People v. Rouston

Filed 2/20/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080114

Plaintiff and Respondent,

v. (Super. Ct. No. SCD287842)

GEORGE THOMAS ROUSTON, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,

Jeffrey F. Fraser, Judge. Reversed and remanded for a new trial.

Mary McComb, State Public Defender, and Jessie Hawk, Senior Deputy

State Public Defender, under appointment by the Court of Appeal, for

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Charles C. Ragland, Assistant Attorney General,

A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for

Plaintiff and Respondent.

A jury convicted George Thomas Rouston, Jr. of premeditated

attempted murder (Pen. Code, §§ 187, 189, 664; count 11), conspiracy to

commit murder (§ 182, subd. (a)(1); count 2), and shooting at an occupied

vehicle (§ 246; count 3). The jury also found true several gang and firearm

enhancements. The trial court sentenced Rouston to 50 years to life in state

prison. Rouston’s convictions stemmed from a gang-related drive-by shooting

that occurred in the midst of a gang war between Rouston’s gang, the Logan

Heights Red Steps, and its rival Sherman Heights. The prosecution alleged

that Rouston was the passenger in a car driven by another gang member,

Issic Navarro, and that Rouston and Navarro both opened fire on the victim

in his car, hitting him in the face with one bullet.

On appeal from the judgment of conviction, Rouston alleges multiple

claims of error. He asserts the trial court erred by failing to exclude the

improper opinion testimony of the lead detective in the case, who was

permitted to opine on the most fundamental disputed issue of the case:

whether Rouston fired a gun. Rouston also asserts this opinion and others

the detective espoused at trial were based on subject matter in which the

detective had no expertise or training. In addition, Rouston contends the

trial court erred (1) by allowing a video of hearsay statements from an

eyewitness that took place minutes after the shooting; (2) by allowing the

interviewing police officer to testify about the same witness’s out-of-court

hand gestures; (3) by erroneously instructing the jury on the concept of

implied malice; (4) by misstating the law with respect to the personal

discharge of a firearm enhancement; (5) by failing to exercise its discretion

under newly enacted sentencing reforms; and (6) by improperly imposing

certain firearm enhancements on the charge of shooting at an occupied

1 Subsequent undesignated statutory references are to the Penal Code.

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vehicle. Finally, Rouston asserts that reforms made by Assembly Bill

No. 333 require reversal of the gang enhancements and the gang-related

firearm enhancements.

As we shall explain, we agree with Rouston that the trial court

prejudicially erred by allowing the lead detective to opine that Rouston fired

the bullet that struck the victim, and that this error infected the jury’s

verdict for each of the three crimes of which Rouston was convicted, requiring

reversal of the judgment. Accordingly, we do not reach the other claims of

error asserted by Rouston. The judgment of conviction is reversed and the

cause is remanded for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution’s Case

According to the parties’ stipulation at trial, the Sherman Heights and

Logan Heights Red Steps are criminal street gangs under the law as

amended by the STEP Forward Act of 2021. The gangs are rivals and they

claim adjacent San Diego neighborhoods as their territories. The parties

stipulated that on October 22, 2020, Sherman Heights gang member J.O. was

shot and killed in National City. The next day, in apparent retaliation, a 15-

year-old Logan Heights gang member, B.R., was shot and killed in the

adjacent neighborhood of Barrio Logan.

At the time of the shootings, Rouston was a long-time member of the

Logan Heights gang. Rouston was with B.R. when he was shot. When the

police arrived on the scene of B.R.’s shooting, B.R. was in Rouston’s car and

Rouston was planning to take B.R. to the hospital. Rouston was visibly upset

over B.R.’s death. After B.R.’s death and the subsequent shooting at issue

here, investigators found a vigil at Rouston’s home that displayed, among

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other things, a hat bearing B.R.’s gang moniker and a shirt bearing B.R.’s

image and the words “Rest in Peace.”

In midafternoon the day after B.R.’s death, Sherman Heights gang

member O.Z. went to Grant Hill Park, where he and other Sherman Heights

gang members gathered in remembrance of J.O. When the gathering

finished, the Sherman Heights gang members left the park, and O.Z. went

home. Later that afternoon, Navarro was seen at the memorial for J.O.

kicking over candles that had been lit at the gathering, which stained his

jeans and shoes with candlewax.

Around 5:00 p.m. that day, Navarro and Rouston drove to O.Z.’s

residence in a white Ford sedan owned by another Logan Heights gang

member. A witness observed a white sedan slowly drive past O.Z.’s house.

O.Z. then emerged from his house and got into his blue Honda Civic parked

in the street. The white car then turned back around and pulled up alongside

O.Z. With the two vehicles facing opposite directions so that their driver’s

side doors were adjacent, shots were fired from the Ford at O.Z. in the Honda.

One bullet hit O.Z. squarely in the face—the bullet was to “the right

portion of [O.Z.’s] nose” and “almost destroyed his face [and] part of his

mouth.” O.Z.’s car then rolled forward and hit a car parked in front of it. The

police arrived shortly after the shooting to find O.Z. sitting outside, “bleeding

profusely” from the gunshot wound to his face, with his mother holding a

towel to his head. Paramedics arrived and took O.Z. to the hospital. The

inside of O.Z.’s vehicle contained blood, bone, and facial tissue. The bullet

itself was found lodged in O.Z.’s neck.

Three witnesses to the shooting testified at trial. P.C. lived on the

street where the shooting occurred and was returning home with her

boyfriend, I.L., at that time. She had just exited I.L.’s truck when she saw

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the white sedan slowly drive by O.Z.’s house. As she was moving her trash

cans from the street to make room to park, she saw O.Z. exit his house and

get into his car. She then saw the white sedan again and heard the gunshots.

On the witness stand, P.C. gave conflicting testimony about the

shooting. Initially, she testified that she did not see who was in the car, then

she stated she remembered telling a police officer there were two individuals

in the white car and that they wore blue hats with a white “SD” logo. P.C.

did not remember telling the officer that both men were holding guns.

Eventually, she recanted and testified she did remember telling the officer

she saw two men in the car and both were holding guns.

After P.C. left the stand, the prosecution showed the jury a video of the

interview of P.C. that was recorded by the body-worn camera of the

interviewing police officer 10 minutes after the shooting. During the

interview, P.C. told the officer that there were two men in the car, and that

both fired guns out of the driver’s window.2

During his testimony, P.C.’s boyfriend I.L. stated he could not

remember anything about the shooters. Another officer at the scene who

interviewed I.L. testified that I.L. told him he saw two men in a white sedan

and that the driver had a black, glock-style handgun in his right hand.

Another neighbor, A.C., was also nearby before the shooting. During

his testimony, A.C. stated that he said “hi” to O.Z. before O.Z. got into his car.

When the shooting began moments later, A.C. ducked behind another car.

After the shooting ended, A.C. ran to help O.Z. and used a shirt to help stop

the bleeding. A.C. stayed with O.Z. for a few minutes until more help

2 The interviewing officer also testified. He told the jury that P.C. made

physical gestures about the shooters’ positions that he interpreted to mean

the passenger was holding his gun with his right hand and firing across the

driver’s face out the driver-side window of the car.

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arrived. A.C. testified he did not recall talking to a police officer after the

shooting or telling the police he saw a white sedan. A.C.’s testimony was

impeached by an investigator assigned to the District Attorney’s gang

prosecution unit who drove A.C. home from court the day he testified. The

investigator stated that during the car ride, A.C. volunteered that both

passengers in the white sedan fired at O.Z.

In addition to the witnesses, a driver in the area had a dashboard

camera (“dashcam”) that was recording at the time and captured audio of the

gunfire. On the recording, one gunshot, then a pause of several seconds, and

then seven additional gunshots in rapid succession are audible.

Soon after the shooting, the police located the white Ford and engaged

in a high-speed pursuit. During the chase, Navarro stopped, discarded a grey

“Ruger” handgun on the street, and dropped off Rouston. Video taken by a

surveillance camera at an apartment complex near where Rouston was

dropped off showed the Ruger lying on the ground, and showed Rouston was

picked up by a black SUV shortly after getting out of the Ford.

After dropping off Rouston, Navarro continued his flight, then crashed

the Ford sedan and was apprehended by police. Rouston was arrested a little

over two weeks later. Inside the Ford sedan, the police found a full 9-

millimeter handgun magazine and candlewax matching the candles Navarro

kicked over at the candlelight vigil earlier that day. The police also recovered

a black “ghost gun”—a weapon without a serial number or registration—on

the ground near the path of the police chase of the Ford.

Investigators found that the ghost gun was inoperable because a shell

casing was stuck in the gun’s ejection port, jamming it. The gun could not be

fired again unless it was manually cleared. Investigators determined the

Ruger handgun had fired seven shots at O.Z.’s vehicle, in the process

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expending six shell casings onto the street about 10 to 15 feet away from

O.Z.’s car, and one onto the floorboard of the white sedan.3 Four of the

bullets hit the exterior of O.Z.’s car on the driver side and a fifth hit the car

that O.Z.’s car rolled into. The Ruger had eight rounds remaining in the 15-

round magazine inserted in it, consistent with seven shots having been fired.

Both guns were tested for DNA. At trial, the criminalist who

performed the tests stated the swabs taken from the Ruger showed the DNA

of several contributors, including Navarro, and that he found limited support

to exclude Rouston as a contributor. The tests showed that Navarro was the

primary contributor of DNA on the swab taken from the gun’s trigger. The

DNA testing on the ghost gun was less conclusive. Because there were more

than five contributors of DNA on two of three swabs taken from the gun, the

lab was unable to test those two swabs. The tests of the third swab showed

five DNA contributors, including Navarro and another Logan Heights gang

member, but not Rouston.

As we set forth in more detail below, the prosecution’s key witness in

the case was the lead investigator for the shooting, Detective Kevin

Jankowski. Jankowski took the stand five separate times over the four-day

trial, and served as the prosecution’s gang expert.4 He described his

investigation and told the jury, over the defense’s objection, that based on his

own experience and other witnesses’ testimony he believed Rouston fired the

3 Forensics testing showed the six expended shell casings at the scene of

the shooting were from the Ruger, as was the one casing found inside the

white sedan.

4 The reporter’s master chronological index shows Jankowski was on the

stand a total of seven times, but on the first day of trial his testimony was

interrupted three times to allow other prosecution witnesses to go out of turn

before Jankowski’s initial testimony was completed.

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ghost gun, and the bullet fired by Rouston struck O.Z. in the face. Jankowski

also opined that the shooting was committed for the benefit of Rouston and

Navarro’s gang and in retaliation for the shooting of B.R. the day before. In

addition, Jankowski was called to the stand several times to summarize or

opine on the testimony of other prosecution witnesses, including P.C.’s

observations of the shooting, the driver of the car whose dashcam video

recorded the gunshots, a police officer who recovered the jammed ghost gun

from the area it was dropped, and a firearm training officer employed by the

police department.

B. Defense Case

The defense called no witnesses. Because the prosecution suggested

that the passenger of the white sedan fired the gun with his right hand, the

defense presented a stipulation that Rouston writes with his left hand. The

defense theory of the case was that even if Rouston was the passenger, he did

not fire a gun and had no knowledge of, or intent to assist, Navarro’s plan to

kill O.Z.

C. Verdict and Sentencing

After five and a half hours of deliberations, the jury reached its verdict

finding Rouston guilty of attempted premeditated murder (§§ 187, 189, 664;

count 1); conspiracy to commit murder (§ 182, subd. (a)(1); count 2); and

shooting at an occupied vehicle (§ 246; count 3). The jury also found all of the

charged enhancements true: the gang enhancement allegations attached to

each count (§ 186.22, subd. (b)(1), (4), and (5)); the personal use and

intentional discharge of firearm allegations attached to each count

(§ 12022.53, subds. (b), (c)); and the discharge of a firearm causing great

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bodily injury in the commission of an offense committed to benefit a criminal

street gang attached to each count (§ 12022.53, subds. (c), (d), (e)(1)).

At the sentencing hearing, the trial court sentenced Rouston to 25

years to life for conspiracy to commit murder, and to a consecutive 25 years to

life on the vicarious gang-related firearm enhancement under

section 12022.53, subdivisions (d) and (e)(1). The court stayed sentences on

all other charges and enhancements. Rouston filed a timely notice of appeal

from the judgment.

DISCUSSION

Rouston’s primary argument on appeal is that the trial court erred by

allowing Jankowski’s improper opinion testimony. In support, he makes

three main claims. First, Rouston asserts that Jankowski’s opinion that he

fired the ghost gun first, striking O.Z., was improper because Jankowski was

not qualified to render such an opinion. Next, he argues that this “expert”

opinion was also “logically and factually unsupported,” and thus should have

been excluded. Finally, Rouston contends Jankowski’s testimony that

Rouston, and not Navarro, fired the bullet that struck O.Z., which Jankowski

explicitly stated was based on the testimony of other witnesses, was improper

because it usurped the jury’s role. Rouston argues this improper testimony

by Jankowski was prejudicial to his defense and requires reversal.

In response, the Attorney General asserts that Rouston forfeited some

of these issues by failing to object to Jankowski’s testimony in the trial court.

The Attorney General also argues that Jankowski’s opinions were not

impermissibly speculative and were a proper subject for expert testimony.

Alternatively, the Attorney General argues that any error with respect to

Jankowski’s testimony was harmless.

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I

Additional Background

Before trial, Rouston submitted several motions in limine. Included

was a motion to exclude witnesses from offering any express or implied

opinion on Rouston’s guilt. The motion was not opposed and the trial court

granted it. In addition, the court granted a defense motion to preserve issues

for appeal that were raised in limine. During the same pretrial conference,

the prosecution designated Jankowski as the investigating officer for trial.

Thereafter, the court allowed Jankowski to sit at the prosecutor’s counsel

table and observe the entire trial.

When he took the stand as the prosecution’s first witness, Jankowski

testified that he had been a police officer for 15 years. He testified to his

experience and training regarding gangs, and his role at the time of the

shooting in this case as a member of the police department’s street gang unit

and the detective designated to the gangs that were involved. His second

time on the stand, after the prosecutor asked him how many gunshots he

heard on the dashcam video that recorded the shooting, Jankowski testified

to his experience in firing guns. He stated that he had attended required

firearm trainings multiple times each year during his career and also

regularly visited firearm ranges for general practice.

On the second day of trial, the prosecutor called Jankowski to the stand

following the testimony of the driver whose dashcam recorded the shooting.

Jankowski testified that he had watched the video probably two dozen times,

and that he was certain it recorded eight gunshots: one gunshot, a pause, and

then seven more in rapid succession. Jankowski then explained his firearm

experience, and the prosecutor asked, “based on all your training, the

evidence collected, and then this camera that we see and the location of the

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white sedan, what do you believe happened with relation to the gunshots?”

Jankowski responded: “So I believe that as the white sedan is rounding the

corner, they are pulling up alongside [O.Z.]’s vehicle to the point where the

driver’s window of the white sedan is directly adjacent to the driver’s window

of [O.Z.]’s vehicle. I believe it’s at that point that the first round is fired

striking [O.Z.] in the face.”

The prosecutor then asked Jankowski to explain why he believed this.

Jankowski responded, “For several reasons. One, if [O.Z.] is turning to look

and see who is directly next to him, that is how that round is going to be fired

directly into his nose and then run down his trachea into his aortic

bifurcation. If that round were fired behind him, [O.Z.] would have had to

have been sticking his head all the way out of the vehicle and literally be

facing almost head-on the gunfire that’s coming in his direction, which we

clearly don’t see in that vehicle or in that video.”

Jankowski then speculated that “after [O.Z.] was hit, he likely took his

foot off the brake of his vehicle causing his vehicle to roll at—I don’t know—I

guess probably five to ten miles an hour into the parked vehicle ahead of him.

And because [O.Z.] was probably in great pain and distracted by the fact he

had just been shot, he was not attempting to steer the vehicle in any sort of

fashion. And then as the vehicle collides with the vehicle in front of him, the

suspect vehicle either pulls slightly ahead or was already slightly ahead,

given the fact that [O.Z.]’s vehicle had pulled forward. It was at that point

that the additional shots were fired in the direction of [O.Z.]’s vehicle, which

explains why they would be at an angled trajectory toward the rear of his

vehicle.”

The prosecutor then showed Jankowski a picture of the blood splatter

inside O.Z.’s car and asked him if it factored into his “opinion as to when and

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where [O.Z.] was shot.” Jankowski responded that the direction of the

splatter was consistent with his theory that the first shot hit O.Z. in the face

as he was turned towards the passing white sedan. During this testimony,

Rouston’s attorney did not make any objections.

Later on the second day of trial, the prosecution played the video of the

body-worn camera of the officer who interviewed P.C. shortly after the

shooting. The prosecution then recalled Jankowski to the stand. The

prosecutor asked him if, “based on the testimony that [we heard] and body-

worn camera that we reviewed from P.C.,” he had “any opinion about putting

together the evidence with the testimony.” Jankowski began to answer, but

defense counsel objected, contending the question was not the proper subject

for an expert opinion and invaded the province of the jury. The trial court

overruled the objection.

Jankowski responded, “So after seeing the spent shell casing lodged in

the handgun and after reviewing the video from the dash camera, my belief

was that after the first round was fired, it was fired specifically from the

black handgun because the round had become jammed.” Jankowski

continued, “In this case, it made sense to me that after firing the first round

and the gun jamming, that the driver, who was also armed with a handgun,

fired additional rounds at the vehicle.” Rouston’s counsel again objected,

“Assumes facts not in evidence.” The trial court sustained the objection and

struck the statement.

The prosecutor then again asked Jankowski’s opinion regarding the

car’s direction of travel and from where the shots were fired. Defense counsel

again objected; this time the court overruled the objection. Jankowski

responded, “So I believe that the first round—which I believe came from the

black handgun, as it had the round that had jammed—was the round that

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was used to actually strike [O.Z.]” Jankowski then stated, “[A]ll the other

rounds were fired from an angle, and as we can clearly see from the dashcam

video, that [O.Z.] is not sticking his head out the window and exposing

himself to that potential angle of fire, coupled with the fact that the interior

of the vehicle did not have any signs of those rounds that were fired at an

angle coming through the vehicle that potentially could have struck him, I

personally concluded that the round that hit [O.Z.] had likely come from the

black handgun.”

Defense counsel objected, “Assumes facts not in evidence that it was

the black handgun that actually—.” The court interrupted and overruled the

objection, asking the detective, “This is based on your investigation?”

Jankowski confirmed it was, and the court again stated the objection was

overruled.

When Jankowski was called to the stand for a fourth time, the

prosecutor asked, “Based on the evidence we have reviewed, the forensic

evidence, the guns recovered, and what we understand about malfunction, do

you have an opinion as to which gun fired that first shot?” Jankowski

answered, “I believe it was the black ghost gun.” The prosecutor then asked,

“And based on the witness testimony, who was holding the black ghost gun?”

Defense counsel objected, “Assumes facts not in evidence,” but the trial court

again overruled the defense objection. Jankowski answered, “I believe it was

Mr. Rouston.” The prosecutor asked, “And whose witness testimony was that

based off of?” Jankowski answered, “Mostly [P.C.]’s testimony.”

II

Legal Standards

Evidence Code section 801 provides: “If a witness is testifying as an

expert, his testimony in the form of an opinion is limited to such an opinion

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as is: [¶] (a) Related to a subject that is sufficiently beyond common

experience that the opinion of an expert would assist the trier of fact; and [¶]

(b) Based on matter ... that is of a type that reasonably may be relied upon by

an expert in forming an opinion upon the subject to which his testimony

relates, unless an expert is precluded by law from using such matter as a

basis for his opinion.”

“[U]nder Evidence Code section 801, the trial court acts as a gatekeeper

to exclude speculative or irrelevant expert opinion. ... ‘[T]he expert’s opinion

may not be based “on assumptions of fact without evidentiary support

[citation], or on speculative or conjectural factors.... [¶] Exclusion of expert

opinions that rest on guess, surmise or conjecture [citation] is an inherent

corollary to the foundational predicate for admission of the expert testimony:

will the testimony assist the trier of fact to evaluate the issues it must

decide?” ’ ” (Sargon Enterprises, Inc. v. University of Southern California

(2012) 55 Cal.4th 747, 770 (Sargon).) “Under section 801, therefore, the trial

court must exclude speculative or irrelevant expert opinion.” (Garner v.

BNSF Railway Co. (2024) 98 Cal.App.5th 660, 675.)

As a general rule, an expert may give testimony in the form of an

opinion only if it is “[r]elated to a subject that is sufficiently beyond common

experience that the opinion of an expert would assist the trier of fact.” (Evid.

Code, § 801, subd. (a); People v. Sandoval (2015) 62 Cal.4th 394, 414–415; see

People v. Dejourney (2011) 192 Cal.App.4th 1091, 1110.) In cases

“ ‘ “ ‘ [w]here the jury is just as competent as the expert to consider and weigh

the evidence and draw the necessary conclusions, then the need for expert

testimony evaporates.’ ” ’ ” (Burton v. Sanner (2012) 207 Cal.App.4th 12, 19.)

Thus, “[e]xpert testimony will be excluded ‘ “ ‘when it would add nothing at

all to the jury’s common fund of information, i.e., when “the subject of inquiry

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is one of such common knowledge that men [and women] of ordinary

education could reach a conclusion as intelligently as the witness.” ’ ” ’ ”

(Ibid.; see People v. Jones (2012) 54 Cal.4th 1, 60; Dejourney, at p. 1110.)

Otherwise admissible expert opinion testimony “is not objectionable

because it embraces the ultimate issue to be decided by the trier of fact.”

(Evid. Code, § 805; People v. Prunty (2015) 62 Cal.4th 59, 89.) “However, the

admissibility of opinion evidence that embraces an ultimate issue in a case

does not bestow upon an expert carte blanche to express any opinion he or

she wishes. [Citation.] There are limits to expert testimony, not the least of

which is the prohibition against admission of an expert’s opinion on a

question of law.” (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155,

1178 (Summers).) Critically, “[e]ven if an expert’s opinion does not go to a

question of law, it is not admissible if it invades the province of a jury to

decide a case.” (Id. at p. 1182.)

“Expert opinions which invade the province of the jury are not excluded

because they embrace an ultimate issue, but because they are not helpful (or

perhaps too helpful). ‘[T]he rationale for admitting opinion testimony is that

it will assist the jury in reaching a conclusion called for by the case. “Where

the jury is just as competent as the expert to consider and weigh the evidence

and draw the necessary conclusions, then the need for expert testimony

evaporates.” [Citation.]’ [Citations.] In other words, when an expert’s

opinion amounts to nothing more than an expression of his or her belief on

how a case should be decided, it does not aid the jurors, it supplants them.”

(Summers, supra, 69 Cal.App.4th at p. 1183.)

“Except to the extent the trial court bases its ruling on a conclusion of

law (which we review de novo), we review its ruling excluding or admitting

expert testimony for abuse of discretion. [Citations.] A ruling that

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constitutes an abuse of discretion has been described as one that is ‘so

irrational or arbitrary that no reasonable person could agree with it.’

[Citation.] But the court’s discretion is not unlimited, especially when, as

here, its exercise implicates a party’s ability to present its case. Rather, it

must be exercised within the confines of the applicable legal principles.”

(Sargon, supra, 55 Cal.4th at p. 773.)

III

Jankowski Provided Improper Opinions on Rouston’s Guilt

With these legal principles in mind, we conclude that Jankowski

provided improper opinions on Rouston’s guilt. His explicit testimony that

Rouston fired the weapon that wounded O.Z. was “too helpful” and

supplanted the jury’s role. (Summers, supra, 69 Cal.App.4th at p. 1183.) The

admissibility of an expert’s opinion hinges on “ ‘whether the subject of inquiry

is one of such common knowledge that men of ordinary education could reach

a conclusion as intelligently as the witness or whether, on the other hand, the

matter is sufficiently beyond common experience that the opinion of an

expert would assist the trier of fact.’ ” (People v. Brown (1981) 116

Cal.App.3d 820, 827, quoting People v. Cole (1956) 47 Cal.2d 99, 103.) When

an expert testifies to conclusions that a lay jury can draw, it suggests “ ‘ “that

the judge and jury may shift responsibility for decision to the witnesses.” ’ ”

(Brown, at p. 828.)

Here, Jankowski could only have inferred that Rouston, and not

Navarro, fired the ghost gun from P.C.’s statement to the investigating police

officer that the passenger fired a black gun, which Jankowski opined was the

jammed ghost gun, and the other evidence identifying Rouston as that

passenger. Jankowski stated as much during his testimony, telling the jury

he drew this conclusion primarily from P.C.’s testimony. This inference

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required no expertise, and Jankowski brought no expertise to bear on the

issue. The jury heard the other witness testimony and was equally

competent to “weigh the evidence and determine what the facts were[.]”

(People v. Vang (2011) 52 Cal.4th 1038, 1048.)

Indeed, the trial court recognized early in the trial that Jankowski was

walking close to the line of giving improper testimony on the issues of who

fired the shot that struck O.Z. and on Rouston’s guilt. After Jankowski

testified that Rouston’s tattoos led Jankowski to arrest Rouston based on the

surveillance footage from a nearby apartment complex, defense counsel

objected. The objection was sustained and at the next break in the trial,

defense counsel asked for a mistrial. During that discussion, the trial court

noted that in determining if the expert crossed the line, it would be improper

for Jankowski to state, “ ‘In my belief as a detective in the Gang Unit, that

man is guilty of murder,’ and he points to the defendant.” The court stated,

“That would be clearly improper.” After some additional discussion, the court

reiterated the point, “I just don’t want him testifying, ‘That Rouston guy over

there, yeah, he is the killer in my opinion.’ That’s clearly inappropriate.”5

Despite this discussion, on the last day of the trial, when Jankowski

was called to the witness stand for a fourth time, the prosecutor played the

dashcam video for the jury, stopped it after the first shot was heard, and

asked Jankowski for his opinion on which gun fired that shot. Jankowski

responded, “I believe it was the black ghost gun.” The prosecutor then asked,

“And based on the witness testimony, who was holding the black ghost gun?”

5 In addition, the court struck a portion of Jankowski’s testimony that

crossed the line during his third time on the witness stand, when he

speculated the driver fired the Ruger after the bullet from the ghost gun

struck O.Z.

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Over defense counsel’s objection, Jankowski answered, “I believe it was

Mr. Rouston.”6

Given Jankowski’s status as a gang expert, the designated investigator

who testified repeatedly throughout the trial, and a detective, “the jury had

every reason to look to [Jankowski] as a far better judge than they could be”

regarding the reliability of other witnesses’ testimony, and what inferences to

draw from the prosecution’s other evidence. (People v. Brown (2016) 245

Cal.App.4th 140, 172.) Jankowski, “in essence, invited the jury to abdicate

its duty to decide the issue” and defer to his assessment that Rouston fired

the ghost gun and shot O.Z. in the face. (Id. at p. 165.) Because Jankowski’s

testimony usurped the jury’s role, the trial court abused its discretion by

allowing it.

6 The Attorney General points to People v. Singleton (2010) 182

Cal.App.4th 1 to support his assertion that Jankowski’s testimony was proper

because it “offered an interpretation of [eyewitness] testimony that hinged on

his own expert assessment of the other evidence presented at trial.”

Singleton, a police excessive force case, considered the testimony of a retired

police officer with expertise “in controlling arrestees.” (Singleton, at p. 10.)

The retired officer opined based on his viewing of a recording of part of the

incident in question that the defendant police officer had control over the

victim arrestee at the time of the alleged assaults. The court rejected the

defendant’s assertion that the officer’s opinion was not beyond the common

experience of the jurors because the officer “explained control techniques he

saw [defendant] use and opined whether [defendant] appeared to have

control of [the victim].” (Id. at p. 21.) The Attorney General points to no

analogous expertise Jankowski provided in opining that Rouston used the

ghost gun to fire the bullet that struck O.Z.

18

IV

Rouston Forfeited His Objections to

Jankowski’s Testimony Based on Lack of Expertise

The Attorney General contends that Rouston forfeited some of the

arguments he makes concerning Jankowski’s testimony by failing to object at

trial. Specifically, the People contend Rouston forfeited his arguments that

Jankowski was not qualified to render opinions on the sequence and location

of the gunshots based on their “angled trajectory,” blood splatter, and the

trajectory of the bullet lodged in O.Z.’s neck. Rouston responds that the

issues were preserved for appeal by the court’s order granting his motions in

limine to exclude improper expert testimony and to preserve the issue

without additional objection during the trial.7

We agree with the People that these arguments were not sufficiently

preserved for appellate review. Whether an evidentiary objection is

preserved for review by a pretrial motion is determined by the precise subject

matter of the in limine motion and ruling. “In some cases, a specific objection

to a particular body of evidence can be advanced and ruled upon definitively

on a motion in limine, thus satisfying the requirements of [Evidence Code

7 The Attorney General’s forfeiture argument is directed only to

Rouston’s claim on appeal that Jankowski gave unqualified opinions related

to ballistics, firearms, blood splatter, and medical forensics. As set forth in

section I, the record is clear that Rouston’s trial counsel objected to the

opinions Jankowski rendered about the identity of the person who shot O.Z.

Thus, the forfeiture argument is not directed to the challenge to this

testimony, which we have concluded was erroneously admitted.

19

section 3538].” (People v. Morris (1991) 53 Cal.3d 152, 189, disapproved on

other grounds by People v. Stansbury (1995) 9 Cal.4th 824 (Morris).) If the

motion’s objection is “specific,” “directed to an identifiable body of evidence,”

and “advanced at a time when the trial judge could give fair consideration to

the admissibility of the evidence in its context,” no further objection or motion

is necessary to preserve the issue. (Morris, at p. 189.)

In other cases, a pretrial motion will be insufficient to preserve an

evidentiary objection for appeal. “For example, it may be difficult to specify

exactly what evidence is the subject of the motion until that evidence is

offered. Actual testimony sometimes defies pretrial predictions of what a

witness will say on the stand. Events in the trial may change the context in

which the evidence is offered to an extent that a renewed objection is

necessary to satisfy the language and purpose of Evidence Code section 353.”

(Morris, supra, 53 Cal.3d at pp. 189‒190.) “ ‘[U]ntil the evidence is actually

offered, and the court is aware of its relevance in context, its probative value,

and its potential for prejudice, matters related to the state of the evidence at

the time an objection is made, the court cannot intelligently rule on

admissibility.’ [Citation.] In these kinds of circumstances, an objection at

the time the evidence is offered serves to focus the issue and to protect the

record.” (Ibid.)

8 Evidence Code section 353 provides: “A verdict or finding shall not be

set aside, nor shall the judgment or decision based thereon be reversed, by

reason of the erroneous admission of evidence unless: [¶] (a) There appears of

record an objection to or a motion to exclude or to strike the evidence that

was timely made and so stated as to make clear the specific ground of the

objection or motion; and [¶] (b) The court which passes upon the effect of the

error or errors is of the opinion that the admitted evidence should have been

excluded on the ground stated and that the error or errors complained of

resulted in a miscarriage of justice.”

20

Here, on the second day of trial, Jankowski took the stand and

described the theory of the case that he developed based on his examination

of the dashcam video, the bullet holes in O.Z.’s car, the way the bullet entered

O.Z.’s face, and the blood and other matter that was left in O.Z’s car after he

was shot. Jankowski opined, without objection, that the sequence of the

gunshots audible on the dashcam video suggested that the ghost gun fired

one bullet and jammed, that first bullet hit O.Z. as his face was turned to see

the Ford sedan passing by, and that the Ruger fired seven shots that hit the

outside of O.Z.’s car. Jankowski also theorized that after O.Z. was hit by the

bullet from the ghost gun, stunned and injured, he took his foot off the brake

of his car and rolled into the car parked in front of him. During this

testimony, Rouston’s defense counsel again made no objections.

As discussed, Rouston relies solely on his successful motion in limine

before trial to preserve the issue for our review. However, that motion did

not address the exclusion of the type of testimony at issue here. Rather, the

motion requested that the court preclude any expert from opining on

Rouston’s guilt and on the credibility of other witnesses. Because these

arguments were not directed to the testimony Rouston challenges, the court’s

order granting the in limine motion was not sufficient to preserve the

argument for our review. (See Morris, supra, 53 Cal.3d at p. 190.)

However, while we agree with the Attorney General that these

arguments were forfeited, we note that Jankowski’s extensive testimony on

these topics, which was largely based on the testimony of other witnesses,

amplified the force of his improper testimony about Rouston’s guilt. On this

point, Rouston argues that Jankowski acted “as an ‘overview witness’ to

summarize” the prosecution’s “case, fill in gaps, and resolve conflicts and

ambiguities in the evidence through [his] improper opinion[s].” In support of

21

this concept, Rouston looks to federal case law, where the circuit courts have

defined an overview witness as “a government agent who testifies in a

criminal matter as the prosecution’s first witness (or at least as one of its

earliest witnesses) and provides an overview of the prosecution’s case to

come.” (United States v. Brown (1st Cir. 2012) 669 F.3d 10, 24.)

Federal courts have described this type of testimony as “inherently

problematic” because “(1) the jury could be influenced by statements of facts

and credibility determinations not in evidence; (2) later testimony could be

different from what the overview witness assumed; and (3) the jury may

place greater weight on evidence that they perceive has the imprimatur of

the government.” (United States v. Brown, supra, 669 F.3d at p. 24; see also

United States v. Agramonte-Quezada (1st Cir. 2022) 30 F.4th 1, 19

[“ ‘Testimony by a law enforcement agent constitutes impermissible

“overview” testimony when it effectively opines that a defendant is guilty

“based on the totality of information gathered” in the agent’s investigation,

rather than relaying the agent’s first-hand experiences and observations.”

[Citations.] ‘[H]aving [an agent] so testify amount[s] to simply dressing up

argument as evidence.’ ”]; United States v. Banks (10th Cir. 2018) 884 F.3d

998, 1023 [“ ‘overview testimony is susceptible to abuse,’ such as when a

witness testifies about a defendant’s truthfulness or likelihood of being

involved in a crime’ ”]; and United States v. Garcia (2d Cir. 2005) 413 F.3d

201, 214 [overview or summary law enforcement witnesses are “particularly

problematic in criminal cases because [they] allow[] ‘the government to paint

a picture of guilt before the [supporting] evidence has been introduced’ ”].)

The federal courts have also held that a “summary” law enforcement

witness, “who testif[ies] at the end of the government’s case instead of the

beginning,” similarly creates “the possibility that the credibility of the

22

summary witness may be substituted for the credibility of the evidence

summarized.” (United States v. Flores-de-Jesus (1st Cir. 2009) 569 F.3d 8,

18.) Regardless of when summary testimony by a law enforcement agent is

presented during a trial, such testimony is inherently “ ‘problematic because

juries may place greater weight on evidence perceived to have the

imprimatur of the government.’ ” (Id. at pp. 17, 19; see also United States v.

Perez-Ruiz (1st Cir. 2003) 353 F.3d 1, 13 [“It follows inexorably that the

prosecution cannot prop up a dubious witness by having a government agent

place the stature of his office behind the witness. [Citation.] Although the

prosecution’s success often depends on its ability to convince the jury of a

particular witness’s credibility, it cannot entice the jury to find guilt on the

basis of a DEA agent’s opinion of the witness’s veracity.”].)

Although Jankowski did not provide an overview of the case at the

start or the end of the prosecution’s presentation of evidence, his repeated

testimony throughout trial, including to summarize the testimony of other

witnesses and to provide his theory about Rouston’s guilt, was problematic

for the same reasons as that of an overview witness. The jury likely placed

significant weight on the statements of the lead detective in the case

23

summarizing the testimony of the other witnesses, and possibly substituted

the credibility of Jankowski for that of the percipient witnesses.9

V

The Admission of Jankowski’s Opinion That Rouston

Fired the Bullet That Struck O.Z. Prejudiced His Defense

and Requires Reversal of The Jury’s Verdict

We review the erroneous admission of evidence in violation of state law

under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836.

(People v. Prieto (2003) 30 Cal.4th 226, 247.) Reversal is required where it is

reasonably probable that the jury would have reached a result more favorable

to appellant absent the error. (Ibid.) Probability “ ‘ “does not mean more

9 We also note that the force of Jankowski’s testimony was amplified by

his dual role as percipient and expert witness. As with the concept of an

overview witness, the federal courts have also identified inherent problems

that are created by this type of dual testimony. For example, in United

States v. Vera (9th Cir. 2014) 770 F.3d 1232, the Ninth Circuit partially

reversed a narcotic offense conviction after an investigator in the case

testified as both an expert in drug jargon and as a lay witness. (Id. at

pp. 1241‒1243.) The court noted that without adequate jury instruction, such

dual capacity testimony raises serious “concerns” because “an agent’s status

as an expert could lend him unmerited credibility when testifying as a

percipient witness, cross-examination might be inhibited, jurors could be

confused and the agent might be more likely to stray from reliable

methodology and rely on hearsay.” (Id. at p. 1242; see also id. at p. 1243

[district court’s failure to “instruct the jury on how to appropriately”

distinguish expert and lay testimony “substantially heightened the ‘risk that

the jury [would] defer to the officer’s superior knowledge of the case and past

experiences with similar crimes’ ”]; United States v. Torralba-Mendia (9th

Cir. 2015) 784 F.3d 652, 658 [“We have cautioned district courts about the

dangers of allowing a case agent to offer both expert and lay opinion

testimony.”]; United States v. Freeman (9th Cir. 2007) 498 F.3d 893, 903 [“a

case agent who testifies as an expert receives ‘unmerited credibility’ for lay

testimony”].) Similar concerns were created in this case by Jankowski’s

repeated trips to the witness stand in a dual capacity.

24

likely than not, but merely a reasonable chance, more than an abstract

possibility.” ’ ” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050,

italics in original.) However, where the erroneous admission of evidence

results in a fundamentally unfair trial in violation of an appellant’s

constitutional rights, the appellate court will reverse unless the error is

harmless beyond a reasonable doubt. (Chapman v. California (1967) 386

U.S. 18, 24; see People v. Julian (2019) 34 Cal.App.5th 878, 890.)

Rouston contends the trial court’s errors with respect to Jankowski’s

testimony were prejudicial under either standard of review. The Attorney

General asserts that Rouston’s rights under the federal constitution were not

implicated and, thus, the Watson standard applies. We need not reach this

issue because we conclude that the admission of Jankowski’s testimony

concerning who fired the bullet that struck O.Z. was prejudicial under the

less stringent Watson standard.

Jankowski opined on the central issue in the case—whether Rouston

fired a gun. This improper testimony established the specific intent

necessary to prove premeditated attempted murder and conspiracy to commit

murder under either a direct perpetrator or aider and abettor theory. (People

v. Swain (1996) 12 Cal.4th 593, 607 [“a conviction of conspiracy to commit

murder requires a finding of intent to kill”]; People v. Lee (1987) 43 Cal.3d

666, 670 [“specific intent to kill is a requisite element of attempted murder”];

People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [firing a gun at victim

sufficient to support inference of intent to kill].) Evidence that Rouston fired

a gun also constituted direct evidence of a violation of section 246, firing at an

occupied vehicle, and the firearm enhancements under section 12022.53,

subdivisions (b), (c), (d), and (e)(1). (See CALCRIM Nos. 965, 3146, 3148.)

25

Without Jankowski’s improper testimony that Rouston fired the shot

that struck O.Z., there is a reasonable probability the jury would have

reached a different result. To support its theory that Rouston was the

shooter of the bullet that struck O.Z., the state presented the conflicting

testimony of P.C., and the out-of-court statements of O.Z.’s neighbors, A.C.

and P.C., which were relayed to the jury through a prosecution investigator

and a police officer, respectively. While on the witness stand, A.C. stated

that on the day of the shooting he briefly spoke with O.Z. before O.Z. got into

his car, but that he did not see the shooting because as soon as he heard

gunshots he ducked behind a nearby parked car. This testimony was then

impeached by the District Attorney’s investigator who told the jury that

witnesses to gang crimes are often scared to cooperate with the prosecution

because they fear retaliation from the gang and that A.C. volunteered to him

that both passengers in the white sedan fired at O.Z.

For her part, P.C. was also not forthcoming on the witness stand.

During her testimony, she stated that she told the police at the scene there

were two men in the white car, but that she could not remember much else

about the shooting. P.C. eventually testified that she did see two men in the

car and both had guns. The prosecution then played for the jury the body-

worn camera video of P.C.’s interview in which P.C. stated she saw both men

fire a gun. The testimony of both of these witnesses, who provided the

primary evidence of the actual shooting, was inconsistent. Without

Jankowski’s authoritative opinion that Rouston was the shooter, this

evidence held far less weight.

Other prosecution evidence was also bolstered by Jankowski’s improper

testimony—based on the other witnesses’ statements—that Rouston fired the

first bullet from the ghost gun and that it struck O.Z. in the face. The

26

criminalist who conducted the DNA testing on the guns testified that

Rouston was not a likely contributor to DNA found on the ghost gun and his

DNA was not present on the Ruger. I.L. did tell an officer at the scene that

the driver had fired a “Glock-style handgun,” but made no mention of the

passenger holding or firing a gun.

In addition, two requests made by jury during its deliberations showed

uncertainty about whether Rouston was the shooter. The jury asked for the

testimony of P.C., A.C., and the police officer who relayed the statements of

I.L. The jury also asked if the theory of aiding and abetting could be applied

to count 3, firing at an occupied vehicle, and the personal firearm use

allegation. These questions suggested the jury’s deliberations concerning

whether Rouston fired a gun were close. (See People v. Pearch (1991) 229

Cal.App.3d 1282, 1295 [“Juror questions and requests to have testimony

reread are indications the deliberations were close.”].)

In sum, Jankowski’s testimony that Rouston was the shooter bolstered

the witness testimony that favored the prosecution and minimized the

inconsistencies in that evidence. By his testimony, Jankowski improperly

relayed to the jury his opinion that Rouston fired the bullet that hit O.Z., and

also strengthened the testimony of the other witnesses in a way that

supported this opinion. Even the trial court observed during a discussion of

the aiding and abetting jury instructions that it “would be very easy to find

that [Rouston was] not the shooter.”

The Attorney General argues that, in spite of the error in admitting

Jankowski’s improper testimony, Rouston would still have been convicted as

an aider and abettor or co-conspirator without proof that he fired a gun.

However, without this evidence, it is not clear the jury would conclude

Rouston harbored the specific intent to kill required for the attempted

27

murder and conspiracy to commit murder convictions, or to establish

Rouston’s intent to shoot at an occupied vehicle. (See People v. Ware (2022)

14 Cal.5th 151, 163 [“Conspiracy ‘ “is an inchoate offense, the essence of

which is an agreement to commit an unlawful act.” ’ [Citation.] This crime

has four elements: (1) the existence of an agreement between at least two

persons; (2) the specific intent to agree to commit an offense; (3) the specific

intent to commit the offense that is the object of the agreement; and (4) an

overt act in furtherance of the conspiracy, which may be committed by any

conspirator.”].)

Rouston’s gang membership, presence in the car, the earlier gang

killings, and presence when B.R. was killed provided a motive for the

attempted murder, but do not conclusively establish his intent to kill. For

instance, there was no evidence at trial concerning Rouston’s whereabouts or

activities prior to being in the car with Navarro, let alone evidence of an

agreement or plan to kill anyone. (See People v. Boyd (1990) 222 Cal.App.3d

541, 556‒557 [“To be liable for a crime as an abettor, the accused must have

instigated or advised the commission of the crime or have been present for

the purpose of assisting the crime. He must share the criminal intent with

which the crime was committed. Neither his mere presence at the scene of

the crime nor his failure, through fear, to prevent a crime establishes,

without more, that an accused was an abettor.”].)

The Attorney General also points to the gang enhancement finding and

conspiracy verdict as evidence that the jury found a specific intent to kill.

However, the gang enhancement does not require a finding of intent to kill,

only the intent to assist in “criminal conduct by gang members.” (See

§ 186.22; CALCRIM No. 1401.) More importantly, the jury likely considered

Jankowski’s improper testimony in reaching its verdict on the conspiracy

28

charge and the gang enhancement. In light of the lack of any direct evidence

of the agreement required to prove conspiracy, the jury likely relied on

Jankowski’s improper opinion that Rouston fired a gun to infer a prior

agreement with Navarro to kill O.Z. Additionally, as the People concede, the

court gave an erroneous jury instruction indicating implied malice was

sufficient to prove the mental state required for conspiracy, further calling

into question any finding of intent to kill based on the conspiracy verdict.

We agree with Rouston that absent Jankowski’s authoritative

testimony that the ghost gun fired the bullet that struck O.Z., and that

Rouston was the shooter of that weapon, it is reasonably probable that the

jury’s result would have been different. Without Jankowski’s compelling

statements, at least one member of the jury might not have found beyond a

reasonable doubt that Rouston was guilty of these crimes. Because of this

prejudicial evidentiary error, we conclude reversal of the convictions is

required.

DISPOSITION

The judgment of conviction is reversed. The cause may be retried.

McCONNELL, P. J.

WE CONCUR:

BUCHANAN, J.

CASTILLO, J.

29