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Name: People v. Killebrew
Case #: F036957
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 11/08/2002
Subsequent History: Rev. den. 1/15/03

The Court of Appeal found that the trial court erred in permitting the prosecution’s gang expert, a police officer, to testify to his opinion of the defendant’s knowledge and intent at the time of the charged offense of conspiracy to possess a loaded weapon. In this case, police were following three vehicles and observed several individuals in one vehicle stop at a taco stand. These individuals were detained shortly thereafter, and a weapon was found in a shoe box near the dumpster for the taco stand, close to where the car was parked. The evidence was conflicting as to whether the defendant had been in the car. The expert testified that the defendant was a member of a criminal street gang, and that members of a street gang would know that other members of a street gang had secreted weapons because this information is needed so that the gang members can protect each other. This testimony was found by the Court of Appeal to have exceeded the scope of proper expert opinion, which is usually culture and habit testimony rather than subjective knowledge and intent testimony. The court also found it troubling that the officer was permitted to bring in incompetent hearsay that was highly prejudicial and having little probative value to explain the basis for other opinions as to the gang membership of other persons arrested that evening, in violation of People v. Coleman (1985) 38 Cal.3d 69 [an expert may not testify to incompetent hearsay under the guise of stating reasons for an opinion]. The court found that the defendant could not be retried as the evidence without the inadmissible opinion was insufficient as a matter of law to support a conviction.