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In re Ruedas

California Court of Appeals, Fourth District, Third Division

May 24, 2018

In re ALBERT LUGO RUEDAS on Habeas Corpus.

          Original proceeding on a petition for a writ of habeas corpus after a judgment from the Superior Court of Orange County, Ct. No. 08CF2288 James Edward Rogan, Judge. Petition denied.

          Elizabeth Garfinkle, under appointment by the Court of Appeal, for Petitioner.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Respondent.


         The jurisprudence of retroactivity is a labyrinthine edifice of both critical importance and daunting complexity. It is located at one of those intersections of freedom, justice, and pragmatism that are all too common in the criminal law, and make its practice a humbling experience. In this case, we are asked to offer our best judgment about whether the rule announced in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) is prospective or retroactive. We do so with a caution bordering on apprehension, but we arrive at a firm conclusion the rule is prospective only.

         Petitioner Albert Lugo Ruedas was charged with various gang-related crimes and enhancements, including the special circumstances allegation he committed murder to further the activities of a criminal street gang. To prove the gang charges, the prosecution called an expert witness who based his opinions on a variety of extrajudicial sources, including testimonial hearsay. When defense counsel objected to the expert's reliance on this evidence, the trial court overruled the objection and instructed the jury not to consider the evidence for its substantive truth, but only as a basis for the expert's opinions. Ultimately, the jury convicted petitioner as charged, and the trial court sentenced him to life in prison without parole. We affirmed the judgment on appeal, and it became final in 2015.

         The following year, the California Supreme Court decided the Sanchez case. Sanchez held that to properly evaluate an expert witness' opinions, the jury generally must consider the evidence he relies on for the truth of the matter asserted therein, and therefore that evidence is subject to exclusion under the hearsay rule and the Confrontation Clause of the Sixth Amendment to the United States Constitution. In this proceeding, petitioner asks us to apply Sanchez retroactively to his case and find the gang expert's reliance on testimonial hearsay violated his confrontation rights. But we hold Sanchez does not apply retroactively to cases like petitioner's that were already final by the time Sanchez was decided. Therefore, petitioner cannot avail himself of that decision, and we deny his petition for a writ of habeas corpus.


         A detailed statement of the facts is set forth in our prior opinion in People v. Ruedas (Nov. 14, 2014, G048545) [nonpub. opn.], which we incorporate by reference.[1] In summary, Daniel Lopez was attacked and fatally shot by two men as he was walking in Santa Ana late one evening in 2008. Five days later, the gun used in the shooting was found in petitioner's possession, and when interviewed by the police, petitioner admitted he shot Lopez during an attempted robbery.

         During his interrogation, petitioner also answered questions about his gang status. He said he “used to bang” with the Anaheim Boys gang, aka Boys from the Hood but had stopped hanging out with them about three years earlier, when he turned 18. He said he had to pay a “tax” of $10, 000 to get out of the gang and suggested he “jacked” Lopez because he wanted to get money for the tax.

         Petitioner's trial commenced in 2013. Testifying as an expert witness, Anaheim gang investigator Jonathan Yepes told the jury that gang members commit crimes to spread fear and gain respect. And when they commit a crime such as robbery, it not only benefits them personally, it also helps their gang because it brings in money and sends a message the gang is not to be trifled with. According to Yepes, robbery was one of the primary activities of Boys from the Hood when this case arose in 2008. He said petitioner first got involved with that gang in 2004, and he was a full-fledged member when he shot Lopez four years later. Yepes also believed petitioner's companion during the shooting was a member of Boys from the Hood.

         Yepes based his opinions on a variety of sources. He said he relied on information he acquired from personally investigating Boys from the Hood's criminal activities and talking to its various members. In addition, he considered information he acquired by reading books about gangs, speaking with other police officers, and attending meetings of the California Gang Investigators Association. Yepes testified these are standard ways gang investigators acquire knowledge about gang activity and ongoing trends within the gang culture.

         Yepes also relied on certified court documents showing Boys from the Hood members other than petitioner have engaged in gang-related criminal conduct in the past. This evidence was used to support his opinion that Boys from the Hood constituted a criminal street gang under California law. He said Boys from the Hood had the dubious distinction of being one of only three gangs served with a civil injunction in Anaheim.

         In forming his opinions about the case, Yepes relied on other sources of information, as well. These included police reports from this case and others, field interview cards that were prepared by officers during street encounters with suspected gang members, and S.T.E.P. notices, which are designed to inform individuals of the consequences of associating with members of a criminal street gang.[2] Yepes not only identified these materials during his testimony, he divulged a considerable amount of information contained therein. The record is somewhat unclear as to what specific information he derived from which particular materials, but Yepes described several incidents during which petitioner was stopped by the police in 2004 and 2005, a few years before the shooting.

         Yepes explained that during one of those incidents, petitioner was in a park with a group of Boys from the Hood members. Upon seeing the police, the group tried to flee, but they were detained. Another time, petitioner was given a S.T.E.P. notice for congregating with Boys from the Hood members. And on yet another occasion, the police found spray paint cans and items covered with gang writing in petitioner's car during a traffic stop. That stop was unrelated to a separate incident during which petitioner was detained in Fullerton and found to have a gun in his car.

         In addition to these police contacts, Yepes testified that when the police executed a search warrant at the residence of Boys from the Hood member Julio Ortiz in 2005, they found several photos showing petitioner making gang signs with members of that gang. They also discovered a letter that was written from petitioner to Ortiz. Among other things, the letter states, “We stand as a family” and “Can't stop, won't stop Anaheim Boys.” Although Yepes did not personally seize this letter during the search, he reviewed it as part of his preparation for testifying in this case. Yepes also relied on a series of notes that were prepared by the prosecutor. On cross-examination, Yepes admitted the notes were like a “script” that contained information about petitioner and his fellow gang members.

         Yepes also based his opinions on the fact petitioner has a gang moniker, “Gizmo, ” and he has the word “Anaheim” tattooed across his back. Yepes interpreted the tattoo as a sign petitioner was a loyal member of Boys from the Hood. He said he also got that impression from reading the statements petitioner made when he was interviewed by the police in this case.

         Explaining his thought process, Yepes stated that no one particular source of information he reviewed was dispositive of his opinions about the case. Rather, he considered all of the above-mentioned information in coming to the conclusion Boys from the Hood was a criminal street gang and that petitioner was a member of the gang when he murdered Lopez.

         Throughout Yepes' testimony, defense counsel repeatedly objected on hearsay grounds. He was concerned that in discussing the various bases for his opinions, Yepes was disclosing prejudicial information the jury would be inclined to consider for its substantive truth. The trial court overruled defense counsel's objections, but in recognition of this concern, it advised the jury the basis evidence for Yepes' opinions was “not being offered for the truth of the matter asserted[.]” “The court is receiving it for the limited purpose of how it relates to [Yepes'] ultimate opinion[s]..., so you are to consider it only for that purpose.”

         In the end, the jury convicted petitioner of first degree murder and active participation in a criminal street gang. (§§ 187, subd. (a), 186.22, subd. (a).) It also found true special circumstance allegations the murder was gang related and committed during the course of an attempted robbery. (§§ 190.2, subds. (a)(17) & (a)(22).) In addition, the jury found true enhancement allegations petitioner committed the murder to benefit his gang and by means of intentionally discharging a firearm. (§§ 186.22, subd. (b), 12022.53, subd. (d).) The trial court sentenced him to prison for life without parole for the murder, plus 25 years to life on the firearm enhancement, and stayed sentence on the remaining terms.

         On appeal, petitioner did not challenge the admissibility of Yepes' testimony in any respect. He did argue insufficient evidence, instructional error, prosecutorial misconduct, ineffective assistance of counsel, and evidentiary error in the admission of his confession, but we rejected those claims and affirmed the judgment in its entirety. (People v. Ruedas, supra, G048545 at pp. 2-17.) The California Supreme Court denied review, and since petitioner did not file a petition for a writ of certiorari in the United States Supreme Court, the judgment against him became final 90 days later, on April 28, 2015. (Clay v. United States (2003) 537 U.S. 522, 527; People v. Vieira (2005) 35 Cal.4th 264, 306.)


         In 2016, the California Supreme Court decided Sanchez. Sanchez involved the same situation presented in this case: an expert witness relying on hearsay evidence in forming his opinions about the defendant's gang status. In a departure from established precedent, Sanchez held that while an expert witness may base his opinions on hearsay evidence, he cannot divulge the contents of that evidence to the jury unless it fits within an exception to the hearsay rule. And if the hearsay is testimonial, it must also satisfy the Sixth Amendment's Confrontation Clause. Here, the parties agree that gang expert Yepes conveyed testimonial hearsay to the jury in violation of petitioner's confrontation rights, as interpreted in Sanchez. The question is whether Sanchez applies retroactively in this collateral proceeding. For the reasons explained below, we conclude it does not.

         Constitutional Framework

         Sanchez's retroactivity cannot be examined without analyzing the doctrinal underpinnings and historical context of that decision. At its core, Sanchez is a case about the scope and reach of the Sixth Amendment's Confrontation Clause. Long considered an essential component of due process (Pointer v. Texas (1965) 380 U.S. 400, 404), the clause provides, “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him[.]” (U.S. Const., 6th Amend.)

         The confrontation clause not only affords defendants the right to personally examine adverse witnesses, it also “‘(1) insures that the witness will give his statements under oath - thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the “greatest legal engine ever invented for the discovery of truth”; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.' [Citation.] [¶] The combined effect of these elements of confrontation... serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings. [Citations.]” (Maryland v. Craig (1990) 497 U.S. 836, 845-846.)

         The common law rule barring the admission of hearsay evidence - out of court statements used to prove the truth of the matter asserted therein - is likewise designed to enhance the reliability of trial evidence. (See United States v. Winters (6th Cir. 1994) 33 F.3d 720, 723 [citing the reliability of evidence and the opportunity for cross-examination as the twin goals of the hearsay rule]; McCormick on Evidence (2d ed. 1972) § 250 at pp. 598-99 [the hearsay rule is intended to guard against “imperfections of perception, memory, and narration”].) To that end, the rule generally precludes the jury from considering extrajudicial statements that are relayed through a witness other than the declarant. (Evid. Code, § 1200, subd. (b).) Like all evidentiary rules, this prohibition aims to ensure “both fairness and reliability in the ascertainment of guilt and innocence.” (Chambers v. Mississippi (1973) 410 U.S. 284, 302.)

         In Ohio v. Roberts (1980) 448 U.S. 56 (Roberts), the United States held the admission of hearsay evidence does not violate the Sixth Amendment if it bears “adequate ‘indicia of reliability.'” (Id. at p. 66.) Finding a close relationship between the hearsay rule and the confrontation clause, the Roberts court ruled, “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” (Ibid., fn. omitted.)

         But a quarter-century later, Roberts' indicia-of-reliability test was scrapped in favor of a different standard in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). After tracing the historical development of the Sixth Amendment, Crawford rejected the idea that application of the confrontation clause should turn primarily on the rules governing the admissibility of evidence. (Id. at pp. 50-51.) While recognizing that the ultimate goal of both the hearsay rule and the confrontation clause is to ensure the reliability of trial evidence, the court determined that when the state seeks to introduce a hearsay statement testimonial in nature, i.e., made under circumstances indicating it would later be used at trial, it must show the declarant is unavailable and the defendant had a prior opportunity for cross-examination. (Id. at pp. 61, 68.) Because this test pertains only to testimonial statements, it means nontestimonial statements are not subject to exclusion under the confrontation clause, even if they are unreliable. (Davis v. Washington (2006) 547 U.S. 813, 821; United States v. Larson (9th Cir. 2007) 495 F.3d 1094, 1099, fn. 4.) Nevertheless, Crawford determined this test was consistent with the framers' intent and preferable to Roberts'reliability standard, which it described as “malleable, ” “amorphous, ” and “unpredictable.” (Crawford, supra, 541 U.S. at pp. 60, 63.)

         After Crawford, the hearsay rule ceased to be the primary guiding principle in determining whether out-of-court statements are admissible under the Sixth Amendment. Nonetheless, the hearsay rule and the confrontation clause still have one thing in common: Neither is implicated unless the extrajudicial statement at issue is admitted for its substantive truth. (Evid. Code, § 1200, subd. (a); Crawford, supra, 541 U.S. at p. 59, fn. 9.) That is a key point to keep in mind when it ...

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