Vang

An expert witness testified about whether a crime was gang related. The Court of Appeal held that the trial court erred in permitting the expert to respond to hypothetical questions the prosecutor asked because the questions closely tracked the evidence in a manner that was only thinly disguised. We disagree that the trial court erred. It is required, not prohibited, that hypothetical questions be based on the evidence. The questioner is not required to disguise the fact the questions are based on that evidence.

I. Facts and Procedural History

These facts are taken largely from the Court of Appeal opinion.

Defendants Xue Vang, Sunny Sitthideth, Danny LB, and Dang Ha were convicted of assault by means of force likely to produce great bodily injury for assaulting 20-year-old William Phanakhon. (Pen. Code, § 245, subd. (a)(1).) The jury also found true an enhancement allegation that the defendants committed the assault “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 . . . .” (Pen. Code, § 186.22, subd. (b)(1); see generally People v.…

Because I find no probability the jury would have returned a verdict more favorable to defendant had it heard the expert witness’s explanation of gang culture and practices, as it did, but not his opinion that the crime was gang motivated, as it also did, I concur in the judgment. But I do not join the majority opinion because I find it neither correctly states nor persuasively responds to the true question before us.

The majority characterizes the Court of Appeal’s holding to be that hypothetical questions must not too closely track the evidence. But both the appellate court and defendant accept that, to be of any value, a hypothetical question must be based on the evidence. To say the Court of Appeal was transforming “the requirement that a hypothetical question be rooted in the evidence into a prohibition,” as the majority does (maj. opn., ante, at p. 1046), is untrue and also evades the real issue in this case.

*1053 The Court of Appeal concluded the expert’s opinion was inadmissible not because it was based on assumed facts that only thinly disguised the prosecution’s evidence, but because based on those facts the expert was allowed to express an opinion that effectively…

An expert witness testified about whether a crime was gang related. The Court of Appeal held that the trial court erred in permitting the expert to respond to hypothetical questions the prosecutor asked because the questions closely tracked the evidence in a manner that was only thinly disguised. We disagree that the trial court erred. It is required, not prohibited, that hypothetical questions be based on the evidence. The questioner is not required to disguise the fact the questions are based on that evidence.

These facts are taken largely from the Court of Appeal opinion.

Defendants Xue Vang, Sunny Sitthideth, Danny Lê, and Dang Ha were convicted of assault by means of force likely to produce great bodily injury for assaulting 20-year-old William Phanakhon. (Pen. Code, § 245, subd. (a)(1).) The jury also found true an enhancement allegation that the defendants committed the assault "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 ...." (Pen. Code, § 186.22, subd. (b)(1); see generally People v. Albillar (2010) 51 Cal.4th 47,…