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The People v. David Lee Hill

January 13, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAVID LEE HILL, DEFENDANT AND APPELLANT.



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

The opinion of the court was delivered by: Simons, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

While patrolling San Francisco's Bayview District in an undercover capacity, Police Officer Isaac Espinoza was shot and killed and his partner, Officer Barry Parker, was wounded by David Lee Hill (appellant). Appellant's trial focused primarily on his motivation for shooting the officers. The jury rejected the defense theory that appellant did not realize the victims were police officers and shot them in self-defense. Appellant was convicted of second degree murder with a peace officer special circumstance and firearm enhancements (Pen. Code, §§ 187, 190, subd. (c), 12022.53, subd. (d), 12022.5, subd. (b))*fn2 (count 1), attempted first degree murder (§§ 664, 187) (count 2), assault on a peace officer with personal use of an assault weapon (§§ 245, subd. (d)(3), 12022.5, subd. (b)) (count 3), and possession of an assault weapon with a gang allegation (§§ 12280, subd. (b), 186.22, subd. (b)(1)) (count 4).*fn3 He was sentenced to life in prison without the possibility of parole on count 1, plus a consecutive term of life with the possibility of parole on count 2. The court stayed the weapon enhancements on count 1, and imposed a 15-year sentence on count 3 and a two-year sentence on count 5. The court imposed a consecutive two-year term plus a three-year enhancement on count 4, to be served first. (§ 669)

Appellant raises claims of evidentiary and sentencing error and prosecutorial misconduct, and contends his motion for new trial was erroneously denied. In the published portion of this opinion, we rule on appellant's numerous challenges to the testimony of the prosecution's gang expert, San Francisco Police Inspector Tony Chaplin. Among other issues, we address the trial court's determination that Chaplin could testify on direct examination about the out-of-court statements he relied on in forming certain of his opinions. The trial court ruled that such statements did not come in for their truth, but only to assist the jury in evaluating Chaplin's opinions. Though we disagree with this ruling, we conclude it rests on relevant Supreme Court precedent, which binds us. We conclude that no reversible error was committed by the trial court and affirm.

BACKGROUND

The Prosecution's Case

Around 9:00 p.m. on April 10, 2004, Parker and Espinoza patrolled the Bayview District (the Bayview) in an unmarked gray Crown Victoria patrol car, dressed in civilian clothes. Parker drove and Espinoza sat in the front passenger seat. As Parker turned from Third Street onto Newcomb Avenue (Newcomb), he heard someone say, "woo woo," usually a signal to people on the street that police are present. Parker continued driving down Newcomb toward Newhall Street (Newhall) and observed two men walking toward the corner of Newcomb and Newhall. As Parker drove closer, the two men appeared startled, stopped walking and looked in the officers' direction. One of the men, appellant, then turned right and walked southbound on Newhall, looking over his shoulder at the officers. Appellant wore a dark, three-quarter length pea coat. The other man continued walking straight ahead.

As the officers turned onto Newhall from Newcomb and drove "at a crawl," appellant stopped, backed up against a van and appeared to shrug his shoulders or take a deep breath. Seconds later, appellant continued walking on Newhall. The officers followed appellant until they were parallel with and approximately 16 feet from his position on the sidewalk. From inside the patrol car, Espinoza shined his flashlight on appellant's face; appellant immediately turned and looked directly toward the patrol car. Appellant then turned away and continued walking on the sidewalk down Newhall. Appellant's left arm swung in a natural walking motion, but not his right arm. Parker told Espinoza appellant was trying to conceal something from them and suggested the officers stop and talk to him.

Parker and Espinoza exited the patrol car. Parker's police star was outside his shirt. Parker stood between the open driver's door and the driver's seat while Espinoza approached appellant, who was walking on the sidewalk. Espinoza again flashed his flashlight on appellant and said, "Hey, let me talk to you." Appellant was about 10 to 12 feet in front of Espinoza. Appellant twice said, "I don't have any I.D." and looked over his shoulder at Espinoza. Espinoza did not take his gun out. Appellant started walking fast, and Espinoza twice said to him, "Stop, police."

Parker then entered the patrol car and drove about 10 feet further up the street. Appellant continued walking, with Espinoza following him on foot at a distance of five to seven feet. Appellant stopped and turned to face Espinoza. Parker saw the magazine of an assault rifle, and appellant fired two shots. Espinoza fell to the ground.

Parker exited the patrol car, knelt down between the front driver's door and driver's seat and took out his gun. Parker heard more shots fired in his direction; the patrol car's windshield exploded. Parker moved behind the trunk of the patrol car as he continued to receive gunfire. He then ran across the street seeking "good cover" on the sidewalk on the east side of Newhall. Parker never had a chance to fire a shot. At some point the shooting stopped and Parker radioed an "officer down" message.

The "upset, scared" Parker went to Espinoza, who was lying on the sidewalk, with his fully loaded gun inside its fastened holster. Espinoza was transported to the hospital, where he died from loss of blood from gunshot wounds to his thigh and abdomen. Parker was treated at the hospital for bullet fragments in his ankle. At 1:00 a.m., about three hours after the shooting, while at the emergency room, Parker was shown a photo lineup and identified a picture of Reuben Sibley as Espinoza's killer. Parker signed and wrote his star number on Sibley's photo.*fn4

Police recovered 12 shell casings at the shooting scene on Newhall between the unmarked patrol car and the street. An AK-style semi-automatic assault rifle with an attached magazine was found nearby at 1790 Oakdale Avenue. Eleven of the 12 shell casings were later determined to have been fired from this weapon.*fn5 Each bullet fired required a separate trigger pull. A crime scene investigator opined that, based on the trajectory of the shots fired, some shots were fired from the sidewalk, while others were fired after the shooter moved from the sidewalk into the street.

At 1835 Palou Street, police found a pea coat and gloves which residents had seen someone discard. Appellant's California identification card and a small plastic bag containing suspected marijuana were found inside the pea coat.

Between 11:00 and 11:45 p.m. on the night of the shooting, appellant went to the San Francisco home of his grandmother, Annie Lee Clark, and told her he thought he had shot someone. Appellant seemed "nervous and upset."

The next morning, at 11:30 a.m., uniformed San Ramon police officers were dispatched to the San Ramon Regional Medical Center (medical center) in response to a report that a large male in the emergency room was acting "very strange" and paranoid and the staff feared he might become violent. En route, police learned there was a murder suspect in the emergency room. The police arrived with guns drawn and found appellant holding two plastic flowers. Appellant complied with police orders to lie prone on the floor and was handcuffed. Thereafter, he began loudly making repeated comments about being a slave, such as: "Mary Lou made me do it," "Master Charley, don't beat me," and "I pick over 100 pounds of cotton a day." At one point he stood up and yelled, "Guards," three or four times. He moved to within six inches of the glass window in the door and loudly said, "I'm Julius Caesar. I need to go back to Rome." He then twice violently slammed his forehead into the door window.

Out of concern for appellant's safety, he was placed in ankle restraints while on the floor. He was moaning, groaning, grunting and yelling unintelligibly. He then urinated on himself and rolled onto his back so that his hands were wiping the urine. When Pera and her partner (Inspector Toomey) arrived, appellant was continuously saying "master, master, don't hurt me, master." When appellant saw an officer holding a gunshot residue kit he began kicking and screaming and was physically restrained during the performance of the gunshot residue test.

After the medical center cleared appellant for release, he was transported by ambulance to the San Francisco jail. A blood test conducted on him at approximately 4:00 p.m. on April 11, 2004, reflected the inactive metabolite of marijuana. The blood test results indicated that there was no active, psychoactive compound present in appellant's blood, but that at some point he had consumed marijuana, possibly at 4:00 a.m. or 6:00 a.m.*fn6

Gang Expert Testimony

Chaplin testified as an expert on gang members, specifically those from African-American gangs in the Bayview/Hunters Point areas of San Francisco. Chaplin said West Mob is a criminal street gang that has continually existed since before 2000. He identified West Mob's geographic "territory," an area between West Point and Middle Point. West Mob members commit rape, homicide, assault with firearms, narcotic sales, car theft, burglary, and robbery. These crimes enhance the gang's reputation and benefit it monetarily. West Mob operates with "situational leadership" and its members, who are predominantly African-American, share guns, cars and the proceeds of their crimes. Between 2000 and mid-2004, West Mob had gang alliances with Oakdale Mob and Sunnydale.

Chaplin stated that Big Block is a criminal street gang in the Bayview that has existed continuously since before 2000. He described its geographic "turf" as Northridge Road between Harbor and Jerrold Avenue on one side and Kiska Road on the "back, including Milton Meyer Recreation Center. Between 2000 and mid-2004 Big Block had gang alliances with BNT ("Broke Niggas Thievin")/Kirkwood Mob and Get Paid. Chaplin said Big Block's leader, Douglas Stepney, admitted a rivalry existed between Big Block and West Mob that began at the end of 1999 and existed actively in April 2004. Gang members cannot move freely throughout the Bayview; if they leave their respective areas, they "fear" being shot or killed. In April 2004, Big Block and West Mob members could not safely sell drugs on each other's turf. As a result of this rivalry, between 2000 and the first half of 2004, there were hundreds of shootings in the area. Chaplin testified that retaliation is a part of gang culture; it instills a sense of pride in the gang. When asked about how gang killings are done, Chaplin said, "Some of them are crime[s] of opportunit[y], some of them are orchestrated events, some of them are orchestrated to get one individual and you end up getting another one. [¶] . . . [¶] . . . So if the guy you're looking for is not there, . . . you're not just going to turn around and run out. You're going to do what you have to do at that point."

Chaplin said that gang members harbor hostile attitudes toward the police. "Retaliation against a [rival] gang member sends a message to other gang members, but the murder of a police officer sends a message to the community, 'Hey, even your protectors can be touched.' "

Chaplin testified that, in April 2004, a West Mob member could safely purchase marijuana anywhere in the Bayview except for Newcomb and Newhall. Newcomb and Newhall was an area one "would not ever expect to see somebody from West Mob . . . for any reason other than a gang reason, a shooting or a killing."

Chaplin explained the 11 criteria formulated by the San Francisco District Attorney's Office and the San Francisco Police Department to determine whether a person is a member of a Bayview African-American gang. Chaplin said a person must meet two or more of those criteria to be listed as a gang member. Based on specific incidents occurring between March 1998 and December 2003, Chaplin opined that appellant was an active participant in West Mob for at least five years prior to April 2004.

Chaplin said that gang members refer to an unmarked police car as a "ghost," such as "white ghost" or "gray ghost." An audiotape of a conversation between appellant and Deangelo Redd at the San Francisco jail on June 20, 2004, was played for the jury. Chaplin said that appellant's reference in the tape to "white ghost" means an unmarked police car.

Chaplin said Ronnie "Uda" Allen, deceased at the time of trial, was a central figure in the Big Block gang from 2003 through April 2004. Chaplin frequently saw him in Big Block's home turf and BNT's home turf and the "1700 block area" of the Bayview, described as Newcomb and Newhall. On May 3, 2004, Chaplin talked to Allen outside Allen's home at 1662 Newcomb. Chaplin asked Allen why West Mob was "out to get him," and Allen responded, "Because of some shit they think I did. [¶] . . . [¶] That shit that happened to Espinoza was meant for me." Chaplin said that Allen's "extremely active" role in Big Block up to April 2004 made him a target for West Mob retaliation.

Chaplin testified appellant knew Allen because Allen's gang name, Uda, came up in a recorded jailhouse conversation between appellant and another jail inmate on May 30, 2004. Chaplin opined that appellant's actions on the night of the April 10 shooting were consistent with a West Mob member retaliating against a Big Block member based on the following hypothetical facts: (1) appellant's brother, James Hill, was shot in the Bayview in April 2000; (2) West Mob member Deandre Dow was murdered in a drive-by shooting at West Point and Middle Point in February 2004; (3) Allen murdered Dow; (4) Allen was a member of Big Block; (5) Allen was staying at 1662 Newcomb in April 2004; (6) appellant had been a West Mob member for four or five years before April 2004; (7) at approximately 9:30 p.m. on April 10, 2004, appellant was walking with another African-American male on the 1700 block of Newcomb and appellant had a loaded assault rifle hidden under his pea coat; and (8) appellant walked to about 200 feet from 1662 Newcomb. Armed with a loaded assault rifle, appellant "was walking up to . . . arguably the most dangerous of all rivals of his group."

The Defense

On the evening of April 10, 2004, Louis Telfor testified he was on Newcomb and Newhall selling drugs when he saw appellant talking to Telfor's friend, "Niles." Niles told Telfor he was going to sell appellant some marijuana. On numerous prior occasions, Telfor had seen appellant purchase marijuana at Newhall and Newcomb. As Telfor headed for home, he saw a police Crown Victoria and Espinoza said to him, "Hey Louie." Telfor wanted to avoid the police so he began walking toward McKinnon Avenue to his mother's house. Five or seven minutes later he heard gunfire.*fn7 Telfor said the unmarked Crown Victorias he sees in the Bayview are either undercover police cars or are driven by people he does not know. According to Telfor, in 2004 it was safer to buy drugs on Newcomb than on Third Street.

Freelance writer Charles Jones lived in the Bayview for most of his life, until late 2003 or early 2004. He opined that at 9:30 p.m. in April 2004 it would be safer for anyone from the Bayview, including a gang member, to walk on Newhall and Newcomb than to walk on Third Street because Newhall and Newcomb is less populated and darker. Similarly, during that time period it would also be safer to buy marijuana on Newhall than at Third and Newcomb.

Neurophysiologist Scott Fraser testified on the effects of high stress on human functioning, particularly perception and memory. He opined that a hypothetical police officer's statement, taken 48 hours after an extremely traumatic event, that his police star was underneath his shirt (or he could not remember the star's location) was more reliable than the same officer's trial testimony two-and-a-half years later that his star was outside his shirt. Fraser also opined that waiting 48 hours to interview a police officer whose partner died in a shooting results in the officer's memory being less accurate than it would have been had he been interviewed much closer to the time of the shooting.

Fraser also testified that a person under the influence of marijuana will have "less acuity in terms of processing information, . . . discerning intentions, assessing consequences . . . ." He said that under the influence of marijuana a person tends to get distracted, has a short attention span, does not process information as carefully, and takes longer to make decisions. He opined that hypothetically, when a person is under the influence of marijuana and is in a high stress situation where they feel their life is threatened, the person is more prone to "automatic fight or flight responses. If [the person has] the resources to fight, the research indicates the person would probably engage in counterattack. If [the person] would have the . . . capability for flight but not the resources to attack, [the person will] try to run . . . try to escape." Fraser said this would include police officers and gang members.

William Gaut testified as an expert in police administration, practices and procedures. He opined that the firearm used in this case could easily fire 11 shots in under five seconds by a rapid pulling of the trigger. Gaut also opined that gray Crown Victorias used for undercover work blend more easily into the pavement so that people are not as likely to notice them and, at night, such a car is less recognizable as a Crown Victoria.

Criminalist Peter Barnett performed a bullet trajectory analysis and opined that the person who fired the shots at the subject Crown Victoria could have been standing on the sidewalk when he did so.

Closing Arguments

The prosecution argued that appellant, a West Mob member, armed himself with the assault rifle with the intent to kill rival Big Block member Allen, who appellant believed was responsible for killing West Mob member Dow. Appellant recognized that Espinoza and Parker were police officers and opened fire on them because he did not want to be taken into custody for possession of the assault rifle.

The defense argued that appellant went to Newcomb and Newhall intending to purchase marijuana and was armed with the assault rifle for his safety. Appellant did not know that Espinoza and Parker were police officers and shot at them in self-defense.

DISCUSSION

I. Testimony by the Gang Expert

Appellant raises numerous challenges to the gang expert's testimony. Appellant argues Chaplin lacked the qualifications to provide certain of the opinions admitted, certain opinions were based on unreliable sources, and Chaplin improperly testified to inadmissible matter he relied upon in forming his opinions.

A. Pretrial Procedural Background

Pretrial, the prosecution argued for admission of evidence of the Dow murder as relevant motive evidence and evidence a gang expert could rely on when discussing retaliatory motives. Appellant objected on numerous grounds, noting the absence of any evidence that appellant knew or believed that Allen was responsible for Dow's murder. The court granted the motion to admit this evidence.

The prosecution also sought to admit evidence of the federal plea agreements of Big Block members Douglas Stepney and Kim Ellis and of a gang member named Acie Mathews; appellant objected that the confrontation clause as interpreted in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) barred this evidence. The prosecutor argued Chaplin was relying on admissions made in the plea agreements, and those statements were admissible as a basis for his expert opinion. In addition, he argued the plea agreements and the statements therein were themselves admissible evidence. The court ruled that if it permitted Chaplin to testify as an expert, he could rely on the statements made in the plea agreements as a basis for one or more of his opinions, but took under submission whether Crawford prohibited the introduction of the statements in the plea agreements.

The trial court also ruled that Chaplin's gang expert testimony did not need to be qualified under People v. Kelly (1976) 17 Cal.3d 24 (Kelly). Further, the court did not find any item of information relied upon by Chaplin in forming his opinions to be unreliable. The court stated appellant could "attack on cross-examination" any basis for Chaplin's opinions, and any lack of reliability went "to the weight of the evidence and not to the admissibility of the evidence." In reliance on People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas), the court rejected appellant's contention that the confrontation clause barred Chaplin from testifying about hearsay statements underlying his opinions because the statements would not be offered for their truth. The court also rejected appellant's argument that Crawford applied to bar the introduction into evidence of the Stepney/Ellis/Mathews federal plea agreements that contained statements Chaplin was relying on in forming opinions, and issued a "tentative ruling" permitting admission of the plea agreements into evidence. The court granted appellant's motion for a "standing" Crawford objection to the gang expert testimony. On the issue of whether Chaplin qualified as a gang expert, the trial court stated that it would base its ruling on the evidence elicited at the preliminary hearing and Chaplin's supplemental in limine testimony.

Subsequently, the court found Chaplin qualified to testify "as an expert as to gang matters, specifically African-American gangs in the Bayview/Hunters Point area of San Francisco." The court ruled that Chaplin could testify to "gang activity in general," and the "expectations of gang members in general, when confronted with a specific action." However, the court ruled that Chaplin could not testify to appellant's "subjective intent" at the time of the charged crime. It also ruled that "there has been a sufficient showing here that [Chaplin] could talk about the retaliation and gang motivation." Appellant objected, pursuant to Evidence Code section 352, arguing the thrust of Chaplin's testimony was "funneling things he's heard from other people," but the court rejected this argument. Over appellant's objection, the court ruled the prosecution could introduce evidence of 14 separate shootings, including 13 murders and five gunshot injuries, which occurred in the Bayview between early 2000 and February 2004.

After commencement of the jury trial, appellant again protested the introduction of hearsay evidence and Chaplin's reliance on it. Appellant argued that Thomas was wrongly decided, the out-of-court statements Chaplin related were introduced for their truth, and much of the proffered hearsay from unnamed people underlying Chaplin's opinion was unreliable. In rejecting appellant's arguments, the court stated that Thomas was controlling authority and the statements at issue were not being introduced as direct evidence against appellant, but only to help the jury evaluate Chaplin's opinions. At the end of the case the court provided a limiting instruction regarding portions of Chaplin's testimony: "Chaplin testified that in reaching his conclusions as an expert witness he considered statements made by various individuals. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements is true."

B. Chaplin's Qualifications as a Gang Expert

Appellant contends the trial court erred in qualifying Chaplin as a gang expert on "anything beyond the existence and general culture of San Francisco Bayview gangs."

A person is qualified to testify as an expert if the person has "special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) The determination that a witness qualifies as an expert and the decision to admit expert testimony are within the discretion of the trial court and will not be disturbed without a showing of manifest abuse. (People v. Mendoza (2000) 24 Cal.4th 130, 177). "Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness ' " 'clearly lacks qualification as an expert.' " ' [Citation.]" (People v. Farnam (2002) 28 Cal.4th 107, 162.)

At the September 2005 preliminary hearing, Chaplin testified he had been a police officer for about 15 years and had been assigned to the San Francisco Police Department's gang task force for approximately six years. As a gang task force inspector, he patrolled gang neighborhoods, made contact with gang members whenever possible, and investigated hundreds of gang crimes including shootings, attempted murders, assaults, and narcotics sales. Approximately 90 percent of Chaplin's time was dedicated to investigating Bayview gang crime. Since 2000, Chaplin had attended numerous classes regarding gang culture, the investigation of gang crime, and the identification of gang members. In 2004, he taught classes on African-American gangs in San Francisco, including in the Bayview. On numerous occasions Chaplin taught new San Francisco police recruits, school resource officers, and probation and parole officers about gangs, gang culture and investigating gang crimes. Chaplin is a member of the California Gang Investigators Association, which disseminates information throughout the state about current trends and actions by gang members. Chaplin received on-the-job training from other police officers regarding Bayview street gangs, including information about investigating gang crime in the Bayview. Chaplin also routinely talked to officers at the Bayview police station about current trends, "things that are going on" with African-American gangs and graffiti the officers had seen. In the past six years Chaplin had become familiar with Bayview gang-related graffiti and tattoos, and had spoken with members of West Mob and Big Block.

At the July 2006 Evidence Code section 402 hearing, Chaplin testified he continued to work as a gang task force inspector and at least 90 percent of his work was dedicated to investigating Bayview African-American street gangs. He went to the Bayview almost every day he worked, visiting the police station and talking with the officers about what was going on in the neighborhoods. He also talked with young African-American men in the parts of the Bayview controlled by gangs, some of whom are admitted gang members. He also spoke with Bayview parents and community members. Chaplin monitored Bayview gang activity on the internet. He continued to investigate crimes linked with Bayview gangs, which included shootings, drug sales, and illegal weapons possession. Since the preliminary hearing, Chaplin had attended a California Gang Investigators Association conference and a Las Vegas police-sponsored gang investigation conference, both of which were dedicated to gang investigations and prosecution. In addition, he had arranged for a college professor (a defense expert) to teach a class to gang task force members and the Bayview plainclothes unit, and for an Orange County gang expert to review the gang task force's criteria for identifying and classifying gang members. Chaplin also taught two classes regarding gang investigations, including a discussion of Bayview gangs. Chaplin continued to informally share gang-related information with other San Francisco police officers.

Appellant asserts that Chaplin's experience in investigating gang crimes and talking to gang members "does not translate into sociological or psychological expertise on gang members' intentions, motivations, and actions under specified circumstances," and "[s]treet experience and police workshops on investigation techniques do not transform officers into behavioral scientists who can predict individual or group behavior." Thus, he argues that Chaplin was not qualified to render the following five opinions:

(1) When asked to generalize about how gang hits are done, Chaplin testified, "Some of them are crime[s] of opportunit[y], some of them are orchestrated events, some of them are orchestrated to get one individual and you end up getting another one. [¶] . . . [¶] . . . So if the guy you're looking for is not there, . . . you're not just going to turn around and run out. You're going to do what you have to do at that point."

(2) When asked, "In the gang culture, Bayview, will a shooter who has a plan to carry out a hit approach an area where other people may be close by," Chaplin answered affirmatively.

(3) Chaplin testified, "So to murder a police officer, a protector of the community, it sends the ultimate message. . . . [T]he murder of a police officer sends a message to the community that, 'Hey, even your protectors can be touched.' "

(4) Chaplin testified that Newcomb and Newhall 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."

(5) Chaplin testified that it is not acceptable in gang culture for a gang member to cooperate; it is "looked down upon" and referred to as "snitching."

The trial court did not abuse its discretion in finding Chaplin qualified to give the challenged expert testimony. Appellant concedes Chaplin was qualified to testify about Bayview gang "culture." Gang sociology and psychology are proper subjects of expert testimony (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550) as is "the expectations of gang members . . . when confronted with a specific action" (People v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew); see People v. Olguin (1994) 31 Cal.App.4th 1355, 1371 (Olguin) [approving expert testimony "focused on what gangs and gang members typically expect and not on [a defendant's] subjective expectation in this instance"]). Expert testimony is admissible to establish the existence, composition, culture, habits, and activities of street gangs; a defendant's membership in a gang; gang rivalries; the "motivation for a particular crime, generally retaliation or intimidation"; and "whether and how a crime was committed to benefit or promote a gang." (Killebrew, at pp. 656-657.) Chaplin's many years of experience and training demonstrated the special knowledge, skill, experience and training sufficient to qualify him as an expert in these areas. (See People v. Gonzalez (2006) 38 Cal.4th 932, 949, fn. 4 (Gonzalez).)

Appellant argues that the challenged testimony exceeded the scope of Chaplin's expertise. Certainly "a person may be qualified as an expert on one subject and yet be unqualified to render an opinion on matters beyond the scope of that subject. [Citations.]" (People v. Williams (1992) 3 Cal.App.4th 1326, 1334.) But each of the challenged opinions was within Chaplin's area of expertise. Thus, his expertise on gang culture, habits, and expectations was adequate to permit him to opine that a gang member, intending to shoot a particular gang rival, would shoot a different member of the rival gang if the intended victim was not present, particularly if other people were in the vicinity. This same expertise supports Chaplin's opinion regarding the motivation for a gang member to shoot a police officer and his opinion that gang rivalries effectively exclude particular gangs from certain areas of the city. (See Gonzalez, supra, 38 Cal.4th at p. 945.) The trial court could reasonably conclude that Chaplin's expertise rendered him qualified to testify to the challenged opinions.*fn8

C. Reliable Bases for Gang Expert Opinions

Appellant contends the court erred in admitting certain of Chaplin's opinions because they were based on unreliable sources and were a "mere regurgitation of police investigation records and conversations with unknown gang members or community residents."*fn9

1. Legal Background

Evidence Code section 801, subdivision (b) limits expert opinion testimony to an opinion "[b]ased on matter . . . perceived by or personally known to the witness or made known to [the witness] at or before the hearing, 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 [the expert] testimony relates. . . ." "[A]ny material that forms the basis of an expert's opinion testimony must be reliable. [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley), italics added.) As long as this threshold requirement of reliability is satisfied, even matter ordinarily inadmissible, such as hearsay, can form the proper basis for an expert's opinion testimony. (Ibid.) Thus, a gang expert may rely upon conversations with gang members, on his or her personal investigations of gang-related crimes, and on information obtained from colleagues and other law enforcement agencies. (See Gonzalez, supra, 38 Cal.4th at p. 949 ["A gang expert's overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable."]; People v. Duran (2002) 97 Cal.App.4th 1448, 1463 (Duran); People v. Gamez (1991) 235 Cal.App.3d 957, 968 (Gamez), overruled on other grounds in Gardeley, at p. 624, fn. 10.)

We review the trial court's admission of expert testimony for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) The trial court's exercise of discretion will not be reversed on appeal except on a showing that that discretion was exercised " '. . . ". . . in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" [Citation.]' [Citations.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 225 (Albarran).) Appellant has the burden of establishing an abuse of discretion and resulting prejudice. (Ibid.)

Appellant challenges the reliability of the information underlying the following gang expert testimony by Chaplin: (1) his opinion a violent rivalry existed between West Mob and Big Block; (2) his opinion Allen killed appellant's friend, Dow, and the shooting of Espinoza was meant for Allen; and (3) his opinion regarding the thought processes and behavior of gang member. We consider each in order.

2. Chaplin's Testimony Regarding the Violent Rivalry Between West Mob and Big Block

To help establish that appellant had a gang purpose in arming himself with an assault weapon prior to the Espinoza murder, Chaplin provided an opinion regarding the murderous rivalry between West Mob and Big Block. To support that opinion, Chaplin relied, in part, upon 14 shooting incidents (involving 18 victims, 13 of whom were killed)*fn10 that occurred between 2000 and mid-2004.*fn11 In each of these incidents he relied on statements he had taken from gang members and members of the community, and/or police reports or discussions with police officers investigating the crimes. Physical evidence, such as gang graffiti, was present at some, but not all, of these shootings and supported Chaplin's opinion that the incidents were related to the West Mob/Big Block rivalry. And separate and apart from these shootings, Chaplin read and relied on the federal plea agreement entered into by former Big Block leader Stepney confirming the existence of a violent rivalry with West Mob.

In contending that the sources of Chaplin's opinion were unreliable, appellant cites Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 (Daubert) and argues that an expert may not simply rely on hearsay but "must form his opinion by applying his experience and a reliable methodology to the hearsay material upon which he relies." This argument fails for several reasons. First, California has rejected the Daubert analysis in favor of the test in Kelly, supra, 17 Cal.3d 24. (People v. Leahy (1994) 8 Cal.4th 587, 612.) Second, appellant has cited no California authority for the proposition that a gang expert's opinion is subject to the Kelly test or that it must be based on a "reliable methodology," and, generally speaking, Kelly does not apply to the type of expert testimony provided by Chaplin. "In applying the Kelly standard, it is important to distinguish between expert testimony and scientific evidence; the former is not subject to the special admissibility rule of Kelly, which applies to cases involving novel devices or processes. [Citations.]" (People v. Bui (2001) 86 Cal.App.4th 1187, 1195.) Third, the argument that Chaplin simply received and " 'repeat[ed] hearsay evidence without applying any expertise whatsoever' " (U.S. v. Mejia (2d. Cir. 2008) 545 F.3d 179, 197) ignores the extensive background to which he testified.

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.*fn12

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.*fn13 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.*fn14 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 ...


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