LAW OFFICES OF [ ], Esq.
State Bar No.
Attorney for Client
SUPERIOR COURT OF THE COUNTY OF SAN MATEO
STATE OF CALIFORNIA
PEOPLE OF THE STATE ) Case No.
OF CALIFORNIA, )
)
Plaintiff, ) OBJECTION TO
) GANG EXPERT
v. ) TESTIMONY RE SUBJECTIVE
) STATE OF MIND OF DEFENDANTS,
) OR OPINION RE GUILT FROM
CLIENT, ) CONTENT OF TEXT MESSAGES
CO-DEFENDANT, )
CO-DEFENDANT )
)
)
)
Defendants. )
)
STATEMENT OF FACTS
The allegations regarding a conspiracy to kill Mr. Target are based, in large part, upon a series of texts sent between the defendants and other uncharged alleged co-conspirators. The texts are written in a common text shorthand where phonetics are used in the place of words. The texts also contained some gang slang.
OBJECTION
Client objects to the testimony of any prosecution gang expert regarding the subjective state of mind of the defendants or any other individual on the following bases: 1) interpretation of the texts beyond a translation of the commonly used phonetics in the texts and any gang specific slang is not a proper subject for expert testimony, 2) testimony regarding the subjective state of mind of the defendants, including intent to kill, the subjectively intended meaning of the sender of a text or the subjectively understood meaning of a recipient of the text, lacks foundation and is irrelevant and inadmissible, under Evidence Code section 403(a) and Evidence Code section 350, 3) testimony regarding the subjective state of mind of the defendants or any other individual by the gang expert is nothing more than an opinion regarding guilt clothed as expert testimony which is prohibited by California case law.
Client makes the same objections under the due process clauses of the 5th and 14th amendments to United States Constitution.
Jurors are as capable of drawing their own conclusions regarding the intended meaning of a text or how a text was understood by its recipient once any text phonetics gang specific slang is translated. The subjectively intended meaning of the sender of a text or the subjectively understood meaning of the recipient of a text is a matter for argument by the prosecution and defense based upon the content of the text and any other circumstantial evidence regarding the text admitted at trial. Jurors can then draw their own conclusions regarding the meaning and significance of the texts in this case and decide the case accordingly.
LEGAL ARGUMENT
I.
INTERPRETATION OF THE TEXTS BEYOND TRANSLATING THE PHONETICS IN THE TEXT AND ANY GANG SPECIFIC SLANG IS, UNDER EVIDENCE CODE SECTION 801(A), NOT A PROPER SUBJECT FOR EXPERT TESTIMONY.
Expert testimony is only admissible on a particular subject when the subject of inquiry is one in which men of ordinary education cannot reach a conclusion as intelligently as an expert witness. Evidence Code section 801(a), People v. Killebrew, (2002) 103 Cal.App.4th 644, 656 , citing, People v. Gamez, (1991) 235 Cal.App.3d 957, 965. As stated in Gamez:
The decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.
Gamez, supra at 965.
Interpretation of the texts in this case beyond translating the phonetics and any gang specific slang is, under Evidence Code section 801, and Killebrew and Gamez, not a proper subject for expert testimony. The fact finder is capable of reaching a conclusion as intelligently as the prosecution gang expert regarding the subjectively intended meaning of the sender of a text or the subjectively understood meaning of the recipient of the text based upon the content of the text and any other circumstantial evidence surrounding the text produced by the prosecution.
For the foregoing reasons, gang expert testimony should be limited to the translation of the text phonetics and any gang specific slang contained in the text. Any “interpretation” of the text is a matter for the fact finder and not a proper subject for expert testimony and inadmissible under Evidence Code section 801(a).
II.
THE TESTIMONY OF A GANG EXPERT REGARDING THE DEFENDANTS’ SUBJECTIVE STATE OF MIND, INCLUDING INTENT TO KILL AND THE SUBJECTIVELY INTENDED MEANING OR UNDERSTANDING OF A TEXT, LACKS FOUNDATION AND IS IRRELEVANT.
The California Supreme Court in People v. Vang, (2011) 52 Cal.4th 1038, 1048, held that gang expert testimony regarding an individual’s subjective state of mind including intent, knowledge or motive is inadmissible because expert testimony regarding a defendant’s subjective state of mind is nothing more than an opinion on the defendant’s guilt. Id. Vang also held that a gang expert’s belief as to the subjective state of mind of a particular defendant or individual is irrelevant because the expert was not a percipient witness to the offense. Id. Vang held that the fact finder is as competent as the expert witness to weigh the evidence and draw a inferences and conclusions regarding a defendant’s state of mind. Id.
Evidence which lacks foundation is irrelevant. Evidence Code section 403(a). The prosecution gang expert was not a percipient witnesses to the offense. In addition, a prosecution gang expert does not have the ability to divine a person’s subjective intent, understanding, knowledge, or motives. Therefore, testimony by the prosecution gang expert regarding the co-defendants’ subjective state of mind, including intent to kill, the subjectively intended meaning of a text or the subjectively understood meaning of a text, and the subjective motivation for any of their statements or conduct are, under Vang and Evidence Code section 403(a), irrelevant.
Irrelevant evidence is inadmissible. Evidence Code section 350. As indicated above, a prosecution gang expert’s testimony regarding the subjective state of mind of any of the defendants is, under Evidence Code section 403(a), irrelevant. Therefore, the prosecution gang expert’s testimony regarding the subjective state of mind of any of the defendants is, under Evidence Code section 350, inadmissible.
III.
EXPERT TESTIMONY REGARDING THE SUBJECTIVELY INTENDED MEANING OF THE SENDER OF A TEXT OR HOW A TEXT WAS SUBJECTIVELY UNDERSTOOD BY THE RECIPIENT OF A TEXT VIOLATES THE PROHIBITION AGAINST EXPERT TESTIMONY REGARDING THE SUBJECTIVE STATE OF MIND OF A DEFENDANT OR ANY OTHER INDIVIDUAL.
The subjective state of mind of a defendant is an issue reserved for the trier of fact and a gang expert may not give an opinion as to any subjective state of mind of a defendant, including intent, motive, or knowledge. People v. Vang, (2011) 52 Cal.4th 1038, 1048, People v. Garcia, (2007) 153 Cal.App.4th 1499, 1513, People v. Killebrew, (2002) 103 Cal.App.4th 644, 657-658. In other words, a gang expert is prohibited from giving an opinion about what a particular defendant is thinking. Vang, supra at 1044, citing Killebrew, supra 103 Cal.App.4th 644, 647.
The prosecution gang expert is, under Vang, Garcia, and Killebrew, prohibited from testifying regarding the subjective state of mind of any defendant or individual in this case. Therefore, the prosecution gang expert is prohibited, under Vang, Garcia, and Killebrew, from giving an opinion regarding the intended meaning of any text or any word or phrase contained in any text sent by any of the defendants.
In addition, the prohibition in Vang, Garcia, and Killebrew, regarding gang expert testimony regarding the subjective state of mind of a defendant also prohibits a gang expert from testifying regarding how a defendant subjectively understood the meaning of any word or phrase used in a text he or she received. Therefore, any testimony or opinion by the gang expert regarding how a text or a word or phrase in a text was subjectively understood by the recipient of the text is, under Vang, Garcia and Killebrew, inadmissible.
IV.
THE PROSECUTION GANG EXPERT IS, UNDER VANG AND KILLIBREW, PROHIBITED FROM ADDING WORDS OR PHRASES TO TEXTS NOT CONTAINED IN THE TEXT BECAUSE IT CONSTITUTES EXPERT TESTIMONY REGARDING THE INTENDED MEANING OF THE TEXT BY THE SENDER OR THE HOW THE TEXT WAS SUBJECTIVELY UNDERSTOOD BY THE RECIPIENT.
As indicated in Point II, the rule in Vang, Garcia, and Killebrew, prohibiting a gang expert from testifying regarding the subjective state of mind of a defendant prohibits a gang expert from testifying regarding the subjectively intended meaning of the sender of a text or how the text was subjectively understood by the recipient of the text. Rewriting a text by adding or deleting words or phrases or paraphrasing the text is nothing more than opinion testimony regarding the subjectively intended meaning or subjectively understood meaning of the text. Therefore, the prosecution gang expert is also prohibited, under Vang, Garcia, and Killebrew, from re-writing a text or paraphrasing its contents by adding words or phrases not included in the text because this type of testimony is an improper opinion regarding the subjectively intended meaning of the text of the sender or the meaning as subjectively understood by the recipient of the text.
Dated: December 6, 2014 Respectfully submitted,