Where the trial court properly excludes testimony from an expert as to gang membership, it is an abuse of discretion to then allow the evidence to be presented by granting the prosecution “wide latitude” on cross-examination.
According to evidence presented, a group of mostly large, very drunk young men, numbering at least five individuals, were at a Stockton bar, acting in a rowdy manner. Memory and Prater and Prater’s wife arrived on their motorcycles, parked them, and entered. Both Memory and Prater were members of the Jus Brothers motorcycle club and wore vests with the club insignia. After a beer or two, they left, followed by the group. A fight ensued in the parking lot and two of the larger group were stabbed, as well as a third man who had unfortunately arrived on the scene during the commotion. He died of his injuries. Although the accounts of the incident were jumbled and contradictory, it seemed clear that it was the larger, rowdy group pitted against Memory and the Praters. Appellants argued self-defense. The prosecution’s theory was that appellants belonged to a violent motorcycle gang whose members would not back down from a fight and supported each other to the end. To support its position, the prosecution sought to introduce evidence of an expert on the Jus Brothers Motorcycle Club, claiming it to be relevant to prove identification, motive, and aiding and abetting. At a pre-trial Evidence Code section 402 hearing, the trial court found that although the witness qualified as an expert, he would not be allowed to testify, as the evidence would be more prejudicial than probative. But the court indicated that it would allow the prosecution “a ton of latitude” in cross-examination and all of the expert’s opinion, except that Jus Brothers was a “criminal enterprise,” could come in through other witnesses. With this ruling, the prosecutor, through cross-examination and argument, continually portrayed appellants as members of a violent motorcycle gang with ties to the Hells Angels. Prater was convicted of second degree murder, and Memory was convicted of two counts of attempted voluntary manslaughter, etc. Tellingly, there were no findings of gang enhancements as none were charged. On appeal, the appellate court found that the trial court erred in allowing evidence about the Jus Brother’s culture, etc. There was no foundation that the Club was a gang or criminal enterprise; identity was not at issue, and even if it was, evidence that the appellants wore vests with Jus Brothers patches, alone, was sufficient to establish identity; the evidence was not probative on motive but was instead used to show that appellants had a criminal disposition, and such evidence of a person’s character or trait is inadmissible. By allowing argument by the prosecution that the Club was linked to the Hells Angels, with the inherent negative impact of the Hells Angels, the trial court exacerbated the error. The evidence of the Jus Brothers Motorcycle Club destroyed appellant’s credibility and defined them as violent individuals. Without such evidence, a different outcome was reasonably probable. Therefore, the convictions were reversed.