Court: Superior County: San Diego Judge: Michael D. Wellington Super. Ct. No. SCD 213306 Ct.App. 4/1 D054343
The opinion of the court was delivered by: Chin, J.
An expert witness testified about whether a crime was gang related. The Court of Appeal held that the trial court erred in permitting the expert to respond to hypothetical questions the prosecutor asked because the questions closely tracked the evidence in a manner that was only thinly disguised. We disagree that the trial court erred. It is required, not prohibited, that hypothetical questions be based on the evidence. The questioner is not required to disguise the fact the questions are based on that evidence.
I. Facts and Procedural History
These facts are taken largely from the Court of Appeal opinion.
Defendants Xue Vang, Sunny Sitthideth, Danny Le, and Dang Ha were convicted of assault by means of force likely to produce great bodily injury for assaulting 20-year-old William Phanakhon. (Pen. Code, § 245, subd. (a)(1).) The jury also found true an enhancement allegation that the defendants committed the assault "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (Pen. Code, § 186.22, subd. (b)(1); see generally People v. Albillar (2010) 51 Cal.4th 47, 59-68.) The prosecution's theory was that the assault was committed for the benefit of the Tiny Oriental Crips (TOC), a criminal street gang.
Phanakhon testified that he had associated for a while with members of the TOC, but denied being a gang member. He met the four defendants in the fall and winter of 2007. At trial, Sitthideth, Ha, and Le, but not Vang, stipulated they were TOC members.
During the evening of April 28, 2008, Phanakhon received a telephone call at his home. The caller, whose voice seemed familiar, asked to "come over." Phanakhon agreed. He went to his garage and Vang arrived a short time later. Phanakhon also saw Le peek inside the garage. About five minutes after that, Vang asked Phanakhon if he wanted to go "hang out." Phanakhon followed Vang down the street. He also saw Ha and Sitthideth walking towards the corner. When Phanakhon rounded the corner, someone struck him in the back of the head from behind. He fell down and tried to protect his head from continued blows. He then lost consciousness.
San Diego Police Detective Dave Collins, who was conducting surveillance nearby, observed the assault. He watched as four males approached the corner. Suddenly, three of the men began beating the fourth, but the victim did not fight back. The victim fell to the ground, but two of the assailants pulled him up and hit him again. Detective Collins observed two of the men back away while the third pulled out a stick or pipe and hit the victim on the head with it. The victim fell to the ground a second time. Detective Collins broadcast what he was seeing. Officer Michael Dewitt responded and arrived in time to see four men beating the victim.
The assailants fled. The four defendants were arrested nearby. The pipe or stick that Detective Collins observed was never found. Paramedics transported Phanakhon to the hospital, where he was examined for head injuries, then released. Phanakhon testified he did not know "for sure" why he was attacked, but he stated two possible reasons. First, the defendants might have attacked him for disassociating himself from TOC. Second, he might have been "checked" because he had heard something he was not supposed to hear.
To show that the assault was gang related, the prosecution called an expert to testify about criminal street gangs. The Court of Appeal opinion summarized his testimony: "The prosecution called Detective Daniel Hatfield as its expert witness on criminal street gangs. Detective Hatfield testified about the culture and habits of gangs, including member-on-member discipline for no longer hanging out with the gang or not 'putting in work.' Turning to TOC, he described it as a predominately Laotian group that split off from a larger gang set in the early 1990's and claimed Linda Vista as its territory. Detective Hatfield identified three separate predicate offenses committed by its members and opined that TOC was a criminal street gang. Given the stipulation, there was no dispute that Ha, Sitthideth and Le were members of TOC. Detective Hatfield believed that Vang and the victim Phanakhon were also gang members."
In part, Detective Hatfield responded to hypothetical questions. As the Court of Appeal described it, "Over defense objection, Detective Hatfield responded to two hypothetical questions from the prosecution that tracked the facts of the case."*fn1 On direct examination, the prosecutor asked about a hypothetical assault on a "young baby gangster." After stating the hypothetical facts, the prosecutor asked: "Based on the facts of that hypothetical, do you have an opinion as to whether this particular crime was committed for the benefit of and [in] association with or at the direction of the Tiny Oriental Crips street gang?" Detective Hatfield said he did have an opinion based on those facts. He believed that "they did this to keep the gang strong because the gang set is only as strong as its weakest member. And that member did something to the TOC gang for him to be victimized in this case. They put him in check. They brought him back in line over some perceived wrong that this individual did to that set, and the victim may not even know what he or she did in this incident." He stated that the assault would benefit TOC and was committed in association with TOC and at the direction of TOC members.
On redirect examination, the prosecutor stated additional hypothetical facts based on the evidence, and asked whether, under those hypothetical facts, Detective Hatfield had "an opinion about whether or not this was a gang-motivated attack." The witness said he did. The prosecutor then asked, "What is your opinion about the gang motivation behind the attack that has been described in the hypothetical?" Detective Hatfield responded, "The reason why I feel that it was gang motivated is what you told me exactly as far as the fact that this individual, in this hypothetical, is saying that he had been hanging. He had been associating with the documented gang members. He tells me that. That tells me that . . . he has been a gang member, and especially in that hypothetically if he meets that criteria, that fact that -- he doesn't have to know the reason why he is being attacked -- doesn't have to know. There could be a perception or a paranoia from the gang members that are attacking him that he did something to tick off the gang set. The fact that he was lured out to where he was attacked tells me that that was planned. The fact that it was done in concert with known documented gang members, that they work together to do what they did to the victim, tells me that this is a gang-motivated incident. It wasn't about friends fighting among one another."
The court sentenced Vang, Sitthideth, and Le to state prison for six, four, and 12 years, respectively, and placed Ha on probation. They appealed. The Court of Appeal found that the trial court erred in permitting Detective Hatfield to respond to the hypothetical questions but found the error harmless. It also rejected other arguments defendants made. It modified one condition of probation as to Ha and otherwise affirmed the judgments.
All four defendants petitioned for review. We granted review and limited the issues to (1) whether the Court of Appeal correctly found that the trial court erred in permitting the use of the hypothetical questions, and (2) if so, whether the Court of Appeal correctly found the error harmless. On our own motion, we severed Vang's case from that of the other defendants and deferred further briefing by the other defendants pending our decision in this case.
"California law permits a person with 'special knowledge, skill, experience, training, or education' in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Id., subd. (a).) The subject matter of the ...