Metropolitan News-Enterprise


Tuesday, November 12, 2002


Page 1


Trial Errors Require Reversal of Gang Member’s Conspiracy Conviction, Court of Appeal Rules


By a MetNews Staff Writer


A gang member was improperly convicted of conspiracy based on improper opinion testimony and insufficient evidence, the Fifth District Court of Appeal ruled Friday.

Kern Superior Court Judge Lee P. Felice allowed a police officer, testifying as an expert on gangs, to invade the province of the jury by drawing a conclusion that Lloyd Killebrew must have known that fellow gang members were in possession of a gun, Justice Dennis Cornell wrote for the panel.

Killebrew was one of a number of gang members arrested in August 1999, as Bakersfield police went on alert after a shooting at Casa Loma Park in which two people were killed by gunfire from a passing vehicle. The dead were part of a crowd attending a memorial for a local resident whose friends included members of the Country Boy Crips gang.

Later that night, police spotted 10 black men in three vehicles, traveling in close proximity. Recognizing one of the 10 as a member of the East Side Crips—a rival of the Country Boy Crips, and believed to be responsible for the shootings at the park—the police stopped the vehicle in which that person was traveling, a Chevrolet.

The officers seized a handgun, which according to police testimony was placed under the front seat by one of the passengers, and arrested the three occupants. All three were convicted of possessing the gun, but the Court of Appeal ruled that the police lacked probable cause for the stop and threw out all three convictions in separate opinions.

Two of those cases are awaiting review by the state Supreme Court.

After stopping the Chevrolet, the officers alerted their colleagues regarding the other two vehicles, a Chevrolet and a Mazda, which were later spotted parked at a taco stand.

Police searched the taco stand and found a handgun hidden in a shoebox next to a dumpster. Seven men were identified as having arrived at the stand in the Chevrolet and the Mazda, and were arrested.

Killebrew, who was not at the taco stand or in the Chevrolet, was later arrested and charged with conspiracy to possess both handguns. Police theorized that he had been in the Chrysler, because they saw four passengers in that vehicle but only three were arrested at the taco stand.

The conspiracy theory was that the 10 were traveling in the three vehicles together, and that they expected retaliation by the Country Boys and traveled armed. 

In support of that theory, they presented testimony by a police officer who qualified as a gang expert, William Darbee. The officer opined that after the shooting at the park, the gang members, including Killebrew, would insist on traveling together and on taking guns for protection, and that each member would necessarily know about and have access to each of the guns.

The defense objected to the scope of Darbee’s testimony, but Felice ruled that all of the officer’s opinions were admissible under People v. Gardeley (1996) 14 Cal.4th 605. The Gardeley court held that expert opinion was admissible to establish that a defendant belonged to a “criminal street gang,” as defined in the Street Terrorism Enforcement and Prevention Act. 

But Cornell, writing Friday for the Court of Appeal, said that Gardeley merely applied traditional rules allowing expert testimony on “customs and habits” to the gang context, and did not make all opinion testimony about gangs admissible. While Gardeley has been cited in at least 10 Court of Appeal opinions, the justice noted, “[n]one of these cases permitted testimony that a specific individual had specific knowledge or possessed a specific intent.”

He elaborated:

“Darbee’s testimony was the only evidence offered by the People to establish the elements of the crime.  As such, it is the type of opinion that did nothing more than inform the jury how Darbee believed the case should be decided.  It was an improper opinion on the ultimate issue and should have been excluded.”

Killebrew cannot be retried, the justice went on to say, because the prosecution failed to present substantial evidence of his guilt.

To be guilty of conspiracy under the prosecution’s theory, Cornell explained, the defendant would have to have been in one of the cars. But no witness placed him in any of the vehicles; he could not have been in the Chevrolet or Mazda, since each of the occupants of those cars was positively identified; and there was no evidence from which jurors could have drawn “an inference, reasonable or otherwise,” that he had been in the Chrysler.

The case is People v. Killebrew, F036957.


Copyright 2002, Metropolitan News Company