Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV124551
RAYE, J.In these juvenile proceedings, the trial court found beyond a reasonable doubt that Christopher G. assaulted a freshman basketball player and his coach with a crowbar for the benefit of a criminal street gang, Hop Sing. Christopher contends he was denied his constitutional right to confront and cross-examine witnesses when the court allowed a gang expert to testify that he based his opinion that Christopher was a member of the gang, in part, on information he solicited from individuals who identified Christopher as a member of Hop Sing and from others who stated Christopher associated with gang members. Christopher asserts this evidence was nothing more than the type of inadmissible testimonial hearsay foreclosed by the Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford).
It is true, as asserted by the Attorney General, that similar testimonial hearsay offered by gang experts has withstood Crawford challenges. (People v. Ramirez (2007) 153 Cal.App.4th 1422; People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas).) Christopher invites us to reexamine the logic of these cases and offers us some persuasive authority from out of state and in scholarly journals. (People v. Goldstein (2005) 6 N.Y.3d 119 [810 N.Y.S.2d 100, 843 N.E.2d 727] (Goldstein); Oliver, Testimonial Hearsay as the Basis for Expert Opinion: The Intersection of the Confrontation Clause and Federal Rule of Evidence 703 After Crawford v. Washington (2004) 55 Hastings L.J. 1539; see also Mnookin, Expert Evidence and the Confrontation Clause After Crawford v. Washington (2007) 15 J.L. & Pol’y 791.) We need not consider whether Crawford necessitates such a radical departure because, in this case, an Asian witness who personally knew Christopher identified him as the assailant and no one disputes that the attack itself was gang related. Thus, even if the admission of the gang expert’s testimonial hearsay might have been in error, the error is harmless beyond a reasonable doubt. We affirm.
FACTS
In many ways this is not a typical gang case. We agree with Christopher that the evidence he was a member of Hop Sing was quite underwhelming. He did not, as is more often the case, sport gang tattoos, flash gang signs, or use a gang moniker. He did not self-identify as a member of Hop Sing, a small Asian gang at his high school. He had no criminal record. There was very little evidence he associated with known gang members. In short, the evidence that Christopher was an actual member of Hop Sing was hotly contested.
But it is important to put the facts surrounding the gang in context. Christopher was not charged with street terrorism. (Pen. Code, § 186.22, subd. (a).) Under section 186.22, subdivision (a), a person who “actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang” is guilty of street terrorism. Rather, Christopher was charged with a gang enhancement, allowing the court to impose a sentence enhancement if he was “convicted of a felony committed 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.” (§ 186.22, subd. (b)(1).) As a result, the prosecution did not bear the burden of proving that Christopher was an active member of Hop Sing; rather, it had only to prove that if he assaulted the victims as charged he did so for the benefit of the gang whether he was a member or not.
All further statutory references are to the Penal Code.
Racial tension between Asian and African-American students permeated Laguna Creek High School. On December 7, 2006, the predominantly African-American freshman basketball team was waiting for the team bus with their coach when, at approximately 6:30 p.m., as many as 10 or 11 cars pulled into the parking lot and students wielding crowbars, a wrench, and cans jumped out of the cars and attacked the team. A player shouted, “That’s the Asians.” One of the assailants yelled “Hop Sing” and another shouted “Hop Sing is in the mother fucking house.” Ervin W., who had a football injury and could not run, was caught and beaten by one of the crowbar-wielding assailants. So was his coach when he returned to help Ervin. Joseph L. and Ervin were both sprayed with mace as they tried to run away.
Joseph L. was one of two Asians on the team. In junior high, he had been a close friend of Christopher’s brother, A. Joseph recognized Christopher because he had been to Christopher’s house many times and had dinner with him and his family. He told the vice-principal, Derrick Garcia, that he saw A.s brother get out of one of the cars, carrying a crowbar. He picked out a picture of Christopher from a page in the school yearbook or directory and at trial identified Christopher as one of the attackers.
Christopher discredited Joseph’s identification, pointing out that he failed to identify him the night of the attack, he was no longer friends with his brother, the yearbook picture was suggestive, and his inability to remember Christopher’s name was further evidence of his lack of certainty. The trial court felt otherwise. The court explained at some length: “Joseph [L.] has made an unequivocal identification of [Christopher] as having participated in the assault as charged. . . . [¶] . . . [¶] Joseph [L.] saw [Christopher] commit the offenses charged. His identification is not cross-racial, it’s not a stranger ID, he knows what Chris [G.] looks like, he knows who Chris [G.] is, and so he has come into this Court and he has identified him as one of the offenders on that day.
“The Court appreciates that sometimes identifications can be mistaken, but the kinds of things that one looks at in assessing those kinds of questions are, among other things, how long they had the opportunity to witness the offender, whether it was cross-racial, whether it was a stranger ID or an identification of somebody known to the witness, whether there was a motive to lie. All of those issues are in a sense in the mix in this case, but the Court finds that it was a highly credible identification. That the testimony itself was highly credible and it was provided by a young man who very much wanted not to be here. He is afraid of Hop Sing, is afraid to testify, was only reluctantly here and only reluctantly testifying once he was here.
“The Court has no doubt -- no reasonable doubt that that identification is valid and Mr. [L.] is entirely credible.”
And while Christopher may not have advertised any gang affiliation, that is not to ignore the evidence of his connections to Hop Sing. The vice-principal, who very much appreciated Christopher’s potential, found him “very truthful and forthcoming” and believed he was a “student leader,” but nonetheless believed that he was becoming a leader in a group of Asian students, many of whom were members of Hop Sing. He appeared on a campus monitor’s list of students believed to be participating in the Hop Sing gang. And on at least two occasions, he was in the company of members of Hop Sing.
Investigating police officers executed a search warrant of Christopher and As bedroom and confiscated blue and black clothing and a can of mace. We acknowledge there was little effort to separate Christopher’s clothing from that of his brother, that many of the items were found under his brother’s bed, and that not all of the clothing was blue or predominantly blue. We simply note that the gang expert factored the clothing into his calculus.
The admissibility of the gang expert’s testimony is the sole issue raised on appeal. Most of the testimony is quite unremarkable. We are accustomed to gang expert testimony explaining the culture and customs of gangs, the significance of fear and respect among rival gangs, the idiosyncrasies of particular ethnic gangs, and the indicia of gang membership. And we have come to accept the gang expert’s opinion as to whether a particular crime is gang related. Here, the gang expert provided this commentary and concluded that the attack on the basketball team was for the benefit of Hop Sing, a fact the defense had conceded from the outset.
The expert also opined that Christopher was a member of Hop Sing. Christopher challenges the hearsay basis for this opinion, but as we stated at the outset, his membership is not determinative. Thus, the fact that the expert testified to statements made by other gang members did not, as Christopher suggests, constitute pivotal circumstantial evidence that he committed the attack. He was identified as an assailant, a fact alone that supports the trial court’s finding the crime was committed for the benefit of Hop Sing. The expert testified to the two predicate offenses, that is, prior criminal offenses committed by Hop Sing.
Christopher testified on his own behalf at the jurisdictional hearing. He denied participating in the December 7 attack and he denied being a member of Hop Sing.
DISCUSSION
Christopher contends, in essence, that gang expert testimony is not exempt from Crawford’s ban on the admissibility of testimonial hearsay. In Christopher’s view, the routine rationales for justifying the admission of testimonial hearsay, including the fiction that either the statements are nontestimonial or nonhearsay, violate his Sixth Amendment right to confront and cross-examine witnesses. The published cases in this state so far suggest otherwise.
For example, in Thomas, supra, 130 Cal.App.4th 1202, the court rejected the identical claim and explained: “The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay. . . . [¶] 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.]” (Id. at pp. 1209-1210.)
Christopher would have us follow a New York appellate court’s rejection of this very analysis. (Goldstein, supra, 6 N.Y.3d 119.) “Here, according to the People, the interviewees’ statements were not evidence in themselves, but were admitted only to help the jury in evaluating Hegarty’s [the expert] opinion, and thus were not offered to establish their truth. [¶] We find the distinction the People make unconvincing. We do not see how the jury could use the statements of the interviewees to evaluate Hegarty’s opinion without accepting as a premise either that the statements were true or that 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. Hegarty herself said her purpose in obtaining the statements was ‘to get to the truth.’ 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. (See Kaye et al., The New Wigmore: Expert Evidence § 3.7, at 19 [Supp 2005] [‘[T]he factually implausible, formalist claim that experts’ basis testimony is being introduced only to help in the evaluation of the expert’s conclusions but not for its truth ought not permit an end-run around a Constitutional prohibition’].) We conclude that the statements of the interviewees at issue here were offered for their truth, and are hearsay.” (Goldstein, at pp. 127-128.)
Having found the statements were hearsay, the New York court considered whether they were testimonial within the meaning of Crawford. The court determined the statements were testimonial. The court inferred that the interviewees were responding to questions from an agent of the state engaged in trial preparation. “None of them was making ‘a casual remark to an acquaintance’; all of them should reasonably have expected their statements ‘to be used prosecutorially’ or to ‘be available for use at a later trial.’” (Goldstein, supra, 6 N.Y.3d at p. 129.)
Indeed, we may face such a dilemma on another day. But here we conclude that any error in allowing testimonial hearsay by the gang expert was harmless beyond a reasonable doubt. As pointed out above, the court found Christopher guilty of assaulting a basketball player and his coach based on the positive eyewitness identification of someone who knew him and recognized him. The defense itself conceded the attack was gang related. Thus, if Christopher participated in the gang-related attack, he did it for the benefit of the gang.
The statements of various gang members that he either was a member of the gang or associated with members of Hop Sing were of little, if any, significance to the court’s findings. The court had more than a few statements by gang members to support the inference that Christopher was affiliated with Hop Sing, including the testimony of the vice-principal, Christopher’s clothing, and his association with Hop Sing members on at least two occasions. Although we find this evidence far from compelling as to whether Christopher had joined Hop Sing, his membership itself borders on irrelevant. The trial court emphasized that it based its findings on Joseph’s identification. Both Joseph and Ervin testified they heard the attackers shout “Hop Sing.” As a result, we conclude the admission of any testimonial hearsay by the expert was harmless beyond a reasonable doubt. As an assailant at the heart of a Hop Sing attack, Christopher was guilty of assault and his disposition was enhanced because he did it for the benefit of Hop Sing. The enhancement was therefore justified whether or not he was a full-fledged member.
DISPOSITION
The judgment is affirmed.
I concur: SCOTLAND, P.J.,
I concur in the result: MORRISON, J.