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California Court of Appeal Rejects Gang Enhancement Based on Expert Witness’ Case-Specific Hearsay Evidence

by Christopher Zoukis

The Court of Appeal of California, Fourth Appellate District, Division Two reversed a trial court’s imposition of a gang enhancement on a defendant when the evidence of gang activity consisted almost entirely of hearsay relied upon by an expert witness. The January 23, 2018, opinion affirmed the defendant’s underlying convictions but vacated the gang enhancement sentence.

On February 3, 2016, Hector Martinez and Jorge Gonzalez were approached by Ontario, California, police officer Devey as they walked away from what turned out to be a stolen truck. Martinez was charged with theft of a vehicle over $950 and possession of burglary tools. A jury convicted him and determined that the vehicle theft was committed in association with criminal gang activity. As such, Martinez was sentenced to eight years in prison based on a gang enhancement under Pen. Code § 186.22.

Martinez appealed, arguing that the gang enhancement should be reversed due to the gang expert’s reliance on “testimonial” “case-specific” hearsay at trial. The People conceded that the expert’s testimony included inadmissible hearsay but argued that any such errors were harmless.

Hearsay is an out-of-court statement used to prove the truth of the matter asserted and is generally prohibited from being introduced into evidence. While experts are permitted to testify about their general knowledge when it is based on hearsay, under California law, they are not allowed to testify about case-specific facts learned via hearsay “unless they are independently proven by competent evidence or are covered by a hearsay exception.” People v. Sanchez, 63 Cal. 4th 665 (2016).

The Court explained the difference between general and case-specific hearsay as follows. “For example, an expert could testify that a diamond is a symbol adopted by a particular street gang because that constitutes general information. However, an expert could not testify that ‘an associate of the defendant had a diamond tattooed on his arm.’ The tattoo is case-specific, which would need to be established by a witness who saw the tattoo, or by an authenticated photograph, or it would need to fall within a hearsay exception.”

In this case, the trial court allowed officer Chris Chinnis, an expert on the Chino Sinners street gang, to testify as to Martinez’s alleged ties to the Chino Sinners. Almost everything that Chinnis testified to was hearsay; nevertheless, the trial court let his testimony into evidence.

Chinnis testified about Martinez being heard on wiretapped calls discussing drug deals with members of the Chino Sinners. The appellate court found this testimony to be based on case-specific facts learned via hearsay, which rendered it inadmissible. Chinnis further testified about a report he read concerning a traffic stop where Martinez was found in a car with drugs and a Chino Sinners gang member. This case-specific hearsay was not supported by competent, independent proof, nor was it covered by any hearsay exception, so it was also inadmissible.

Chinnis also provided testimony about several “field identification cards,” which purported to identify Gonzalez, who was seen walking away from the truck with Martinez, as a member of the Chino Sinners. This evidence was ruled inadmissible by the Court, again because it was unsupported, case-specific hearsay.

In addition to the case-specific hearsay problems with Chinnis’ testimony, the appellate court determined that the wiretap and traffic stop both constituted testimonial hearsay. The Court determined that the improperly admitted expert testimony was prejudicial because without it there was little proof that Martinez was a member of the Chino Sinners. In fact, the only evidence of gang ties left after taking away the improper testimony was that Martinez committed the crime in Chino Sinners territory (i.e., the entire city of Chino), the crime was the kind often committed by members of the Chino Sinners (car theft), and Martinez had family members who are members of the Chino Sinners.

“Thus,” wrote the Court, “other than the place and type of crime, there is nothing tying the instant crime to the gang.” Accordingly, the Court of Appeal reversed the gang enhancement. See: People v. Martinez, 19 Cal. App. 5th 853 (Ct. App. 2018). 

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