Gang Evidence (Including Gang Expert)
Category > Gang Evidence (Including Gang Expert)
Updated 2/4/2024The trial court prejudicially erred by suggesting that defendant’s Vietnamese social group was a criminal street gang. Defendant was convicted of murder. However, the trial court erred by admitting evidence that defendant was a member of a gang call Thien Dang. Thien Dang was not a criminal street gang, but rather a group of Vietnamese men who gathered to eat, drink and socialize. Identifying the group as a street gang and asking a hypothetical question to the prosecution’s gang expert violated defendant’s due process rights and required a reversal of his conviction.id: 27365
Updated 2/3/2024Admission of a complaint in the gang member’s case to show the date of the predicate offense for purposes of the gang enhancement violated defendant’s confrontation clause rights.The gang expert offered evidence of other gang member’s prior crimes as “predicates” to prove the pattern of gang activity element of Penal Code section 186.22 (b). However, the law requires that the prosecution prove the date of the commission of the prior crime. The only competent evidence proving the date of the gang member’s offense was a copy of the complaint from his case. Admitting the complaint from the prior conviction to prove the date of the offense violated defendant’s confrontation clause rights.id: 26692
Updated 2/3/2024AB 333 applies to gang conspiracy under section 182.5.The gang conspiracy statute, Penal Code section 182.5, was enacted as part of Prop 21. AB 333’s amendments to the gang statute also apply to the gang conspiracy statute.id: 27540
The trial court erred by allowing excessive expert testimony on the Mexican Mafia.The trial court erred by allowing certain expert testimony regarding the Mexican Mafia. The parts of the expert’s testimony offered to prove his “expertise” on gangs included too much inflammatory content on the gang’s dangerous crimes and its history. However, the error was not prejudicial as defendant did act on behalf of the Mexican Mafia and the challenged testimony didn’t affect the outcome of the case.id: 25963
The gang expert’s opinion that was based in part on police reports and FI cards prepared by others violated defendant’s confrontation clause rights under Crawford, but the error was harmless given the other evidence of gang membership.Defendant argued a confrontation clause violation under People v. Sanchez (2016) 63 Cal.4th 665, where the gang expert’s conclusion was based on testimonial hearsay. Some of the evidence relied on by the expert was case-specific hearsay including the FI cards memorializing previous interactions with the defendant, and arrest reports completed by other officers. However, the FI cards prepared by the witness were not barred by Sanchez because he was present at the time and subject to cross-examination. The admission of the improper evidence was harmless given the other evidence that overwhelmingly established defendant’s gang membership, including his own admission to the officer.id: 25043
Case-specific hearsay relied on by an expert was inadmissible after Sanchez. Defendant was convicted of multiple drug possession offenses. The prosecution’s expert witness, a criminalist, identified the drugs in pill form as controlled substances simply by comparing their appearance to pills pictured in the “Ident-a-Drug” web site. Following People v. Sanchez (2016) 63 Cal.4th 665, 679, expert testimony that is based on “case-specific hearsay” is inadmissible absent an applicable hearsay exception. Where general background (as opposed to case-specific) hearsay is involved, the expert may still testify about it as long as it’s reliable.id: 24920
Following Sanchez, the trial court prejudicially erred by allowing a gang expert to base his opinion on case-specific hearsay and FI cards produced during an investigation. The prosecution didn’t allege a gang enhancement (or charge the gang offense) but argued the killing was gang-related. The gang evidence produced here was comprised of a mixture of admissible background evidence, evidence that violated state hearsay rules, and evidence that violated the confrontation clause as described in People v. Sanchez (2016) 63 Cal.4th 665. Under Sanchez, the gang expert’s testimony that was based on his personal observations, knowledge and training was admissible as a basis for his opinion. However, hearsay statements that were case-specific such as other gang members admissions to other officers were inadmissible. Field identification (FI) cards referenced by the gang expert that were produced during an investigation were testimonial hearsay and inadmissible under Sanchez.id: 25347
Gang experts testimony violated Sanchez to the extent that his opinion that defendant was a gang member was based on case-specific hearsay evidence.The detective’s opinion that Delatorre was a gang member was based partly on case-specific comments of others and therefore its admission violated People v. Sanchez (2016) 63 Cal.4th 665. The court also erred by instructing the jurors to decide whether the information relied on was accurate, which was no longer the test following Sanchez. However, the errors were harmless in light of the remaining evidence of the witness’s personal knowledge of Delatorre’s involvement in the gang.id: 25148
Gang expert’s reliance on police reports prepared by other officers to prove defendant was a member of the gang, and to prove the predicate acts, violated his confrontation clause rights under Sanchez. The gang expert testified from reports generated by other police officers on the issue of whether defendant was a member of the gang, and associated with other gang member who possessed a firearm. The gun offense supplied the missing predicate offense necessary to satisfy the associational or organizational requirement of the gang enhancement statute. The gang expert’s use of this case-specific hearsay violated defendant’s right of confrontation under People v. Sanchez (2016) 63 Cal.4th 665.id: 25154
Hearsay statements relied on by gang officer to prove the gang enhancement were testimonial and the trial court violated defendant’s confrontation clause rights under Crawford by allowing the testimony.When an expert relates to the jury case-specific out-of-court statements and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. The police officer relied on various prior contacts to conclude that defendant was a gang member. The evidence included three police reports. The officer learned of three contacts from police reports that were not admitted into evidence. The officer learned of a fourth contact through a STEP notice, and the fifth through a field identification card. The statements were all inadmissible hearsay and because they were testimonial, the officer’s reliance on them violated defendant’s confrontation clause rights under Crawford v. Washington (2004) 541 U.S. 36.id: 24778
The prosecutor erred by asking the gang expert whether defendant specifically committed the alleged crimes for the benefit of the gang.The gang expert impermissibly testified that the defendant specifically shot at the vehicle in order to promote or further the Norteno street gang. However, the error was harmless where the prosecutor also asked the expert a proper hypothetical that essentially elicited the same opinion.id: 24500
The erroneous failure to dismiss the gang charges and enhancement allegations following the 995 motion led to the introduction of inflammatory gang evidence at trial and violated the defendants’ due process rights.Defendants were convicted of attempted murder and aggravated assault, but acquitted of the gang offense and enhancement allegation. The trial court erroneously denied the defendants’ Penal Code section 995 motion to set aside the gang charges and enhancement allegations because the evidence adduced at the preliminary hearing failed to show the “Surenos” are a single criminal street gang, and there was insufficient evidence to show the defendants’ participation in the gang was anything more than passive or nominal. The gang evidence was inflammatory and prejudicial on the attempted murder charges. Admission of the evidence violated defendants’ due process rights and required reversal of the convictions.id: 24515
The trial court violated defendant’s confrontation clause rights under Crawford by admitting as “basis evidence” statements made by gang members during a police interview.The gang expert’s opinion was based in part on statements made by gang members during an in-custody interview. The testimonial statements were unreliable and presenting that “basis evidence” to the jury violated appellant’s confrontation clause rights under Crawford. However, the error was harmless where the jurors deadlocked on the gang allegations showing they did not rely on the expert’s inadmissible testimony.id: 24380
The trial court erred by excluding the testimony of the gang expert defendant presented to impeach the reliability of the state’s gang expert.The trial court erred by excluding a defense expert’s testimony proffered to impeach the reliability of the state’s gang expert. Contrary to the court’s ruling, the evidence would not have consumed an inordinate amount of time, and evidence questioning the reliability of the state’s expert was relevant. However, the error was harmless where the erroneously excluded evidence related mostly to the gang allegations that were subsequently dismissed.id: 24381
The trial court erred by instructing that defendants’ gang activities were evidence that they committed the charged murder.The parties agreed that evidence of the defendants’ activities with the other Sureños was admissible to prove the gang enhancement but not as evidence that they were guilty of murdering Lopez. The trial court then erred by instructing the jurors to consider evidence of Sureño activity to establish defendants’ identities as the killers of Lopez and the other uncharged crimes. However, the error was harmless as it was most unlikely that defendants would have been acquitted if defense counsel had acted to correct the faulty instruction and succeeded in doing so. id: 23139
Testimonial hearsay statement that defendant directed a gang related robbery should have been limited or excluded as “basis evidence” under section 352.Defendant argued that the admission of an out-of-court testimonial statement that he directed a gang-related robbery violated his confrontation clause rights under Crawford v. Washington (2004) 541 U.S. 36. The evidence was admitted to support the opinion of the prosecution’s gang expert that he was an active gang member not as substantive proof that he was an active gang member. Admitting the statement did not violate the 6th Amendment but such testimonial statements should be analyzed under Evidence Code section 352 and limited or excluded when necessary to prevent undue prejudice. Testimonial statements are difficult if not impossible to disregard for their truth and are also of suspect reliability. Any error in admitting the statement was harmless in light of the other evidence showing defendant was an active, high ranking gang member.id: 22538
The trial court erred by instructing on natural and probable consequences where defendants aided and abetted breach of the peace and assault because the shooter’s “Where are you from?” gang challenge was not likely to result in murder. The trial court erred by instructing the jury that the murder and attempted murder were “natural and probable consequences” of the crimes the defendants aided and abetted – breach of the peace and misdemeanor assault. The evidence to support the instruction was provided by the gang expert who testified that encouraged Rivera’s “Where are you from?” challenge. However, a shooting or homicide was not a natural and probable consequence of the verbal challenge. While many gang-related murders might be preceded by a “Where are you from?” challenger, it does not follow that it is reasonably foreseeable that a shooting would follow. The error was prejudicial as it was reasonably probable that the defendant’s would have obtained a better result absent the error.id: 20711
The prosecution's failure to authenticate a photo downloaded from defendant's Myspace page should have barred its admission. The trial court admitted a photograph showing a witness flashing gang signs to rebut her testimony that she and defendant (her boyfriend) did not associate with the gang. The photograph had been downloaded from defendant's home page on his Myspace website. However, the court erred in admitting the photo due to the prosecutor's failure to authenticate it. The police officer could not testify from personal knowledge that the photo was accurate and no expert testified that it was not a fake. But the error was harmless in light of the overwhelming evidence of defendant's guilt. id: 21612
The court erred by admitting a gang roster downloaded from the internet because it was not properly authenticated despite the officer's testimony that he believed this was the gang's roster.The prosecution offered a purported roster of a gang's members which appeared on a web page as evidence that the defendants belonged to the gang. However, the trial court erred by admitting the evidence because it was not properly authenticated. There was no showing that the writing was what it purported to be. The officer's testimony that he believed this was a roster of the gang was not sufficient to authenticate the document as a gang roster. id: 21613
The trial court erred by admitting the gang expert’s opinion on defendant’s knowledge and intent. The trial court erred in admitting the gang expert’s opinion on defendant’s knowledge and intent in committing the underlying assault since the testimony was in response to two hypothetical questions that merely changed the names of the parties. However, the error was harmless in light of the other admissible evidence relevant to establish that defendant committed the assault to benefit the gang for purposes of the Penal Code section 186.22, subd.(b) enhancement.id: 21606
Expert’s testimony that defendants were gang members in the gang territory was insufficient to support the conclusion that the crimes were committed for the gang for purposes of the gang enhancement. The gang expert testified that because defendants were members of a gang and were stopped in an area claimed by that gang, that the weapon and stolen vehicle possession offenses were committed for the benefit of the gang. However, the expert testimony was insufficient to support the Penal Code section 186.22, subd.(b) gang enhancement.id: 21065
The trial court erred in excluding expert testimony that some gang members may not know that others intend to commit a crime.The trial court erred in refusing to admit expert testimony that gang members can be in the company of other gang members without knowing that another member is going to commit a crime and/or without the intent to assist in the crime. However, the error was harmless where the evidence was strong that each member knew what the others intended to do. id: 20938
The trial court erred by admitting unnecessary quantities of evidence of contacts between members of defendant’s gang and police.Defendant argued the trial court erred in admitting evidence about dozens of contacts defendant and fellow gang members had with police, regardless of whether those contacts led to convictions or even arrests and regardless of whether the evidence had any reliable basis. While the admission of such unnecessary quantities of evidence was improper, the error was harmless in light of the overwhelming evidence of guilt.id: 20811
Gang evidence suggesting shootings occurred for gang respect was irrelevant and highly inflammatory rendering the entire trial fundamentally unfair.Defendant was charged with several felony offenses along with Penal Code section 186.22 gang allegations. However, the court erred in admitting the gang evidence which was extremely prejudicial and not relevant to the underlying charges. A gang-related motive for the shootings was not apparent and the gang expert's opinion that the shootings occurred to gain respect for the gang and enhance the shooter's reputation within the gang was supported solely by evidence of defendant's membership in the gang. Given the highly inflammatory nature of the gang evidence, its admission rendered defendant's trial fundamentally unfair and reversal of all convictions was required.id: 19534
Court abused its discretion in admitting evidence of gang membership to impeach one defendant's testimony where the evidence was weak, cumulative and inflammatory.The trial court abused its discretion in admitting evidence that both defendants were in a gang as impeachment after one testified favorably for the other. Evidence of gang membership was weak as it was based primarily on ambiguous tatoos and neither defendant was on the police officer's membership list regarding the particular gang. Moreover, the evidence was cumulative as other evidence established a close personal relationship between the defendants. It was also in the testifying defendant's self-interest to testify as he did. Finally, the gang membership evidence was highly inflammatory. The error was prejudicial because guilt evidence was weak while the gang-violence-fear-retribution testimony and argument was pervasive.id: 12892
The trial court abused its discretion in refusing to bifurcate the trial of a street gang enhancement from the underlying offenses.The trial court erred in refusing to bifurcate the trial of the criminal street gang enhancement from the trial of the underlying offenses. The evidence of the robbery charge was strong while the evidence of the attempted carjacking was weak. The gang enhancement evidence had the potential to "spill-over" to the weak case. However, the error was harmless since the robbery evidence was strong and the court dismissed the attempted carjacking count in the interest of justice.id: 17422
Admission of evidence of gang graffiti in defendant's room, which was unrelated to any issue at trial, required reversal of his conviction for negligent discharge of a firearm.Defendant was convicted of negligent discharge of a firearm and possession of an assault weapon. Although no Penal Code section 186.22, subd.(b)(1) gang enhancement was alleged, and although there was no evidence the charged crimes were related to gang activity, the trial court admitted, over defendant's objection, evidence that gang graffiti was found in defendant's bedroom. Admission of this evidence which was unrelated to any issue at trial required reversal of the conviction for grossly negligent discharge of the firearm.id: 18396
Trial court erred in allowing a gang expert to testify as to defendant's subjective knowledge and intent to possess a handgun.Defendant was convicted of conspiring to possess a handgun. A police officer testified as a gang expert establishing defendant's membership in the gang, as well as his subjective knowledge and intent to possess a handgun. However, the testimony about defendant's subjective knowledge and intent was improper expert opinion on the ultimate issue, and the evidence was otherwise insufficient to establish that defendant was involved in a conspiracy to possess a handgun.id: 17057
Updated 3/7/2024Gang expert’s testimony regarding predicate offenses doesn’t violate Sanchez if it involves earlier crimes.A gang expert’s testimony about gang enhancement predicate offenses does not violate People v. Sanchez (2016) 63 Cal.App.4th 665, so long as the predicate offenses don’t involve the defendant or individuals involved in the defendant’s case. Such predicate offenses are chapters in a gang’s biography and constitute historical background information, not case-specific information.id: 26414
Updated 3/5/2024Gang expert’s opinion was proper even though he had never heard of someone being killed for refusing to join a gang.Defendant challenged the gang expert’s testimony after he admitted that he had never before heard of someone being killed for failing to join a gang. However, an expert need not have personal experience with the precise fact pattern to offer a proper opinion. The expert’s opinion drew on his expertise about the significance of gang recruitment, jumping in ceremonies and disrespect.id: 26838
Updated 3/4/2024The new rap video law, Evidence Code section 352.2 does not apply retroactively to cases that have already been tried.Defendant argued that the admission of the rap video played at his trial violated the newly enacted Evidence Code section 352.2. However, the new law does not apply retroactively to cases not yet final when the law became effective.id: 27851
Updated 2/24/2024Sanchez error in admitting gang expert testimony based on police reports and FI cards was harmless in light of other compelling evidence of gang membership.The prosecution’s gang expert testified about his second-hand knowledge of circumstances surrounding “prior contacts” with defendants, and otherwise related testimonial hearsay of other officers from sources like police reports and field interview cards. Admission of this evidence may have violated the confrontation clause under People v. Sanchez (2016) 63 Cal.4th 665. However, the error was harmless in light of the other compelling evidence of gang membership.id: 26723
Updated 2/22/2024Evidence of gang membership was properly admitted to show motive even though no gang enhancement was alleged.Defendant argued that the trial court erred by denying his pretrial motion to exclude evidence of his gang membership. He argued the evidence as irrelevant because no gang enhancement allegation was filed. However, the evidence was properly admitted on the issue of motive. id: 26962
Updated 2/7/2024Evidence of defendant’s gang membership was properly admitted at his murder trial.Defendant argued the trial court erred by allowing evidence of his gang membership in his capital murder trial. Contrary to defendant’s claim, the evidence was relevant to show his relationship with the accomplices who testified against him to prove his identity as one of the robbers. Moreover, although the violent examples in the expert’s testimony were distressing, the testimony was brief and no more inflammatory than the charged crimes.id: 27233
Codefendant’s questioning defendant about his former gang-membership was a fair response to defendant’s statement regarding the codefendant’s gang.Defendant testified that he was afraid of the codefendant’s gang member friends. Codefendant’s counsel then got defendant to acknowledge that he had been in a gang about 20 years ago. Defendant argued the testimony about his former gang membership rendered the trial fundamentally unfair. However, once defendant mentioned the codefendant’s gang, the court had discretion to allow a question about defendant’s former gang membership. Since the case had nothing to do with gangs, there is little chance that the evidence influenced the jurors.id: 25010
The trial court was bound by the Gardeley ruling that the admission of a gang expert’s “basis evidence” did not violate the confrontation clause.Defendants argued the trial court violated their right of confrontation under Crawford by allowing the prosecution’s expert to testify about the basis for his conclusion that the defendants were active gang members. However, in People v. Gardeley (1996) 14 Cal.4th 605, the California Supreme Court ruled that basis evidence is not admitted for its truth and its admission does not violate the confrontation clause. The court here was bound by that ruling.id: 24723
Gang expert’s testimony in establishing predicate offenses for the gang enhancement may have violated Sanchez, but the record was unclear and any error was harmless. Defendant argued the gang expert’s testimony in establishing the gang’s predicate offenses was inadmissible hearsay under People v. Sanchez (2016) 63 Cal.4th 665. The first predicate offense, a firearm offense committed by Romero, was established by reviewing police reports and speaking with the arresting officer, and that may have been testimonial hearsay under Sanchez, but the record was unclear. Any error was harmless where the detective knew Romero and knew him to be a gang member. The second incident was a firearm offense committed by Kevin Huynh and may have involved testimonial hearsay but again, the record was unclear, and any error was harmless.id: 25498
The trial court did not err by refusing to allow a gang counselor to testify that defendant was no longer a member of the gang.The trial court did not err by excluding testimony from a gang outreach counselor suggesting defendant was no longer an active member of the Rolling 20's Crips. The witness was not qualified as a gang expert. By not suggesting in court that he wanted to introduce the evidence to show his good character, thereby opening himself up to evidence of bad character, he forfeited the argument.id: 25306
Defendant’s failure to object to the gang expert’s opinion on confrontation clause grounds prevented the court from determining whether the expert relied on testimonial hearsay.Defendant argued his confrontation clause rights were violated where the gang expert relied on testimonial hearsay to show SSL members engaged in a pattern of criminal activity. However, while it’s possible that the officer relied on testimonial hearsay such as police reports or other records to support his conclusion, defendant failed to object on that basis and so there was not a clear record to address the issue. Any error was harmless given the evidence of defendant’s own conduct that established the pattern of gang activity. The officer may also have relied on case-specific hearsay, which is improper following People v. Sanchez (2016) 63 Cal.4th 665, but such error was harmless given the other evidence establishing a pattern of gang activity.id: 25063
The gang expert properly testified that defendant may have brought an assault weapon to a gang retaliation incident to use against police if they arrived during the planned attack. The trial court properly allowed the gang expert to testify that one reason for bringing an assault weapon to retaliate against a rival gang leader was to attack the police if they arrived during the planned attack. The expert had extensive experience with gangs as a police officer and in the military and as military police officer. Gang tactics was a proper subject of expert testimony. id: 24450
Gang expert’s opinion was supported by evidence of the manner in which the burglaries were carried out, and by the defendants active gang membership.Defendants argued the evidence was insufficient to support the gang allegations because the only evidence presented was the conclusory opinion of the prosecution’s gang expert. However, the gang expert’s opinion was supported by evidence concerning the manner in which the crimes were carried out (an act known as “floccin”) where LA crips engage in daytime break-ins in San Fernando Valley suburbs), and the defendants active gang membership.id: 24655
The trial court did not err by excluding testimony from an expert on prison culture during the guilt phase of a case where defendant was charged with the murder of a prison guard.Defendant was charged in a capital case with the murder of a prison guard. The trial court did not err by excluding at the guilt phase the proffered testimony of an expert on prison conditions.id: 24553
Gang expert’s opinions need not be based on facts that occurred at or near the time of the offenses.Defendant argued the trial court erred by admitting the gang expert’s opinion because the facts the expert used for support did not occur at or near the time of the charged offenses. Defendant cited the Kelly-Frye factors to challenge the expert’s methods but referred to no authority excluding nonscientific gang expert testimony based on these factors.id: 24378
An expert may opine that the offense presented in the hypothetical questions asked by the prosecutor was committed for the benefit of a street gang. Defendant argued that in response to the prosecutor’s hypothetical questions, the gang expert testified impermissibly about ultimate issues of fact constituting prejudicial legal conclusions. However, a gang expert presented with hypothetical facts may opine that the offense was committed for the benefit of the gang.id: 24379
The trial court did not err by allowing a gang expert to testify that reluctant witnesses to crimes committed in a restaurant always say they were in the bathroom at the time of the crime. The trial court did not err by allowing the prosecution’s gang expert to testify that the most common excuse given by reluctant witnesses at the scene of a gang crime committed in a restaurant is that they did not see anything because they were in the bathroom. The excuse was sufficiently beyond common experience to allow its admission under Evidence Code section 801. Moreover, the testimony had no tendency to evoke an emotional bias and was not inadmissible under section 352.id: 24236
Admission of testimonial hearsay statement for its truth, as basis evidence to support the gang expert’s opinion violated the confrontation clause under Crawford.The prosecution’s gang expert testified at trial that defendant was an active participant in a gang. The basis of his opinion was a testimonial hearsay statement from another gang member. The statement was effectively offered for its truth through the testimony of the gang expert and it violated defendant’s confrontation clause rights under Crawford v. Washington (2004) 541 U.S. 36. However, the error was harmless where the use of the statement for its truth, as basis evidence to support the gang expert’s opinion, could not have affected the verdict in the drug charge or the active gang participation charge.id: 23554
Admission of statements placed in STEP notices and FI cards, and testified to by the gang expert did not violate hearsay rule, section 352 or defendant’s confrontation clause rights under Crawford. Defendant argued the trial court erred by admitting evidence of statements contained in STEP notices, field identification cards and police reports to support the gang expert’s testimony. The materials considered here were not inadmissible hearsay and were the type normally considered by experts. And the statements were not unduly prejudicial under section 352 just because they were made to nontestifying officers. Finally, the evidence did not violate defendant’s confrontation clause rights under Crawford where it was admitted as a basis for the expert’s opinion and not for the truth.id: 23466
Gang expert’s reliance on conversations with gang members and police, and other written materials to support his opinion did not violate the confrontation clause under Crawford.Defendants argued the gang expert’s testimony should have been excluded because it was based on hearsay and violated their confrontation clause rights under Crawford v. Washington. However, the expert’s reliance on conversations with gang members and officers, as well as on various written materials was not improper under California law. Moreover, there was no Crawford violation where the out-of-court statements on which the officer relied, were not “testimonial.” The court did not decide the issue of whether the out-of-court statements were being offered for their truth.id: 23347
The trial court did not err by allowing hypothetical questions of the gang expert that closely tracked the evidence in the case. An expert witness testified that the charged crime was gang related. Defendant argued (and the Court of Appeal agreed) that the trial court erred in permitting the expert to respond to hypothetical questions the prosecutor asked because the questions closely tracked the evidence in a manner that was only thinly disguised. There was no error as it is required, not prohibited, that the hypothetical questions be based on the evidence. The questioner is not required to disguise the fact that the questions were based on the evidence.id: 22467
The trial court did not err by allowing testimony regarding eight predicate offenses to show defendant possessed the gun to benefit the gang for purposes of the gang enhancement. The trial court did not abuse its discretion under Evidence Code section 352 by allowing the gang expert to testify about eight predicate offenses to prove defendant possessed a gun to benefit a street gang for purposes of the Penal Code section 186.22, subd.(b) enhancement. Assuming the court erred by allowing testimony regarding details of 14 gang related shootings, any error was harmless as the testimony provided essential background for defendant's claim of self-defense.id: 21995
The trial court did not err in finding the gang expert could testify on direct exam about the out-of-court statements he relied on in forming certain opinions. Defendant challenged the trial court's determination that the gang expert could testify on direct examination about the out-of-court statements he relied on in forming certain opinions. The trial court ruled that such statements did not come in for their truth, but only to assist the jury in evaluating the expert's opinions. The trial court's opinion was supported by People v. Thomas (2005) 130 Cal.App.4th 1202, which relied on relevant California Supreme Court precedent (People v. Gardeley (1996) 14 Cal.4th 605) and was binding. However, the court disagreed with Thomas and proposed an approach that preserved the goals of Gardeley while recognizing the reality of how jurors treat out-of-court statements admitted as basis evidence.id: 21994
Gang expert's testimony was not just based on police reports but years of experience, and the fact that a rival gang member had lied to police in the past did not mean he could not be a reliable source. Defendant argued the trial court erred by admitting certain opinions of the gang expert because they were based on unreliable sources taken from police reports and statements from unknown gang members. However, the officer's opinion was based largely on his many years of experience and hundreds of conversations as one part of the foundation of his testimony. Moreover, the conclusion that one gang member had lied to police in the past did not preclude a conclusion that he was a reliable source of information supporting the gang expert's conclusion.id: 21993
The gang expert's testimony regarding the shooting of a rival gang member who was not the original target, and motive to shoot a police officer did not exceed the scope of his expertise. The trial court did not err by qualifying a San Francisco police inspector as a gang expert. Defendant conceded the officer was qualified to testify as to Bayview gang "culture" but argued his testimony exceeded the scope of his expertise. However, the witness's expertise was adequate to permit him to opine that a gang member intending to shoot a particular gang rival would shoot a different member of the rival gang if the intended victim was not present, and to support his opinion regarding a gang member's motive to shoot a police officer.id: 21992
The trial court did not err by admitting printouts of defendant’s password protected MySpace page which the gang expert used to support his conclusion that defendant was a gang member. Defendant argued that the trial court erred by admitting printouts of his MySpace social media internet page, which the prosecution’s gang expert relied on in forming his opinion that defendant was an active gang member. Defendant argued the evidence was not properly authenticated. However, a reasonable jury could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to him, especially since there was a password requirement for posting and deleting content. Moreover, the evidence was not inadmissible hearsay where it was not admitted for its truth and the jury was properly instructed that it could only be considered for the limited purposes stated.id: 22529
The trial court prejudicially erred by admitting evidence of the Jus Brothers motorcycle club as a gang. The defendants were members of a motorcycle club who got into a bar fight in which two people were killed. The trial court prejudicially erred at the murder trial by admitting prejudicial gang-type evidence regarding the Jus Brothers motorcycle club. There was no foundation that the club was a gang or a criminal enterprise. The evidence was not probative on motive but was used instead to show criminal disposition. Much of the evidence admitted and argued by the prosecution was inadmissible character evidence and the error was compounded by the prosecutor’s argument comparing the club to the Hells Angels. Finally, the issue was properly preserved for appeal by the original pretrial objection and the defense was not required to object again at trial to save the issue.id: 21910
The trial court did not err in allowing the gang expert to testify that defendant’s moniker “Chucky” derived from a homicidal doll. The trial court did not err by allowing the prosecutor to present evidence surrounding the origin of defendant’s gang moniker, “Chucky”. The gang expert testified the name came from a horror movie with four sequels in which “Chucky” is a homicidal doll. The expert’s testimony explaining the significance of the moniker was highly probative because it showed defendant was advertising his intent to model himself after a killer doll.id: 21370
The gang expert’s interpretation of the meaning of the intercepted phone calls did not exceed the legal limits. Defendant argued the gang expert exceeded legal limits of expert testimony by interpreting the meaning of four intercepted phone calls and opining that defendant had the requisite mental state for conspiracy to commit murder. The testimony included the expert’s interpretation of gang slang, his opinion defendant confirmed that a vehicle belonged to a Crip, and allowing codefendant to coordinate the plan to attack the Bloods. The testimony did not exceed the legal limits.id: 21581
The trial court did not err by admitting photos showing defendants in gang colors and flashing gang signs. The trial court did not abuse its discretion by admitting numerous photos of the defendants wearing gang colors, showing gang signs, displaying weapons and visiting grave sites of murdered Crips. The photos were relevant to prove conspiracy to commit murder, and the finding that the crime was committed for the benefit of the gang. The prosecutor explained the relevance of each photo and the court excluded the photos it found had limited relevance or were cumulative.id: 21580
The trial court did not abuse its discretion by allowing the gang expert’s testimony regarding defendant’s 1994 extortion conviction where a gang offense was charged requiring showing of prior crimes.The trial court did not abuse its discretion under Evidence Code section 352 by admitting the gang expert’s testimony regarding defendant’s 1994 extortion conviction since it was relevant to prove the substantive charge of street terrorism and the court admonished the jurors not to consider the conviction as evidence of propensity to commit crimes.id: 21215
Evidence showed defendant’s gang’s “primary activities” of consistent criminal activity supported the section 186.22, subd. (b) enhancements.There was sufficient evidence that defendant’s gang met the definition of a “criminal street gang” as set forth in Penal Code section 186.22, subd.(f). Evidence of the gang’s “primary activities” for purposes of that provision was established by the gang’s 35 year history of criminal conduct, including a “shoot on sight” policy when confronting gang rivals, consistent and repeated crimes, and no evidence that the gang had any purpose other than committing crimes.id: 21030
The court did not err in failing to limit CALCRIM No. 1403 to the gang enhancement where the gang evidence was necessary to explain the motive and witness credibility.Defendant argued the giving of CALCRIM No. 1403 was erroneous since the instruction should have been limited to the gang enhancement, but the court read the optional paragraphs regarding motive and witness credibility. However, the gang evidence was essential to establish a motive for the senseless murder. Moreover, the instruction explained the discrepancies between the witness’s pretrial statement and trial testimony.id: 20939
Intent to further gang activity is not a motive so that motive instruction does not conflict with the instructions for the gang offense, enhancement or special circumstance.Defendant argued that the pattern instruction on motive (CALCRIM No. 370) was in conflict with the instructions for the substantive offense of criminal street gang participation, the street gang enhancement and the special circumstance provision. He claimed that although each of those instructions required a finding that he had an intent to further gang activity, the motive instruction contradicted this by telling the jury it did not have to make that finding. However, contrary to defendant’s claim, the intent to further criminal gang activity is not the same as a motive.id: 20839
Trial court did not err by admitting gang expert’s testimony which was relevant to prove the gang enhancement allegation where the court instructed the jurors to only consider the evidence for that purpose.The trial court did not err in admitting the expert testimony of a detective regarding defendant’s gang affiliation, and threatening notes found in his cell. The evidence was admissible to prove the Penal Code section 186.22, subd.(b) gang allegation even if it was inadmissible to prove the underlying charges, and the trial court instructed the jurors the evidence was only being admitted for that limited purpose. id: 20865
The trial court did not err by failing to exclude as unreliable the hearsay evidence relied upon by the gang expert.Defendant argued there was an insufficient foundation for the gang expert’s opinion because the police reports and hearsay relied upon by the expert were so unreliable. However, gang experts may rely on their own investigations when forming an opinion and the jurors were instructed to consider whether the information relied upon was true and accurate. Finally, even if the expert’s opinion was based in part on unreliable hearsay, other unchallenged bases for the opinion remained. id: 20813
The trial court did not err by allowing the gang expert to testify that the crimes were committed for the benefit of the gang.Defendant argued the trial court erred by permitting the expert witnesses to give opinions on the ultimate issues. The expert opinion about who possessed the contraband was largely elicited by defense counsel, so the doctrine of invited error prevents relief. Moreover, the gang expert did not err in concluding the crimes were committed for the benefit of the gang where defendant admitted being a gang member, and committed the charged offenses with a houseful of gang confederates in gang territory. id: 20812
The gang evidence was properly admitted to provide a motive and intent to aid and abet the murder of the victim and, to elevate the status of defendant’s tagging crew to a gang. Defendant argued he was denied due process by the introduction of gang evidence at his murder trial. The evidence included two gang experts (police detectives) who described the local gang culture and specific gangs, and how gang members come to the aid of one another. The evidence also included local gang members who were facing charges. The trial court was within its discretion in admitting the evidence to show defendant’s intent and motive to aid and abet the murder of the victim who had just fought his friend, and to show defendant sought to elevate his tagging crew to gang status. The acquittal of a codefendant showed the gang evidence was not unduly prejudicial. id: 20692
The gang expert's testimony as to a person entering rival gang territory did not amount to an opinion about his intent but, rather, properly addressed his motivation.Defendant argued the prosecutor improperly used fact-specific hypothetical questions to elicit testimony from gang experts that a gang member going into a rival territory - like defendant - would do so as a challenge and bring a weapon. However, contrary to defendant's claims, the experts did not render an impermissible opinion about defendant's intent, but rather, testified properly as to his motivation for entering rival gang territory.id: 18636
The gang expert testified properly based on hypothetical questions that reached the ultimate issue of active participation in a gang. The gang expert never testified as to defendant's specific intent in possessing the firearm. Instead, he testified in response to hypothetical question that the crime under those circumstances would be committed to benefit the street gang. The trial court did not abuse its discretion in permitting this testimony even though the topics as to which he rendered an opinion based on responses to hypothetical questions were, in fact, the ultimate issues of the case.id: 19784
There was no Crawford violation where the gang expert testified as to conversations with other gang members who identified defendant as a gang member.Defendant argued that under Crawford v. Washington (2004) 541 U.S. 36, his right to confront witnesses was violated by the admission of hearsay evidence in the form of gang expert's conversations with other gang members in which they identified defendant as a gang member. However, the conversations with other gang members were mentioned only as a basis for the expert's opinion that defendant was a gang member. There was no Sixth Amendment violation based on the expert's reliance on hearsay matters.id: 18632
Court did not err in failing to exclude gang membership evidence where the evidence was relevant to motive and identity, and defendant did not challenge the qualifications of the gang experts.The trial court did not err in failing to exclude all evidence of alleged gang membership. Gang evidence was relevant to both motive and identity; defendant never sought to challenge the qualifications of the prosecution's gang experts; and despite the court's earlier promise to conduct an Evidence Code section 402 hearing prior to admitting gang evidence, defense counsel raised no objection prior to such testimony.id: 12903
Court did not err in admitting expert testimony that the shooting of a person by a gang member after asking where he was from, was gang related.The prosecutor asked the gang expert why someone would ask a person where they were from and then shoot them. The expert opined that such behavior by a known gang member was likely done for gang related purposes. The trial court did not err in admitting the testimony.id: 15030
Trial court did not abuse its discretion in permitting gang expert to testify about what happens to "rats" in the gang culture, and "paybacks."The trial court did not abuse its discretion in allowing a gang expert to testify that a gang member who "rats" on another can suffer severe consequences, and on the concept of "paybacks." The evidence relating to paybacks was relevant to the issues of motive and intent. Moreover, the testimony about "rats" in the gang culture helped to explain the discrepancies between what the witnesses told police and their trial testimony.id: 17625
The trial court did not err in allowing previously prohibited gang evidence on rebuttal where the issue was raised in the defense case.The trial court ruled evidence of gang membership was inadmissible. On rebuttal, the prosecutor inquired about gang activities and argued the evidence to the jury. The trial court did not err in allowing the evidence since the defense presented evidence showing gang members sold drugs in the area of the apartment complex. The prosecutor was entitled to rebut the inference created by the defense that the drugs found in the stairwell belonged to a gang member, not defendant.id: 17326
The gang expert's opinion that witnesses may be intimidated was not inadmissible where he did not describe a particular witness, and the fact that gang members sometimes lie, did not discredit his testimony.Defendant argued the gang expert's testimony was inadmissible because he testified the witnesses were intimidated, not that people may be intimidated by gang members. However, the testimony made the evidence probative not inadmissible. Moreover, the expert's testimony was not an impermissible opinion as to the credibility of a certain witness because he was not asked about and did not testify about any particular witness. Finally, the expert's statement that gang members sometimes lie did not disqualify him for an opinion based on unreliable information. A gang expert's opinion is usually based on several sources, which in sum may be reliable.id: 19111
The gang expert's testimony was admissible to rebut the defense theory defendant participated in the robbery due to coercion from the gang. Since defendant's gang membership was introduced by defendant (to show he was coerced into participating in the robbery by the gang he had abandoned), the gang expert's testimony was relevant to counter the defendant's inferences and was not improper profile evidence.id: 19690
The court did not err in admitting gang expert testimony that did not specifically address defendant's intent or knowledge.Defendant argued the admission of gang expert testimony about his knowledge and intent was prejudicial error. However, the prosecutor never asked the expert hypothetical questions based on the facts of this case. The expert did not address defendant's intent or knowledge. Rather his testimony addressed the motives of jailhouse gang members in general. This evidence may have led the jury to conclude defendant intended to kill the victim, but that did not render it inadmissible.id: 18388
The trial court did not err in permitting evidence that defendant and the third party who confessed were members of the same criminal street gang.Defendant was charged with drug sales. The primary issue at trial was the identity of the perpetrator. Defendant sought to introduce the confession of a third party - Valdez. Valdez had denied knowing defendant and there was no evidence of a prior relationship. Moreover, neither Valdez nor defendant testified. Under the circumstances, the trial court did not abuse its discretion in admitting gang expert testimony to show defendant and Valdez were members of the same street gang.id: 16020
Court properly allowed expert opinion on defendant's gang status based on circumstances of the present shooting.Defendant argued the trial court abused its discretion in admitting an expert opinion about his gang status. He claimed the opinion was illogical absent evidence of gang tattoos or prior gang-related offenses. However, defendant's participation in the present gang related shooting supported an inference of his participation in the gang. The circumstances of the shooting were clearly such as to permit the officer to offer an opinion on defendant's gang status.id: 16035
Officers testifying as experts on gang activity did not rely on impermissible matter.Defendant argued that the officers' testifying as experts relied on statements of gang members as a foundation for their opinions and reliance on such material was impermissible. However, the statements of gang members were only a portion of the foundation for the officers' opinions. They did not simply recite what they had been told, but instead provided foundational testimony for their opinions which was sufficiently corroborated by other competent evidence, both physical and testimonial. The testimony violated neither the confrontation clause nor the Evidence Code.id: 13032
Officers' opinions regarding specific street gangs was of assistance to the trier of fact.Defendant argued that the police officers' opinions regarding gang membership and crimes committed in furtherance of gang objectives were not the type which would assist the trier of fact. However, the officers established a strong foundation for their testimony by including personal observations of and discussions with gang members as well as information from other officers and the department's files. The foundation for the officers' expert opinions was diverse and strong, and the opinions were properly admitted.id: 13033
Court properly admitted evidence of gang affiliation and activity to prove intent and motive with respect to the murder.Evidence of gang membership and activity was clearly relevant to defendant's motive for attacking the victim and his intent in doing so. Therefore, the trial court properly admitted evidence of gang affiliation and activity to provide intent and motive with respect to the murder. Once the trial court made this decision, it did not abuse its discretion under Evidence Code section 352 when it permitted the prosecution to present the entire picture of the rivalry between the gangs.id: 12914
Court properly admitted handwritten rap lyrics showing defendant's memberships in and loyalty to the gang.Defendant was convicted of murder and the jury found true a criminal street gang enhancement. He argued the court erred in admitting handwritten rap lyrics found in a search of his home. He claimed there was no evidence that he was the creator of the lyrics which made reference to defendant's gang (Southside). These references supported the finding that he was the author. The lyrics were properly admitted as they demonstrated his membership in the gang, his loyalty to it, his familiarity with gang culture, and inferentially, his motive and intent on the day of the killing.id: 12915
Court properly excluded evidence that fellow gang members told defendant's parole officer they believed he was innocent.Defendant argued the court erred in excluding evidence of what fellow gang members told his parole officer notwithstanding its hearsay nature because it was highly relevant and tended to create a lingering doubt. However, the fact that unidentified gang members, presumably friends of defendant, told a parole officer they believed in defendant's innocence had little bearing on whether he actually committed the murders and hence was not highly relevant, nor was there any reason to believe the claims were reliable.id: 12918
Evidence of defendants' gang membership was properly admitted to connect defendants to the car containing property stolen during the murders and another gang member identified as one of the killers.The trial court did not abuse its discretion in denying defendant's challenge to the admissibility of the officer's testimony that defendants were gang members. The evidence was sufficient to connect defendants to the car in which officers found property stolen during the murders, to link them with another gang member identified as a participant in the killings, and to demonstrate the relationship with a gang member who was the son of one of the murder victims.id: 12926
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245