Gang enhancement reversed where prosecution expert’s opinion that the offense was committed for the benefit of a gang was unsupported by competent evidence. Defendant was caught with a stolen car and charged with driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and possession of burglary tools (Pen. Code, § 466). The jury found the vehicle offense was committed to benefit a gang (Pen. Code, § 186.22, subd. (b)(1)(A)). Prior prison term enhancements were found true (Pen. Code, § 667.5, subd. (b)). Defendant challenged the gang enhancement because the prosecution expert relied on inadmissible hearsay. Held: Gang enhancement reversed. In People v. Sanchez (2016) 63 Cal.4th 665, the California Supreme Court held that experts may testify about their general knowledge, which has been gained from hearsay. However, experts may not testify about case-specific facts learned via hearsay “unless they are independently proven by competent evidence or covered by a hearsay exception.” Here, the prosecution expert’s case-specific gang testimony was based on wiretapped telephone calls, a police report, and field identification cards. The expert did not have personal knowledge of the contents of these sources and the subject of the expert’s testimony was not independently proven by competent evidence. This evidence was inadmissible because (1) it was hearsay, (2) it was case-specific, involving people alleged to have been involved in the current crime, (3) the evidence was not independently proven via competent evidence, and (4) no hearsay exception applied.
Because the erroneously admitted hearsay evidence involved a mix of testimonial and non-testimonial evidence, the federal constitutional standard of prejudice applied. While the improper admission of hearsay is generally state law error, improper admission of testimonial hearsay violates the Sixth Amendment’s confrontation clause. The gang expert’s testimony based on the wiretap evidence and the police report of a traffic stop constitute testimonial hearsay because the evidence resulted from police investigations into particular crimes. The hearsay derived from the field identification cards is non-testimonial because the cards can be completed for a purpose other than investigating a crime. However, because the erroneously admitted hearsay was both testimonial and non-testimonial, the federal constitutional standard of prejudice applies. Here, other than the place (gang territory) and type of crime, there was no competent evidence tying the current offense to the gang. The erroneous admission of case-specific hearsay was not harmless beyond a reasonable doubt.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E066299.PDF