good morning me please accord g s in car appearing on behalf of  we have in this appeal is pretty crystallized at that point this century comes down to whether or not under a formal categorical approach a california conviction under two forty five this year there penal code is komisarek are meets all the elements of the federal definition at issue here which is the anchor criminal definition of alan felony so what we have to decide this is their old manner and under which somebody could be could be convicted under section two forty five see that does not meet the relevant federal definition here that's a good question your honor if we get to a modified categorical approach here i'd submit and i don't know if the government would contest this although they appear to be a bit narrower answering briefs that the documents that are in this record and there contain that the and  appellate opening brief in the den them but not in there all the conduct of conviction even though the indictment appears the initial night and damon appears have language i'll qualify there's nothing in these documents that tell us exactly what we need to know  implicit element and this comes back to the form of categorical approach before we even get to the modified is what exactly would he have had completed to be guilty of that he was charged with and we all know that sometimes there's a divergence between what agreement the it doesn't really give us any information though we don't know if there was the guy stood up there and say your honor i didn't intend to physically assault anyone and i only meant to do something offensive and the judge will say well that's good enough  here and i freely concede is the california supreme court's pronouncements in this cold to model case and what they do is they take what seems to be a statute plain language would fit nicely with them the contours of the federal definition of i say they embellish the elements and it's essentially to allow for conviction based on a wider range of conduct and what the case here says essentially is that first of all those two problems he would say under formal categorical approach one is with the mental state requirement and the compelling argument i suppose is the idea here that you don't have to commit an act of physical force what they california court saying is that offensive conduct would be enough yes right basic assault but now we have the in palace mentioned you create enough sensitive type touch you in this case maybe you know rub your bumper against the trooper's pants to smear it or some kind of we come up with some theory under the formal categorical approach for an individual use that qualifies as conviction and i would submit there's one key factor in this case that eliminates that and that is as an element of this offense and if you forty five it has to be up police officer or a firefighter and the general theory here is that if you commit some act which could cause somebody else to direct violence towards you so you break into their home and they happen to be there that could be considered a kind of balance because there's a potential risk afraid or up here because we're dealing with a victim who's a police officer or a firefighter altercation with somebody even if they are acting sensitively and reprehensibly so i would submit that the otherwise bossa not apply in this case because of that simple fact the fact that the victim has to be a police officer or a firefighter like to reserve the rest of my  question should be needing an enemy now remain and in this case now your honor there's two reasons for that one we're dealing with the statutory maximum here it's not a guideline case he received the statutory minimum sentence of fifteen or likely to produce great bodily injury against either a peace officer or a firefighter and we do have a complaint the charging document that tracks the language of the statute and when we add those serious potential risk of physical injury to another if you go through the taylor approach and both of those it's very clear i mean if you have an aggravated assault against  is you know you can't shoot into a car or drive a car at a police officer or point a gun at somebody and pulled the trigger and say i didn't mean to hurt them that's all that's saying the same that you intend the natural consequences of your actions an attempt sort of crime it's still a general attempt or general intent crime and the reason that's important is because the state of california doesn't want a lot to allow people to say i was intoxicated so therefore you exactly about discussing the likelihood of physical injury so i don't think it matters i'm certainly not going to hang my hat and whether it's in there or i think that he couldn't quite guilty to the other and mr karr's absolutely right we don't have anything beyond those two documents that's just i don't think the modified categorical approach really adds anything to it at all because the charging document tracks the statute and i just want to talk a little a little bit about the hypothetical that he brought up about the coke  bottle i think that fails to i mean it's really a stretch i think in that case a coke bottle really wouldn't be a dangerous weapon i also don't think you can hurt a police officers feelings i mean certainly that's been my experience but more importantly criminal we're talking about a lot of cases there and this certainly isn't the one to do it on where you have a record showing that it involved a weapon involved the police officer or involved the like