|Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
People v. Gardeley, 927 P.2d 713, 1996.
At issue in this case are certain provisions of the Street Terrorism Enforcement and Prevention Act, also known as the STEP Act, enacted by the Legislature in 1988. . . Underlying the STEP Act was the Legislature's recognition that “California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.” . . . The act's express purpose was “to seek the eradication of criminal activity by street gangs.” . . .
As relevant here, the STEP Act imposes certain penal consequences when crimes are committed “for the benefit of, at the direction of, or in association with any criminal street gang.” . . . A “criminal street gang,” as defined by the act, is any ongoing association of three or more persons that shares a common name or common identifying sign or symbol; has as one of its “primary activities” the commission of specified criminal offenses; and engages through its members in a “ pattern of criminal gang activity.” . . . Under the act, “pattern of criminal gang activity” means that gang members have, within a certain time frame, committed or attempted to commit “two or more” of specified criminal offenses (so-called “predicate offenses”). . . .
Here, based on the jury's determination that the prosecution had satisfied the STEP Act requirements, the trial court imposed increased sentences as to both defendants. The Court of Appeal, however, struck the sentence enhancements on the ground that the prosecution had failed to prove the requisite “pattern of criminal gang activity.” The Court of Appeal held that evidence of “two or more” predicate offenses by gang members can establish a “pattern of criminal gang activity” only if each such offense is shown to be “gang related.” We disagree that the predicate offenses must be “gang related.” We also disagree with the Court of Appeal's conclusion that the prosecution failed to prove the requisite pattern of criminal gang activity.
On August 4, 1992, about 2 a.m., Edward Bruno was riding in a car with some friends. Bruno, who had been drinking, needed to urinate. The car stopped near Farm Drive and Old Hillsdale Avenue in San Jose. While Bruno was relieving himself in the carport of an apartment complex, which happened to be in an area controlled by the Family Crip gang, he was approached by defendants Rochelle Lonel Gardeley and Tommie James Thompson, and one Tyrone Dermont Watkins. Gardeley shoved Bruno and asked, “What are you doing here, white boy?” Bruno pushed Gardeley back and punched him. Someone then hit Bruno in the head. When Bruno tried to get away, the three men pursued him. They knocked Bruno to the ground, repeatedly punched and kicked him, hit his thighs and rib cage with a bat or stick, and broke a large rock into pieces on his head. Taken from Bruno were a wristwatch, a gold neck chain, and $30. Bruno suffered an eye injury and multiple bruises, and required 20 stitches to his forehead. Apartment residents who witnessed the attack called the police. Minutes later, police officers stopped a car for speeding and making an illegal U-turn, and recovered from the ground outside the passenger door a plastic “baggie” containing .99 grams of cocaine. The driver of the car was defendant Thompson, and the passenger was defendant Gardeley, who had a bloody lip and blood on his T-shirt and arm.
Gardeley and Thompson were charged with attempted murder . . . assault with a deadly weapon, with a great bodily injury enhancement . . . Each of these offenses was alleged to have been committed “for the benefit of, at the direction of, or in association with [a] criminal street gang” . . . Both defendants were also charged with a fourth offense, committing an assault . . . and/or battery . . . “for the benefit of, at the direction of, or in association with, [a] criminal street gang” . . . [FOOTNOTE 3]
For his part in the attack on Bruno, Tyrone Watkins was charged together with defendants Gardeley and Thompson. Before trial, however, Watkins entered guilty pleas to assault with a deadly weapon (§ 245) and committing a crime for the benefit of a criminal street gang . . .
At trial, the prosecution presented evidence regarding the attack on Edward Bruno. Thereafter, the prosecution called as a witness Detective Patrick Boyd of the San Jose Police Department, who had 23 years of experience in the investigation of criminal street gangs. Boyd had interviewed both defendants after their arrests in this case. Defendant Gardeley said that he had been a member of the Family Crip gang since 1983 and was known by the moniker or street name of “Trench.” Defendant Thompson stated that he too was a Family Crip member and was known as “Capone.” According to Thompson, the gang had approximately 70 active members. He admitted that he had been dealing cocaine at the apartment complex just before the confrontation with Bruno.
In the course of his testimony, Detective Boyd mentioned that he had also interviewed Tyrone Watkins, Bruno's third assailant. When the prosecutor then asked what Watkins had told Boyd, counsel for defendant Thompson objected on hearsay grounds. As an offer of proof, the prosecutor explained that he sought to elicit from Detective Boyd the statements made by Watkins, not “for the truth of the matter asserted,” but to put before the jury facts on which Boyd could rely in rendering his expert opinion that the attack on Bruno “was gang activity in furtherance of ... the Family Crip gang.” The prosecutor added that he also intended to ask Detective Boyd “hearsay questions” about some prior criminal acts involving members of the Family Crip gang.
Out of the jury's presence, the trial court held a hearing to allow the prosecution to make an offer of proof regarding the statements by Watkins and the other “hearsay” evidence that it intended to present. At the hearing, Detective Boyd provided additional details of his familiarity with the criminal activities of the Family Crip gang. Thereafter, the trial court ruled that Boyd could testify as an expert on criminal gang activity.
In the jury's presence, the trial court overruled defendant Thompson's hearsay objection to the questions the prosecutor asked Detective Boyd about the Tyrone Watkins interview. The court then informed the jury that certain “hearsay” would be introduced pertaining to Tyrone Watkins and other matters, but that the jury “may not consider those [hearsay] statements for the truth of the matter, but only as they give rise ... to the expert opinion in which questions will be asked which will follow.” Immediately thereafter Detective Boyd testified that Tyrone Watkins had said that his street name was “T-Bone,” and that he had been a member of the Family Crip gang since 1988. Boyd added that several other individuals had also admitted to him their membership in the Family Crip gang.
The prosecutor asked Detective Boyd for his opinion as to the primary purpose or activity of the Family Crip gang. Detective Boyd responded that based on investigations of hundreds of gang-related offenses, conversations with defendants and other Family Crip members, as well as information from fellow officers and various law enforcement agencies, it was his opinion that the Family Crip gang's primary purpose was to sell narcotics, but that the gang also engaged in witness intimidation and other acts of violence to further its drug-dealing activities.
The prosecutor then gave Detective Boyd this scenario: “Assuming hypothetically that we have an incident that took place at about 2:00 a.m. on [Old] Hillsdale and Farm [in San Jose] in which Family Crip gang members were present and one of which is out attempting to sell cocaine and a second is found with cocaine near his possession when detained, and a white male is observed urinating in this area and a fight breaks out with the white male and then the white male is chased down by the three Family Crip gang members, severely beaten, threatened, they said they were gonna kill him, then he is robbed of money, necklace and a watch.” The prosecutor asked whether in Detective Boyd's expert opinion the attack on the White male as just described was “gang related activity.” Boyd replied that it was, calling it a “classic” example of how a gang uses violence to secure its drug-dealing stronghold.
Detective Boyd explained: "It is common practice for several gang members acting in concert to assault a person in full view of residents of an area where the gang sells drugs. Such attacks serve to intimidate the residents and to dissuade them from reporting the gang's drug-dealing activities to police. Gang members typically view a dispute or argument with someone who is not a member of the gang as a “challenge” to the gang's authority, and they respond by trying to “dominate” the person physically, that is, they might “beat the person senseless, throw rocks over his head, kick him” and do this “where a lot of people can witness it.” When gang members “terrorize people ... [who] have to live there,” the “fear factor” allows the gang to “go right back to dope dealing” day after day in the same area."
Thereafter, the prosecutor questioned Detective Boyd regarding three separate criminal incidents. The most recent of the three was a May 2, 1992, shooting at an apartment complex involving defendant Thompson and one Mario Phipps, who Boyd confirmed was a Family Crip member. The second incident took place on July 17, 1989, in San Jose; it involved a threat against a drug dealer, Michael Halliburton, by defendant Gardeley and three other persons, whom Detective Boyd knew to be members of the Family Crip gang. The third incident occurred on December 1, 1987, when two police officers observed defendant Gardeley and others in the vicinity of Nancy Lane and Florence in San Jose flagging down cars in a manner that the officers associated with the sale of narcotics; Gardeley fled, but when stopped by the officers was found to be in possession of crack cocaine. In the expert opinion of Detective Boyd, each of the three incidents just described was “gang related” criminal activity of the Family Crip gang.
The prosecutor then offered into evidence, without objection by the defense, certified copies of three informations together with abstracts of judgment and other official court records. The first information charged Mario Phipps (not a defendant in this case) with a May 2, 1992, shooting at an occupied dwelling with a shotgun . . .; the second information charged defendant Gardeley with a July 17, 1989, incident of being an accessory to a felony . . .; and the third information charged defendant Gardeley with a December 1, 1987, incident of cocaine possession . . . The three abstracts of judgment and other court records documented the convictions of Mario Phipps and of defendant Gardeley for the offenses charged in these informations.
The jury convicted defendants Gardeley and Thompson of attempted murder . . ., and of assault with a deadly weapon with great bodily injury . . ., and found true the allegations that the offenses had been committed “for the benefit of, at the direction of, or in association with [a] criminal street gang” . . . The jury also convicted both defendants of committing assault and/or battery “for the benefit of, at the direction of, or in association with, [a] criminal street gang” . . ., and in addition convicted defendant Gardeley of possession of cocaine . . . The trial court sentenced both defendants to state prison, Gardeley for 17 years, and Thompson for 9 years. Both defendants appealed.
The Court of Appeal reversed the convictions under former subdivision (c) of section 186.22 (committing an assault and/or battery “for the benefit of, at the direction of, or in association with, [a] criminal street gang”), and struck the criminal street gang sentence enhancements that the trial court had imposed under subdivision (b)(1) of section 186.22, concluding that the prosecution had failed to prove the statutorily required “two or more” predicate offenses to establish that the Family Crip gang was a criminal street gang within the meaning of the statute; in all other respects, the court affirmed the judgments. The Court of Appeal reasoned that the prosecution had to prove not only the statutory requirements pertaining to predicate offenses, but also that each such offense was “gang related.” According to the Court of Appeal, Detective Boyd's expert opinion testimony that the three separate criminal incidents (involving defendants Gardeley and Thompson and other Family Crip members and committed before the charges in this case) were “gang related” was not competent evidence on the issue because Boyd's opinion was not based on facts in evidence and Boyd had no personal knowledge of the facts underlying the three incidents.
We granted the Attorney General's petition for review.
[. . .]
To summarize, to subject a defendant to the penal consequences of the STEP Act, the prosecution must prove that the crime for which the defendant was convicted had been “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.” . . . In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period. . . .
In the sections that follow, we explain how the prosecution here satisfied these statutory requirements.
We first consider the issue of gang expert testimony, which in this case was given by Detective Patrick Boyd of the San Jose Police Department.
California law permits a person with “special knowledge, skill, experience, training, or education” in a particular field to qualify as an expert witness . . . and to give testimony in the form of an opinion . . . 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.” . . . The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion. . . .
Evidence Code section 801 limits expert opinion testimony to an opinion that is “[b]ased on matter ... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates....” . . .
Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.” . . . Such a hypothetical question must be rooted in facts shown by the evidence, however. . . .
Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. . . . Of course, any material that forms the basis of an expert's opinion testimony must be reliable. . . . For “the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.” . . .
So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. . . . And because Evidence Code section 802 allows an expert witness to “state on direct examination the reasons for his opinion and the matter ... upon which it is based,” an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. . . .
A trial court, however, “has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.” . . . A trial court also has discretion “to weigh the probative value of inadmissible evidence relied upon by an expert witness ... against the risk that the jury might improperly consider it as independent proof of the facts recited therein.” . . . This is because a witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into “independent proof” of any fact. . .
Consistent with these well-settled principles, the trial court in this case ruled that Detective Boyd could testify as an expert witness and could reveal the information on which he had relied in forming his expert opinion, including hearsay.
After giving Detective Boyd a “hypothetical” based on the facts of the assault in this case on Edward Bruno by three Family Crip members, the prosecutor asked Boyd if in his expert opinion an attack as described would be “gang-related activity.” Boyd responded that it was a “classic” example of gang-related activity, explaining that criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang's drug-dealing stronghold. From this expert testimony by Detective Boyd, the jury could reasonably conclude that the attack on Bruno by members of the Family Crip gang including defendants was committed “for the benefit of, at the direction of, or in association with” that gang, and “with the specific intent to promote, further, or assist in ... criminal conduct by gang members” as specified in the STEP Act . . .
Detective Boyd's testimony also provided much of the evidence necessary to establish that the Family Crip gang met the STEP Act's definition of a “criminal street gang.” (§ 186.22, subd. (f) [states] [defining a criminal street gang as an “ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more” criminal acts enumerated in subdivision (e) of the statute, and which has a “common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”].)
Boyd testified that defendants Gardeley and Thompson admitted to membership in the Family Crips, and that Gardeley had been a member of the gang since 1983. Boyd also expressed his expert opinion that the primary activity of the Family Crip gang was the sale of narcotics, but that the gang also engaged in witness intimidation. (These are two of the offenses enumerated in subdivision (e) of section 186.22.) Boyd based this opinion on conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.
We conclude that this testimony by Detective Boyd provided a basis from which the jury could reasonably find that the Family Crip gang met the requirements of subdivision (f) of section 186.22 for a criminal street gang: (1) an “ongoing organization, association, or group of three or more persons” (2) that shares “a common name or common identifying ... symbol” and (3) that has “as one of its primary activities the commission of one or more” of the criminal acts enumerated in subdivision (e) of section 186.22 (namely, the sale of controlled substances (subd. (e)(4)) and witness intimidation . . . Thus, through Detective Boyd's expert testimony, the prosecution satisfied most of the requirements of the STEP Act to prove that the Family Crip gang was a “criminal street gang.” But the prosecution still had to establish the additional statutory requirement that the gang's members “individually or collectively engage in or have engaged in a pattern of criminal gang activity” . . ., a point that we will discuss in the part that follows.
Subdivision (e) of section 186.22 states: “As used in this chapter, ‘pattern of criminal gang activity’ means the commission, attempted commission, or solicitation of two or more of the following [enumerated] offenses, provided at least one of those offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons.” Thus, a gang otherwise meeting the statutory definition of a “criminal street gang” . . . is considered a criminal street gang under the STEP Act only if its members “individually or collectively engage in or have engaged in a pattern of criminal gang activity” . . . by “the commission, attempted commission, or solicitation of two or more of the statutorily enumerated offenses within the specified time frame . . . Defendants, however, read yet another requirement into the statute. They contend that the Legislature must have also intended that the “two or more” predicate offenses that are necessary to establish “a pattern of criminal gang activity” be “gang related.” In other words, according to defendants, the prosecution must establish not only the requirements for predicate offenses set forth in the statute, but also that each such offense was committed for the benefit of, at the direction of, or in association with the gang. We disagree.
[. . .]
. . .The STEP Act defines a criminal street gang as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more criminal acts enumerated [in the statute], [and] having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” . . . The act defines “pattern of criminal gang activity” as “the commission, attempted commission, or solicitation of two or more [enumerated offenses occurring within a specified time period] and ... committed on separate occasions, or by two or more persons.” . . .
Thus, to fall within the statutory definition of a “criminal street gang,” there must be an ongoing association of at least three persons that has as one of its primary activities the commission of specific types of criminal activity, uses a common name or identifying sign or symbol, and has members who individually or collectively have actually engaged in “two or more” acts of specified criminal conduct committed either on separate occasions or by two or more persons. These detailed requirements of the STEP Act are sufficiently explicit to inform those who are subject to it what constitutes a criminal street gang for purposes of the act. . . .
Because we conclude that the predicate offenses need not be gang related, we have no occasion to decide whether or not Detective Boyd's opinion testimony was competent evidence that each of the uncharged crimes was gang related.
Did the prosecution in this case prove the “pattern of criminal gang activity” as required by the statute? We conclude that it did.
Through a combination of expert opinion testimony, documentary evidence of an uncharged crime, and testimony by percipient witnesses to the charged crimes in this case, the prosecution in this case met its burden of proving each of the several elements set forth by the Legislature in the Street Terrorism Enforcement and Prevention Act (also known as the STEP Act). Accordingly, for their roles in the brutal attack on Edward Bruno, Family Crip gang members Gardeley and Thompson are appropriately subject to the penal consequences of the STEP Act. We therefore reverse the judgment of the Court of Appeal insofar as it set aside defendants' convictions under former subdivision (c) and struck the increased prison terms imposed under section 186.22, subdivision (b)(1) of section 186.22.