*1 S184212. Oct. [No. 2011.] PEOPLE,
THE Plaintiff and Respondent, VANG,
XUE Defendant and Appellant.
Counsel Court, for Defendant under Supreme John P. Dwyer, appointment Appellant. General, Harris, Dane R. Brown, Jr., Attorneys and Kamala D.
Edmund G. Schons, General, Gillette, Attorney Assistant W. Attorney Gary Chief Assistant General, Swenson, General, Attorneys and Eric A. Deputy Steve Getting Plaintiff and Respondent.
Opinion whether a crime was
CHIN, witness testified about An expert J. held that the trial court erred in permitting related. The Court of Appeal asked because the to respond prosecutor *4 manner that was only thinly tracked the evidence in a closely questions the trial court erred. It is disagree required, prohibited, We disguised. The is not be based on the evidence. questioner on that evidence. the fact the are based disguise required History I. and Procedural Facts taken the Court of opinion. These facts are from largely Sitthideth, LB, and Ha were Xue Vang, Sunny Danny Dang Defendants great bodily injury convicted of assault means of force likely produce Code, (Pen. William Phanakhon. assaulting 20-year-old § (a)(1).) true an enhancement allegation subd. The also found of, of, or in the benefit at the direction defendants committed the assault “for intent to association with criminal street any gang, specific promote, Code, further, (Pen. members . . . .” or assist in criminal conduct by gang v. Albillar 186.22, (2010) 51 Cal.4th generally (b)(1); subd. see 1062].) was theory P.3d prosecution’s 59-68 of the Oriental Tiny Crips that the assault was committed for the benefit (TOC), a criminal street gang. he had for a while with members
Phanakhon testified that associated TOC, in the fall He met the four defendants but denied member. being LB, trial, Sitthideth, Ha, and but not Vang, and winter of 2007. At stipulated were TOC members. they 28, 2008, received a call Phanakhon evening telephone
During April familiar, caller, over.” seemed asked to “come at his home. The whose voice Phanakhon He agreed. went to his arrived a garage Vang short time later. that, Phanakhon also saw LB inside the About five after peek garage. minutes asked Phanakhon he Vang if wanted to out.” go “hang Phanakhon followed down the He Vang street. also saw Ha and Sitthideth towards the walking comer, comer. When Phanakhon rounded the someone struck him in the back of the head from behind. He fell down and tried his head from protect continued blows. He then lost consciousness. Collins,
San Police Detective Diego Dave who was surveil- conducting lance observed the nearby, assault. He watched as four males approached fourth, comer. three of the men Suddenly, but the victim began beating did not back. The victim fell to the fight but two of the assailants ground, him and hit him Detective pulled up again. Collins observed two of the men back while the away third out a stick or and hit the victim pulled pipe head with it. The victim fell to the ground second time. Detective Collins what he broadcast Officer Michael Dewitt seeing. and arrived responded in time to four see men the victim. beating
The assailants fled. The four defendants were arrested nearby. pipe stick that Detective Collins observed was never found. Paramedics trans- Phanakhon where he was examined for head ported hospital, injuries, then released. Phanakhon testified he did not know “for sure” he was why attacked, First, but he stated two reasons. defendants have possible might Second, attacked him for himself from TOC. he have disassociating been “checked” because he had heard he was not something to hear. supposed *5 related,
To that show the assault was called an gang prosecution about criminal street The Court of summa- testify gangs. Appeal opinion rized his “The called Detective Daniel Hatfield as testimony; its prosecution witness on criminal street Detective Hatfield testified about the gangs. culture and habits member-on-member for no gangs, including discipline TOC, out with the or not longer hanging gang work.’ ‘putting Turning he described it as a Laotian that off from predominately group split larger set 1990’s and claimed Linda Vista as its Detective gang early territory. Hatfield identified three committed mem- offenses its separate predicate and bers that TOC was a criminal street Given the gang. opined stipulation, Ha, there was no that and LB were members of TOC. Sitthideth dispute Detective Hatfield believed that and the victim Phanakhon were also Vang members.” gang
In Detective Hatfield As the part, responded hypothetical questions. it, Court of described “Over defense Detective Hatfield objection, that tracked the to two from the responded prosecution examination, facts of the case.”1 On direct asked about prosecutor assault on a After “young baby gangster.” stating the hypotheti- facts, cal asked: “Based on the facts of that prosecutor do hypothetical, have an as to whether crime you this was committed for the benefit of and association with or at the direction of the Oriental Tiny [in] street Detective Hatfield he did Crips gang?” said have based on those facts. He believed that did this to “they keep gang strong the gang set is as only strong its weakest member. And that member did to the something TOC for him to be gang victimized this case. They put him in check. him They back in line over some brought wrong perceived set, this individual did to the victim not even he know what she did in incident.” He this stated that the assault would benefit TOC was committed in association with TOC and at the direction of TOC members. examination,
On redirect stated additional facts prosecutor whether, facts, based on the and asked under those hypothetical Detective Hatfield had “an about whether or not this was a gang- asked, motivated attack.” The witness said he did. The then “What prosecutor is your about the gang motivation behind the attack that has been described in the Detective hypothetical?” Hatfield “The reason responded, Iwhy feel that it gang motivated is you what told me as far as exactly individual, the fact that this in this that he saying had been hypothetical, He had hanging. been with the associating documented He gang members. tells me that. member, That tells me that ... he has been a gang criteria, in that especially if he hypothetically meets that that fact that—he doesn’t have to know the reason he why attacked—doesn’t have to being know. There could be a or a from the perception paranoia gang members are him attacking that he did to tick off the set. The something fact that he was lured out to where he was attacked tells me that that was planned. fact members, that it was done in concert with known documented victim, work they together to do what did to the tells me that they this is gang-motivated incident. It wasn’t about friends fighting one another.” among *6 Sitthideth, six, four,
The court sentenced and Le Vang, to state prison and 12 years, and respectively, Ha on placed They The probation. appealed. Court of found that the trial erred Appeal court Detective permitting Hatfield to to the respond but found the error harmless. It also other rejected arguments the defendants It made. modified one condition of as to Ha and otherwise affirmed the probation judgments. It say would be more accurate to that the questions tracked the not the of facts are, the case. The may may determines what the facts and not believe all of the evidence. All four defendants for review. We review and limited granted petitioned (1) trial issues to whether the Court of found that the correctly Appeal so, (2) court erred in the use of the and if permitting hypothetical questions, whether the Court of found the error On our own correctly harmless. Appeal motion, we severed case from that of the other defendants Vang’s deferred further the other defendants our decisión in this briefing by pending case.
II. Discussion skill, “California law person ‘special knowledge, permits in a field to as an training, or education’ experience, qualify expert Code, (Evid. 720) witness and to form of an give testimony § (id., 801). Under Code testimony Evidence section expert opinion if the matter of the only testimony ‘sufficiently beyond admissible subject the trier of common that the would assist experience (a).) (Id., fact.’ subd. matter of the culture and habits of criminal subject . . criterion.” 14 Cal.4th Gardeley street . meets this gangs (People (Gardeley).) P.2d 713] issue before us concerns the propriety gang expert permitting to the asked hypothetical prosecution regarding respond Defendant whether the defendants’ assault on Phanakhon was related. detailed the trial court “when it to ask a argues permitted erred prosecutor case, the facts in this about whether closely tracking question, The Court of summarized issue: gang-motivated.” assault was trial court its discretion when it allowed argue “Defendants that the abused Hatfield to to a testify response hypothetical question Detective Phanakhon, baby in the thinly disguised ‘young assault on TOC and motivated.” was for benefit of was gang gangster,’ Killebrew on Relying court (Killebrew), the Court found that the trial of Appeal
Cal.Rptr.2d 876] may that an witness erred. It with the rule Killebrew “agree[d] (Killebrew, thinking. defendant is offer an what a particular here, may And more prosecutor 103 Cal.App.4th importantly asking not circumvent rule by court said that “the trial identity.” the defendant’s It also
thinly disguises Hatfield’s admitting testimony regarding its discretion Detective abused that such intent based on its belief knowledge apparent defendants’ in the form of as was long was admissible so testimony presented not use a hypothetical question . . . prosecution [T]he hypothetical. real defendants’ subjective conceal an expert’s improper intent.” knowledge
1045 644, Killebrew, The Court of 103 as supra, Appeal interpreted Cal.App.4th track the then closely if too questions they prohibiting hypothetical in concluded that “Detective Hatfield’s to the two hypo- testimony response thetical the rule The differ- violated in Killebrew. questions only apparent ences between were of the the trial and the the names testimony hypothetical In the called the victim question, ‘young parties. hypothetical prosecution ‘three instead of Phanakhon and called the four baby gangster’ defendants O.G.,’ is, Indeed, baby gangsters gangster.’ one one ‘original defense from the when attorneys hearing ‘laughter tittering reported jury’ defense earlier objected Ha’s to the use of at an attorney in stage Detective Hatfield’s testimony.”
The Court of erred condemning in hypothetical questions they tracked evidence in a manner that “thinly was only disguised.” render on the basis “Generally, expert may opinion testimony of facts ‘in a given that asks to assume their hypothetical question (1 14, McCormick (4th 1992) truth.’ Evidence 58.)” (Gardeley, ed. p. 14 Cal.4th supra, at we in p. approved Gardeley was similar to ones here. giving Boyd “After Detective ‘hypothetical’ based on in this three assault case ... by facts of members, the Family asked if in his Crips prosecutor Boyd expert opinion attack as described would that it ‘gang-related activity.’ Boyd responded (Id. 619, ‘classic’ . . . .” at italics example gang-related activity p. added.) We held that this helped jury’s finding support crime gang (Id. 619-620.) case was related. at pp. in this just case were as the one described Gardeley. proper 186, 464, also
(See (2005) v. People Ward 36 Cal.4th 209 Cal.Rptr.3d [30 P.3d 114 testi- [upholding “fact-specific to elicit hypothetical questions 717] mony from that a member into [gang] going rival experts do territory—like defendant—would so as a challenge would protect 1499, himself with a People (2007) v. Garcia weapon”]; Cal.App.4th 1505, 1513-1514 Cal.Rptr.3d stated [prosecutor properly hypotheti- [64 104] “ facts, cal then asked the have an expert, you as to whether ‘[D]o of, this committed particular offense was for the benefit or in association ”].) the criminal street gang?’
Use of to an subject important requirement. “Such a must be rooted facts shown the evi hypothetical question 618; dence . . . .” 14 Cal.4th see (Gardeley, supra, also v. Moore People 386, 280, (2011) 51 515]; Cal.4th 247 P.3d People v. Cal.Rptr.3d [121 959, 1146]; (2008) Richardson 43 Cal.4th 183 P.3d Cal.Rptr.3d [77 Ward, 209; 36 Cal.4th People Boyette 391]; Cal.4th 58 P.3d Cal.Rptr.2d Gonzalez 1539, 1551, Jefferson, 124]; fn. 4 30.48, (Cont.Ed.Bar Evidence Cal. Benchbook ed. 2010 4th update) § *8 1046 “It 687.) A need not all of the evidence. is
p. question encompass hypothetical true not the of all the necessary that ‘it is include a statement question evidence in the case. The statement assume the limits of the may facts within evidence, assembled, not the unfairly which is upon and considerable latitude must be allowed in the choice of facts as required, v. Wilson to the hypothetical question.’ (People basis which frame a upon hand, 720].) 25 Cal.2d P.2d On the expert’s other be based ‘on of fact evidentiary support not without opinion may assumptions ” (People v. [citation], or on or factors . . . .’ speculative conjectural Richardson, Witkin, 1008; (4th at ed. supra, see also Cal. Evidence p. Trial, 2000) method of Presentation at traditional taking p. [“The evidence of an is the This be may hypothetical question. framed deduced and the on can be from the any theory limits assume facts within the of the evidence omit any questioner But, has material.”].) not deemed however much latitude party facts be evidence frame must rooted in the questions, questions tried, not some case other case. being A for this rule be not question reason should apparent. “ no ‘Exclusion based on the evidence is irrelevant and of help jury. is that rest on surmise guess, conjecture opinions [citation] of the expert inherent foundational admission corollary predicate trier of fact the issues it testimony will the assist the to evaluate testimony: ” Richardson, 1008.) (People supra, must decide?’ Cal.4th Expert Thus, fact. not based on the evidence will not assist the trier of broad, a the field of questions party “[a]lthough permissible hypothetical cannot method of a witness to before facts place jury use this questioning the actual and for which no evidence ever divorced from evidence Boyette, Cal.4th (People supra, introduced.” here, ques-
As this rule means that the prosecutor’s hypothetical applied did, not based on what the evidence showed these defendants tions had to be directed to helping what else have done. The were questions someone defendants, else, determine whether these not committed a someone confused this fact would have only crime for a gang purpose. Disguising jury. based on of this case were agree questions parties too these were closely But the Court of found evidence. This only disguised.”
based
evidence in manner that was
“thinly
that a
rooted
transforms the requirement
hypothetical question
conclusion
rule
into
confounding
into a
at least
prohibition—or
evidence
the fact it is rooted
from
disguise
must
party posing
but thickly.
in the
“thinly,”
appears,
evidence—and
In
of this
defendant
support
argument,
and the Court of
Vang
Appeal rely
Killebrew,
discussed Killebrew
primarily
644. We
We explained Killebrew’s limited significance.
Killebrew,
v.
“People
supra,
644,
103
is
Cal.App.4th
somewhat unclear in this regard.
its
Although
legal
discussion states that
‘informed
of
his belief of the
suspects’
and intent on
knowledge
in
night
its
question,’
factual account
states that
‘[t]hrough
use of hypothetical
Darbee
questions,
expert]
[the
testified that each of the individuals in the three
had
cars’
certain knowledge
(Id.
intent.
658.) The
p.
opinion never specifically states whether or
how the
referred to
rather
specific persons,
than hypothetical persons.
Obviously,
there is a difference between testifying about
specific persons
about hypothetical
It would
be incorrect
to read Killebrew as
persons.
barring
questioning
expert witnesses
through
use
of
of
questions regarding hypothetical persons.
Gonzalez,
As
People
in
v.
explained
supra,
1551,
4,
126
use
Cal.App.4th
hypothetical ques-
page
footnote
tions is
(Gonzalez,
proper.”
supra,
To the extent that was correct supra, Cal.App.4th whether the defendants expert testimony regarding specific prohibiting **4 reason,* the reason for is testimony acted for this rule not such ultimate embrace the issue in the case. the form of “Testimony is embraces that is otherwise admissible not because it objectionable Code, 805; (Evid. issue to see the ultimate be decided trier of fact.” Prince, 1227; Cal.4th at Olguin Rather, 596].) the reason for 1370-1371 rule is the defendant’s regarding similar the reason expert testimony “A witness on a guilt in general express improper. defendant’s The reason this rule is not guilt. guilt [Citations.] ultimate issue of to the jury, goes fact for often *10 ‘Rather, on or innocence are guilt ultimate issue. opinions [Citations.] it are of no to the trier fact. To put inadmissible assistance of they the the trier fact is as as the witness to way, weigh another of competent ” and draw of v. guilt.’ (People evidence conclusion issue Coffman 1, 710, 30]; (2004) see and Marlow 34 Cal.4th 77 96 P.3d Cal.Rptr.3d [17 Prince, 1227.) at also People supra, p.
Here, no knowledge for Detective Hatfield had personal example, and, so, if or why; of the defendants assaulted Phanakhon how any whether was as as the to expert weigh he was not at scene. The jury competent were, facts the defend and determine what the whether including evidence they So he could not whether testify ants committed assault. directly could, did, But he and committed the assault for gang purposes. properly evidence, that an based on tracked express opinion, hypothetical questions occurred, assault, would have been for if the found in fact jury whether criminal conduct benefited a gang purpose. “Expert opinion can be to the Penal Code is not but sufficient only permissible support gang” Albillar, 186.22, (b)(1), gang subdivision enhancement. (People section true if 63.) 51 Cal.4th at It is that Detective Hatfield’s opinion, supra, p. credible, to with the cause might, found rest together the testimony was related. “But circumstance makes find the assault this (Gonzalez, questions.” expert through of the use of “questioning witnesses 946, 3.) directly thus to supra, question responded fn. comment in in p. at Gonzalez necessary fully why argument merit. argument explain and lacked defendant’s event, of disapprove any interpretation in We repeat In we what we said Gonzalez: Killebrew, 644, supra, limiting, barring, 103 or even use Cal.App.4th is the use of expert testimony regarding improper, if the defendants themselves questions. Even is proper. 4 circumstances, testimony regarding the defendants expert specific that in appears It some 494, 135], (See Cal.Rptr.2d v. Valdez Cal.App.4th proper. be Prince Cal.4th approval cited directly 1015].) testify here did question expert before us. Because the not is not 156 P.3d defendants, present we will only responded hypothetical questions, but assume about the have about the defendants themselves. expert properly could not testified purposes (Gonzalez, supra, 947.) It not inadmissible.” 38 Cal.4th probative, that, also true because the defendants assaulted their victim under surveillance, would conducting watchful officer eye police likely credit did commit But that they merely evidence assault. defendants, unfortunate for the not a reason to exclude probative permissible testimony. Killebrew, extent supra,
To the purported Cal.App.4th condemn the use of it overlooked the critical differ hypothetical questions, ence between an an to a expert’s expressing opinion response and the an about the defendants them expert’s expressing Killebrew selves. stated that the in that case informed the jury “simply of his belief of the knowledge intent on the suspects’ night question, (Killebrew, issues reserved to the trier of fact.” properly But, to the extent the testimony responds hypotheti cal in Killebrew (and, itself), as in this case questions, such appears, Here, no does such thing. that an expert gave assault in the committed manner described in the would hypothetical question did not related. The give on whether the defend did thus did ants commit an assault in way, give how the decide the jury should case.
The trial court understood the (1) distinction between not precisely permit- the to ting crime opine defendants committed a expert for a particular (2) and gang the to purpose, his in permitting expert opinion express response to The court sustained hypothetical questions. an to a objection a regarding whether defendant had activi- knowledge gang ties. In the sustaining the objection, to that “the law doesn’t explained jury allow the to come say in and what expert exactly somebody else’s mind— what was in their mind. All of the evidence is to you for to presented you make that decision.” It the to an only permitted expert give whether an assault would have had a in to gang purpose response The court acted in questions. this correctly regard.
The Court of the Appeal, author of the in perhaps this separate court, concerned may be that these invades permitting hypothetical questions noted, However, of province jury.5 testimony is expert permitted Code, even if it (Evid. embraces ultimate issue to be 805.) decided. Werdegar’s separate Justice following seems to make one or more of the (1) arguments: testimony expert is simply regarding gang not admissible whether a crime is related; (2) testimony may given in opinions such not be the form of based on hypothetical (3) questions; something there was about the improper specific hypothetical questions of this case; answers something or there was improper specific about this case. long has expert testimony regarding However: It been settled that whether a crime was Albillar, 63; (People supra, Gardeley, supra, related admissible. v. p. 51 Cal.4th at First, still a critical role in two it must decide whether to respects. jury plays Second, credit the at all. determine whether the facts expert’s opinion must facts, stated in the are the actual and the significance hypothetical questions difference between the actual facts and facts stated in the It The trial court on both of these roles. instructed told questions. that “the and the are meaning importance any [expert] opinion you decide,” that find “you to to be may disregard any opinion you unbelievable, unreasonable, It also in- unsupported by evidence.” structed about “In jury specifically hypothetical questions: examining witness, A may witness be asked expert expert hypothetical question. asks facts are true and a witness assume certain hypothetical question you It’s to decide whether an up then based those give facts. has, assumed in been fact, proved. If conclude that an assumed fact you fact true, consider the effect of the reliance on fact in expert’s added; 332; (Italics No. evaluating the see CALCRIM see opinion.” expert’s Prince, supra, also 40 Cal.4th at with [citing approval p. testimony CALJIC instructions on comparable expert upholding expert Boyette, case]; supra, in that 29 Cal.4th at testimony p. [citing CALJIC instruction on approval comparable case].) in that upholding evidence trial factual may varying Often the presented support and the in the factual affect findings, possible findings might differences wish, if with the expert’s opinion. parties may, they explore expert 619.) good beyond p. sufficiently at And for are common Cal.4th reason. Such matters (Gonzalez, at jury. supra, Cal.4th experience would assist explication presented than that example, imagine “It is difficult a clearer need for For ” (People type promotes ‘respect.’ this of mindless retaliation subculture in which 1384; Gonzalez, 945-946.) (2) Olguin, supra, pp. see It has testimony regarding long expert testimony generally, been whether also settled given questions. (E.g., specifically, response *12 a crime is related be 618, 1505, 619; Garcia, Gardeley, supra, supra, at pp. pp. at 1513-1514.) testimony that nothing expert gang are aware of so distinctive about it should We (3) exception general permitting hypothetical questions. an the the use of The be to rule they only case questions solely the of this because Court of criticized evidence, clearly thinly disguised they fact on the a criticism unwarranted. The the were based might wrong questions. the specify not else have been Neither separate does what any authority requires hypothetical questions be formulated the Evidence nor other Code questions to found valid in cases any particular questions fashion. The here were similar Garcia, 619, supra, pages at Gardeley, supra, page 1513-1514. such Although to to expert’s fully responded questions. hypotheti- here the answers The answers Code any respond questions, those neither the Evidence questions, questions, cal as to must to questions to the use or avoidance of authority requires any particular other answers or nor nothing it. expert gave explained improper The his We see any particular words. doing so. and, so, case for apply if to the actual accept expert’s opinion the how Whether questions and properly the answers. permitted to determine. But trial court factual various scenarios evidence and how affect the suggests they might (and, The do direct expert’s opinion. prosecution may so on examination if examination); otherwise on redirect the defendant do so on appropriate, may (or recross-) cross- examination. Such assist might questioning jury. Moreover, the defendant has the during argument to stress to the opportunity an jury that expert’s testimony one the motivations of opinion concerning scenario; actors in no has personal knowledge mind. concerning defendant’s state of must still find evidence, instructions, the facts after all considering the court’s and the parties’ arguments. not be Hypothetical must questions prohibited solely track the evidence they too or because the did closely, questioner the fact the based disguise were on the evidence.
Over the years, commentators have criticized sometimes the use of hypo- thetical questions, but not in a way the conclusion that supports must the fact are questioner disguise they based or that would such support banning (E.g., The New questions entirely. Wigmore: Evidence, A Treatise on Evidence Expert Bases Expert 3.4, 93-95; Testimony, 16, (6th 2006) § McCormick on Evidence ed. pp. § 98-99; supra, Witkin, Evidence, see pp. generally Cal. 259-260.) pp. § The criticisms are generally that hypothetical be questions might unduly manner, or partisan posed in argumentative be obfuscating might facts, overlong, might or omit confuse the misrepresent important might jury, be used (The as a improperly “closing midstream.” New argument supra, 3.4, Wigmore, 94.) Wigmore’s solution was p. § to allow but not (Id. the use require McCormick hypothetical questions. suggested that one safeguard abuse “is the against cross-examiner’s on cross- rights; examination adversary omitted facts and ask may if his supply would be modified A by them. further is the safeguard judge’s unfair, if she authority; deems question the trial judge require be reframed to hypothesis (1 basis.” supply McCormick on adequate Evidence, omitted.) fns.
Thus, there are dangers with hypothetical questions. Over objection, the trial court should vigilant to ensure that are used But they fairly. it is not a legitimate objection failed to the fact questioner disguise case, was based on the evidence. As this was not a applied legitimate objection that failed fact disguise he was prosecutor about an asking assault based on one that evidence showed the defendants committed.
Defendant also Vang involving cites cases statutes that an prohibit to on a certain hold expert testify The cases point. generally party may (People not circumvent by using prohibition hypothetical questions. 14]; (2008) 1326-1328 Bordelon 1995) U.S. F.3d Boyd (D.C. U.S. v. Cir. App.D.C. 1573, 1579-1580; 670-672]; 1993) (11th Cir. F.3d U.S. Thigpen U.S. v. 559, 564-565; (10th (11th F.2d U.S. Cir. 1991) Manley Dennison Cir. 1221, 1223-1225.) are If a statute 1990) F.2d The cases inapposite. an from on a it be correct point, may an prohibits expressing expert by using not allow the to express hypothetical to But no statute an from Indeed, an expressing questions. prohibits an a crime was related. it is settled that regarding gang whether such an To extent expert may opinion. express express defendants, can the actual that is because opinion regarding did well not because of determine what the defendants as as expert, subject. Using against hypotheti- entire prohibition expert opining about cal as on this as other matters point is just appropriate questions which an expert may testify. court did not err in we conclude trial
Accordingly, permitting unnecessary of this case. This conclusion makes determine found error whether the Court of correctly perceived Appeal harmless.
III. Conclusion error, it also found erroneously the Court of found Although Appeal reason, the correct result. For this we error harmless. it reached Accordingly, affirm the judgment. J., Kennard, Baxter, J., Liu, J., J., J., C. Corrigan,
Cantil-Sakauye, concurred. Because Ino would
WERDEGAR, J., find Concurring. probability had it heard the expert more favorable to defendant have returned a verdict did, not his as it but culture practices, witness’s explanation motivated, did, I in the it also concur that the crime was as find neither because I But I do not majority opinion judgment. join true before us. question states nor correctly persuasively responds be that holding characterizes Court Appeal’s The majority the evidence. But both not too track closely must that, value, a defendant be of court and appellate accept To the evidence. Court say must be based on question rooted in “the transforming requirement ante, at does (maj. opn., into the majority evidence a prohibition,” in this case. evades the real issue 1046), is untrue also
1053 The Court of concluded the was inadmissible not expert’s Appeal it the only disguised was based on assumed facts that thinly evidence, but because based on those facts the expert prosecution’s the how to allowed that directed express effectively jurors “ ‘[Tjhis the resolve issue of defendant’s motive: is a inci- gang-motivated ” dent. It wasn’t about friends one another.’ fighting among Although “[t]he criminal culture and habits of street are gangs subjects expert appropriate ,” observed, . . . on a the Court of “[e]xpert specific (Italics added.) and intent is not.” subjective knowledge defendant’s I can think of two theories for the Court of conclusion. rejecting Appeal’s First, because, might it be reasoned the was admissible expert’s opinion belief, to the of contrary Court based on Appeal’s although the tracking the direct did not the prosecution’s expert’s opinion to conclude the jury defendant’s crime was motivated. specific gang be the Alternatively, reasoned even after had instructed expert and jurors culture generally gang practices, jurors’ inexperience such matters rendered them motive the circum- incapable determining stances without first hearing issue. The expert’s opinion majority view, seems the first case adopt theory; my outcome this requires consideration of the second. majority that an that a appears accept expert directly opine motivated, defendant’s crime was because the trier of fact
as competent as the witness to and weigh evidence draw a conclusion ante, 1048, from it. (Maj. opn., citing People Marlow Coffman 1, 710, (2004) 30], Cal.4th 96 P.3d v. Prince Cal.Rptr.3d [17 (2007) 40 Cal.4th 1015].) 156 P.3d Nor does Cal.Rptr.3d majority in this case have dispute jury must understood that, to be stating his under version prosecution’s facts as set forth in the the hypothetical defendant’s crime was hypothetical, motivated. But the concludes the did not majority invade improperly of the province resolve factual because the disputes would adopt as its own if it found expert’s opinion only first ante, prosecution’s version facts to true. (Maj. opn., Although superficially evades the plausible, majority’s explanation central told the point jurors what inference concerning defendant’s motive to draw in the it did event find evidence prosecution’s to be If it true. accepted is not admissible if expert opinion consists of inferences and conclusions that can be drawn as the trier of fact easily by (see, witness e.g., Dynamics, Amtower Photon Inc. 361]; Valdez *15 494, the 135]), the is whether jury Cal.Rptr.2d question [68 was to infer defendant’s motive from the without assistance expert competent Prince, evidence. thus in 40 Cal.4th People page We recognized is to unhelpful 1227: a defendant is both guilty expert’s opinion “[A]n is to reach that conclusion—and too jury—which equally equipped that the may in that the issue testimony give jury impression helpful, be in Similarly, has been and need not of deliberation.” subject decided 1155, A. L. Co. Summers v. Gilbert 69 Cal.App.4th [82 “ 162], the rationale for admitting opinion court Cal.Rptr.2d explained: ‘[T]he for it in a conclusion called is that will assist testimony jury reaching consider and the case. “Where as as to jury just competent expert conclusions, the need the evidence and draw then weigh necessary words, In other when an testimony evaporates.” expert [Citation.]’ [Citations.] his or amounts to more than an of her nothing expression expert’s opinion decided, it jurors, supplants belief on a case be it does aid how should not. them.” subject is of course admissible when related a
Expert opinion of that the an would common sufficiently beyond experience Code, 801), and the form of an (Evid. testimony of fact in assist the trier § it embraces admissible is not because objectionable that is otherwise in (id., 805). long an issue court addressed ago point ultimate This “There is no hard 25 Cal.2d P.2d Wilson 720]: coincides with fast that the cannot be asked rule rule is admissibility in the case. ‘We think true the ultimate issue case, the issue and the circumstances of the there on the nature of depends . . of discretion involved. . Oftentimes being judicial element large issue, on a ultimate even when is sole be received simple article, one, sanity the value or the of as for where the issue is of example be tried fully it cannot be further cannot simplified person; than them from those in better form hearing position without opinions ” Thus, is admis- whether motive can be in.’ jury expert opinion placed unnecessarily be to the without whether it will jurors sible turns on helpful (1996) 14 Cal.4th Gardeley them. In supplanting 713], culture of and practices 927 P.2d we observed jurors, experience matters outside common gangs criminal street are be activity might gang how certain justifying expert explain culture that an in Gardeley gangs gang related. did not in hold We stated or that certain hypothetically could state his her also properly rather, stated, We that based motivated. activity gang was fact “a example described ‘classic’ that the hypothetical expert’s opinion conclude” 619), reasonably “the could (id. jury activity” gang-related intent to assist promote with the (ibid.) specific the attack committed conduct, criminal gang 186.22, Penal Code section required by subdivi- inference, was for (b)(1). short, sion draw, based on the expert’s explanation and culture. practices
While it is not inconceivable an could in expert opinion circum- stances be needed to fully to the explain how a crime motivated, does majority Instead, not consider the in this case. point *16 broadly holds an on expert’s motive is admissible when stated in to a response rooted in the question evidence. prosecution’s By failing recognize admissibility expert opinion limited it, need for the majority any issue is suggests expert opinion when permissible provided to a response rooted in at least one party’s evidence. I am unwilling subscribe to that rule.