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People v. Sanchez

Supreme Court of California

June 30, 2016

THE PEOPLE, Plaintiff and Respondent,
MARCOS ARTURO SANCHEZ, Defendant and Appellant.

         Orange County Super. Ct. No. 11CF2839, Ct.App. 4/3 G047666

          John L. Dodd, under appointment by the Supreme Court, for Defendant and Appellant.

          Lisa M. Romo for Pacific Juvenile Defender Center as Amicus Curiae on behalf of Defendant and Appellant.

          Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Peter Quon, Jr., Susan Miller and Lynne McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

          Corrigan, J.

         In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held, with exceptions not relevant here, that the admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses. Here we consider the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion. In addition, we clarify the proper application of Evidence Code sections 801 and 802, relating to the scope of expert testimony.

         We hold that the case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford. The error was not harmless beyond a reasonable doubt. Accordingly, we reverse the jury findings on the street gang enhancements.

         I. FACTS

         On October 16, 2011, two uniformed Santa Ana police officers made eye contact with defendant Marcos Arturo Sanchez, who was standing nearby. He reached into an electrical box with one hand, then ran upstairs into an apartment while holding his other hand near his waistband. When told defendant did not live in the apartment, the officers entered and apprehended him. A boy who had been in the apartment testified the man arrested was a stranger who ran through the residence and into the bathroom. A loaded gun and a plastic baggie were found on a tarp several feet below the bathroom window. The items appeared to have been recently deposited. The downstairs neighbor, who owned the tarp, testified the items were not his and he had given no one permission to place them there. The baggie contained 14 bindles of heroin and four baggies of methamphetamine, all packaged for sale. Sanchez was charged with possession of a firearm by a felon, possession of drugs while armed with a loaded firearm, active participation in the "Delhi" street gang, and commission of a felony for the benefit of the Delhi gang.[1] He was also alleged to have been convicted of a felony for which he had served a state prison sentence.[2]

         Santa Ana Police Detective David Stow testified for the prosecution as a gang expert. He had been a gang suppression officer for 17 of his 24 years on the force. His experience included investigating gang-related crime; interacting with gang members, as well as their relatives; and talking to other community members who may have information about gangs and their impact on the areas where they operate. As part of his duties, Stow read reports about gang investigations; reviewed court records relating to gang prosecutions; read jail letters; and became acquainted with gang symbols, colors, and art work. He had received over 100 hours of formal training in gang recognition and subcultures, offered by various law-enforcement agencies in Southern California and around the nation. He had been involved in over 500 gang-related investigations.

         As part of the department's efforts to control gang activity, officers issue what are known as "STEP notices"[3] to individuals associating with known gang members. The purpose of the notice is to both provide and gather information. The notice informs the recipient that he is associating with a known gang; that the gang engages in criminal activity; and that, if the recipient commits certain crimes with gang members, he may face increased penalties for his conduct. The issuing officer records the date and time the notice is given, along with other identifying information like descriptions and tattoos, and the identification of the recipient's associates. Officers also prepare small report forms called field identification or "FI" cards that record an officer's contact with an individual. The form contains personal information, the date and time of contact, associates, nicknames, etc. Both STEP notices and FI cards may also record statements made at the time of the interaction.

         Stow testified generally about gang culture, how one joins a gang, and about the Delhi gang in particular. Gangs have defined territories or turf that they control through intimidation. They commit crimes on their turf and protect it against rivals. Nonmembers who sell drugs in the gang's territory and who do not pay a "tax" to the gang risk death or injury. The Delhi gang is named after a park in its territory and has over 50 members. Its primary activities include drug sales and illegal gun possession. Defendant was arrested in Delhi turf. Stow testified about convictions suffered by two Delhi members to establish that Delhi members engage in a pattern of criminal activity. (Pen. Code, § 186.22, subds. (e), (f).)

         The questioning then turned to defendant. The prosecutor asked Stow if he was aware that defendant received a STEP notice on June 14, 2011. The prosecutor inquired, "Did the defendant indicate to the police officer in the STEP notice that the defendant for four years had kicked it with guys from Delhi?" and "did the defendant also indicate ‘I got busted with two guys from Delhi?' " Stow responded, "Correct" to both. He explained that "kicking it" means "hanging out and associating" with gang members and that people often used the phrase to avoid openly admitting gang membership.

         The prosecutor next asked about four other police contacts with defendant between 2007 and 2009. Stow gave the details of each, relating statements contained in police documents: (1) On August 11, 2007, defendant's cousin, a known Delhi member, was shot while defendant stood next to him. Defendant told police then that he grew up "in the Delhi neighborhood." (2) On December 30, 2007, defendant was with Mike Salinas when Salinas was shot from a passing car. Salinas, a documented Delhi member, identified the perpetrator as a rival gang member. (3) On December 4, 2009, an officer contacted defendant in the company of documented Delhi member John Gomez and completed an FI card. (4) Five days later, on December 9, 2009, defendant was arrested in a garage with Gomez and Delhi member Fabian Ramirez. Inside the garage, police found "a surveillance camera, Ziploc baggies, narcotics, and a firearm."

         In preparing for trial, Stow compiled a "gang background" on defendant that included the STEP notice and defendant's statements, his contacts with police while in the company of Delhi members, and the circumstances of the present case occurring in Delhi territory. Based on this information, Stow opined that defendant was a member of the Delhi gang. The prosecutor then asked a lengthy hypothetical in which he asked Stow to assume that (1) a Delhi gang member, "who's indicated to the police he kicks it with Delhi and has been contacted in a residence where narcotics and a firearm have been found in the past, " is contacted by police in Delhi territory on October 16, 2011; (2) that gang member "grabbed something, and then grabs his waistband" as he runs up the stairs into an apartment; and (3) he runs into the bathroom and police later find a loaded firearm and drugs on a tarp outside the bathroom window. Assuming those facts, Stow gave his opinion that the conduct benefitted Delhi because the gang member was willing to risk incarceration by possessing a firearm and narcotics for sale in Delhi's turf. Stow added that this conduct also created fear in the community redounding to Delhi's benefit.

         On cross-examination, Stow admitted he had never met defendant. He was not present when defendant was given the STEP notice, or during any of defendant's other police contacts. Stow's knowledge of the two shootings, as well as the 2009 garage incident, was derived from police reports. His knowledge of the December 4, 2009, contact was based on the FI card. Stow clarified that an officer may fill out an FI card or issue a STEP notice to someone not engaged in any crime or suspicious behavior.

         The jury convicted defendant as charged.[4] The Court of Appeal reversed defendant's conviction for active gang participation[5] and otherwise affirmed. We granted defendant's petition for review.


         Defendant contends the expert's description of defendant's past contacts with police was offered for its truth and constituted testimonial hearsay. He urges its admission violated the federal confrontation clause because the declarants were not unavailable and he had not been given an earlier opportunity to cross-examine them. The Attorney General responds that the statements upon which the gang expert based his opinions were not admitted for their truth and, even if they had been, most of the statements were not testimonial.

         We first address whether facts an expert relates as the basis for his opinion are properly considered to be admitted for their truth. The confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Crawford, supra, 541 U.S. at p. 59, fn. 9.) If the Attorney General is correct that statements offered as the basis for an opinion are not admitted for their truth, the statements are not hearsay and our inquiry is at an end. If defendant is correct, the propriety of the statements' admission in this case would turn on whether they constitute testimonial hearsay.

         A. State Evidentiary Rules for Hearsay

         Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content. Evidence Code section 1200, subdivision (a) formally defines hearsay as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." A "statement" is "oral or written verbal expression" or the "nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Evid. Code, § 225.) Senate committee comments to Evidence Code section 1200 explain that a statement "offered for some purpose other than to prove the fact stated therein is not hearsay." (Sen. Com. on Judiciary com., 29B pt. 4 West's Ann. Evid. Code (2015 ed.) foll. § 1200, p. 3; see People v. Davis (2005) 36 Cal.4th 510, 535-536.) Thus, a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true. Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b).) Nothing in our opinion today changes the basic understanding of the definition of hearsay.

         Documents like letters, reports, and memoranda are often hearsay because they are prepared by a person outside the courtroom and are usually offered to prove the truth of the information they contain. Documents may also contain multiple levels of hearsay. An emergency room report, for example, may record the observations made by the writer, along with statements made by the patient. If offered for its truth, the report itself is a hearsay statement made by the person who wrote it. Statements of others, related by the report writer, are a second level of hearsay. Multiple hearsay may not be admitted unless there is an exception for each level. (People v. Riccardi (2012) 54 Cal.4th 758, 831 (Riccardi).) For example, in the case of the emergency room document, the report itself may be a business record (Evid. Code, § 1270 et seq.), while the patient's statement may qualify as a statement of the patient's existing mental or physical state (Evid. Code, § 1250, subd. (a)).

         B. State Evidentiary Rules for Expert Testimony

         While lay witnesses are allowed to testify only about matters within their personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given greater latitude. "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) An expert may express an opinion on "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).) In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc. This latitude is a matter of practicality. A physician is not required to personally replicate all medical experiments dating back to the time of Galen in order to relate generally accepted medical knowledge that will assist the jury in deciding the case at hand. An expert's testimony as to information generally accepted in the expert's area, or supported by his own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue. When giving such testimony, the expert often relates relevant principles or generalized information rather than reciting specific statements made by others.

         The jury is not required to accept an expert's opinion. The final resolution of the facts at issue resides with the jury alone. The jury may conclude a fact necessary to support the opinion has not been adequately proven, even though there may be some evidence in the record tending to establish it. If an essential fact is not found proven, the jury may reject the opinion as lacking foundation. Even if all the necessary facts are found proven, the jury is free to reject the expert's opinion about them as unsound, based on faulty reasoning or analysis, or based on information the jury finds unreliable. The jury may also reject an opinion because it finds the expert lacks credibility as a witness.

         The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise. "[T]he common law recognized that experts frequently acquired their knowledge from hearsay, and that ‘to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on... impossible standards.' Thus, the common law accepted that an expert's general knowledge often came from inadmissible evidence." (Volek, Federal Rule of Evidence 703: The Back Door and the Confrontation Clause, Ten Years Later (2011) 80 Fordham L.Rev. 959, 965, fn. omitted, quoting 1 Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2d ed. 1923) § 665; see Simons, Cal. Evidence Manual (2014) § 4:23, pp. 313-316.) Knowledge in a specialized area is what differentiates the expert from a lay witness, and makes his testimony uniquely valuable to the jury in explaining matters "beyond the common experience of an ordinary juror." (People v. McDowell (2012) 54 Cal.4th 395, 429; see Evid. Code, § 801, subd. (a).) As such, an expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds.

         By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge. (People v. Coleman (1985) 38 Cal.3d 69, 92 (Coleman).)

         Going back to the common law, this distinction between generally accepted background information and the supplying of case-specific facts is honored by the use of hypothetical questions. "Using this technique, other witnesses supplied admissible evidence of the facts, the attorney asked the expert witness to hypothetically assume the truth of those facts, and the expert testified to an opinion based on the assumed facts...." (Imwinkelried, The Gordian Knot of the Treatment of Secondhand Facts Under Federal Rule of Evidence 703 Governing the Admissibility of Expert Opinions: Another Conflict Between Logic and Law (2013) 3 U.Den. Crim. L.Rev. 1, 5; see Simons, Cal. Evidence Manual, supra, § 4:32, pp. 326-327; 2 Wigmore, Evidence (Chadbourn ed. 1978) § 672, p. 933, italics omitted.) An examiner may ask an expert to assume a certain set of case-specific facts for which there is independent competent evidence, then ask the expert what conclusions the expert would draw from those assumed facts. If no competent evidence of a case-specific fact has been, or will be, admitted, the expert cannot be asked to assume it. The expert is permitted to give his opinion because the significance of certain facts may not be clear to a lay juror lacking the expert's specialized knowledge and experience.

         The following examples clarify these general principles and their distinctions.

         (1) That 15 feet of skid marks were measured at an auto accident scene would be case-specific information. Those facts could be established, for example, through the testimony of a person who measured the marks. How automobile skid marks are left on pavement and the fact that a given equation can be used to estimate speed based on those marks would be background information an expert could provide. That the car leaving those marks had been traveling at 80 miles per hour when the brakes were applied would be the proper subject of an expert opinion.

         (2) That hemorrhaging in the eyes was noted during the autopsy of a suspected homicide victim would be a case-specific fact. The fact might be established, among other ways, by the testimony of the autopsy surgeon or other witnesses who saw the hemorrhaging, or by authenticated photographs depicting it. What circumstances might cause such hemorrhaging would be background information an expert could provide. The conclusion to be drawn from the presence of the hemorrhaging would be the legitimate subject for expert opinion.

         (3) That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang.

         (4) That an adult party to a lawsuit suffered a serious head injury at age four would be a case-specific fact. The fact could be established, inter alia, by a witness who saw the injury sustained, by a doctor who treated it, or by diagnostic medical records. How such an injury might be caused, or its potential long-term effects, would be background information an expert might provide. That the party was still suffering from the effects of the injury and its manifestations would be the proper subject of the expert's opinion.

         At common law, the treatment of an expert's testimony as to general background information and case-specific hearsay differed significantly. However, the line between the two has now become blurred. Both the common law and early California law recognized two exceptions to the general rule barring disclosure of, and reliance on, otherwise inadmissible case-specific hearsay. These exceptions covered testimony about property valuation and medical diagnoses. As to the former, "courts recognized that experts frequently derived their knowledge by both custom and necessity from sources that were technically hearsay-price lists, newspapers, information about comparable sales, or other secondary sources." (Kaye et al., The New Wigmore: Expert Evidence (2d ed. 2011) § 4.5.1, p. 154; see In re Cliquot's Champagne (1865) 70 U.S. 114, 141.) Likewise, physicians often relied on patients' hearsay descriptions of their symptoms to form diagnoses. (See Barber v. Merriam (Mass. 1865) 93 Mass. 322, 324-326; see also Kaye et al., § 4.5.1, p. 155; People v. Wilson (1944) 25 Cal.2d 341, 348; Betts v. Southern California Fruit Exch. (1904) 144 Cal. 402, 408; People v. Shattuck (1895) 109 Cal. 673, 678-679; Hammond Lumber Co. v. Los Angeles County (1930) 104 Cal.App. 235, 248.)

         The justification for these exceptions was threefold: "the routine use of the same kinds of hearsay by experts in their conduct outside the court; the experts' experience, which included experience in evaluating the trustworthiness of such hearsay sources; and the desire to avoid needlessly complicating the process of proof...." (Kaye et al., The New Wigmore: Expert Evidence, supra, § 4.5.1, p. 155; see 3 Wigmore, Evidence, supra, § 688, p. 4.)

         The Legislature's enactment of the Evidence Code in 1965 generalized these common law exceptions. Evidence Code section 801, subdivision (b) provides that an expert may render an opinion "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, 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." (Italics added.) Similarly, Evidence Code section 802 allows an expert to "state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion." Under this approach, the reliability of the evidence is a key inquiry in whether expert testimony may be admitted. The California Law Revision Commission comments accompanying the code noted that Evidence Code section 801, subdivision (b) "assures the reliability and trustworthiness of the information used by experts in forming their opinions." (Cal. Law Revision Com. com., reprinted at 29B pt. 3A West's Ann. Evid. Code (2009 ed.) foll. § 801, p. 26.)

         Accordingly, in support of his opinion, an expert is entitled to explain to the jury the "matter" upon which he relied, even if that matter would ordinarily be inadmissible. When that matter is hearsay, there is a question as to how much substantive detail may be given by the expert and how the jury may consider the evidence in evaluating the expert's opinion. It has long been the rule that an expert may not " ‘under the guise of reasons [for an opinion] bring before the jury incompetent hearsay evidence.' " (Coleman, supra, 38 Cal.3d at p. 92.) Courts created a two-pronged approach to balancing "an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion" so as not to "conflict with an accused's interest in avoiding substantive use of unreliable hearsay." (People v. Montiel (1993) 5 Cal.4th 877, 919 (Montiel).) The Montiel court opined that "[m]ost often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.] [¶] Sometimes a limiting instruction may not be enough. In such cases, Evidence Code section 352 authorizes the court to exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]" (Ibid., citing Coleman, supra, 38 Cal.3d at pp. 91-93.) Thus, under this paradigm, there was no longer a need to carefully distinguish between an expert's testimony regarding background information and case-specific ...

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