Gang Expert Testimony as Testimonial Hearsay California Case Law

In People v. Killebrew (2002) 103 Cal.App.4th 644, a gang expert in a prosecution for conspiracy to possess a gun testified that a gang member in a caravan of cars in which guns are in the possession of some of the other gang members knows of the presence of the weapons and, therefore, constructively possesses them for the joint protection of all the gang members. (Id. at p. 658.) Recognizing that in People v. Gardeley (1996) 14 Cal.4th 605, the California Supreme Court held that expert testimony as to the "culture and habits" of gangs was admissible, Killebrew concluded that its expert's opinion was "not the type of culture and habit testimony found in reported cases." (Killebrew, supra, 103 Cal.App.4th at p. 654.) In Gardeley, the expert testified as to the "common practice" of gang members and how they would "typically view" certain matters and respond to them. (Killebrew, supra, at p. 654, fn. 8.) The Killebrew court commented, "None of these cases concerning" "expert testimony about the 'culture and habits' of . . . gangs" "permitted the testimony that a specific individual had specific knowledge or possessed a specific intent." (Killebrew, supra, 103 Cal.App.4th at pp. 656, 658.) The Killebrew court also discussed People v. Olguin (1994) 31 Cal.App.4th 1355, in which the Court of Appeal upheld as proper "expert testimony in the area of gang psychology and sociology," the expert's opinion as to "the reasons for the defendants' seeking out the person who defaced their gang graffiti, and their violent response when a member of another gang yelled the name of his gang." (Killebrew, supra, 103 Cal.App.4th at p. 655.) The Olguin court concluded that such testimony did not amount to an opinion "on one defendant's subjective expectation" but concerned "what gang members would typically expect." (Killebrew, supra, 103 Cal.App.4th at p. 655.) Killebrew concluded that its expert, on the other hand, "testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action. . . . It was the only evidence offered by the People to establish the elements of the crime. . . . . . . Testimony that a gang would expect retaliation as a result of a shooting such as occurred here, that gangs would travel in large groups if expecting trouble, that in a confrontation more than one gang member may share a gun . . ., and that oftentimes gang members traveling together may know if one of their group is armed, would have been admissible." (Killebrew, supra, 103 Cal.App.4th at p. 658.)