Should a COA have been granted to decide if the trial court's admission of the gang expert's testimonial hearsay deprived McKnight of his right to confront and cross-examine witnesses?

QUESTIONS PRESENTED I. Should a COA Have Been Granted to Decide If the Trial Court’s Admission of the Gang Expert’s Testimonial Hearsay Deprived McKnight of His Right to Confront and Cross Examine Witnesses? II. Should a COA Have Been Granted to Decide If the Trial Court Violated McKnight’s Right to Due Process and a Fair Trial by Allowing the Gang Expert to Opine that McKnight Acted in Conformity with Gang Members’ Character Traits? Ill. Should a COA Have Been Granted to Decide If the Trial Court Violated McKnight’s Right to Due Process and a Fair Trial by Issuing a Jury Instruction that Allowed the Jury to Convict McKnight on a Natural and Probable Consequences Theory? IV. Should a COA Have Been Granted to Decide If the Prosecution Failed to Present Substantial Evidence to Prove the “Primary Activities” Element of the Gang Enhancement and the Gang Special Circumstances? 1 TOPICAL INDEX Page QUESTIONS PRESENTED .0.0002 1 CONSTITUTIONAL PROVISIONS INVOLVED . 2 STATEMENT OF THE FACTS . 4 Prosecution Evidence Presented to Both Juries . 5 The Shooting . 00.0 c cece ee B The Investigation . 0.0... cece eee 6 The Confidential Reliable Informant . 7 Gang Evidence . 00. cece eee ee 8 Tony Johnson (Johnson) . 10 REASONS FOR GRANTING CERTIORARI . 12 I. THE NINTH CIRCUIT SHOULD HAVE GRANTED A COA BECAUSE THE TRIAL COURT’S ADMISSION OF THE GANG EXPERT’S TESTIMONIAL HEARSAY DEPRIVED MCKNIGHT OF HIS RIGHT TO CONFRONT AND CROSS EXAMINE A. Introduction . 00.0. e eee eee 12 B. The Confrontation Clause . 18 il C. The CCA’s Unreasonable Opinion . 14 II. THE NINTH CIRCUIT SHOULD HAVE GRANTED A COA BECAUSE THE TRIAL COURT VIOLATED MCKNIGHT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL BY ALLOWING THE GANG EXPERT TO OPINE THAT MCKNIGHT ACTED IN CONFORMITY WITH GANG MEMBERS’ A. Introduction . 0 cee eee eee 15 B. Expert Testimony on Ultimate Issue . 15 C. The CCA’s Opinion Unreasonably Upheld the Gang Expert Ability to Opine About the Gang Members’ Character Traits . 16 Ill. THE NINTH CIRCUIT SHOULD HAVE GRANTED A COA BECAUSE THE TRIAL COURT VIOLATED MCKNIGHT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL BY ISSUING A JURY INSTRUCTION THAT ALLOWED THE JURY TO CONVICT MCKNIGHT ON A NATURAL AND PROBABLE CONSEQUENCES THEORY .18 A. Introduction . 0.0 cee eee eee 18 B. The Natural and Probable Consequences Theory . 0... cee eee eee eee LY C. The CCA Unreasonably Upheld the Verdict Based on the Natural and Probable Consequences Theory.20 iil IV. THE NINTH CIRCUIT SHOULD HAVE GRANTED A COA BECAUSE THE PROSECUTION FAILED TO PRESENT SUBSTANTIAL EVIDENCE TO PROVE THE “PRIMARY ACTIVITIES” ELEMENT OF THE GANG ENHANCEMENT AND THE GANG SPECIAL A. Introduction . 00.0 00 ee eee ZI B. Standard of Review.22 C. The Elements of Cal. Penal Code § 186.22(b) 0. ccc cece cee eee cece eevee ess 22 D. The CCA Unreasonably Found Sufficient Evidence to Uphold the “Primary Activities” Element of the Gang Enhancement and the Gang Special Circumstance .24