California Court of Appeals Strikes Gang Allegations Based on Improper Gang Expert Testimony
The California Court of Appeal, Second Appellate District recently struck gang allegations against defendant and appellant Leonard Lejohn Gonzalez in appellate case number B297509.
The court's holding in People v. Gonzalez is expected to have a substantial impact in future trials involving testimony by prosecution “gang experts.”
Facts of the case
Gonzalez was charged in Los Angeles County Superior Court with three second-degree robberies in violation of Penal Code § 211. As the appellate court succinctly put it, Gonzalez snatched people's necklaces.
In January and February 2018, Gonzalez accosted three women in similar circumstances and took their valuable jewelry.
In addition to the robbery charges, the People alleged that Gonzalez:
- acted in the robberies in furtherance of;
- a criminal street gang within the meaning of Penal Code § 182.22(b)(1)(C).
At trial, the three victims testified that Gonzalez was their attacker. A video further showed Gonzalez at one of the crime scenes.
Police Testimony of Criminal Activity for Benefit of a Street Gang
The main issue under contention at trial was whether Gonzalez's actions related to gang activity. Long Beach Police Officer Alexander Roberts testified for the People as a gang expert.
He testified that Gonzalez was a member of the Boulevard Mafia Crips, a criminal street gang which specialized in broadcasting:
- a flashy lifestyle by driving expensive cars,
- staying in expensive hotels, and
- taking pictures of themselves with large amounts of cash.
Roberts further explained that he had personally contacted Gonzalez multiple times and had helped arrest him. He told the jury that Gonzalez's gang moniker was “Cash Boy.”
Cross examination of police officer
On cross-examination, Roberts admitted that many of the hallmarks of a gang-related crime were absent in Gonzalez's case:
- he had acted alone, not in concert with other gang members;
- he had not worn the gang's “colors;”
- he did not display gang insignia or flash gang signs;
- the robberies were all committed outside of the Boulevard Mafia Crips' territory.
Critically, Roberts admitted that there was no evidence that Gonzalez had told any other gang members about his robbery activity.
The jury convicted Gonzalez on all counts and sustained the gang enhancements.
Appeals Court “Struck” the Gang Enhancement
On appeal, the court struck the gang enhancements, finding they were not supported by substantial evidence.
The court began by affirming that gang expert testimony can properly support a jury's finding in a case involving gang enhancements. The court noted that:
- such expert opinion, must not be speculative, and;
- an unsound expert opinion has no value.
Roberts had testified that Gonzalez added to the gang's reputation by committing the robberies, but offered no evidence linking Gonzalez's robberies to the gang.
He testified that Gonzalez provided monetary value to the gang by stealing the necklaces, but conceded there was no evidence that Gonzalez shared the jewelry or the proceeds therefrom with the gang.
He testified that Gonzalez had a propensity to commit violent acts, but even leaving aside the general prohibition against propensity evidence there was no logical connection between a violent disposition and acting for the benefit of a gang.
Police Testimony on Patterns of Observation
Most significantly, the court criticized the trial court for allowing Roberts to testify based on his “pattern of observations” about the gang and of Gonzalez.
The court stated that it was insufficient for an expert to simply announce that based on experience a contested fact is true.
The court characterized this as the method of the Oracle at Delphi and as a “black box.”
Rather than a method which can be tested and disproved, such as scientific expertise, the court found that Roberts testimony essentially amounted to a faith-based prediction.
The court found that this approach may be convenient for “would-be experts,” but is unacceptable in a court proceeding.
No evidence defendant told gang about robbery
In rejecting Roberts' testimony, the court zeroed in on the critical fact of Gonzalez's conduct: there was no evidence that Gonzalez told anyone else in the gang about his robbery of the necklaces.
This is the paradigmatic case in which a gang member acts out of his own self-interest rather than for the benefit of the gang.
Gonzalez also raised several unrelated claims relating to his convictions and the imposition of certain fines and fees by the sentencing court. These claims were rejected.
Gang Expertise Testimony at Trial
In sum, the Gonzalez decision confirms the simple principle that gang expertise must be treated the same as any other form of expertise which can be properly presented to a jury.
While experts are permitted to supply opinions in support of a conviction or a true finding relating to a sentencing enhancement or special allegation, those opinions must be supported by testable, disprovable methods.
A gang expert cannot simply take the stand and say that they are experienced in the area of gangs, has observed gangs in the past, and can therefore opine that the defendant acted in furtherance of a gang.
Defendants are expected to cite the Gonzalez decision in future cases involving gang allegations to attempt to limit the scope of prosecution gang expert testimony.
Appeals Attorney for California Criminal Convictions
If you were convicted on a California crime and believe the trail court made an error, you might have valid reasons for a criminal appeal.
Our Los Angeles criminal defense attorneys have vast experience in appealing a conviction and Writs of Habeas Corpus.
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Our law firm has argued in front of the California Courts of Appeal and Federal 9th Circuit Court of Appeals.
Our California Bar Certified Criminal Law Specialists know how the appeals process works and the relevant procedural issues.
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