codefendant was deny this jury the state court jury was left with the impression that there was a team of hispanic gang members who were systematically shooting and asians and long beach this issue is central to the defendant's conviction is that other crimes evidence is famously persuasive and a close case and this was certainly a close ca even if a severance had been granted this evidence would still have been admissible against mr gomes out of every trial under the state equivalent i forget the penal code section but it's our federal rule of evidence four for  that the that the evidence would still have come in at the at the gomez trial even if you've been severed from from the other code of i think the court has to look at whether that decision was reasonable are not so but what do we do with the rule that says we don't review state evidentiary rulings on federal pavior how do we how do we get around that well i think this would be a little bit different if it had been an appeal from a from a case in which this was it made it against him but the only issue is severance but aren't you arguing that what we should declare is a constitutional due process violation by because of the fact that that evidence was admitted against him but to do that we would have to essentially overrule the decision of the california court of appeal that said that evidence was properly introduced at the trial because it would have been admissible in any of it and even if the case had been severed yes that's an important part of our argument but the federal law in the united states supreme court contemplates that you will do that and the recent decision which i cited this morning  looked at the this court looked at those facts in the state court record and determined that it was reasonable to bring in the other crimes have a nut and this case it was unreasonable because gomez wasn't even a den of fide it wasn't even suggested on the record that he was part of the january seventeenth offense this court asked take another look at that and determine whether the state court was reasonable in drawing that connection it's really does sound to me like you're saying no we can declare as a matter of due process that that decision was wrong because because of the admission of that evidence violated his right to a fair trial i think that's your argument is that it can determine this court can determine that the state court terminations was unreasonable on that issue and the court regularly analyzes that usually finds that it was reasonable that there was plenty of relevance to the other crimes evidence but isn't it because we declare that he was deprived of a fair trial and with a due process that that if this court were to reverse it would be on the grounds that he was denied a fair trial and a key element of that is that there is no relevance to the january seventeenth you can't really say it's not relevant can i mean that but the california court of appeal ticked off five or six different facts that lead it to conclude that that evidence was relevant i think what you're really arguing is that it was unfairly prejudicial me well that's yes now if it was if it were if it had a lot of relevance then i couldn't argue this but if it has little or no relevance then  this court has to take another look at that determination and whether the state court would reasonably allow these cases to go to trial together these two defendants in their trial court give the jury what we attorney general has found in the reporter's transcript only which is the kind of thing that i do all the time i try to do for my clients i try to find some glitch in the reporter's transcript maybe th court reporter heard something that wasn't said maybe that maybe the judge misspoke and i seize on those things and i try to and i try to make a make a mountain out of a molehill and what the california supreme court has said repeatedly and recently is that the you have to go back to the written instructions the word only does not appear in the written the instructions basically the captain california supreme court presumes that during deliberations if one juror says wait a minute and i hear the word only there and somewhere and something the judge said and the other juror will say well let's go take a look at the written instructions and see if it's there and i don't see it there well that's the end of it and that's that's the rule that the california supreme court applies and and it's consistently applied against may so on i'm happy that you're going to that or it's attention the relevance that's now claimed is that the january seventeenth incident allows us to look into the mind of figure roa and figure out what he was thinking on january sixteenth is and it seemed to me that the court of appeals relied on the gang enhanced as being another justification for the admission of that evidence so it's not just to show figaro's involvement but also for the separate enhanced right and i've argued i hope persuasively that if this gang is as big as they say it is i would hope that they would have committed another felony at some point there's three or four hundred members of this gang but i'm  another felony to prove the gang enhancement which is that's where does that get you the one federal hate b s i mean the problem you have is that the california court of appeals cited that as another justification for why the evidence was relevant well now you're asking us to declare as a matter of due process that it was wrong to do that i don't think the piling up empty rationalizations is going to help their case very much they and if that's the case i mean you may not like it it might hurt a lot in terms of the reaction by the jury but if that's the prosecution's theory why is that not relevant it understates that to say that it hurts ha yeah game war going on between and hispanic games and that seems to me to be a pretty pretty strong reason for why it's relevant it may be terribly hurtful in terms of the fate of your client it's hurtful because it gets into racial stereotyping you don't have any other evidence that gomez was involved on january seventeenth particularly these are two weak cases and they only become strong and ominous and terrible sounding when you put them together and draw the racial stereotype the racial stereotype that these two people must have been involved in both states that a racial stereotype if there are interracial wars between games it would be fine if there was any evidence that gomez was involved on january seventeenth but he wasn't and so why is that the jury's think why is this here and the only conclusion is that they are being invited to conclude that he was there both dangerous is it that or that the first that the jury was obviously confused and must the fact that gomez was involved in the second but the court of appeals seem to be saying the reason it was relevant was to show that there's a pattern here and that that these two are part and act i guess what i'm hearing is that this is being suggested the gomez was there on the seventeenth and which is which is something they've avoided like the plague they keep saying no no we didn't mean that he was there on the seventeenth they said that repeatedly in their briefing in an argument that the prosecutor argue in the closing argument that gomez was involved present in the second murder she ar the door open you know we've got this little implication that you can draw you're invited to to draw here and makes all the difference that you would not have been convicted on this eyewitness testimony what was wrong victim the young man i don't know whose testimony i don't and maybe it's just me but he picked out guy goes and sanchez two other gentleman who just happened to be at the party you know right a fight him after he saw them in court c s and then you have it larry here and he said that's the guys that shot of course that's the guy this is eight months later and nobody has is being charged the guys he had done a fight aren't being charged what would you think so you argue that one to the jury and then you have this girlfriend of it's her boyfriend that was originally tagged as one of the shooters and so she comes forward and says not was go the sister of one of the best people that was picked out at first well i mean do i have to say anything more i mean well you know you argue all that stuff to the jury in the jury the jury's decision you say well they did that because of the january seventeenth evidence against the codefendant right even though they were told that there was no evidence to show that human goma's was involved in the seventeenth shooting a weapon and so on that it wasn't really excluded for that but it wasn't there was no limiting instruction when it came then there's a standard instruction that reminds them of limited purpose that wasn't read they say the word only appeared but we don't think so them to know about january seventeenth you know with and then wash your hands up and say well you know i always agree but i don't understand what you're saying and i would probably not of use that the prosecutors are tough minded point five zero which there were that's instruction where the word only did not appear although that's true the written version of the structure is also only expressly names define a figure it doesn't in any way name or implicate position of self actual perpetrators unlawful purpose and the prosecutor here argued argued as to the charge shootings the january sixteenth shootings that petitioner stopped directly shot jason lie and that could offend and that's a ninety five case and all three of those cases in discussing this joinder and whether it was drawn or constitutes a due process violation all three courts didn't really discuss cross in this ability they've basically relied upon the instructions the other two points they wanted to finish with kind of in addressing his arguing for prejudice and one of his arguments is about the strength of the case story or as he would say the weakness of the identifications in this case and really that's there was precious here because there is possible racial profiling that was involved or racial connotations racial stereotypes but again the figures here were given the standard california jury struction i believe it's one point zero where they're told not to decide a case based on passion of prejudice so for i think those addressed i think i've addressed the points brought up by a point here if there's any other questions that the court wants me to dress up and more than happy to and unless