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Name: People v. Rouston (2024) 99 Cal.App.5th 997
Case #: D080114
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/20/2024

Trial court prejudicially erred in permitting prosecution’s gang expert witness to opine on whether appellant fired the bullet that struck the victim where that opinion was based solely on the claims of percipient witnesses and relied on no special expertise. The prosecution’s gang expert testified multiple times throughout the trial, telling the jury that each witness’s testimony bolstered his opinion that Rouston was holding a particular firearm, that the firearm was the first fired in the incident, and that the first shot was the one that struck the victim. On appeal, Rouston argued, inter alia, that this testimony was improper…

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Name: People v. Slaton (2023) 95 Cal.App.5th 363
Case #: C096437
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/11/2023

Evidence Code section 352.2, which requires a specific balancing test when deciding the admissibility of “creative expression,” is not retroactive. A jury found Slaton guilty of murder, finding true a firearm enhancement and a special circumstance for discharging the firearm from a motor vehicle. The prosecution’s theory was that the victim was targeted because he wore a red shirt and defendant, although not a gang member, affiliated with a gang that wore blue. The trial court allowed the prosecution to present 13 screenshots from defendant’s rap music video to advance this theory. Slaton appealed, arguing the trial court wrongly admitted…

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Name: People v. Ramos (2023) 90 Cal.App.5th 578
Case #: D074429
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/13/2023

Evidence Code section 352.2 (added by Assembly Bill No. 2799 and effective 1/1/2023), which creates specific rules that the trial court must follow in deciding whether to admit evidence of “a form of creative expression” in a criminal trial, does not apply retroactively. E. Ramos and D. Ramos were convicted of first degree murder and other offenses based on evidence they participated in a gang-related shooting. Recordings of E. Ramos performing rap were admitted at the trial. The lyrics referred to gang culture and criminal activity. In supplemental briefing on appeal, they argued that newly enacted section 352.2 should apply…

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Name: People v. Venable
Case #: E071681
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/17/2023

Evidence Code section 352.2, limiting admission of rap lyrics, applies retroactively to nonfinal cases under In re Estrada (1965) 63 Cal.2d 740. During Venable’s murder trial for the shooting death of a rival gang member, the prosecution introduced evidence of a rap video featuring his younger brother. Venable appeared in the video holding a rifle with an extended magazine, but said nothing. Although most of the lyrics had nothing to do with the shooting, one lyric stated, “Got word from a bird[] that they did that [racial slur] dead wrong/Slid up Medical and left that [racial slur] head gone.” The…

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Name: People v. Huynh
Case #: D076559
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/22/2021

The admission of evidence characterizing defendant's social drinking club as a criminal street gang deprived defendant of due process of law and requires reversal of his murder conviction. Defendant was charged with murder with an enhancement for personally discharging a firearm causing death. According to witnesses, defendant's cousins got into a fight at a pool hall with the victim and his friends, who were known gang members. Several days after the fight, defendant shot and killed the victim. At defendant's second trial (after his first trial resulted in reversal on appeal) the trial court allowed evidence of defendant's association with…

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Name: People v. Soriano
Case #: G058363
Court: US Court of Appeals
District 4 DCA
Division: 3
Opinion Date: 06/08/2021

Gang expert opinion based on mere speculation as to probabilities, rather than reasonable inferences drawn from observable facts, does not provide substantial evidence to support a gang enhancement. Soriano, a gang member, was walking in his gang's territory with an associate member when they both were detained. A blade was located in Soriano's pants. He was charged with carrying a concealed dirk or dagger and a gang enhancement was alleged. At trial, a gang expert testified that carrying a concealed weapon was a common crime committed by Soriano's gang. The expert further testified that gang members "typically" let other members…

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Name: People v. Perez
Case #: S248730
Court: CA Supreme Court
District CalSup
Opinion Date: 02/27/2020

Defendant's failure to object at trial, before People v. Sanchez (2016) 63 Cal.4th 665 was decided, did not forfeit a claim that a gang expert's testimony related case-specific hearsay in violation of the confrontation clause. Perez, Chavez, and Sandoval were charged with gang-related murders and other offenses. A gang expert testified for the prosecution and defense counsel did not object. Defendants were convicted and appealed. While defendants' appeals were pending, the California Supreme Court issued its opinion in Sanchez. Relying on Sanchez, Chavez filed a supplemental brief arguing that the gang expert's testimony related case-specific hearsay in violation of…

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Name: People v. Anthony
Case #: A139352
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 03/08/2019

Trial court erred under Miranda by admitting defendant's statements to police that were elicited after police assured him they would not ask questions about a particular crime but did so anyway. Anthony, accompanied by fellow gang members, committed a gang-related killing of a man walking on a Berkeley street. When pursued by police, Anthony led them on a high speed chase that ended in two collisions, killing a driver in another vehicle, as well as a pedestrian. While in custody in Berkeley, Anthony invoked his right to counsel but then, for unknown reasons, initiated contact with Oakland police, who wanted…

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Name: In re Thomas
Case #: E069454
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 12/27/2018

In state habeas proceedings, the three-factor test in In re Johnson (1970) 3 Cal.3d 404 governs retroactivity rather than the standard set forth in Teague v. Lane (1989) 489 U.S. 288, which governs federal habeas proceedings. In 2003, Thomas was convicted of receiving a stolen vehicle and participation in a criminal street gang. A gang expert's testimony included testimonial, case-specific out-of-court statements. On appeal, Thomas argued the expert's testimony violated his confrontation rights under Crawford v. Washington (2004) 541 U.S. 36. The Court of Appeal affirmed under People v. Gardeley (1996) 14 Cal.4th 605, which approved the use of such…

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Name: People v. Resendez
Case #: B269608
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 06/30/2017

There was no error under People v. Prunty where the record provided substantial evidence of collaboration, association, and direct contact among the subsets of the East Side Bolen gang. A jury convicted Resendez of assault by means of force likely to cause great bodily injury with a gang enhancement and assault with a deadly weapon. There was evidence that Resendez was a member of the Locos subset of the East Side Bolen gang, which was composed of five smaller subsets. An expert testified about predicate offenses committed by members of the Rascals subset. Resendez, representing himself at trial, called two…

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