SERIES 1400 CRIMINAL STREET GANGS
F 1403 NOTES
TABLE OF CONTENTS
F 1403 Note 1 Limited Purpose of Evidence Of Gang Activity—CALCRIM Cross-References And Research Notes
F 1403 Note 2 Limitations On Expert Testimony Regarding Gangs
F 1403 Note 3 Admissibility Of Gang Affiliation Evidence
F 1403 Note 4 Gangs: Expert’s Testimony Must Be Based On Personal Knowledge Or Actual Evidence
F 1403 Note 5 May Expert Testimony Be Used To Prove “Primary Activity” Element Of Criminal Gang Offense?
F 1403 Note 6 Prior Juvenile Adjudications Inadmissible Re: Gang Activity
F 1403 Note 7 Use Of Documentary Evidence To Prove Gang Offense
F 1403 Note 8 Gang Evidence As Rebuttal To Third Party Defense
F 1403 Note 9 Gangs: Testimony Identifying Group As Gang
F 1403 Note 10 Gangs: Admissibility Of Gang Profile Evidence
F 1403 Note 11 Gang Evidence: Limiting Instruction
F 1403 Note 12 Admissibility Of Alleged Tattoo Which Predates Gang Affiliation
F 1403 Note 13 Limitations On Expert Testimony Regarding Gangs: Admissibility Of Gang Expert Evidence
F 1403 Note 14 Gang Evidence Must Be Closely Scrutinized
F 1403 Note 15 Constitutional Challenge To Gang Evidence
F 1403 Note 16 Error To Admit Gang Evidence On Undisputed Issue To Which Defense Offered To Stipulate
F 1403 Note 17 Prejudicial Impact Of Gang Evidence In Non-Gang Case
F 1403 Note 18 CC 1403 Is A Cautionary/Limiting Instruction Which Should Not Be Given Over Defense Objection
Return to Series 1400 Table of Contents.
F 1403 Note 1 Limited Purpose of Evidence Of Gang Activity—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1400 Note 1.
Research Notes:
See CLARAWEB Forum, Criminal Street Gangs—Series 1400.
Additional Resources:
See Brief Bank # B-583 for additional briefing on gang evidence, etc.
Regarding expert testimony, see FORECITE F 2.80 n6.
See Annotation, Admission of evidence of accused’s membership in gang, 39 ALR4th 775 and Later Case Service.
F 1403 Note 2 Limitations On Expert Testimony Regarding Gangs
“California courts have long recognized gang membership evidence has a potentially prejudicial effect.” (People v. Cox (1991) 53 C3d 618, 660.) The California Supreme Court has condemned the introduction of “evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.” (Ibid.) Evidence of gang membership also creates a risk jurors will infer that the defendant has a criminal disposition and is therefore guilty of the crime charged. (People v. Williams (1997)16 C4th 153, 193; People v. Champion (1995) 9 C4th 879, 922.) “Evidence of gang membership should be excluded if the evidence is only relevant to prove a defendant’s criminal disposition.” (People v. Ruiz (1998) 62 CA4th 234, 240; People v. Perez (1981) 114 CA3d 470, 477-478.) “Gang evidence is admissible only when it is logically relevant to some material issue in the particular prosecution other than as character trait evidence.” (Ruiz, 62 CA4th at 240; Perez, 114 CA3d at 477.)
It is well settled that prosecution may “introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.” (People v. Funes (1994) 23 CA4th 1506, 1518; but see People v. Mendez UNPUBLISHED (G011406) [expert gang testimony was admissible to show modus operandi in general but not intent].) “[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.” (People v. Lopez (1969) 1 CA3d 78, 85; see People v. Beyea (1974) 38 CA3d 176, 195.) “The decision of a trial court to admit expert testimony will not be disturbed on appeal unless a manifest abuse of discretion is shown.” (People v. Roberts (1992) 2 C4th 271, 298.)
“In general, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (People v. Valdez (1997) 58 CA4th 494, 506; see EC 801(a).) The admission of expert testimony has been upheld when used to educate the trier of fact “concerning territory, retaliation, graffiti, hand signals, and dress.” (Valdez at p. 506.) “The subject matter of the culture and habits of criminal street gangs” meets the “criterion” for admissibility of expert testimony under EC 801. (People v. Gardeley (1996) 14 C4th 605, 617.)
While expert testimony on gang membership and behavior is admissible under certain circumstances, the scope of such testimony is not unlimited. (See People v. Perez (1981) 114 CA3d 470, 477 [improper to admit gang membership testimony to prove identity]; In re Wing Y. (1977) 67 CA3d 69, 78 [reputation evidence may not be used to prove gang membership]; People v. Killebrew (2002) 103 CA4th 644 [improper for gang expert to testify that a specific individual had specific knowledge or possessed a specific intent].)
(See also FORECITE F 2.50f for modification making CJ 2.50 applicable to gang evidence.)
For briefing on this issue, see Brief Bank # B-975.
NOTE: For additional material on gang evidence and gang cases, see Brief Bank # B-583.
(See also FORECITE F 540A Note 10.)
CALJIC NOTE: See FORECITE F 6.50 n3 and F 6.50 n10.
F 1403 Note 3Admissibility Of Gang Affiliation Evidence
“[E]vidence of a defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged [. . .] and thus should be carefully scrutinized by trial courts.” (People v. Carter (2003) 30 C4th 1166, 1194.) Subject to EC 352, gang affiliation and activity is admissible when relevant to an issue of motive or intent. (People v. Funes (1994) 23 CA4th 1506, 1518; compare People v. Avitia (2005) 127 CA4th 185 [prejudicial error to admit evidence of gang graffiti found in defendant’s bedroom, where no PC 186.22(b)(1) gang enhancement was alleged, and there was no evidence the charged crimes were related to any gang activity].)
Due to the high potential of prejudice, the California Supreme Court has condemned the introduction of “evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.” (People v. Cox (1991) 53 C3d 618, 660; see also People v. Avitia (2005) 127 CA4th 185, 193-94.) Evidence of gang membership has been admitted to prove bias, provided it is not cumulative to other properly admitted and less inflammatory evidence. (See People v. Cardenas (1982) 31 C3d 897, 904-905; see also People v. Ruiz (1998) 62 CA4th 234, 240.)
However, when other evidence has established a relationship between the witness and the defendant, common membership evidence is cumulative and, if prejudicial, inadmissible. (People v. Cardenas, supra, 31 C3d at 904; People v. Munoz (1984) 157 CA3d 999, 1012-13; People v. Maestas (1993) 20 CA4th 1482, 1494.)
(See FORECITE F 2.80 n6.)
For briefing on this issue, see Brief Bank # B-975.
STRATEGY NOTE: Gang evidence may be subject to constitutional challenge as prejudicial bad character evidence, see FORECITE PG VII(C)(20).
CALJIC NOTE: See FORECITE F 6.50 n5.
F 1403 Note 4Gangs: Expert’s Testimony Must Be Based On Personal Knowledge Or Actual Evidence
“When expert opinion is offered, much must be left to the trial court’s discretion.” (People v. Carpenter (1997) 15 C4th 312, 403.) Although an expert may base an opinion on hearsay, the trial court may exclude from the expert’s testimony “any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.” (People v. Montiel (1993) 5 C4th 877, 919.)
People v. Gardeley (1996) 14 C4th 605, 619-20 held that a gang expert may reveal information on which he relied in forming his expert opinion, including hearsay. (See also People v. Valdez (1997) 58 CA4th 494; but see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant].) The jury may rely on the hearsay only for the purpose of evaluating the expert testimony. Such testimony is not admissible to prove the defendant’s guilt or innocence of the predicate acts required to be shown under PC 186.22(f) regarding the definition of a criminal street gang. The prosecution must still establish by independent evidence the additional statutory requirement that the gang’s members “individually or collectively engage in or have engaged in a pattern of criminal gang activity” per PC 186.22(f).
Green v. State (Ga. 1996) 466 SE2d 577 [266 Ga. 237] held that there could be no conviction for “street gang terrorism” absent proof of a pattern of criminal gang activity. It was not enough for a police officer to testify, based on information from other investigators, that two gang-related homicides in town were attributed to a particular gang or that several crimes were gang-related, but without specifying the dates of the crimes.
Hence, when hearsay evidence of the incident is presented as a basis for the expert’s opinion, it should be made clear to the jury that such hearsay is not admitted for the truth of the matter asserted and cannot be relied upon to convict the defendant of a gang participation substantive offense and/or a gang-related enhancement.
CALJIC NOTE: See FORECITE F 6.50 n10.
F 1403 Note 5May Expert Testimony Be Used To Prove “Primary Activity” Element Of Criminal Gang Offense?
People v. Loeun REV GTD/DEPUBLISHED (7/13/95, S046514) 33 CA4th 1509. See opinion below. Issue not addressed on review.
(See FORECITE F 540A Note 10.)
CALJIC NOTE: See FORECITE F 6.50 n11.
F 1403 Note 6Prior Juvenile Adjudications Inadmissible Re: Gang Activity
Review was granted in People v. Gonzales UNPUBLISHED (1996) 40 CA4th 1492 reprinted at 49 CA4th 1823 to consider whether, and if so to what extent, prior convictions may be used to prove the existence of a “pattern of criminal gang activity.” The Court of Appeal in Gonzales held that prior juvenile adjudications were inadmissible under People v. Wheeler (1992) 4 C4th 284 to prove the required pattern of criminal gang activity as required by PC 186.22(b)(1); however, Gonzales was dismissed on May 21, 1997 “in light of an intervening change in the controlling legislation” which added a “sustained juvenile petition” to the list of predicate offenses. (PC 186.22(e), amended by Stats. 1996, ch. 982, § 1; cf. EC 452.5, added by Stats. 1996, ch. 642, § 3.)
CALJIC NOTE: See FORECITE F 6.50 n13.
F 1403 Note 7Use Of Documentary Evidence To Prove Gang Offense
People v. Wheeler (1992) 4 C4th 284, 298 held that “a judgment that is offered to prove the matters determined by the judgment is hearsay evidence.” Hence, when documentary evidence of a judgment of a conviction is offered to prove that the defendant committed the crime of which he was convicted, the judgment is objectionable as hearsay. (See People v. Gardeley (1996) 14 C4th 605, 624 fn 11 [recognizing but not resolving the issue]; but see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant].)
CALJIC NOTE: See FORECITE F 6.50 n16.
F 1403 Note 8Gang Evidence As Rebuttal To Third Party Defense
When the defendant relies on a third party defense which includes evidence of a confession by a third party who claims to not know the defendant, the prosecution may, in rebuttal, present evidence that the two were members of the same criminal street gang, thus suggesting that the confession was fabricated. (People v. Ruiz (1998) 62 CA4th 234.)
CALJIC NOTE: See FORECITE F 6.50 n18.
F 1403 Note 9Gangs: Testimony Identifying Group As Gang
(See In re Jose P. (2003) 106 CA4th 458 [expert’s testimony that the alleged gang was an ongoing association of around 600, identified by the color red and number 14, whose primary activity was the commission of criminal acts, two of which were described, was sufficient to establish that the gang was a criminal street gang]; but see People v.Valdez (1997) 58 CA4th 494 [expert testimony that Nortenos is not a gang].)
CALJIC NOTE: See FORECITE F 6.50 n27.
F 1403 Note 10Gangs: Admissibility Of Gang Profile Evidence
For briefing on this issue, see Brief Bank # B-975.
CALJIC NOTE: See FORECITE F 6.50 n31.
F 1403 Note 11 Gang Evidence: Limiting Instruction
For briefing on this issue, see Brief Bank # B-975; see also # B-654, Argument IV(A).
CALJIC NOTE: See FORECITE F 6.50 n32.
F 1403 Note 12Admissibility Of Alleged Tattoo Which Predates Gang Affiliation
For briefing on this issue, see Brief Bank # B-975.
CALJIC NOTE: See FORECITE F 6.50 n33.
F 1403 Note 13 Limitations On Expert Testimony Regarding Gangs: Admissibility Of Gang Expert Evidence
Expert testimony on gang membership and behavior is admissible under certain circumstances, but the scope of such testimony is not unlimited. (See People v. Perez (1981) 114 CA3d 470, 477 [improper to admit gang membership testimony to prove identity]; In re Wing Y. (1977) 67 CA3d 69, 78 [reputation evidence may not be used to prove gang membership].)
Evidence that the defendant is a member of a gang may have a “highly inflammatory impact” on the jury. (People v. Gurule (2002) 28 C4th 557, 653.) Therefore, “trial courts should carefully scrutinize such evidence before admitting it.” (People v. Champion (1995) 9 C4th 879, 922.) “Such evidence should not be admitted if only tangentially relevant [citation] because of the possibility that the jury ‘will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged’ [citation] ….” (People v. Gurule (2002) 28 C4th 557, 653; see also People v. Williams (1997) 16 C4th 153, 193.)
People v. Bojorquez (2002) 104 CA4th 335 held that, where other evidence showed the witness’s association with defendant, evidence of their gang membership should have been excluded under EC 352, in view of its inflammatory and prejudicial nature. (See FORECITE F 6.50 n5.) There was independent evidence of a relationship between defendant and the witness. Although this evidence weighed against admitting gang membership to show bias, defendant testified that he had been a gang member and that the witness was as well; however, the detective’s testimony concerning gangs was prejudicial. His testimony about the ethnic composition and criminal habits of gangs was neither a necessary nor a proper foundation for his capacity to testify about them. The detective’s repeated reference to gangs pursuing robberies, followed by declaring that defendant’s gang was involved in criminal activity, tended to ascribe guilt to defendant. The error was prejudicial and required reversal. (But see People v. Ferraez (2003) 112 CA4th 925, 930-931 [gang expert’s testimony was necessary to explain to the jury how a gang’s reputation can be enhanced through drug sales and how a gang may use the proceeds from such felonious conduct].)
For briefing on this issue, see Brief Bank # B-975.
[For an unpublished opinion reversing convictions for erroneous admission of gang evidence in the form of expert testimony, see People v. Estrada UNPUBLISHED (F039419) 2003 Cal. App. Unpub. LEXIS 217.]
[For additional material on gang evidence and gang cases, see Brief Bank # B-583.]
See also FORECITE F 2.50f for proposed modification making CJ 2.50 applicable to gang evidence.
[Research Note: See FORECITE BIBLIO 2.80.]
CALJIC NOTE: See FORECITE F 2.80 n6.
F 1403 Note 14 Gang Evidence Must Be Closely Scrutinized
“[G]ang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged-and thus should be carefully scrutinized by trial courts….” (People v. Carter (2003) 30 C4th 1166, 1194; see also People v. Avitia (2005) 127 CA4th 185, 194 [“only possible function of gang evidence was to show [defendant’s] criminal disposition] .)
CALJIC NOTE: See FORECITE F 2.50f.
F 1403 Note 15 Constitutional Challenge To Gang Evidence
Gang evidence may be subject to constitutional challenge as prejudicial bad character evidence, see FORECITE PG VII(C)(20).
F 1403 Note 16 Error To Admit Gang Evidence On Undisputed Issue To Which Defense Offered To Stipulate
See People v. Avitia (2005) 127 CA4th 185, 193-94 [reversible error evidence of gang graffiti found in defendant’s bedroom on issue which was undisputed and to which defense offered to stipulate].
F 1403 Note 17 Prejudicial Impact Of Gang Evidence In Non-Gang Case
In cases not involving the gang enhancement, evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. (See People v. Memory (2010) 182 CA4th 835; see also People v. Hernandez (2004) 33 C4th 1040, 1049.)
F 1403 Note 18 CC 1403 Is A Cautionary/Limiting Instruction Which Should Not Be Given Over Defense Objection
See PG VI(C)(1.1) [A Cautionary Or Limiting Instruction Should Not Be Given Over A Tactical Objection By The Party Who Benefits From The Instruction].
See also FORECITE F 375 Note 24 [CC 375 Is A Cautionary/Limiting Instruction Which Should Not Be Given Over Defense Objection].