Gang Expert’s Testimony, in Response to Improper Hypothetical, Should Have Been Excluded

By: Wallin & Klarich

The California Court of Appeal recently held that Killibrew error [People v. Killibrew (2002) 103 CalApp.4th 644] resulted from a gang expert’s response to an improper hypothetical question posed by the prosecutor. The rule set forth in Killibrew is that an expert witness may not offer an opinion on what a particular defendant is thinking. The Court in this case noted that the prosecution cannot circumvent that rule “by asking the expert a hypothetical question that thinly disguises the defendants’ identity.” In this case the Court held the Killibrew rule was violated because the only difference between the hypothetical and the facts of the case were the names of the parties. Although the rule was violated, the Court nevertheless affirmed the defendants’ convictions, finding that the error was not prejudicial.

In the case, four individuals alleged by the prosecution to be members of a gang were charged with beating the victim. One of the special allegations in the case was that the defendants committed the beating “for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist criminal conduct by gang members….” (Pen. Code, § 186.22, subd. (b)(1).) To prove that special allegation, the prosecution called to the stand a gang expert.

In the hypothetical posed to the gang expert, the prosecutor called the victim “young baby gangster,” instead of his real name Phanakhon, and called the four defendants “three baby gangsters and one O.G. [Original Gangster].” The Court, finding that Killibrew error had been committed, stated that “the prosecution may not use a hypothetical question to conceal an expert’s improper testimony on the real defendants’ subjective knowledge and intent.” Nevertheless, the Court affirmed the judgment of conviction after finding that the error was not prejudicial to the defendants.

Because of the serious nature of gang allegations and their complexities, it is critically important that someone charged with a gang allegation immediately consult an experienced Southern California criminal defense attorney. At Wallin & Klarich, our experienced criminal defense attorneys have been handling gang allegations for more than 30 years and we will aggressively fight the charges on your behalf. Call us today at (888) 280-6839 for a free telephone consultation, and visit us on the web at We will be there when you call.

Posted In: Criminal Defense