PEOPLE v. HILL







Filed 1/13/11






CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE HILL, Defendant and Appellant.

A117787 (San Francisco City and County Super. Ct. No. 196842)

Story Continued From Part I………….



To the extent appellant argues that a gang expert may not rely on the hearsay statements of gang members, appellant is wrong. (Gardeley, supra, 14 Cal.4th at p. 618; Duran, supra, 97 Cal.App.4th at 1463.) Gamez is instructive. In that case, the court upheld the admissibility of testimony by gang experts whose opinions were based on personal observations and experience, the observations of other law enforcement officers, police reports, and conversations with gang members. (Gamez, supra, 235 Cal.App.3d at pp. 966-969.) In rejecting the defendant’s argument that the officers’ reliance upon information received from unidentified parties violated the Evidence Code, the Gamez court stated, “We fail to see how the officers could proffer an opinion about gangs, and in particular about gangs in the area, without reference to conversations with gang members.” (Gamez, at p. 968.) Further, the court stated: “While the credibility of those sources may not be beyond reproach, nevertheless, . . . ‘[t]he variation in the permissible bases of expert opinion is unavoidable in light of a wide variety of subjects upon which such opinion can be offered.’ [Citation.] To know about the gangs involved, the officers had to speak with members and their rivals. Furthermore, the officers did not simply regurgitate that which they had been told. Rather, they combined what they had been told with other information, including their observations, in establishing a foundation for their opinions. . . . [¶] While we are sensitive to defendant’s concern that a conviction not be based on hearsay testimony, that is not what occurred here. The officers did not simply recite what they had been told, but instead provided foundational testimony for their opinions which was sufficiently corroborated by other competent evidence, both physical and testimonial.” (Id. at pp. 968-969.)
The reasoning in Gamez is applicable here. Chaplin testified he had worked with the gang task force since 1999, investigating African-Amercian gangs in San Francisco, particularly in the Bayview. He had received training at gang seminars, on-the-job training from other gang task force members, and read books and journal articles about gangs. He had daily conversations with gang members in the Bayview and did follow-up interviews after making gang-related arrests. He had participated in about 600 gang investigations. Although some of the information he received was hearsay, he attempted to corroborate that information.
To comprehend the dynamics of gang rivalry in the Bayview, Chaplin had to be familiar with the typical behavior of Bayview gang members. One significant source of this information was the people involved. Although the credibility of individual gang members might be questionable, Chaplin was not simply recounting or “regurgitating” what he had been told. He made clear that he was relying on his many years of experience and hundreds of communications as one part of the foundation for his testimony. Chaplin’s testimony adequately explained the basis for his opinion regarding the Wet Mob/Big Block rivalry and demonstrated the reliability of the evidence he relied on. (See Gonzalez, supra, 38 Cal.4th at p. 949.) No error has been demonstrated.
3. Chaplin’s Testimony Regarding the Shooting of Dow
The murder of Dow was one of the 14 shooting incidents described by Chaplin. Appellant argues that no reliable basis exists for Chaplin’s testimony that the Dow murder was gang related and that Allen committed it. We disagree. First, there is clear evidence that Dow’s shooting was gang related. It was a drive-by shooting and the firearm used was found one week after the shooting in the possession of Joseph Young, a member of a rival gang. Second, Allen was considered a suspect in that shooting by the investigating officers and had told Chaplin that he was a target for retaliation by West Mob “[b]ecause of some shit they think I did.” Allen also said the shooting of “Espinoza was meant for me.” Third, Allen and Young belonged to the same gang and were close associates in that gang. Fourth, Young himself did not shoot Dow because Young was in custody at the time. Finally, included in the information available to Chaplin were statements by Berry Adams, a West Mob member, describing Adams’s role in arming appellant and driving him to Newhall and Newcomb to shoot Allen.^[1]
Appellant argues that the hearsay provided by Allen was a key piece of evidence relied on by Chaplin to conclude that on April 10, 2004, appellant sought revenge for Allen’s murder of Dow. Chaplin testified that on May 3, 2004, he talked with Allen outside Allen’s residence at 1662 Newcomb, and Allen provided the statements related above. On cross-examination, Chaplin said he did not know the source of Allen’s information. However, Chaplin said that based on what he had discovered throughout the investigation leading up to trial, Chaplin was convinced Allen was correct. Chaplin conceded that, in the past, Allen had lied to police about whether or not he possessed a gun or drugs. But simply because a gang member has lied to the police in the past about his possession of contraband does not preclude a conclusion that he is a reliable source of information supporting a gang expert’s opinion. (See Gonzalez, supra, 38 Cal.4th at p. 949; Gamez, supra, 235 Cal.App.3d at p. 968.)
4. Chaplin’s Testimony Regarding the Thought Process and Behavior of Gang Members
Appellant challenges the bases for Chaplin’s opinions “as to what gang members think and how they behave, in particular[, Chaplin’s] claims that if the intended target is not there, you end up getting someone else, that the killing of a police officer sends the ‘ultimate message’ of gang reputation, [and] a West Mob member would not go to Newhall and Newcomb except to commit a gang shooting or killing.” We have already explained that Chaplin was qualified to provide these opinions, and gang expert opinions of this nature have consistently been upheld in the past. (Olguin, supra, 31 Cal.App.4th at p. 1370 [importance of respect and exclusive gang turf to street gangs, who react violently to disrespect]; Gamez, supra, 235 Cal.App.3d at p. 968, fn. 3 [retaliation]; Killebrew, supra, 103 Cal.App.4th at p. 656 [violence results when one gang goes to another gang’s turf].) We also previously noted Chaplin’s extensive experience and training, which provided reasonable bases for these opinions. Citing U.S. v. Mejia, supra, 545 F.3d 179, appellant contends Chaplin failed to explain how he “analyzed his knowledge and experience to reach a studied conclusion.” But each of Chaplin’s opinions flows logically from his testimony regarding the importance to each gang of its reputation, and how this triggers a retaliatory dynamic of violence. This retaliatory violence, in turn, creates exclusive zones where rival gang members may not go safely. A West Mob member, for example, could not walk safely on Big Block turf. If a West Mob member, armed with an assault weapon, was present on Big Block turf, it is reasonable to conclude he was there to retaliate for prior violence, not to engage in a peaceful pursuit. And if the intended Big Block victim was absent, it is reasonable to conclude the West Mob member would try to shoot a different Big Block member who was present; the shooter would not just “turn around and run out.” Finally, when animosity toward the police resulted in the shooting of an officer, the gang’s reputation was enhanced by, as Chaplin explained, sending “a message to the community, ‘Hey even your protectors can be touched.’ ”
Because each of the challenged opinions is rooted in other opinions properly reached by Chaplin, admitting them was not an abuse of the trial court’s discretion.
D. The Admissibility of Out-of-Court Statements Relied On by Chaplin to Support His Opinions
As we discussed in parts I.B. and I.C., Chaplin was qualified to render his opinions and, because they were based on reliable information, he was permitted to testify to those opinions. In addition, on direct examination the court allowed Chaplin to provide the jury with some of the information serving as the basis of these opinions (basis evidence) as well as the sources of the information.^[2] Some of this basis evidence consisted of out-of-court statements, and appellant contends that permitting Chaplin to testify to those statements violated the hearsay rule and the confrontation clause of the Sixth Amendment to the United States Constitution.^[3] In this part of the opinion, we focus on two of the opinions Chaplin rendered: (1) there was an ongoing violent rivalry between West Mob and Big Block; and (2) appellant had a gang purpose in being present at the corner of Newhall and Newcomb while armed with an assault rifle.
In his briefing, appellant argues that the following out-of-court statements, introduced as basis evidence for these opinions, were admitted for their truth: (1) Allen told Chaplin the Espinoza shooting was “meant for [Allen]”; (2) in his federal plea agreement, Stepney stated he had been the leader of Big Block since its inception, and had been involved in a “war” with West Mob and participated in drive-by shootings; (3) West Mob member Tony Bedford told Chaplin he had taken an assault rifle away from younger West Mob members because they were planning a retaliatory shooting on Harbor Road; (4) Kevin Butler told Chaplin the murder of Hall was possibly an internal West Mob murder; and (5) Terrence Joseph told Chaplin West Mob members could not buy drugs at Newhall and Newcomb.
In admitting this evidence, the trial court relied principally on Thomas, supra, 130 Cal.App.4th 1202, to conclude the statements were not introduced for their truth, but only to assist the jury in evaluating Chaplin’s opinion. Though we disagree with Thomas’s analysis of this important issue, Thomas appropriately relies on relevant Supreme Court precedent, principally Gardeley, supra, 14 Cal.4th 605, that we are required to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) Consequently, we may not find erroneous the trial court’s conclusion that the challenged statements were not admitted for their truth. This determination precludes appellant’s challenge under state hearsay rules and the confrontation clause. (Crawford, supra, 541 U.S. at p. 59.) However, we respectfully critique Thomas and its antecedents and propose an approach that preserves Gardeley’s goals, while recognizing the reality of how jurors treat out-of-court statements admitted as basis evidence.
1. Current California Law
The Evidence Code states that an expert witness may, on direct examination, provide the reasons for an opinion as well as the information upon which it is based, even if that information is inadmissible. (Evid. Code, §§ 801, subd. (b), 802.) In analyzing Evidence Code section 802, our Supreme Court has allowed an expert to testify about basis evidence consisting of out-of-court statements. In People v. Catlin (2001) 26 Cal.4th 81, 137, the court stated, “ ‘[a]n expert may generally base his opinion on any “matter” known to him, including hearsay not otherwise admissible . . . . [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. . . .’ [Citations.]” (See Gardeley, supra, 14 Cal.4th at pp. 618-619; People v. Carpenter (1997) 15 Cal.4th 312, 403; People v. Price (1991) 1 Cal.4th 324, 416; People v. Coleman (1985) 38 Cal.3d 69, 92.) This basis evidence is inadmissible, however, for its truth. (Gardeley, at p. 619 [testimony relating the basis evidence may not “transform inadmissible matter into ‘independent proof’ of any fact”]; see People v. Vanegas (2004) 115 Cal.App.4th 592, 597-598.) The trial court in Gardeley had instructed the jury that the out-of-court statements related by the gang expert were not elicited “ ‘for the truth of the matter,’ ” but only to allow the jury to evaluate the expert’s opinion. (Gardeley, at p. 612.) Gardeley held the trial court correctly determined that “an expert witness . . . could reveal the information on which he had relied in forming his expert opinion, including hearsay” (id. at p. 619), and that the jury “ ‘may not consider those [hearsay] statements for the truth of the matter,’ ” but only to evaluate the expert opinion (id. at p. 612).
This approach to basis evidence is not uncommon. For example, effective December 1, 2000, rule 703 of the Federal Rules of Evidence (28 U.S.C.) was amended to reflect a similar, though not identical approach: “Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion . . . unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.”^[4] The Committee Notes on Rules—2000 Amendment, following rule 703, provides, “When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an expert’s opinion, a trial court applying this Rule must consider the information’s probative value in assisting the jury to weigh the expert’s opinion on the one hand, and the risk of prejudice resulting from the jury’s potential misuse of the information for substantive purposes on the other.”
Thomas followed the “long established” principles expressed in Gardeley. (Thomas, supra, 130 Cal.App.4th at p. 1209) It concluded that the out-of-court statements admitted as basis evidence were not admitted for their truth but only to help evaluate the expert’s opinion, and for this reason the confrontation clause did not apply. (Thomas, at pp. 1209-1210.) The trial court here took the same approach.
2. A Critique of the Current Law
In Gardeley, the gang expert opined that an assault was gang related and, as part of the basis evidence, testified he had been told by one of the assailants that the individual was a gang member. (Gardeley, supra, 14 Cal.4th at pp. 612-613.) In Thomas, after opining the defendant was a member of a gang, the expert was allowed to testify that in forming the opinion he had relied on statements from other members of that gang that defendant was a member. (Thomas, supra, 130 Cal.App.4th at pp. 1205-1206.) Thomas rejected a confrontation clause challenge after concluding the out-of-court statements were not admitted for their truth. “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ [Citation.]” (Thomas, at p. 1210, italics added; see People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154 [out-of-court statements admitted as basis evidence are not admitted for their truth, but only to assess the weight of the expert’s opinion]; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [same]; People v. Cooper (2007) 148 Cal.App.4th 731, 746-747 [same].)
Central to the reasoning in Gardeley and Thomas is the implied assumption that the out-of-court statements may help the jury evaluate the expert’s opinion without regard to the truth of the statements. Otherwise, the conclusion that the statements should remain free of Crawford review because they are not admitted for their truth is nonsensical. But this assumption appears to be incorrect.
In People v. Goldstein (N.Y. 2005) 843 N.E.2d 727 (Goldstein), New York State’s highest court rejected reasoning identical to that in Gardeley and Thomas. In Goldstein, the defendant was charged with murdering a woman by pushing her in front of a subway train. (Goldstein, at p. 729) The prosecution’s forensic psychiatrist (Hegarty) relied upon and testified to certain out-of-court statements that helped form the basis for her opinion refuting an insanity defense.^[5] (Id. at pp. 729-730.) The prosecution argued that the statements were not admitted for their truth but only to help the jury evaluate Hegarty’s opinion. (Id. at p. 732.) The Goldstein court disagreed. “We do not see how the jury could use the statements . . . to evaluate Hegarty’s opinion without accepting as a premise either that the statements were true or they were false. Since the prosecution’s goal was to buttress Hegarty’s opinion, the prosecution obviously wanted and expected the jury to take the statements as true. . . . The distinction between a statement offered for its truth and a statement offered to shed light on an expert’s opinion is not meaningful in this context.” (Id. at pp. 732-733.)^[6]
We agree with Goldstein that where basis evidence consists of an out-of-court statement, the jury will often be required to determine or assume the truth of the statement in order to utilize it to evaluate the expert’s opinion.^[7]
It is noteworthy that the California Supreme Court decisions concluding basis evidence is not admitted for its truth were reached before the United States Supreme Court reconsidered the confrontation clause in Crawford, supra, 541 U.S. 36. (See discussion in part I.D.1.) Since that reconsideration, there has been a heightened concern regarding an expert’s disclosure of basis evidence consisting of out-of-court statements. (Kaye, supra, § 3.10, p. 56.) And, although the California Supreme Court considered the hearsay implications of such evidence, none of the cases specifically considered the argument raised by appellant here: admitting the out-of-court statements to evaluate the opinion effectively admitted them for their truth.
But for the long line of California Supreme Court precedent supporting Thomas, we would reject that opinion and adopt Goldstein’s logic, which seems compelling. But our position in the judicial hierarchy precludes that option; we must follow Gardeley and the other California Supreme Court cases in the same line of authority.^[8] We conclude that the trial court here properly determined that the challenged basis evidence related by Chaplin was not offered for its truth but only to evaluate Chaplin’s opinions. Therefore, its admission did not violate the hearsay rule or the confrontation clause.^[9]
3. Implications of Accepting the Goldstein Analysis
If our Supreme Court reconsiders Gardeley and adopts Goldstein’s conclusion that basis evidence is offered for its truth, we would face significant issues of admissibility under the hearsay rule as well as the confrontation clause. We examine these issues in the context of the five challenged statements admitted to evaluate Chaplin’s opinions. Three of these statements could be utilized by the jury for this purpose only after deciding if they were true. Further, the prosecution seems to have intended for the jury to accept the statements as true.
Chaplin testified Allen told him that West Mob was out to get him (Allen) “[b]ecause of some shit they think I did. [¶] . . . [¶] That shit that happened to Espinoza was meant for me.” Chaplin testified he believed the statement was true based “on what I’ve discovered throughout the investigation.” The prosecutor treated the statement as true, arguing appellant was at the corner of Newhall and Newcomb to shoot Allen on the night the officers were shot. As with Hegarty’s testimony in Goldstein, Chaplin’s opinion that appellant had a gang-related purpose for being in the area of Newhall and Newcomb finds support in Allen’s statement only if that statement is believed to be true. Similarly, Chaplin’s testimony about the contents of Stepney’s federal plea agreement is useful in evaluating Chaplin’s opinion that a gang war existed only if the jury decides or accepts that Stepney’s statements are true. In addition, Joseph’s statement to Chaplin that West Mob members could not buy drugs at Newhall and Newcomb supports Chaplin’s opinion to that effect only if it is believed to be true.^[10]
(a) The Hearsay Rule and Basis Evidence
In our case, each of the three challenged statements that the jury considered for its truth would be barred by the hearsay rule under Goldstein’s analysis. In fact, adopting this analysis would exclude from evidence, as hearsay, many if not most of the out-of-court statements serving as basis evidence in civil and criminal cases. The Supreme Court may conclude that this is too costly a result because it will deprive jurors of highly useful information. If so, the court should create a hearsay exception admitting such statements for their truth, but limiting their admissibility to assisting the jurors’ evaluation of the opinion. Significantly, if our high court adopts the Goldstein analysis, but fails to adopt a suitable hearsay exception, trial courts will often lack the discretion to admit out-of-court statements relied upon by the expert.
Since the adoption of the Evidence Code, the judicial creation of nonstatutory hearsay exceptions has been uncommon. In 1997, the California Supreme Court approved the child dependency hearsay exception, created by the Court of Appeal in In re Carmen O. (1994) 28 Cal.App.4th 908. (In re Cindy L. (1997) 17 Cal.4th 15.) After concluding that appellate courts have the authority to create additional hearsay exceptions (id. at pp. 25-27), the Supreme Court went on to “emphasize that in developing new exceptions to the hearsay rule, courts must proceed with caution” (id. at p. 27). “Despite this cautionary note, it may nonetheless be appropriate for courts to create hearsay exceptions for classes of evidence for which there is a substantial need, and which possess an intrinsic reliability . . . . [Citation.]” (Id. at p. 28.)
Both “substantial need” and “intrinsic reliability” seem to exist here. The importance of providing the jury with basis evidence in the appropriate case appears substantial. Section 802 of the Evidence Code, rule 703 of the Federal Rules of Evidence (28 U.S.C.), and numerous California appellate court opinions implicitly recognize its importance and authorize its admission. Gardeley was no outlier. (Gardeley, supra, 14 Cal.4th at pp. 618-619; People v. Coleman, supra, 38 Cal.3d at pp. 91-92, and cases cited therein.) Moreover, these hearsay issues will exist even where experts testify in a context free from confrontation clause concerns: in civil cases and in criminal cases where a defense expert testifies. Finally, creating a hearsay exception for this basis evidence not only seems to respond to a substantial need but does no more than maintain the status quo that admits this evidence under a different rationale.
The reliability of such basis evidence is ensured by subdivision (b) of Evidence Code section 801 (the expert’s opinion must be based on matter “whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates”. Moreover, in considering reliability, it is important to keep in mind that the admissibility of such hearsay is expressly limited to evaluating the opinion. This basis evidence is not admissible as independent proof of the facts stated therein or to help establish a prima facie case. Finally, if the trial court is concerned the jury will utilize the basis evidence improperly, it retains the discretion granted by Evidence Code section 352 to exclude it, even if the proposed hearsay exception is created. (Cf. Gardeley, supra, 14 Cal.4th at p. 619.)
(b) Crawford and Basis Evidence
Though it would eliminate the hearsay problems resulting from the acceptance of Goldstein’s analysis, the proposed common law hearsay exception would not alleviate the confrontation clause issues. However, under Crawford, much of this basis evidence would be admissible.
The confrontation clause protects a criminal defendant’s right to confront and cross-examine the witnesses against him. In Crawford, supra, 541 U.S. 36 and its progeny, the United States Supreme Court has concluded that where a prosecutor attempts to introduce an out-of-court statement for its truth, even if the statement is admissible under state law hearsay rules, it is barred by the confrontation clause if the statement is “testimonial,” unless the declarant was available at trial and subject to cross-examination, or if unavailable at trial, had been subject to an earlier cross-examination. (Davis v. Washington (2006) 547 U.S. 813, 821 (Davis); People v. Cage (2007) 40 Cal.4th 965, 978, fn. 7 (Cage).)
“Testimonial” is a critical component of the new analysis, but Crawford made no attempt to provide an overarching definition of the term. In Crawford, the court concluded that a witness statement obtained in a custodial interrogation was testimonial. (Crawford, supra, 541 U.S. at pp. 52, 53, fn. 4.) Davis considered statements in two different factual contexts. Statements by a domestic violence victim in a 911 call made during an ongoing emergency were determined to be nontestimonial. (Davis, supra, 547 U.S. at p. 827.) Statements by a different domestic violence victim in her home to the police were testimonial because the assault against her was complete and officers had removed the assailant to another part of the house. (Id. at pp. 829-830.) In Cage, the California Supreme Court concluded a victim’s statement made to a police officer one hour after the assault was testimonial where the primary purpose of the conversation was to investigate the prior assault. (Cage, supra, 40 Cal.4th at pp. 984-986.)
Cage reached this result after deriving several basic principles from Davis regarding the definition of “testimonial”: “First . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Cage, supra, 40 Cal.4th at p. 984, fns. omitted.)
In Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz) and Geier, supra, 41 Cal.4th 555, the United States and California Supreme Courts, respectively, defined testimonial in the context of expert evidence. In Melendez-Diaz, the court held testimonial a sworn affidavit submitted by the prosecution in a drug prosecution, which stated that the substance seized from the defendant was cocaine of a certain weight. (Melendez-Diaz, at pp. 2530-2532.) Geier found nontestimonial a testifying DNA expert’s recitation of a nontestifying technician’s report in which the technician set out her compliance with a laboratory protocol and her observations regarding the genetic profiles extracted from a known and an unknown sample of DNA. (Geier, at pp. 593-607.) It is noteworthy that Melendez-Diaz and Geier^[11] assumed that the definition of testimonial articulated in Davis governed; neither case suggested that a different meaning was required because expert testimony was at issue.^[12]
(c) Crawford and the Basis Evidence in this Case
Even if admitted for their truth, only one of the five challenged statements here would be considered testimonial. Allen provided his statement to Chaplin in an informal, unstructured setting. While driving in the vicinity of Newhall and Newcombe, Chaplin saw Allen run into his residence. Chaplin talked to two men outside the residence and then Allen came outside and Chaplin talked to him. There is no evidence that Allen was under arrest or that the circumstances surrounding the conversation were sufficiently formal that Allen’s statements were analogous to testimony. Chaplin had worked on the gang task force since 1999 and, in his role as a gang expert, he spoke with gang members on a daily basis, “[w]henever [he was] in the Bayview.” Nothing distinguishes the nature of his conversation with Allen from hundreds of others he had conducted. Further, nothing in the record suggests that Chaplin was investigating Espinoza’s murder at the time of the conversation with Allen, or that his purpose in engaging in the conversation was to develop information regarding that homicide or any other specific crime. In fact, though Chaplin prepared a field interview card concerning this conversation on the date it occurred, he did not record Allen’s statement that the Espinoza shooting had been “meant for him” until a year later. This conversation lacked any indicia of testimony and, under Crawford and Davis, Allen’s statements were not testimonial. (Kaye, supra, § 3.10.1, p. 57 [When “an expert in gang structure relies on interviews conducted with former gang members over many years and not related to the particular case, no plausible understanding of ‘testimonial’ would encompass these statements.”].)
Similarly, Chaplin’s interviews with gang members about the rivalry between West Mob and Big Block, and with Bedford, Butler and Joseph, were not testimonial. Many, perhaps all, of these statements were obtained from people in custody. However, as discussed above, in his role as a gang expert, Chaplin constantly interviewed Bayview residents, including gang members, to learn about gang structure, culture and sociology. The custodial status of the interviewees, without more, is not enough. We have no basis for concluding Chaplin’s interviews were part of a specific criminal investigation or that any participant in these conversations had, as a primary purpose, “to establish or prove some past fact for possible use in a criminal trial.” (Cage, supra, 40 Cal.4th at p. 984.) The statement elicited in these interviews are no more testimonial than the facts recited in a treatise read by an expert in an academic setting, as he or she develops expertise in the field.^[13]
The federal plea agreement containing Stepney’s statements testified to by Chaplin is, however, the type of formalized document that Crawford and Davis would treat as testimonial. (U.S. v. McClain (2d Cir. 2004) 377 F.3d 219, 221 (a guilty plea allocution is testimonial); accord, U.S. v. Hardwick (2d Cir. 2008) 523 F.3d 94, 98.) If we treat Stepney’s statements as admitted for their truth, their admission would violate the confrontation clause.^[14]
4. Conclusion
Appellant challenged the admissibility of certain out-of-court statements relied on by Chaplin to support his opinions. Following Thomas, the trial court concluded none of this basis evidence was admitted for its truth and overruled objections under the hearsay rule and the confrontation clause. Though free to disagree with Thomas, we must follow relevant Supreme Court precedent; that precedent compels the result reached by the trial court. Thus we affirm its ruling.
We note, however, our disagreement with that precedent. In our view, the Goldstein analysis is the correct one: several of the challenged statements were introduced for their truth, in the sense that the jury was not able to utilize the out-of-court statements to evaluate the opinion rendered without first determining if, or accepting that, those statements were true. If our Supreme Court agrees, it may minimize the exclusionary effect of that conclusion by adopting a hearsay exception. If the Supreme Court proceeded in that fashion, the new rule would not affect the result we reach. Though several of the challenged statements would be admitted for their truth, the proposed new hearsay exception would eliminate the attendant hearsay problems, and the trial court would retain the same discretion it currently has under Evidence Code section 352 to exclude the otherwise admissible evidence. The definition of “testimonial” would eliminate confrontation clause issues with all but one of the challenged sets of statements, those found in Stepney’s plea agreement. And, any error in permitting testimony about Stepney’s statements would be harmless.
E. The Admissibility of Eight Predicate Gang-Related Offenses and 14 Gang Shootings
1. Eight Predicate offenses
Chaplin testified to eight predicate offenses to prove that appellant possessed an assault rifle for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, §§ 12280, subd. (b), 186.22, subd. (b)(1)). “To prove the allegations under section 186.22, subdivisions (a) and (b), the prosecutor was required to establish that one of the gang’s primary activities was the commission of one or more of the crimes listed in [Penal Code] section 186.22, subdivision (e), and that the gang’s members engaged in a pattern of criminal activity. [Citation.] ‘ . . . [S]ufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.’ [Citation.] [A] ‘pattern’ is established by the commission of two or more enumerated offenses committed on separate occasions or by two or more persons. [Citation.]” (People v. Williams (2009) 170 Cal.App.4th 587, 608-609 (Williams).)
Prior to trial, the prosecution sought to admit evidence of 10 predicate offenses allegedly committed by West Mob members beginning in 1999. In response, appellant argued that, pursuant to Evidence Code section 352, the prosecution should be limited to eliciting evidence of three predicate offenses, and none of the predicate offenses should include offenses by appellant’s family members.
The court said it understood the prosecution’s need to present evidence of more than the two statutorily required predicate offenses, and exercised its discretion to allow proof of eight such offenses through court documents and the testimony of Chaplin.^[15] Appellant argues four predicate offenses would have been “sufficiently safe to withstand theoretical challenges,” and therefore the admission of eight such offenses was cumulative and unduly prejudicial (Evid. Code, § 352).
In Williams, supra, 170 Cal.App.4th at pages 608-609, the prosecutor introduced evidence of at least eight crimes committed by gang members in an effort to establish the predicate crimes for the gang charge and gang enhancement allegations. In response to the defendant’s assertion that the evidence was cumulative and unduly prejudicial under Evidence Code section 352, the trial court ruled, “ ‘the [district attorney] is entitled to the full force of their evidence. If they want to over-prove their case or put on all the evidence they have, that’s their right.’ ” (Williams, at p. 610.) On appeal, the appellate court strongly disagreed with this reasoning, concluding the trial court “must take great care to evaluate its admissibility,” and “must find the evidence has substantial probative value . . . not outweighed by its potential for undue prejudice.” (Ibid.) It stated, “We strongly disagree with the view that prosecutors have any right to ‘over-prove their case or put on all the evidence that they have.’ ” (Ibid.) “Although no bright-line rules exist for determining when evidence is cumulative, we emphasize that the term ‘cumulative’ indeed has a substantive meaning, and the application of the term must be reasonable and practical. Here . . . we conclude it was an abuse of discretion to admit cumulative evidence concerning issues not reasonably subject to dispute.” (Id. atpp. 610-611.) The court found that the volume of evidence extended the trial “beyond reasonable limits” and resulted in a “virtual street brawl” and “endless discussions” among counsel and the trial court on the admissibility of the evidence. (Id. at p. 611.)
We do not read Williams to create an artificial limit of seven (or fewer) predicate offenses to prove the gang enhancement. The trial court here exercised its discretion and eliminated two offenses the prosecution sought to introduce. This ruling created neither a “street brawl” nor “endless discussions.” No error occurred.
2. 14 Gang-Related Shootings
We ruled in part I.C.2. above, that Chaplin properly relied on the 14 prior gang-related shootings, most of which resulted in homicides, to support his opinion that there was a violent gang rivalry between West Mob and Big Block. This opinion, in turn, supported other opinions Chaplin provided, such as gangs establish their own “exclusive” turf and members of rival gangs who “trespass” on that turf do so for a gang-related purpose. Specifically, Chaplin testified that the corner of Newhall and Newcomb was an area where one “would not ever expect to see somebody from West Mob . . . for any reason other than a gang reason, a shooting or a killing.” Cumulatively, these opinions were admissible to establish that appellant possessed the assault weapon for a gang-related purpose, as alleged in the enhancement to count 4. These opinions were all properly admitted. (See part I.C., above.) Appellant argues the trial court erred in permitting Chaplin to relate the details of each of these shootings to the jury because the limited probative value of this evidence was substantially outweighed by its undue prejudice. (Evid. Code, § 352.)
It is noteworthy that appellant admitted his membership in West Mob and never explicitly disputed the existence of gang violence involving West Mob. While objecting to evidence of certain specific acts of violence, appellant not only conceded the widespread gang violence in the Bayview, but relied on it as the cornerstone of his defense from the first lines of his opening statement. Thus we assume, without deciding, that it was error to permit Chaplin to relate the details of all 14 shooting incidents.
In determining whether this error would be reversible, we apply the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), under which the appellate court must determine if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Williams, supra, 170 Cal.App.4th at p. 612.) Under Watson, we examine the errors made in the context of the entire record to determine if reversal is required. (People v. Guiton (1993) 4 Cal.4th 1116, 1130.)





To Be Continue As Part III………


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