# People v. Rouston

> California Court of Appeal · February 20, 2024

URL: https://www.frixlaw.com/law-library/cases/9942300

## Case

- **Court:** California Court of Appeal
- **Decided:** February 20, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9942300

## Opinion text

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.
2
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

3
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

4
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.
5
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

6
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.
7
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

8
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.

9
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

10
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

11
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

12
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

13
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

14
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

15
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

16
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.
17
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9942300. Public record. Not legal advice.