the defense can put on its case but the jury has enough evidence there to find enhanced me true but the reason you have a gang expert testified is because the gang expertness perfectly admissible can testify as to the reasons gang gang crime typically committed kristi's spreading loot so forth and and again that that testimony can be challenged by the by the defense they can they can put on evidence trying to contradict that but it is a broad statute and deliberately so it's meant to be know he argued that but he didn't restrict himself to that but he he he emphasized i'm sure i'm looking at page two of the california court of appeals decision and it refers to to be one and only mentions the for the benefit and i'm looking at page two of the california court of appeals think the same problem that if the crimes for the benefit of the criminal street gang it doesn't it does not mention in association with a what are we supposed to do with  and the excerpts are record didn't have to include that charge unfortunately the excerpts or record include the information charging the enhancement and my reading of it statute that instruction you can certainly get from the district court i'm sorry it wasn't in there the excerpts or supplemental lectures thank you thank you not merely sufficient that if you committed by multiple gay members it was every single offense where they were