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Name: People v. Vang
Case #: D054636
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/07/2010
Subsequent History: Rev. granted (S184212)

Hypothetical questions of an expert on the accused’s intent and knowledge in committing the underlying assault exceeded the bounds of discretion and resulted in mere speculation on ultimate issues to be decided by the jury. Rules usually allow hypothetical questions of experts on ultimate issues. However, expert testimony on knowledge and intent, based on thinly veiled hypothetical questions, amounts to no more than an expression by the expert as to how the case should be decided. (Accord People v. Killebrew (2002) 103 Cal.App.4th 644, 647, 651.) The questions in this case placed the trial testimony in the context of changing the parties names to young baby gangster, three baby gangsters, and one O.G. (Original Gangster). This crossed a fine line, but was harmless beyond a reasonable doubt based on the remainder of the evidence. There was no abuse of discretion in denying a motion to bifurcate the trial on the gang enhancement. The trial court carefully questioned the prosecutor about the evidence that would be introduced on the predicate offenses. Even without the gang enhancement allegations, it was likely that gang evidence would have been admitted to show motive, such that there would be little time saved by bifurcation. The trial court appropriately considered the factors on bifurcation outlined in People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050. Exclusion of the victim’s prior methamphetamine drug use was not incorrect. The trial court found that prior drug usage would be irrelevant unless there was a basis to believe that there were drugs in victim’s system on the evening he was attacked and beaten. The defense never proffered new evidence about the victim’s drug use on the night of the attack. It was not a due process violation to exclude a defense video of the crime scene taken at night and allow introduction of photos taken in the daytime of the same location. The crime was committed at night and the defense sought introduction of the video to demonstrate how little the officer could have observed in the lighting. The officer testified the video was too dark and out of focus such that it did not accurately depict what he saw that night. Exclusion under Evidence Code section 352 was because the video was fundamentally misleading. There was an in limine hearing at which the court found the film did not faithfully depict what a human being would see. There was also no objection to the daylight photos introduced by the prosecution as being misleading. Simple injuries were sufficient to support a conviction for assault with force likely to produce great bodily injury and there was no error in light of the jury’s request for clarification of great bodily injury to refer them to the everyday meaning of the term as set forth in the full and complete instructions. The victim was beaten by three or four men such that he was slipping in and out of consciousness when help arrived and photos from the hospital revealed cuts and bruises on his head and face. CALCRIM No. 875 on the element of force likely to produce great bodily injury described great bodily injury as significant or substantial physical injury which is greater than minor or moderate harm. The jury asked if there could be further clarification on great bodily injury. Defense counsel agreed to the trial court’s response. The term at issue has been used in the law of California for over a century without further definition, and courts have consistently held it is not a technical term that requires further elaboration. A challenge to a probation condition precluding the possession of any cell phone or paging device except in the course of lawful employment was resolved by agreement to modify the condition to limit the use of such devices “to communicate with any known gang member.”