Is Expert Testimony Regarding Gang Behavior Admissible in California ?

It is well established that expert testimony is admissible regarding gangs and gang behavior: "In general, this court and the Courts of Appeal have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case. 'Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.' " (People v. Gonzalez (2006) 38 Cal.4th 932, 944.) In People v. Garcia (2007) 153 Cal.App.4th 1499, the court noted that courts in a number of cases have held that a gang expert may testify regarding whether a crime was committed to benefit a gang: "An expert may properly testify about . . . 'whether and how a crime was committed to benefit or promote a gang.' (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-658; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 'Expert testimony repeatedly has been offered to show . . . "whether and how a crime was committed to benefit or promote a gang" '; People v. Valdez (1997) 58 Cal.App.4th 494, 507-509 holding expert opinion concerning whether the defendant acted for the benefit of a gang was admissible under the circumstances of the case.)" The Garcia court noted that the proper method by which to elicit a gang expert's opinion regarding whether a crime was committed for the benefit of a gang is through the use of hypothetical questions based on evidence in the case. (Garcia, supra, 153 Cal.App.4th at p. 1513; see also People v. Gardeley (1996) 14 Cal.4th 605, holding it proper for prosecutor to give gang expert "a 'hypothetical' based on the facts of the assault in this case on Edward Bruno by three Family Crip members, and asking gang expert if in his expert opinion an attack as described would be "gang-related activity'".) In Garcia, the gang expert (Zurborg) testified on this issue as follows: "Q. Now, let me give you a hypothetical. Let's say that you have an individual, who in 1998 was contacted by the police, because they were in La Colonia territory with a gun. You have, also, that year committing graffiti in the La Colonia area where they're writing Devious Hoodlums gang graffiti in La Colonia territory. You have field interviews, contacts in 1999 and 2000, where the person admits or claims that they're associating with Devious Hoodlums. In the year 2000, the individual is a victim of a shooting that's believed to be gang related. And the person, also, claims to be Devious Hoodlums. And then in 2004 that person is stopped, has a gun in their possession, that's hidden within the car in the fuse box that's loaded " and at the time there is ongoing investigations and knowledge of street activity between Devious Hoodlums and La Colonia. Based on those facts, do you have an opinion as to whether this particular offense was committed for the benefit of, or in association with the criminal street gang? "A. Yes, I do. "Q. And what is that opinion? "A. That it is for the benefit and direction of, and association for the Devious Hoodlums gang. The information that he gave with the information" . . . the updated information, his knowledge of all the ongoing activity of the shootings that are going on"it's my opinion that he is an active participant of Devious Hoodlums; and the possession of the firearm is to benefit the gang. "Q. Okay. Now, assuming . . . the same facts, do you have an opinion as to whether or not under those circumstances that the offense of carrying a loaded firearm in a vehicle was done to promote, further, or assist criminal conduct by the Devious Hoodlums gang members? "A. That is correct. "Q. Okay. "A. And it is for the same reasons, for the knowledge that he has, the gang members that know he is in possession of that gang " . . . and with the knowledge that the gang members have of him having the possession " the actual gang members giving him the gun, shows that they know it's for the " it's going to be used against rival gang members, or for the protection of the Devious Hoodlums gang." (Garcia, supra, 153 Cal.App.4th at pp. 1505-1506.) On appeal, Garcia claimed that the trial court had erred by allowing Zurborg to testify regarding the ultimate issue in the case, by stating his opinion that Garcia had committed the crime for the benefit of a gang. The Garcia court rejected this claim, reasoning: "In response to hypothetical questions, Zurborg testified the crime, under such circumstances, would be committed to benefit a criminal street gang. The trial court did not abuse its discretion in permitting Zurborg's testimony, even though the topics as to which he rendered an opinion based on responses to hypothetical questions were, in fact, the ultimate issues of the case." (Garcia, supra, 153 Cal.App.4th at pp. 1513-1514; accord Evid. Code, 805 "Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact".)