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Getting a Good Grasp on Gang Cases
By Gregory A. Dohi and Darrell Mavis

Trials involving criminal street gangs can give rise to a host of difficult issues for both judges and practitioners. Having a good grasp of the fundamental principles of gang cases is essential to the efficient and fair administration of justice.

The objective of this article and self-study test is to acquaint bench officers and attorneys on the most important features of gang cases, including discovery, courtroom security, sentencing enhancements, expert testimony, and trial management.

Gang prosecutors often go to great lengths to protect witnesses by seeking to delay or restrict the disclosure of witness names and addresses. As the Court of Appeal noted in Wallace v. City of Los Angeles, 12 Cal.App.4th 1385 (1993), "The threat to the safety of these witnesses is very real, especially when the defendant has gang or drug trafficking affiliations. Unfortunately, the lack of safeguards for such witnesses is also very real."

Defense attorneys, for their part, have many legitimate and compelling reasons to get precisely that information. They need it to conduct witness interviews, locate character witnesses, and run conflict checks.

Penal Code Section 1054.7 allows disclosures of witnesses that a party intends to call at trial to be denied, restricted, or deferred upon a showing of good cause. "Good cause" under this section is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.

In considering whether the disclosure of witness information should be restricted in a gang-related case, the trial court should consider whether the witness waived any privacy claims, whether the witness was somehow involved in the commission of the crime, and whether he or she was somehow made available to the other side to be interviewed. Montez v. Superior Court, 5 Cal.App.4th 763 (1992). If, however, there is no showing of any danger of harassment, threats, or harm to the victims, a prohibition against directly contacting the witnesses cannot be justified. See Reid v. Superior Court, 55 Cal.App.4th 1326 (1997).

Although the disclosure of a witness' identity can be deferred for a while, it cannot be denied entirely. Witnesses cannot testify anonymously at trial. See Alvarado v. Superior Court, 23 Cal.4th 1121 (2000).

Marsy's Law (California Constitution Article I, Section28(b)) may have added another wrinkle to the law of discovery in gang cases. Marsy's Law gives the victims of crime the right "to prevent the disclosure of confidential information or records to the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim's family." To date, no case has addressed the discovery implications of Marsy's Law.

In general, a court has broad authority to maintain courtroom security and orderly proceedings. People v. Hayes, 21 Cal.4th 1211 (1999). The court may remove a spectator who is intimidating a witness, but only after a hearing at which the court finds that the spectator is actually engaging in intimidation of the witness; the witness will not be able to give full, free, and complete testimony unless the spectator is removed; and removal of the spectator is the only reasonable means of ensuring that the witness may give full, free, and complete testimony. Penal Code Section 686.2. At a preliminary hearing, the court may take the ultimate step of closing the courtroom upon a showing that a witness's life would be "subject to a substantial risk" and that there are no other adequate security measures. Penal Code Section 868.7(a)(2).

In People v. Esquibel, 166 Cal.App.4th 539 (2008), the trial judge in a gang case was found to have acted properly in excluding two of the defendant's friends after a witness' mother expressed concern that they would recognize her child in the neighborhood. The Court of Appeal held that Penal Code Section 686.2 does not apply when the exclusion is not based on any attempt at intimidation. The Esquibel court cautioned that "[t]he exclusion of any non-disruptive spectator from a criminal trial should never be undertaken without a full evaluation of the necessity for the exclusion and the alternatives that might be taken."

The California Street Terrorism Enforcement and Prevention (STEP) Act (Penal Code Sections 186.20 et seq), enhances sentences in gang-related cases.

The STEP Act has three main parts. Penal Code Section 186.22(a) created the substantive crime of knowing participation and willful furtherance of felonious conduct by members of a criminal street gang. It is a "wobbler," punishable either as a felony or a misdemeanor. Penal Code Section 186.22(b) created an enhancement for felonies committed for the benefit of a criminal street gang with the specific intent to further criminal conduct by gang members. Penal Code Section 186.22(d) created an alternative penalty provision under which gang-related misdemeanors can be treated as felonies

At the heart of the STEP Act is the statutory definition of a criminal street gang. Penal Code Section 186.22(f) defines a "criminal street gang" as an ongoing organization with three or more members that has as one of its primary activities the commission of one or more enumerated criminal acts. The group has to have a common name or common identifying sign or symbol, and its members must have engaged in "a pattern of criminal gang activity" consisting of the commission of two or more crimes from a list of 33.

Generally speaking, the addition of a gang enhancement makes gang evidence more relevant: "In general, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" People v. Valdez, 58 Cal.App.4th 494 (1997). Charging a gang enhancement requires the prosecution to present evidence of other crimes committed by gang members and usually entails the presentation of evidence of gang graffiti, hand signs, and turf wars. See, e.g. People v. Augborne, 104 Cal.App.4th 362 (2002).

The trial judge, however, should not allow a gang enhancement to become a conduit for all kinds of inflammatory and irrelevant evidence. In People v. Albarran, 149 Cal.App.4th 214 (2007), for example, the prosecution sought to prove the gang enhancement by presenting "a panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges." The Court of Appeal found that this evidence, including testimony about the Mexican Mafia and threats to kill police officers, "approached being classified as overkill."

In order to keep this kind of evidence away from the trier of fact, defendants may seek to bifurcate the gang enhancement from the trial on the underlying charges. The party seeking severance or bifurcation has the burden to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. People v. Bean, 46 Cal.3d 919 (1988). Bifurcation should be denied where "[g]ang affiliation and activity [are] woven into the factual fabric throughout this case." People v. Funes, 23 Cal.App.4th 1506 (1994).

Expert opinion testimony is admissible only if the subject matter is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." Evidence Code Section 801(a). Gang-related cases often involve matters that are "sufficiently beyond common experience" to make expert opinion testimony appropriate.

Qualified experts have properly testified about gang sociology and psychology (People v. Olguin, 31 Cal.App.4th 1355 (1994)), gang membership (People v. Duran, 97 Cal.App.4th 1448 (2002)), the size of a gang (see, e.g., In re José P., 106 Cal.App.4th 458 (2003)), how members advance within a gang (see, e.g., In re I.M., 125 Cal.App.4th 1195 (2005)), the meaning of graffiti (People v. Avitia, 127 Cal.App.4th 185 (2005)), the primary purposes of a gang (People v. Sengpadychith, 26 Cal.4th 316 (2001)), and - most importantly for the gang enhancement under Penal Code Section 186.22(b) - whether a crime was committed to promote or benefit a gang (People v. Ferraez, 112 Cal.App.4th 925 (2003)).

There are, however, limits to a gang expert's testimony. In People v. Killebrew, 103 Cal.App.4th 644 (2002), for example, the Court of Appeal held that a gang expert went too far when he testified that when one gang member in a three-car caravan has a gun, every other gang member in the caravan must know about the gun and therefore constructively possesses it. Killebrew seems to say expert testimony is one thing; ESP is quite another.

Moreover, there are areas in which a gang expert's opinion by itself won't suffice. A gang expert's unsubstantiated opinion alone, for example, is not sufficient to find that a crime was committed to promote or benefit a gang; some substantive factual evidentiary basis - something about the crime - must support that opinion. See, e.g., People v. Ochoa, 179 Cal.App.4th 650 (2009).

As with all expert testimony, the bases of a gang expert's opinion may be admitted, even if it includes hearsay. See Evidence Code Sections 801, 802; People v. Gardeley, 14 Cal.4th 605 (1996). Gang experts may give opinions on the basis of statements from other officers, police reports, graffiti - even statements from other gang members. See People v. Duran, 97 Cal.App.4th 1448 (2002).

Under Evidence Code Section 352, however, a trial court should exclude "any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value." People v. Valdez, 58 Cal.App.4th 494 (1997). In People v. Killebrew, the Court of Appeal held that a trial court abused its discretion by "allowing [an expert] to testify at such great length about material that inflamed the jury's passions and had little or no probative value."

If the trial judge does allow an expert to testify about the hearsay bases of his or her opinion, the judge should instruct the jury that these matters are admissible not for their truth, but solely as the basis of the expert's opinion. See People v. Valdez.

The gang enhancement (Penal Code Section 186.22(b)) adds two, three, or four years for run-of-the-mill felonies, five years for serious felonies as defined in Penal Code Section 1192.7, and 10 years for violent felonies as defined in Penal Code Section 667.5(c). Apart from the STEP Act's own punishment scheme, a finding on a gang enhancement can also make a defendant eligible for additional penalties for using firearms in the commission of certain crimes (Penal Code Section 12022.53), even if he or she didn't personally use a gun.

In crafting probation conditions in gang-related cases, bench officers should avoid the overbroad. Barring a defendant from attending all court proceedings, for example, was deemed unconstitutional; keeping a defendant away from attending proceedings at which he knows that a gang member was present, however, passes muster. (People v. Leon, 181 Cal.App.4th 943 (2010).

Gregory A. Dohi is a judge of the Los Angeles County Superior Court. Darrell Mavis is a judge of the Los Angeles County Superior Court.

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