Evidentiary Issues in Gang Cases

A. Bifurcation

The trial court has discretion to bifurcate trial of a gang enhancement from trial of guilt on charged offenses. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1049.) But a gang enhancement is intertwined with the charged offense such that "less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.]" (Id. at 1048.) Bifurcation is not necessary when "the evidence supporting the gang enhancement would be admissible at a trial of guilt." (Id. at 1049-1050.) Even where some of the evidence would not be admissible as to the charged offense, bifurcation may not be required. (Id. at 1050.) When the gang evidence is also related to the charged offense, the burden is on the defendant seeking bifurcation to clearly establish a substantial danger of prejudice. (Id. at 1050.)

Note: the question of bifurcation is closely tied to the question of unfair prejudice, which is discussed immediately below.

B. Unfair Prejudice/Due Process (EC § 352)/Improper Character Evidence (EC § 1101(a).)

  1. Careful Scrutiny. "[E]ven if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury." (People v. Albarran (2007) 149 Cal.App.4th 214, 224; see also People v. Williams (1997) 16 Cal.4th 153, 193.)

  2. Error Found.

    1. In Albarran, the Court of Appeal found error in the admission of extensive testimony (70 pages of RT) about the identities of the defendant's fellow gang members, their other crimes and police contacts, graffiti threats to kill police officers, and reference to the Mexican Mafia, all of which was irrelevant to the charged crimes and only tangentially related to the gang allegations. (Id. at 227-228.) The Court also found the error violated due process. "[T]he facts concerning the threat to police officers, the Mexican Mafia evidence and evidence identifying other gang members and their unrelated crimes, had no legitimate purpose in this trial. The trial court's ruling on the new trial motion in which it broadly concluded the gang evidence was admissible to prove motive and intent for the underlying charges was arbitrary and fundamentally unfair." (Id. at 230.) "This case presents one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant's trial fundamentally unfair." (Albarran, 149 Cal.App.4th at 232.)

    2. In People v. Memory (2010) 182 Cal.App.4th 835, the Court of Appeal found prejudicial error in the admission of "gang-type evidence" regarding a motorcycle club: "There was no foundation that the Jus Brothers were a gang or a criminal enterprise; the evidence was not probative on motive, but instead was used to show defendants' criminal disposition; the limited probative value of the evidence to show identity and bias of certain witnesses could have been handled with considerably less evidence; and the evidence was inflammatory. Much of the evidence admitted, and argued by the prosecution, was inadmissible character evidence." (Id. at 838.) 

  3. Mexican Mafia Reference. "[M]ore than one California court has recognized references to the Mexican Mafia are extremely prejudicial." (Albarran, 149 Cal.App.4th at 230, fn.15 (citing People v. Hisquierdo (1975) 45 Cal.App.3d 397, 405; People v. Ayala (2000) 23 Cal.4th 225, 276-277).)

  4. No Error Found. Courts have found the admission of gang evidence proper where it was relevant to show intent, identity, or motive for the charged offense or when relevant to the element of the gang enhancement. (E.g. People v. Valdez (2012) 55 Cal.4th 82, 131 (gang evidence relevant to prove identity and motive); People v. Garcia (2008) 168 Cal.App.4th 261, 278-279 (gang evidence, including evidence on gang's culture, was relevant to motive and intent in aiding and abetting murder); People v. Gutierrez (2009) 45 Cal.4th 789, 820 (no error in admitting gang evidence unrelated to charged crimes where it was directly related to elements of gang enhancement and court gave limiting instruction); People v. Leon (2010) 181 Cal.App.4th 452, 458-463 (evidence of defendant's gang moniker "Chucky"---derived from a homicidal doll from a movie---was relevant to show shooting was with the intent to kill and with premeditation and deliberation; evidence was not unduly prejudicial); People v. Hunt (2011) 196 Cal.App.4th 811, 817-818 (holding that due process right to a fair trial on violated by expert testimony because the expert did not merely testify in generalities that gang members who commit crimes almost always benefit the gang, and, in contrast to Albarran, the crimes were alleged to have been committed to benefit the gang, thus making the expert testimony relevant).)

  5. Gang Evidence in Cases Not Involving Gang Enhancement. "In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal." (People v. Hernandez (2004) 33 Cal.4th 1040, 1050 citing People v. Cardenas (1982) 31 Cal.3d 897, 904-905.)

  6. Admission of Defendant's Own Conduct to Prove Pattern of Criminal Gang Activity Does Not Violate Evidence Code Section 352.  In a prosecution for active participation in criminal street gang, that defendant was personally involved in some of the street gang's criminal activities typically will not so increase the prejudicial nature of the evidence as to unfairly bias the jury against defendant. The use of evidence of a defendant's separate offense to prove a predicate offense for the crime of active participation in criminal street gang should not generally create an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Tran (2011) 51 Cal.4th 1040.)

  7. Admission of Eight Predicate Offenses Did not Violated Section 352. Trial court did not violate section 352 when it allowed the prosecution to prove the gang's primary activity and pattern of criminal activity (see definition of a criminal street gang) with eight predicate offenses (the prosecution had offered ten). (People v. Hill (2011) 191 Cal.App.4th 1104, 1138-39.) 

C. Limiting Instructions

  1. No Sua Sponte Duty (generally). There is no sua sponte duty to give a limiting instruction when gang evidence is admissible for one purpose but not for another. (Hernandez, 33 Cal.4th at 1051; People v. Jones (2003) 30 Cal.4th 1084, 1116.)

  2. Sua Sponte duty (exception). The Court has recognized a possible exception. A sua sponte duty to give a limiting instruction might exist in an extraordinary case where the evidence at issue was "a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose." (Hernandez, 33 Cal.4th at 1051-1052 (citing People v. Collie (1981) 30 Cal.3d 43, 63-64 and People v. Farnam (2002) 28 Cal.4th 107, 163-164).)

  3. No error in admitting gang evidence unrelated to charged crimes where it was directly related to elements of gang enhancement and court gave limiting instruction. (People v. Gutierrez (2009) 45 Cal.4th 789, 820.)

D. Expert Testimony

  1. Practice Note: this outline separates cases involving the sufficiency of the evidence and the admissibility of the evidence. When considering one area, be sure to look to the other, particularly when considering expert testimony. The cases in the two areas touch on very closely-related concerns, and some are discussed both here and in the discussion of the adequacy of the proof of the mental state elements for the gang enhancement.

  2. Gang Culture & Habits is Proper Subject of Expert Testimony

    1. The subject matter of gang culture and habits meets the criterion of section 801 of the Evidence Code. (People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Gonzalez (2006) 38 Cal.4th 932, 944.) "Gang sociology and psychology are proper subjects of expert testimony [citation] as is 'the expectations of gang members ... when confronted with a specific action' [citations]." (People v. Hill (2011) 191 Cal.App.4th 1104, 1120.)

    2. "Whether members of a street gang would intimidate persons who testify against a member of that or a rival gang is sufficiently beyond common experience that a court could reasonably believe expert opinion would assist the jury." (Gonzalez, 38 Cal.4th at 945.)

  3. Qualification of Gang Expert. In People v. Hill (2011) 191 Cal.App.4th 1104, 1119-1120, the Court of Appeal rejected the defendant's argument that the police inspector's experience investigating gang crimes and talking to gang members did not qualify him as an expert "'on gang members' intentions, motivations, and actions under specified circumstances,' and '[s]treet experience and police workshops on investigation techniques do not transform officers into behavioral scientists who can predict individual or group behavior.'” The Court of Appeal concluded that the inspector's "expertise on gang culture, habits, and expectations 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, particularly if other people were in the vicinity. This same expertise supports [the inspector's] opinion regarding the motivation for a gang member to shoot a police officer and his opinion that gang rivalries effectively exclude particular gangs from certain areas of the city." (Id.at 1121.) 

  4. Kelly test for scientific evidence does not apply to gang expert's testimony. (Hill, 191 Cal.App.4th at 1123-24, distinguishing  People v. Kelly (1976) 17 Cal.3d 24.)

  5. Expert Testimony on Ultimate Question of Defendant's Subjective State of Mind.

    1. Error Found. Several cases, beginning with People v. Killebrew, have held it was error to allow an expert to testify as to the ultimate questions under the gang enhancement statute (subd. (b)) of whether the defendant committed the crime to benefit the gang and with specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Ramon (2009) 175 Cal.App.4th 843, 851; People v. Killebrew (2002) 103 Cal.App.4th 644, 658; see also In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 ("To allow the expert to state the minor's specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended"). 

    2. No Error Found. But expert opinion on the ultimate question of intent might not be impermissible when the opinion is not the only evidence reflecting on the defendant's state of mind. (People v. Roberts (2010) 184 Cal.App.4th 1149, 1194 (finding no error in admission of expert's opinion on intent, while noting that "Killebrew does not generally prohibit such testimony" and in Killebrew "[t]he expert's opinion was the only evidence the prosecution offered to establish the elements of the crime.").)

    3. Hypothetical Questions Distinguished: Expert testimony in response to hypothetical questions regarding defendant's motivation and likely reaction to gang challenges was not improper opinion evidence on the ultimate question of guilt. (People v. Ward (2005) 36 Cal.4th 186, 209-211.) "[W]e read Killebrew as merely 'prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.'" (Gonzalez, 38 Cal.4th at 946 (quoting People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) "It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons." (Id. at 946, fn.3.) In Gonzalez, 38 Cal.4th 932, the Court held there was no error in admitting testimony that a hypothetical witness would have been intimidated; "The [expert] witness did not express an opinion about whether the particular witnesses in this case had been intimidated." (Id. at 946-947.)  In People v. Vang (2011) 52 Cal.4th 1038, the California Supreme Court clarified that to the extent Killebrew " was correct in prohibiting expert testimony regarding whether the specific defendants acted for a gang reason, the reason for this rule is not that such testimony might embrace the ultimate issue in the case." (Id. at 1048.) "Rather, the reason for the rule is similar to the reason expert testimony regarding the defendant's guilt in general is improper. A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt. [Citations.]" (Ibid. [internal quotations marks omitted].) 

    4. Thinly-Disguised Hypothetical Questions Approved. In People v. Vang, the Supreme Court held that gang experts may answer thinly-disguised hypothetical questions which closely track, or thinly disguise, the facts of the case. The Court held that "It is required, not prohibited, that hypothetical questions be based on the evidence. The questioner is not required to disguise the fact the questions are based on that evidence." (Id. at 1041.) The Court explained that " A hypothetical question not based on the evidence is irrelevant and of no help to the jury." (Id. at 1046.)

    5. Dangers With Hypothetical Question Noted. In Vang (see previous paragraph), the Court acknowledged that "there are dangers with hypothetical questions," and "[o]ver objection, the trial court should be vigilant to ensure that they are used fairly." (Id. at 1051.)  Specifically, "hypothetical questions might be unduly partisan or posed in an argumentative or obfuscating manner, might be overlong, might misrepresent or omit important facts, might confuse the jury, and might improperly be used as a 'closing argument midstream.' [Citation.]" (Ibid.) The protection against these dangers, the Court explained, is not to ban hypothetical questions, but the right to cross-examination and the judge's authority to "'require that the hypothesis be reframed to supply an adequate basis.'" (Ibid..) 

  6. Foundation: 

    1. Inadequate foundation absent explanation of source of expert's knowledge gang was involved in a crime. There was an inadequate foundation for a gang expert's testimony on the gang's primary activities when, without giving specifics or explaining how he obtained the information, the expert merely testified that he "'kn[e]w that the gang had been involved in'" assaults and murders. (In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612.) Note: the observation about the lack of foundation in Alexander L. was made in the context of a finding of insufficient evidence, but that observation also goes to the question of admissibility. 

    2. Inadequate foundation for photograph downloaded from internet in absence of expert testimony it was not faked. Photograph of one defendant flashing a gang sign downloaded from a co-defendant's MySpace page inadequately authenticated and erroneously admitted. Although defendant conceded the photograph depicted her face, there was no expert testimony establishing that the photograph was not faked. The error was nevertheless harmless. (People v. Beckley (2010) 185 Cal.App.4th 509, 513-517.)

    3. Inadequate foundation provided for document downloaded from internet in absence of evidence of who created it. Prosecution offered as evidence "purported roster of gang's members" downloaded from internet by a detective. The detective did not know who created the list or whether the author had firsthand knowledge of the gang's membership. Although the document was "presumed to be an accurate representation of the web page," "the evidence was insufficient to show that the writing was what it purported to be-a roster of the Southside Compton Crips." Accordingly, the document "should have been excluded as unauthenticated and, therefore, irrelevant. Like the photograph, the list's admission was harmless. (Beckley, 185 Cal.App.4th at 517-518.)

  7. Confrontation Clause:

    • Recently, in People v. Sanchez (2016) 63 Cal.4th 665, the California Supreme Court held that out-of-court statements offered as a basis for a gang expert’s opinion constitute hearsay: "When any 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. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at 686.)
    • The Court explicitly overruled prior decisions holding that (1) an expert’s basis testimony is not offered for the truth or (2) hearsay and confrontation concerns were satisfied through a limiting instruction and the trial court’s prejudice analysis.(Id. at 686, fn. 13.)
    • Determining whether an out-of-court statement is testimonial: In Sanchez, the Court applied two different tests to determine whether the out-of-court statements were testimonial:
      • (1) Statements are testimonial when, under the circumstances, the primary purpose of the interrogation is not to meet an ongoing emergency, but rather to "establish or prove past events potentially relevant to later criminal prosecution." (Id. at 688. quoting Davis v. Washington (2006) 547 U.S. 813, 822.)
      • (2) Additionally, whether an out-of-court statement is testimonial depends on whether it was sufficiently formal. (Id. at 689-690 [citations omitted]). Formality can come in the form of an affidavit, sworn attestation, or deposition-like dialogue. (Id. at 692 [citation omitted].)

        8.  Proof of Gang Member's Constructive Possession of a Gun Possessed by Another Gang Member: Gang expert testimony was inadequate to prove defendant's constructive possession of a gun for purposes of guilt of possession of a firearm by a             felon under section 12021(a)(1). (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1413.) In Sifuentes, the gang expert testified that gangs used shared gang guns offensively and defensively to commit crimes and assault their rivals. But that                     testimony was insufficient to show that the defendant had a right to control a the particular firearm found under another gang member's mattress, even if he knew the gun was in the room. There was no evidence the defendant or other gang members             had used or were about to use the gun offensively or defensively. In addition, the expert testified that gangs have restrictions concerning “access” to a gang gun, but did not explain the restrictions or whether he equated access with a right to control,             nor did he link the defendant to the particular gun found in the room. (Id. at 1416-1419.) [Note: this was not a direct challenge to the gang offense and gang enhancement also found true in this case. But because the felon-in-possession charge was             inadequately proven, the attendant enhancement fell with it. In addition, the Court also reversed the subdivision (a) active gang participation conviction because the prosecutor relied on the gun possession to establish the felonious criminal conduct                 element of the gang offense. (Id. at 1419-1420.) 

Comments