Testimony of prosecution gang expert regarding gang behavior in general and a particular gang’s conduct and territory, was not inadmissable hearsay. Defendant was convicted of assault with a deadly weapon and other offenses, with gang enhancements and priors found true. One issue on appeal was whether the gang expert’s testimony was inadmissible hearsay. Held: Affirmed. Penal Code section 186.22, subdivision (b)(1) provides a sentencing enhancement for persons who commit felonies for the benefit of or in association with a criminal street gang, with the specific intent to promote the gang’s criminal activities. It is common for the prosecution to use a gang expert to prove the pattern of gang activity required for the enhancement. In People v. Sanchez (2016) 63 Cal.4th 665, the Supreme Court held that a prosecution expert may not relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or covered by a hearsay exception. A confrontation clause violation occurs if the hearsay statements were testimonial, the defendant did not have a prior opportunity for cross-examination, and the prosecution does not prove the declarant is unavailable to testify. However, the Sanchez decision did not alter “the traditional latitude granted to experts to describe background information” regarding the expert’s knowledge and expertise, even if it is technically hearsay. Here, the prosecution expert’s testimony regarding the Asian Boyz’s clothing, symbols and primary activities was background information not subject to exclusion on hearsay grounds or deemed testimonial.

The gang expert’s hearsay testimony regarding defendant’s admitted gang membership was admissible hearsay and, in any event, admission of the evidence was harmless. The gang expert testified as to information she received from law enforcement officials that defendant bragged about his gang membership. Defendant’s gang membership is a case-specific fact because it is relevant to whether he acted for the benefit of or in association with the gang, which is required to prove the gang enhancement. But defendant failed to prove that his statements to law enforcement officials were testimonial and they are otherwise admissible hearsay (Evid. Code, § 1220). Even if this evidence was erroneously admitted it was harmless because the expert provided other, non-hearsay evidence regarding defendant’s gang membership.

The gang expert’s testimony relating predicate offenses was not inadmissible hearsay. Defendant argued the expert’s testimony relating predicate offenses as to three Asian Boyz’s gang members was inadmissible hearsay under Sanchez. However, the record does not establish that the alleged admissions and evidence admitted was inadmissible hearsay. Even if some inadmissible hearsay was allowed, there is no prejudice to defendant because other admissible evidence was presented regarding the predicate offenses.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H042184.PDF