Expert Testimony, Discovery, and Other Issues in Gang Cases
Judge Gregory Dohi
Los Angeles Superior Court
October 2008, revised June 2009 and October 2016
[This handout is based on one prepared together with Judge Darrell Mavis, who in turn based that handout on one of mine. . . . ]
TABLE OF CONTENTS
I.Admissibility of Gang Evidence p. 1
A.In general p. 1
B.Gang evidence may be relevant to show motive, intent, identity, mental state, etc. p. 2
C.Court must find that the prejudicial effect does not substantially outweigh the probative value under Evid. Code, § 352 p. 7
- Situations when gang evidence should not have been admitted p. 8
- Court should give limiting instruction upon request, although no sua sponte duty p. 9
II.Admissibility of Gang Expert Testimony p. 9
A.Expert qualifications p. 9
B.Admissible opinions p. 14
C.Examples of admissible opinions p. 16
D.Inadmissible opinions p. 36
E.Proper bases for opinion p. 38
F.Improper bases for opinion; Fourth and Fifth Amendment issues p. 45
G.Probative value of opinion or basis for opinion cannot be substantially outweighed by prejudicial effect p. 45
H.Discovery issues p. 47
III.Courtroom Security p. 47
A.Maintaining courtroom security p. 47
B.Restraining defendant p. 48
IV.Witness Issues p. 50
A.Upon showing good cause, court has broad authority to restrict disclosure of witnesses’ identity before trial p. 50
B.Court may close courtroom upon showing threat to witness’ life and no alternative security measures p. 50
C.Court may remove a spectator from courtroom p. 51
D.Court may remove defendant’s nondisruptive friends from courtroom based on the concerns of witness’s mother for witness’s safety p. 51
E.Gang evidence and threats to witnesses are admissible to show witness’s bias or fear, even if not authorized by or connected to defendant p. 51
F.Preliminary hearing testimony of witness is admissible at trial if witness is unavailable p. 52
G.If witness’s claimed memory loss is a deliberate evasion, court may allow the prior statements for impeachment and for the truth of the matterp. 52
GANG ISSUES IN CRIMINAL CASES[1]
I.Admissibility of Gang Evidence
- In general: “[N]othing bars evidence of gang affiliation that is directly relevant to a material issue.” (People v. Tuilaepa (1992) 4 Cal.4h 569, 588.)
- People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [“[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.”]
Gang evidence becomes especially relevant when the gang enhancement (Pen. Code, § 186.22, subd. (b)) is charged.
- People v. García (2016) 244 Cal.App.4th 1344, 1367 [“Generally, for the purposes of proving the gang enhancement, an expert witness is permitted to testify regarding the culture, habits, and psychology of criminal gangs.”]
- People v. Valdez (1997) 58 Cal.App.4th 494, 506 [“In general, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citations.]”]
- People v. Avitia (2005) 127 Cal.App.4th 185, 192 [“In cases not involving a section 186.22 gang enhancement, it has been recognized that ‘evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.]’”]
B.Gang evidence may be relevant to show motive, intent, identity, mental state, etc.
See People v. Arauz (2012) 210 Cal.App.4th 1394, 1403 [“The recorded telephone wiretaps were properly admitted to show that the Colonia Chiques was a criminal street gang, appellants’ gang membership and activities, and to prove identity, intent, knowledge, and motive. The telephone calls established the primary activities of the Colonia Chiques gang (robberies, drug sales, violent assaults, homicides), appellants’ relationship with Velasquez, and how appellants committed a retaliatory shooting in El Rio.”]
1.Motive
People v. Montes (2014) 58 Cal.4th 809, 859 [“Evidence of gang affiliation also served to explain defendant’s motive for committing the crimes, particularly the murder. After the killing, defendant bragged about ‘earning his stripes,’ which suggests he intentionally killed Walker to gain membership in a gang.”]
People v. Martinez (2003) 113 Cal.App.4th 400, 413 [“Here, the [gang expert] evidence relating to ‘paybacks’ was relevant to the issues of motive and intent for the charged offenses and was therefore properly admitted.”]
See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208 [officer was properly allowed to testify that defendant, who was associated with a Sureño gang, killed a Norteño gangster in order to “reestablish himself within the gang and perhaps reestablish the gang within the community,” thereby making the gang more attractive to prospective members]
People v. Williams (1997) 16 Cal.4th 153, 193 [89th Street Family Blood shot Grape Street Crip in 1982; evidence that defendant was a leader of a Blood set in the area of a murder and had led a meeting of Blood sets where killing Crips was discussed and weapons were distributed, along with evidence describing colors, behavior and areas of influence, was admissible to show motive and identity; “Gang evidence in this case was relevant to both motive and identity.”]
People v. Sandoval (1992) 4 Cal.4th 155, 175 [turf war between Arizona Maravilla and Marianna Maravilla in East L.A.; “The fact that the gangs purportedly had been at peace for seven years does not eliminate gang retaliation as a motive. Indeed, that appears to have been the only plausible motive. What we have here is a battle over turf.”]
See People v. Saucedo (1995) 33 Cal.App.4th 1230, 1240,disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901 fn. 3 [trial court stated,“Look how this crime occurred. It is a gang-related case, however you want to call it. The classic, ‘Where are you from?’ It appears from the fact that this victim was killed because he was in somebody else’s territory, that he was not wanted there, and that a gang of people…did physically assault in a rat-pack fashion the victim in this case. . . . Now, that is a classic—that’s gang activity.”]
People v. Olguín (1994) 31 Cal.App.4th 1355, 1369-1370 [gang evidence properly admitted where “highly relevant” to prosecution’s theory of murder in retaliation for defacing gang graffiti]
People v. Funes (1994) 23 Cal.App.4th 1506, 1516-1519 [gang evidence properly admitted to show motive of retaliation as part of an ongoing rivalry between 18th Street and Trece gangs in San Francisco, even where defendant was not involved in some of the incidents]
People v. Dominguez (1981) 121 Cal.App.3d 481, 497-498 [members of Nuestra Familia killed a sympathizer of the rival Mexican Mafia prison gang in Bakersfield: “Dominguez argues that ‘motive could have been established without reference to the gang’s other, non-related, criminal endeavors.’ Not so. In our opinion, this argument fails to demonstrate how motive could have been proved without showing that the Nuestra Familia engaged in criminal and violent acts and that members were obligated to commit such acts under penalty of their own lives.”]
2.Intent
In re Sergio R. (1991) 228 Cal.App.3d 588, 597 [evidence of gang rivalry properly admitted as relevant to establish intent for first degree murder]
People v. Woods(1991) 226 Cal.App.3d 1037, 1054 [“Evidence of gang membership was critical to prove both motive (retaliation for the death of fellow gang member) and intent to kill (random killings based on hatred). . . .”]
3.Intent to aid and abet
People v. Hernandez (2004) 33 Cal.4th 1040, 1051 [“Evidence concerning the alliance between Hawthorne Little Watts and the 106 clique of the 18th Street gang served to explain why Hernandez and Fuentes were acting together in the commission of this crime, thus buttressing such guilt issues as motive and intent.”]
In re José T. (1991) 230 Cal.App.3d 1455, 1460-1461 [gang affiliation a factor in court’s finding that defendant aided and abetted a robbery]
4.Identity
People v. Montes (2014) 58 Cal.4th 809, 859 [gang affiliation evidence was relevant to “show the codefendants’ relationship with each other and that defendant and the codefendants were part of the group that attacked and killed Walker,” particularly where witness was unable to identify two of the suspects]
People v. Williams (1997) 16 Cal.4th 153, 193 [defendant’s membership and leadership in gang admissible to show motive and identity]
People v. Beyea (1974) 38 Cal.App.3d 176, 194-195, overruled on another point in People v. Blacksher (2011) 52 Cal.4th 769, 808 [evidence of defendant’s membership in Hell’s Angels admissible with limiting instruction to show “motive and identity”]
- Existence and nature of a conspiracy
In re Darrell T.(1979) 90 Cal.App.3d 325, 334 [fact that defendant was a member of the same Crip faction as one of the assailants was part of the circumstantial evidence showing conspiracy]
- Element of fear in a robbery or terrorist threat case
People v. Hernandez (2004) 33 Cal.4th 1040, 1051 [“Although Fuentes did not specifically identify himself as a gang member, the evidence showed the robbery was a coordinated effort by two gang members who used gang membership as a means to accomplish the robbery. Detective Goetz’s expert testimony helped the jury understand the significance of Hernandez’s announcement of his gang affiliation, which was relevant to motive and the use of fear.”]
People v. Mendoza (2004) 24 Cal.4th 130, 178 [defendant told robbery victim that he was a “homeboy”; the victim’s testimony that she understood the word “homeboy” to refer to a gang was “directly relevant to establishing the element of fear.”]
People v. Butler (2000) 85 Cal.App.4th 745, 754-755 [ina prosecution for criminal threats (Pen. Code, § 422), evidence that victim was aware of the defendant’s gang connections was relevant to establish the element of sustained fear: “Defendant further impressed upon Virginia the gravity of the situation by bragging that his gang, ‘El Norte,’ owned the apartments.”]
- A witness’s (or hearsay declarant’s) bias or fear
People v. Martinez (2003) 113 Cal.App.4th 400, 413-414 [“We further agree with the Attorney General that the expert’s testimony about what it meant to be a ‘rat’ in gang culture was relevant to help the jury understand discrepancies between some of the witnesses’ statements to the police and their testimony at trial. Such evidence generally is admissible to demonstrate that a witness may be afraid to testify truthfully because it is relevant to that witness’s credibility, particularly in the face of prior inconsistent statements. [Citations.] The trial court did not abuse its discretion by admitting the expert’s testimony here.”]
People v. Ruiz (1998) 62 Cal.App.4th 234, 240-241 [drug sales case; a third party told a defense investigator (in the defendant’s presence) that he, not defendant, was the actual dealer; LAPD gang expert properly testified in rebuttal that both defendant and third party who tried to take the rap belonged to Pacoima Van Nuys Boys; testimony wasn’t cumulative]
People v. Harris (1985) 175 Cal.App.3d 944, 957 [evidence that witness was afraid to cooperate because he knew that the defendants were members of a local gang held properly admitted as relevant to witness’s credibility]
People v. Muñoz (1984) 157 Cal.App.3d 999, 1010-1013 [court allowed limited inquiry into membership in common “club” or “association” (the Pee Wee Locos and Oceano Trece) to show gangster witness’s bias]
C.Court must find that the prejudicial effect does not substantially outweigh the probative value under Evid. Code, § 352
People v. Cox (1991) 53 Cal.3d 618, 660 [superseded by statute as to another point; see Jones v. Superior Court (1994) 26 Cal.App.4th 1202, 1211] [“When offered by the prosecution, we have condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.”]
People v. Bojorquez (2002) 104 Cal.App.4th 335, 345 [“Erroneous admission of gang-related evidence, particularly regarding criminal activities, has frequently been found to be reversible error, because of its inflammatory nature and tendency to imply criminal disposition, or actual culpability.”]
People v. Champion (1995) 9 Cal.4th 879, 922, disapproved on another point in People v. Ray (1996) 13 Cal.4th 313, 369 fn. 2 [conc. opn.] [“Because evidence that a criminal defendant is a member of a juvenile gang may have a ‘highly inflammatory impact’ on the jury [citations], trial courts should carefully scrutinize such evidence before admitting it.”]
People v. Olguín (1994) 31 Cal.App.4th 1355, 1369 [“[W]hile admissible evidence often carries with it a certain amount of prejudice, Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias. . . . [¶] While defendants’ gang membership and their gang activities were prejudicial to a certain degree, the evidence was highly relevant to the prosecution’s theory of how and why Ramirez was killed.”]
People v. Woods (1991) 226 Cal.App.3d 1037, 1054 [“Evidence of gang membership was indeed the focal point of the case. We would also have to agree that evidence was highly prejudicial but only in the sense of being damaging to [the defendant’s] case. However, we cannot agree the evidence was only minimally relevant to any legitimate purpose. Evidence of gang membership was critical to prove both motive (retaliation for the death of fellow gang member) and intent to kill (random killings based on hatred), and therefore was central to the case.”]
People v. Beyea (1974) 38 Cal.App.3d 176, 195 [a Hells’ Angels case], quoting People v. Lopez (1969) 1 Cal.App.3d 78, 85 [“[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence [citations].”]
People v. Martin (1994) 23 Cal.App.4th 76, 81 [“[W]here evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]”]
D.Casesin which gang evidence should not have been admitted
People v. Ramirez (2016) 244 Cal.App.4th 800, 822 [“None of this gang evidence was relevant to the attempted murder and assault charges, but its potential prejudicial effect upon them was manifest. . . . It also tended to impermissibly show defendants' bad character as a means of creating an inference they committed these charged offenses.”]
People v. Albarran (2007) 149 Cal.App.4th 214, 228 [in attempted murder case with no clear gang motive, “[e]vidence of threats to kill police officers, descriptions of the criminal activities of other gang members, and reference to the Mexican Mafia had little or no bearing on any other material issue relating to Albarran’s guilt on the charged crimes and approached being classified as overkill.”]
People v. Bojorquez (2002) 104 Cal.App.4th 335, 337 [robbery case in which defendant’s fellow BST gang member testified for the defense; in rebuttal, prosecution called gang expert, who testified at length about gangs in general and about BST: “We conclude that although the evidence regarding common gang membership was admissible for impeachment, the court abused its discretion in further admitting wide-ranging testimony about gangs’ criminal tendencies.”]
In re Wing Y. (1977) 67 Cal.App.3d 69, 76 [“It is true . . . that a witness may, on cross-examination, be asked about group membership he shares with a party to the action, on the theory that such common membership is a factor that tends to impeach a witness’ testimony by establishing bias.” The particularly weak evidence of gang membership in this case, consisting solely of evidence of reputation, required reversal.]
People v. Maestas (1993) 20 Cal.App.4th 1482, 1494-1498 [weak gang evidence offered to show bias in an assault case was cumulative and prejudicial in a particularly feeble case where other evidence showed bias]
People v. Cardenas (1982) 31 Cal.3d 897, 904 [other evidence showed that defense witnesses and defendant lived in the same neighborhood and had the same circle of friends: “The probative value of the gang membership evidence was minimal at best.”]
People v. Perez (1981) 114 Cal.App.3d 470, 478-479 [in robbery/kidnapping/joyriding case, evidence of defendant’s gang tattoos was unduly prejudicial: “It is fair to say that when the word ‘gang’ is used in Los Angeles County, one does not have visions of the characters from the ‘Our Little Gang’ series. The word gang . . . connotes opprobrious implications. . . .”]
E.Court should give limiting instruction upon request, although it has no sua sponte duty
People v. Hernandez (2004) 33 Cal.4th 1040, 1051
People v. Jones (2003) 30 Cal.4th 1084, 1116
II.Admissibility of Gang Expert Testimony
A.Expert qualifications
1.A person with “special knowledge, skill, experience, training, or education” in a particular field. (Evid. Code, § 720.)
a.Someone with personal knowledge of the gang
In re Wing Y. (1977) 67 Cal.App.3d 69, 78 [trial court improperly allowed broad questioning about the activities of the Wah Ching from an “expert” who had no personal knowledge of the practices of the Wah Ching or of the defendant’s or the witnesses’ involvement].
b.Examples of people who have qualified as gang experts
People v. Montes (2014) 58 Cal.4th 809 [officer had never testified as an expert before but had six years on the job, was specifically familiar with gang members, their monikers, and tattoos, and had 20 to 30 hours of training through the San Bernardino and Riverside Sheriffs’ Departments and the Department of Justice]
People v. Valadez (2013) 220 CalApp.4th 16, 29 [“The trial court did not abuse its discretion in admitting Officer Krish’s opinions on the general history of the El Sereno and Lowell Street gangs. Officer Krish had been an officer for six and a halfyears, and spent almost two years in a gang enforcement division. He kept up to date on gang activities in the Hollenbeck division by gathering intelligence on gangs in the area, identifying and tracking gang members and their activities, working with other officers and gang detectives, conducting searches on gang members, and investigating gang-related crimes. He had training on gang awareness, and he had contact with gang members on a daily basis. He relied on the same types of sources other courts have found appropriate for gang expert testimony, that is, conversations with gang members and officers, as well as written materials. And while individual sources such as gang members might be reasonably questioned, he did not rely on these sources alone or simply recite statements by others; he fit the information into all the other sources and his own experience to render his opinion.”]
NOTE: The holding in Valadez on the issue of whether gang experts can relay hearsay as the basis of their opinions probably did not withstand People v. Sanchez (2016) 63 Cal.4th 665.
People v. Vy (2004) 122 Cal.App.4th 1209, 1218 fn. 6: [“Detective Ta had been court-qualified as an expert in the area of criminal street gangs in approximately six prior cases. He was born in Vietnam and was fluent in the Vietnamese language. Detective Ta had seven years of experience with the San José Police Department. At the time of trial, he was a gang detective, an assignment he had held for three years. Prior to that assignment, detective Ta had been assigned to a task force of the Federal Bureau of Investigations providing undercover investigative work for Asian organized crime and Vietnamese gang activity. As a gang detective, he spent approximately 90 per cent of his time on cases with Vietnamese street gangs (approximately 450 cases, most of which within the City of San José). He had spoken to approximately 500 members of Vietnamese gangs in his investigation of crimes.”]