Rulings limit scope of gang and firearms expert testimony

The California Courts of Appeal handed down two recent decisions which will have important impacts on the admissibility and scope of prosecution expert witness testimony in the areas of criminal street gangs and firearms analysis. Taken together, these decisions may indicate a shift in the appellate courts toward more careful scrutiny of quasi-scientific expert testimony introduced by the government against criminal defendants.

In People v. Azcona, 2020 DJDAR 13189 (Dec. 10, 2020), the 6th District Court of Appeal reversed several convictions of a Monterey man convicted, in part, based on what the court found to be improper prosecution firearms expert testimony. The Azcona decision is expected to have a significant impact in the litigation of firearms-related cases in California state courts.

Over a one-month period in 2015, Azcona committed a series of shootings and a robbery in the Salinas area. Following a jury trial, Azona was sentenced to life without the possibility of parole and a consecutive term of 156 years and four months for two counts of premeditated murder, two counts of attempted murder, three counts of assault with a deadly weapon, and one count of attempted robber y.

Prior to trial, Azcona moved in limine to limit firearm "toolmark" testimony. Using the toolmark method, the prosecution's expert was expected to testify that it was virtually certain that the bullet casings found at two of the crime scenes were fired from the same weapon. Azcona argued that the toolmark method -- essentially a visual comparison of the marks on the shell casings -- was not generally accepted in the scientific community, as required under the Kelly standard. The court denied Azcona's motion following an evidentiary hearing. The prosecution's firearms expert testified at trial to his opinion that the shell casings came from the same gun.

On appeal, the court first noted the difference in the standards for admission of expert scientific opinion between California state and federal courts. Under Kelly, California courts inquire as to whether a given scientific method is generally accepted in the relevant expert community. In federal court, by contrast, the judge has a more extensive gatekeeping role under the Daubert standard, essentially passing his or her own judgment on whether the relevant technique or method is reliable.

Azcona raised a novel challenge, however. He conceded that toolmark analysis had been previously accepted in the scientific community. Recent changes in the scientific literature, Azcona argued, had undermined the previously accepted reliability of the technique. Azcona reasoned that while toolmark expert opinions may have been previously admissible, they are no longer admissible.

Faced with this challenge, the court first expressed doubt that toolmark analysis is even subject to a scientific expertise analysis as visually comparing marks is not so alien to a layperson as to require scientific expertise to explain to a jury. Nevertheless, the court rejected Azcona's contention that a consensus of the scientific community had subsequently rejected toolmark analysis as valid science. While Azcona had presented evidence in his briefs -- and indeed to the jury -- that toolmark analysis had been criticized by some in the relevant scientific community, the court ultimately concluded that those criticisms went to the weight of the toolmark evidence and not to its admissibility.

While the court disagreed with Azcona that the toolmark evidence should have bene excluded outright, it nevertheless found error with the trial court based on the manner of the expert presentation which was allowed at trial. The Court of Appeal noted that trial courts have a "critical gatekeeping function" in preventing the admission of hearsay and expert opinions unsupported by the scientific materials on which the expert purportedly relies. Exclusion of unfounded expert opinions is particularly important in cases like Azcona, the court found, where the scientific literature has been subject to significant criticism. In particular, the court faulted the trial court for allowing the firearms expert to testify that the matching marks on the projectiles were "much more than can ever happen by random chance," and that the firearms were matched "to the practical exclusion of all other guns." In short, while the firearms expert was properly allowed to testify to toolmark evidence, his conclusions were presented with much more certainty than was justified by the underlying scientific literature.

As a second and distinct ground upon which to reverse the convictions, the Court of Appeal cited that admission of testimony from the firearms expert that his conclusions had been approved by his supervisors. Azcona contended that this testimony violated his right to confrontation and constituted hearsay. At trial, the firearms expert bolstered the credibility of his opinions by describing at length the review and approval process within his department. In effect, he was permitted to present his conclusions as not only his own scientific opinion, but that of multiple other examiners with similar expertise.

The Court of Appeal concluded that this presentation of supervisor approval gave the impression to the jury that the expert's opinion was entitled to more weight than it would otherwise deserve. While the court acknowledged that this error will often be harmless in other cases, when combined with the unsupported nature of the conclusions themselves, as discussed above, the court could not find that the error was harmless beyond a reasonable doubt.

Azcona also raised an unrelated prosecutorial misconduct claim and a request for resentencing based on a change in the law expanding the trial court's discretion in sentencing. The Court of Appeal reversed and remanded as to the counts which depended on the firearms expert's testimony and left the remaining counts undisturbed. In a concurring opinion, Presiding Judge Mary Greenwood agreed with the majority's disposition, but would have gone further -- holding that the trial court erred in admitting the toolmark evidence in the first instance because the changes in the scientific literature had sufficiently undermined the method as to require its inadmissibility.

Similarly, the 2nd District Court of Appeal recently struck gang allegations against Leonard Lejohn Gonzalez. People v. Gonzalez, 2021 DJDAR 253 (Jan. 6, 2021). The court's holding is expected to have a substantial impact in future trials involving testimony by prosecution "gang experts."

Gonzalez was charged in Los Angeles County Superior Court with three second-degree robberies in violation of Penal Code Section 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, prosecutors alleged that Gonzalez acted in the robberies in furtherance of a criminal street gang within the meaning of Penal Code Section 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. The main issue under contention at trial was whether Gonzalez's actions related to gang activity. Long Beach Police Officer Alexander Roberts testified 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."

On cross-examination, Roberts admitted that many of the hallmarks of a gang-related crime were absent in Gonzalez's case. Gonzalez 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.

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. Such expert opinion, the court noted, must not be speculative. 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.

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.

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. 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 he or she is 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. 