Metropolitan News-Enterprise


Friday, September 17, 2010


Page 3


State Supreme Court to Review Ruling on Gang Expert’s Testimony




The California Supreme Court has agreed to review a Fourth District Court of Appeal ruling that the use of hypothetical questions to enable a gang expert to state an opinion on a defendant’s intent was improper, but harmless in the particular case.

The justices, at their weekly conference Wednesday in San Francisco, unanimously granted Xue Vang’s petition for review of his conviction and six-year sentence—including a gang enhancement—for felonious assault.

The court also granted review to his co-defendants, Danny Le, Dang Ha, and Sunny Sitthideth, but ordered their cases held until Vang’s is decided.

The victim, William Phanakhon of Mira Mesa, testified that he had spent time with members of the Tiny Oriental Crips, or TOC, gang but was not a member. He said he had known the defendants since 2007 and that he did not know Le well, but that the others were often present along with people he knew to be TOC members.

Affiliation Denied

Vang denied any gang affiliation, the other defendants all admitted membership in TOC.

By April 2008, he said, Phanakhon had decided to dissociate himself from gang members. One night, he testified, he received a phone call from a person whom he thought was a neighbor and agreed to visit that person at home.

After he stepped outside, however, he saw Vang, and later the other three. When he rounded the corner of his street, he said, he was struck from behind and people began punching him, causing him to lose consciousness.

A police detective testified he was in the area by coincidence and saw the assault from about 110 feet away. He arrested Vang after a short chase; the other three were arrested by other officers nearby.

The victim said he thought he was assaulted because he no longer wanted to socialize with TOC members and that he may have heard something about the gang that he was not supposed to hear.

Gang Expert

Prosecutors called Det. Daniel Hatfield as a gang expert. He testified to various aspects of gang culture, saying it was common for members to impose discipline on those who no longer wanted to hang out with the gang; that TOC was a mainly Laotian gang that claimed territory in the area where the assault occurred, and that the group had committed offenses that qualified it as a criminal street gang as the term is used in the relevant statute.

He said he believed that the victim and Vang were members, despite their denials, based on their documented “contacts” with known members. He explained that a month before the attack, Phanakhon’s car was stopped and a picture of a gang member was found in his passenger’s purse, and that several months earlier, police had discovered Phanakhon’s number along with those of known gang members on Ha’s cell phone.

Judge Michael Wellington allowed the expert to answer two hypothetical questions objected to by the defense lawyers.

He opined that if a “young baby gangster” in TOC was not hanging out with gang members or “putting in work” for the gang, the member might be physically assaulted in order to put him “in check.” He also answered a question that caused him to opine that a hypothetical individual was a gang member and that the attack on the hypothetical “young baby gangster” was gang-related.

Vang testified, against advice of counsel and despite the judge’s warning regarding impeachment, that he was not a gang member. On cross-examination, he acknowledged that he had prior felony convictions and hung out with TOC members, including on the night Phanakhon was assaulted.

‘Knowledge and Intent’

Justice James A. McIntyre, writing for the Fourth District’s Div. One, said the defense objections to the hypothetical questions should have been sustained under People v. Killebrew (2002) 103 Cal.App.4th 644, which held it was error to allow a gang expert to testify as to “the subjective knowledge and intent of each” of several gang members involved in the alleged crime.

Phrasing the questions as hypotheticals was not enough to avoid the error, McIntyre said, because it was clear who the questions were referring to. “Indeed, one of the defense attorneys reported hearing ‘laughter or tittering from the jury” when Ha’s defense attorney objected to the use of the hypothetical at an earlier stage in Detective Hatfield’s testimony,” the justice noted.

But the error was harmless, McIntyre said, because it could be inferred from the circumstances under which Phanakhon left his house that he was “set up,” the assault was sufficiently linked to the gang, and the detective’s observation that the victim did not fight back supported “the theory that the beating was some kind of group punishment rather than a simple fight between Phanakhon and Vang.”

The case is People v. Vang (2010) 185 Cal.App.4th 309.


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