The gang expert was qualified to provide all the opinions admitted. Appellant shot two undercover officers and one of them died. He claimed that he did not know the victims were officers, and that he shot them in self-defense. At the murder trial, the gang expert testified that gang members don’t like police and that shooting an officer sends a message to the greater community to instill fear. On appeal, appellant claimed there were several evidentiary errors with regard to the testimony of the prosecution’s gang expert. First, he argued that while the officer had expertise about Bayview Hunter’s Point gang culture in general, he did not have sociological or psychological expertise. The appellate court held the officers many years on the gang task force gave him special knowledge, skill, and experience necessary to render him an expert in these areas. (See People v. Gonzalez (2006) 38 Cal.4th 932.)
A gang expert’s opinion must be based on reliable material, which can include hearsay statements of other gang members. Appellant complained that some of the expert’s opinions were invalid because they were based on unreliable sources, such as conversations with unknown gang members and other police officers and review of the police reports of others. The court held these sources were valid bases to form opinions where, as here, the expert attempted to corroborate the information relayed. The court noted that the witness made clear he was not just recounting the information; but rather, he was also relying on the hundreds of conversations he had personally had and his many years of expertise.
Under current California Supreme Court authority the admission of out of court statements relied upon by the gang expert was proper. Appellant argued the confrontation clause and hearsay rule prohibited the expert from testifying as to the hearsay statements by gang members which were the bases for some of his opinions. The trial court found that under People v. Thomas (2005) 130 Cal.App.4th 1202, these statements were admissible to assist the jury in evaluating the gang expert’s opinions. The appellate court disagreed with the reasoning in Thomas because the assumption that the jury will use the out of court statements to evaluate the expert’s opinion without regard to their truth is not plausible. (See People v. Goldstein (N.Y. 2005) 843 N.E.2d 727, [“We do not see how the jury could use the statements … to evaluate [expert’s] opinion without accepting as a premise either that they were true or they were false”].) However, because Thomas is squarely based on California Supreme Court precedent, namely People v. Gardeley (1996) 14 Cal.4th 605, the court was bound to follow it. The court did note that Gardeley predates Crawford v. Washington (2004) 541 U.S. 36 and its progeny. The court was hopeful that the California Supreme Court was “prepared to recognize the logical error in Gardeley and Thomas” given some of the cases currently pending before it.