the attorneys please come up and introduce yourself course happy to answer any questions you may have concerning the other issues and i would like to reserve five minutes for is convicted of attempted first degree murder in relation to a shooting that occurred when he was only seventeen years old he was sentenced to a term of forty years for the offense which includes a twenty five year firearm at our despite the firearm and has been the trial judge in this case stated that among the most aggravating facts was the fact that a gun was used to shoot the shit upon a van full of four kids or in other words this child just consider the shooting itself as an aggravating factor even though that formed a basis for into the firearm and has no let me ask you mr unique at this argument quite a bit in the sentencing hearing the trial judge mentions the use of a firearm and therefore it must be double counting because of the firearm unhandsome and we we get that argument a lot and isn't it proper for a trial judge in sentencing when an offense involves a firearm to mention the circumstances of the shooting isn't it isn't it different if somebody shoots at someone on a dark deserted street versus this case where mr ramirez shot and a van full of people in a neighborhood where our high school was letting out isn't it appropriate for a trial judge to consider that it's appropriate for the judge contests to consider the facts in this case the judge was using the shooting itself as an aggravating factor if you look at the sentencing describe how the facts yet is he shoots a gone and a van occupied with four people in a neighborhood where high school is letting out and there are dozens of people around what what is wrong with that world the judge doesn't mention the high school the fact that this was occurring at a high school at dismissal but he says the most aggravating circumstances are the fans and those are the described the shooting but he doesn't mention the other factors in terms of the fact that this happened by a high school or that there are other students around he's considered if he if he had mentioned those facts s that that could have been out sites are going saxes that describe to degree of harm but i am because he just mentioned the shooting itself it shows that after he's talking about the aggravating factors it chills that the judge was considering that act childhood stated that as an aggravating factor the fact that the defendant pulled out a gun pointed at the victim's head and pulled the trigger and in a similar way he's talking about the shooting in that case so  doesn't get it words because what the what a trial judge does in imposing a sentence is first impose a sentence within the range for the particular offense the range here is six to thirty years you  be elected to impose a fifteen year sentence for the attempted murder charge and then the law says and you have to and i wanted to add twenty five years because the attempt murder was perpetrated with the use of a firearm as i understand your argument you're saying the firearm is already included in the enhancement and therefore we have to go toward the minimum sentence on the underlying times but that's that's now that the firearm has been has already been applied the fact that a gun was used and they the fact that a gun cause great bodily harm can't be an additional factor again there are cases where it could be described degree of harm  and that was ruled to be fine but in those cases there was he described specific aggravating factors or aggravating circumstances for example people be bangs the court specifically noted that  killed and that's why he's not giving the heisman so he's he's the factors that are the fix it effect here is they well i could go here's why i'm not going to a pot is that nobody was killed you know people were if you look you're looking at the things that if you look at the whole context of the paragraph he's actually say this is why i'm not giving you the a longer sentence we would say that the court considering the fact and almost killed as often as another factor to mitigate the sentence if it's part of probably true but it still doesn't nullify the fact that the court considered a first bob the shooting itself it just saying with the fact that we're in a nutshell the first paragraph tells you what would happen if this i think the way he framed it or i think we think the way he framed it shows that he was considering considering that integrating one two three four or five and this is how many years i'm going to give each of these points it was just a sort of conglomerate i look at it more as the judge was concerned that this young man to take any responsibility for  i think it's clear here that the judge was at least considering that shooting as an aggravating factor i think by the way he framed it and in in his comments when he was discussing all the factors he was going to court in probably considered to gain evidence as well there was no evidence that daniel was in a specific gang in this case this was a the facts and the record shows that this was a i guess a confrontation between other thing on if he wasn't a member of the gang he was defending his friends who were we're not sure in terms of motivation again  the jury found beyond a reasonable doubt that that daniel was the shooter but there was no evidence of any motive besides that he was with this group that was apparently throwing kingsize but it all a lot of these members all of these people in that group were wearing the game color of the day gangster disciples which is royal of the day was not wearing that color he was wearing a white t shirt also heat that he doesn't have any gang tattoos and if he was in a game well there was evidence that two games were involved but there was no specific evidence that anyone was a fall in a gang and that this was a gang motivated shooting under different remain involved in belonging to it because you don't have them belong to a i think the way the judge straight faces he says i feel sorry for his family the no circumstances if he hadn't been involved in gangs he me very well have been gotten a job in a productive member of society so i think when he saying when the judge says that da is involving ings on it's not just like a one time incident but more obvious throughout a life throughout his life the judge just considering so i think that implies that the judge was finding that  at this incident so all i guess well we would like to see if the bottom line is that this is merit does have to be remanded or resend it seems so that all so that the judge can consider  the proper factors i would like to just briefly discuss also the consecutive sensing issue on in this matter deceased just that this case is like our no because there is a severe bodily injury and there is no law consecutive sensing imposed but if you look at the facts this case is very different from our not in first of all do the injury in this case rebecca  moon is and cannot be considered as severe in terms of what happened in our know when you compare it to that case the victims in that case were shot in the chest and shot the head here rebecca mungana was just shot in the arm and she went to the hospital and received some treatment ob some medicine and a bandage and then she left the hospital again we were not trying to minimize the happen here but this can't be consider on our position is that with this one does not stand for the proposition that made by leo harm automatically is equivalent to severe bodily injury those are two different concepts the jury decides great extent of each element of the offense and the further in people versus kill ya see this court also held their child court is permitted to consider an aggravation the fact that defendants conduct caused or threaten seri if we look to the nature and circumstances and the threat in harm of defendants offense it becomes clear that first this shooting took place without regard for the several other individuals who were in the area at the time there is testimony demonstrating that the took place just after a school dismissal with several other witnesses besides the victims and the area at the time specifically christina gary testified that her mother was their pick her up from school and was parked on the same corner think that if there was a really important testimony that he would at least raise them didn't much talk with the school principal that none of them you know he did not reference more than that the court noted that the senseless nature of descendants and found that we can gather that this the reason why the offense was senseless was because there were several other individuals outside at the time and that based on the testimony present it there was no threat to defend him at the time of the shooting even more than that each of the witnesses testified that several individuals who were standing on the corner that day who didn't descend in were yelling gangs bogans and gang phrases as well describe the facts of a case without knowing that it's in use a firearm and for those reasons it is apparent that the trial court's reference to dissent is use of a firearm was not a significant factor in his decision even history criminal background the census nature of defendant's offense as well those defendants unwillingness to take responsibility for his actions despite the most why would insist on having known definit for a number of years identified him as the not testify they he was involved in gangs but if again as we look at the witness's testimony everything prize of the shooting was gang related the yelling of gang slogans and gang phrases the displaying of hand hand signs associated with gang membership and gang affiliation the reason why principals went in was outside was because of gang involvement in the area and her noting to several individuals in and around the school was wearing their gang colors that day there is nothing else present in the facts of this case to demonstrate the shooting was related to anything other than gang activity so rather chalk i do not care by considering these improper factors at sentencing the court's ultimate finding of no severe bodily injury finding of severe about alone to whether school own came to that conclusion but what i'm asking you is whether your interpretation of the statute deprives the sentencing court of any discretion that that we harm your position the state's position is any time a bullet and the traits a body requires medical attention th sentencing stand to just say whenever a jury finds that there is great bodily harm on that there must be consecutive sentences why why use a different phrase involving great i don't great bodily harm somebody punched him his face was small one his cheek on was broken and that's great bodily harm consecutive sentences automatically right if it is yes your hon evidence in the jury heard we really believe that this trial court's going to consider something as an aggravating factor he should state that as a reason when he's discussing why he did reasons for why he's imposing a certain sentence because those factors are included when the trial court stated his reasons for sensing daniel to this particular sentence those are factors that were considered those are things that may have came into evidence but those  not mentioned by the trial court as aggravating factors well what's important here is to emphasize that is the fact that he emphasized that it was the shooting that he was considering as the most aggravating factor  the stateside spanx as a case where the trial court just considered the fact that the shooter shot at several people that wasn't accurate it's the child or mention the fact that the people  as an aggravating factor so i just want to clear that up and just as a final note on this isn't in isolate we didn't we didn't consider these comments in isolation but more because of the way the judge framed it as injury but i think was more telling in that case is that the corcos international says of the different cases where there's all these different cases where courts have arrived at severe bodily injury and elicit bunch of gunshot wounds and