Gang expert related case-specific hearsay during testimony in violation of People v. Sanchez, warranting reversal. While driving a car carrying his pregnant girlfriend, defendant shot at another vehicle, killing the driver. Following his retrial for murder and related charges, a jury convicted defendant of shooting at an occupied motor vehicle (Pen. Code, § 246) with a firearm enhancement (Pen. Code, § 12022.53, subd. (d)). On appeal, he argued the gang expert and other officers improperly testified to testimonial hearsay. Held: Reversed. In People v. Sanchez (2016) 63 Cal.4th 665, the court held that case-specific out-of-court statements related by the prosecution’s gang expert constituted inadmissible hearsay under California law and, to the extent they were testimonial, should have been excluded under Crawford v. Washington (2004) 541 U.S. 36. Here, no gang enhancement was charged, but the prosecution argued defendant was an Inglewood 13 gang member who shot a rival gang member in Inglewood 13 territory. The gang expert testified about the Inglewood 13 gang, its identifying symbols, and rivals and turf, which was permissible background information. However, to prove defendant’s gang membership, the prosecution also introduced evidence defendant had been involved in a group fight at a park. The gang expert related facts contained in field identification (FI) cards indicating four of five men at the park with defendant were self-admitted Inglewood 13 gang members. The subjects’ admissions were hearsay because they were out of court statements offered for the truth, and none testified at trial. The evidence was not general background information, but included case-specific facts used to prove defendant was an active Inglewood 13 gang member. Furthermore, the statements were testimonial because the FI cards were prepared in the course of a police investigation into a report of a man with a gun at the park. Thus, the admission of this evidence violated defendant’s confrontation rights.

The admission of the testimonial hearsay, in combination with other evidence admitted in violation of state law hearsay rules, was prejudicial. The prosecution also introduced testimony from two other officers about “self-admitted” gang members who provided their phone numbers to police, which were recorded on FI cards. The gang expert cross-referenced these phone numbers with contacts in defendant’s phone to show defendant’s association with other gang members. While the record was not sufficiently developed for the court to determine if all of these FI cards were testimonial, they at least contained case-specific hearsay, in violation of state law hearsay rules. When considered along with the confrontation clause violation, the errors were prejudicial. Defendant’s gang membership, or lack thereof, went directly to the pivotal issue at trial: whether defendant shot with a gang-related motive or in self-defense. The prosecution’s primary method of proving defendant’s gang membership was by showing his association with other gang members. The other evidence of gang membership (defendant’s “West L.A.” tattoo and an “I” belt buckle) was comparatively weak, but was bolstered by evidence suggesting defendant participated in a gang initiation at the park and that his phone was “chock full of gang member contacts.” Moreover, defendant presented considerable evidence in his defense. There was no evidence he ever self-admitted to being a gang member, he had no criminal record and was in the Army National Guard Reserve at the time of the shooting, and he had an innocent explanation for being at the park, which was corroborated by another witness. Against this backdrop, the errors were not harmless beyond a reasonable doubt. The court reversed the judgment.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B261606.PDF