BIRD, C. J. I respectfully dissent.
In their concern to punish those responsible for the notorious Golden Dragon shootings, the majority forget the important policies behind the rule requiring corroboration of accomplice testimony. (Pen. Code, § 1111.) As a result, they jerry-build independent corroboration for accomplice testimony and by implication let stand a ruling that a person may be qualified as an expert and testify as an expert on the credibility of hearsay declarants.
[37]In my dissenting opinion in In re Mitchell P., I discussed the untrustworthy nature of accomplice testimony and the problems it poses to the accuracy of a verdict. (See In re Mitchell P. (1978) 22 Cal.3d 946, 954-956 [151 Cal.Rptr. 330, 587 P.2d 1144] (dis. opn. of Bird, C. J.).) The Legislature acknowledged these dangers when it passed Penal Code section 1111. Under that statute, uncorroborated accomplice testimony can never establish guilt beyond a reasonable doubt. This case presents a textbook example of the dangers that Penal Code section 1111 was promulgated to prevent.
The primary witness against appellant was Chester Yu, who had admittedly helped to dispose of the murder weapons. This made him an accomplice as a matter of law. Yu apparently had not only the inducement of lenient treatment to motivate his testimony, but also the hope of protecting his brother Tom Yu, described by one police officer at trial as the “ringleader” of the Joe Boys gang. There was evidence at appellant’s trial that it was Tom Yu himself who had removed the murder weapons from the Rodriguez’ house. Subsequently, Tom Yu was convicted by a jury of first degree murder in connection with the Golden Dragon killings. Nevertheless, Chester Yu testified that his brother had nothing to do with the planning, commission, or concealment of the shootings.
In an unanimous opinion, the Court of Appeal carefully analyzed the evidence with which the prosecution purported to corroborate Chester Yu’s accomplice testimony. It concluded that there was insufficient evidence to support the verdict. I agree.
However, there is an additional issue which the Court of Appeal did not reach. In purporting to find independent evidence that appellant harbored a motive to avenge the recent slaying of Joe Boy Felix Huie by rival gangs, the majority rely on the testimony of Officer Timothy Simmons that credible sources told him that appellant was a member of the Joe Boys gang. (Maj. opn., ante, at p. 28.) The majority refuses to address appellant’s argument that Officer Simmons’ testimony regarding this assertedly expert opinion should have been excluded because it was based on inadmissible hearsay. The majority conclude that the issue was not preserved by an adequate objection below. (Maj. opn., ante, at pp. 31-32.) However, the record demonstrates that this conclusion is unwarranted.
[38]At trial, the prosecutor moved to qualify Officer Simmons as an expert on Chinese youth gangs in San Francisco for the express purpose of “offering the opinion of qualified experts [mr] that this defendant is a member, has been a member of the Joe Boys.” Defense counsel then asked Officer Simmons about the informants whom the officer had identified as the source of some of his information concerning gang membership. The prosecutor objected to the disclosure of the informants’ identities, and defense counsel responded, “I ask that he not be allowed to testify because we’re denied the right to cross-examine these people who might give information which can be pushed into this trial.... ” The prosecutor argued that the officer “would be testifying as an expert, who is entitled to rely on hearsay, as many experts are, without disclosing the names of the informants.” The court accepted the prosecutor’s claim of privilege.
Defense counsel then sought to identify the other bases of Simmons’ purported expertise, and the officer informed him that the “bulk” of it was “based on dealing on a one-to-one basis with many individuals, associates, gang members, of all the different youth gangs in San Francisco.” At that point, defense counsel explained to the court, “That is what my objection is based on, as to this man’s expertise. Any expertise, at least the bulk of it, is based on talk where we cannot cross-examine anybody. I think it’s a Sixth Amendment issue and I don’t think an expert should be allowed to come in and say things which we cannot possibly attack. I don’t know what he’s going to say. He can say anything that anybody may have said to him. There’s nothing we can do about it.”
The district attorney replied, “The Evidence Code itself states quite clearly that an expert may rely in part on hearsay to form his opinion, if such would be a proper basis for his opinion, and clearly for a person to be an investigator in this—an expert in this kind of area, he would have to rely, in part, upon hearsay. ... ”
The court then overruled defense counsel’s objection: “We’ll instruct the jury that the opinions of an expert are the evidence, the reasons for the opinion, that he will be questioned about isn’t the evidence. It’s the reason for the evidence, mainly, his opinion. It strikes the Court that your objection goes to the weight rather than the admissibility, Mr. Suman [defense counsel], so it’s overruled.”
[39]The above-quoted colloquies demonstrate that defense counsel did object to the hearsay nature of the information on which Officer Simmons based his “expert” opinion that the accused was a Joe Boy. The prosecutor understood this objection and argued in reply that hearsay was an appropriate basis for Officer Simmons’ “expert” opinion. The trial court also understood the nature of the objection and overruled it on the ground that the hearsay bases of the officer’s opinion went to its weight rather than its admissibility. Since the prosecutor had every “opportunity to cure the defect at trial,” the accused is entitled to have this court address the merits of his contention. (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048]; see also Evid. Code, § 353.)
Ordinarily, witnesses may not testify in the form of an opinion unless the opinion is “[Rationally based on the perception of the witness.” (Evid. Code, § 800, subd. (a).) However, in certain circumstances an expert witness may testify to an opinion which is not based exclusively on the expert’s own perceptions. To be admissible, such opinion testimony must, inter alia, be “[Related 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).) Officer Simmons’ opinion about appellant’s gang membership failed to clear even this initial hurdle. In the Evidence Benchbook, section 29.4, the requirement imposed by Evidence Code section 801, subdivision (a) is discussed. It is pointed out that this Evidence Code section does not mean that an expert’s opinion is rendered admissible because a subject matter is beyond the realm of common experience. “[T]he preferred opinion may [still] be one that would not assist the trier of fact, because the trier of fact may be able to draw a conclusion from the facts testified to as easily and as intelligently as the expert may.” (Jefferson, Cal. Evidence Benchbook (1972) § 29.4, p. 506.)
In the present case, aside from the otherwise inadmissible hearsay opinions of other alleged Joe Boys, the only facts on which the officer’s opinion was based were (1) the hearsay information that other police officers—conducting surveillance unrelated to the Golden Dragon incident—had on one occasion observed the accused in the company of “other Joe Boys” in Oakland and had on another occasion seen him with an alleged Joe Boy in Sacramento, and (2) Officer Simmons’ sighting of appellant at the funeral of Felix Huie.1
[40]Even though the subject of Chinese youth gangs is generally beyond the common ken, the jury in the present case was in as good a position as Officer Simmons to draw from the information about appellant’s past associations an inference that he was a Joe Boy. Officer Simmons’ belief that such an inference was a compelling one was scarcely the sort of expertise that would “assist the trier of fact” as Evidence Code section 801, subdivision (a) requires. Similarly, if the prosecutor had called to the stand the various hearsay declarants on whom Simmons relied, and asked them their opinions—based on their personal perceptions—of appellant’s gang membership, Officer Simmons would be no better situated than the jury to evaluate the credibility of such opinions. Since the drawing of possible inferences from facts and the assessment of witnesses’ credibility are within the exclusive province of the finder of fact, the jury is in an eminently superior position to undertake those functions.
The prosecutor should not be permitted to launder inadmissible hearsay into admissible evidence or accomplice testimony into independent corroboration by the simple expedient of passing it through the conduit of purportedly “expert” opinion. Appellant’s objection at trial to admitting Officer Simmons’ opinion that appellant was a Joe Boy should have been sustained. Clearly, there was not sufficient evidence offered to corroborate Chester Yu’s testimony. The following portions of the Court of Appeal’s unanimous opinion establish this most strikingly.*
The principal prosecution witness at trial was Chester Yu. Yu had driven the three killers (members of the Joe Boys gang) to the Golden Dragon Restaurant from the residence of a Mr. and Mrs. Rodriguez in Pacifica1 in the early morning hours of September 4, 1977, and had driven the “getaway” car after the homicides back to the Rodriguez house. The weapons were placed in a hall closet in the house.
Yu testified, in substance, as follows. Some time later that same morning, appellant came by car to the Rodriguez house, bringing food [41]for the killers. Subsequently, appellant took the guns used in the killing and put them into the trunk of his car. One of the killers told appellant to dispose of the weapons in San Francisco Bay. Appellant drove his car, with Yu as a passenger, to a road running adjacent to the Bay, between the San Francisco Airport and the Kee Joons Restaurant in Burlingame, and threw the firearms into the Bay at a point close to and in sight of the restaurant. Yu subsequently led the police to the location and the weapons.
Mrs. Rodriguez testified that appellant had come to her house in the morning of September 4, 1977, bringing some food. There was an indeterminate number of young Chinese present. She testified further that she and her husband left the house soon after appellant arrived and returned that night. Finally, she testified that she knew that there had been firearms in her house but she did not know who had taken them away or when.2
Mr. Rodriguez testified that on the morning of September 4, 1977, a Chinese brought some food to his house. At the time there was a “bunch” of Chinese present, more than the four involved in the killings, but how many was not specified. Appellant looked similar to the person who brought the food but he wasn’t sure. The weapons in question had been in the hall closet of his home for about a month before September 4. Shortly after the Chinese had arrived, bringing food, he and his wife left and didn’t return until 9 or 10 that evening. At the time he left, to the best of his knowledge,3 the weapons were still in his closet but when he returned that evening, they were gone.
There is evidence that appellant was a member of the Joe Boys gang or at least closely associated with members of the gang.
Finally, there is undisputed evidence that appellant worked at the Kee Joons Restaurant for some three weeks ending approximately three months before September 4, 1977.
Appellant did not testify.
[42] Was Appellant Convicted on the Uncorroborated Testimony of an Accomplice?
The trial court correctly ruled that as a matter of law Chester Yu was an accomplice of appellant and appropriately instructed the jury on the principles relating to the testimony of an accomplice, including an instruction as to the sufficiency of evidence to corroborate an accomplice.
Penal Code section 1111 provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [1Í] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
The reason for the above provision is stated by People v. Tewksbury (1976) 15 Cal.3d 953, 967 [127 Cal.Rptr. 135, 544 P.2d 1335]: “Accomplice testimony is suspect because, like hearsay, it too may be unreliable. ‘[E]xperience has shown that the evidence of an accomplice should be viewed with care, caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity.’ (People v. Wallin (1948) 32 Cal.2d 803, 808 [197 P.2d 734]; see also People v. McRae (1947) 31 Cal.2d 184, 186 [187 P.2d 741]; People v. Dail (1943) 22 Cal.2d 642, 654 [140 P.2d 828]; People v. Coffey (1911) 161 Cal. 433, 438 [119 P. 901]; 7 Wigmore on Evidence (3d ed.) § 2057, pp. 322-325.) In addition to being derived from a suspect source accomplice testimony is frequently cloaked with a plausibility which may interfere with the jury’s ability to evaluate its credibility. ‘“[A]n accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth.”’ (Heydon, The Corroboration of Accomplices (Eng. ed. 1973) Crim.L.Rev. 264, 266; see also Note, 54 Colum.L.Rev. 219, 234.)” See also People v. Robinson (1964) 61 Cal.2d 373, 404, footnote 25 [38 Cal.Rptr. 890, 392 P.2d 970]: “The need for the statutory requirement has been expressed as a check against the possibility that one confessedly guilty of a crime may implicate another for the sole purpose of gaining leniency.”
[43]The statute is interpreted as follows: “The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense[ ] charged. [Citations.].” (People v. Lyons (1958) 50 Cal.2d 245, 257 [324 P.2d 556].) The corroborative evidence may be “slight and entitled, when standing by itself, to but little consideration.” (People v. McLean (1890) 84 Cal. 480, 482 [24 P. 32].) The above principles are quoted in People v. Hathcock (1973) 8 Cal.3d 599, 617 [105 Cal.Rptr. 540, 504 P.2d 476]; People v. Perry (1972) 7 Cal.3d 756, 769 [103 Cal.Rptr. 161, 499 P.2d 129]; People v. Luker (1965) 63 Cal.2d 464, 469 [47 Cal.Rptr. 209, 407 P.2d 9]; People v. Holford (1965) 63 Cal.2d 74, 82 [45 Cal.Rptr. 167, 403 P.2d 423]; see People v. Wade (1959) 53 Cal.2d 322, 329 [1 Cal.Rptr. 683, 348 P.2d 116]. However, the evidence is not sufficient if “it merely casts a grave suspicion [up]on the accused.” (People v. Robbins (1915) 171 Cal. 466, 470; quoted in People v. Robinson (1964) 61 Cal.2d 373, 399 [38 Cal.Rptr. 890, 392 P.2d 970]; and People v. Luker, supra, 63 Cal.2d at p. 469, fn. 2.) “Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant.” (People v. Santo (1954) 43 Cal.2d 319, 327; quoted in People v. Perry, supra, 7 Cal.3d at p. 769.)
The standard of review is that “Unless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.” (Id., at p. 774.)
The only testimony that directly implicates appellant is the testimony of Chester Yu. Yu had been promised and had received leniency.4 In addition, it appears that Chester Yu may have been “covering up” for his brother Tom.5
[44]In the language of People v. Wallin (1948) 32 Cal.2d 803, 808 [197 P.2d 734], Chester Yu’s testimony “should be viewed with care, caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity.” Here, leniency was not a “hope or expectation”; it was an accomplished fact.
Respondent asserts that sufficient corroboration of Chester Yu’s testimony consists of the following evidence, that: 1. Appellant was a Joe Boy or at least an associate member of the Joe Boys gang.
2. He was in the Rodriguez house the morning following the homicides with the killers.
3. The weapons had been in the Rodriguez home for a month before the homicides but were not there the evening following the homicides.
4. Appellant had worked at the Kee Joons Restaurant and the weapons were found in the Bay near the restaurant.
5. Chester Yu knew where the guns had been disposed of.
Evidence that appellant knew Yu or the killers, was a member of the Joe Boys, and was with the killers in the Rodriguez house is not sufficient corroboration for the “evidence independent of the testimony of the accomplice must tend to connect a defendant with the crime itself [and not simply with its perpetrators].” (People v. Reingold (1948) 87 Cal.App.2d 382, 400 [197 P.2d 175]; People v. Robinson, supra, 61 Cal.2d 373, 400; People v. Hathcock, supra, 8 Cal.3d 599, 618.)
The act that constituted the crime was aiding the killers by disposing of the fatal weapons with the intent that the killers avoid or escape arrest, trial or conviction. Neither membership in the gang nor presence along with others at the Rodriguez house that fatal morning, nor both, are evidence that connect appellant with the crime itself.
As to the weapons in the Rodriguez house, Mr. Rodriguez testified that “to the best of his knowledge” the weapons were in the hall closet [45]when he left that morning, after having been there a month. But there is no evidence as to when, in fact, he last saw the weapons. According to Yu’s testimony, the weapons had been taken from the closet in the early morning and put back, this without the knowledge of Rodriguez. The only evidence that the weapons were in the house that morning after the murders is Yu’s testimony.
The weapons were found in the Bay not far from a restaurant where appellant had worked for some three weeks about three months before the events in question. But the roadway is not some isolated, private road that would be known to a few, it is a public road connecting the San Francisco Airport with a number of business establishments.6
Finally, the fact that Yu led the police to the place where the weapons had been discarded certainly corroborates Yu’s testimony that he was present when the weapons were thrown into the Bay; it does not tend to show that appellant was present.
In sum, the corroborating evidence shows that appellant was a member of the Joe Boys and was present at the Rodriguez house with the killers and others of the gang some hours after the killing.
We have considered the matter and are of the opinion that while the corroborating evidence cast some suspicion upon appellant, it does not reasonably tend to connect appellant with the commission of the crime.
What we have said with regard to the conviction for being an accessory applies equally to the conviction on the charge of possessing a sawed-off shotgun.
[The judgment on each count should be reversed. Since a reversal would be based on the insufficiency of the evidence, the case should be dismissed and the trial court should be directed to do so. (Burks v. United States (1978) 437 U.S. 1, 18 [57 L.Ed.2d 1, 14, 98 S.Ct. 2141]; People v. Pierce (1979) 24 Cal.3d 199, 209-210 [155 Cal.Rptr. 657, 595 P.2d 91].)]
Tobriner, J., concurred.
Appellant’s petition for a rehearing was denied March 20, 1981. Bird, C. J., and Tobriner, J., were of the opinion that the petition should be granted.
On cross-examination, Officer Simmons admitted that he had attended the funerals [40]of “seven or eight” Joe Boys but had seen appellant at only one of them, and that many persons attended Felix Huie’s funeral who had no affiliation with the Joe Boys.
Brackets together, in this manner [], are used to indicate deletions from the body of the Court of Appeal’s opinion. Brackets enclosing material (other than editor’s added parallel citations) are used to denote this writer’s additions. (See People v. Cantrell (1973) 8 Cal.3d 672, 677 [105 Cal.Rptr. 792, 504 P.2d 1256].)
It appears that the Rodriguez residence had been a “hangout” for members of the Joe Boys gang.
There was evidence that Mrs. Rodriguez, under police questioning, said that Tom Yu, brother of Chester Yu, had taken the guns from her house two or three weeks after the killings.
Rodriguez did not testify as to when he had last actually seen the weapons in his closet.
By his own testimony, he had conspired to commit murder and had been an aider and abettor of the murders. He was permitted to plead to lesser charges in juvenile court (he was 17 years old) and was committed to the Youth Authority.
Tom Yu was present at the Rodriguez house both immediately before and after the [44]homicides. Chester Yu testified that Tom had no part in the planning or commission of the killings. We take judicial notice that Tom has been convicted of first degree murder in connection with the Golden Dragon killings.
We have already noted that Mrs. Rodriguez had told the police that it was Tom Yu who had taken the weapons away.
In fact, the weapons were found in an area closer to a Chinese-owned warehouse than to the restaurant.