Lead Opinion
A jury found defendant guilty of the first degree murder ( Pen. Code, §§ 187, subd. (a), 189 )
In the published portion of this opinion we conclude that defendant's confrontation clause violation contentions under Crawford v. Washington (2004)
In the unpublished portion of this opinion, we agree with defendant that the 10-year term for the gang enhancement must be struck. We further conclude that defendant's other claims of trial error are forfeited, without merit, or pertain to errors that were harmless or did not prejudice defendant. However, we shall remand for the trial court to consider whether to exercise its discretion to strike the section 12022.5 and 12022.53 firearm enhancements, and, in the event that the court declines to exercise that discretion, for the court to impose sentences on the section 12022.5, subdivision (a), and 12022.53, subdivision (b), firearm enhancements and then stay execution of those sentences pursuant to section 12022.53, subdivision (f). We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution's Case
The Shooting and Investigation
On the night of February 8, 2012, Weena Vue travelled to Sacramento from the Merced area with four girlfriends to hang out. They went to Casino Royale to eat. There they met the victim Christopher Sisoukchaleun (also known as Bud), Jack Thammavongsa, Sunny Manivong, Roger Bouriboune, Udom Ketphanh, and an individual named Lou. After leaving Casino Royale, the group drove in several cars to the Sunland Liquor store (Sunland), the location where the murder later occurred. Thammavongsa (Sisoukchaleun's cousin) drove Sisoukchaleun's car because Sisoukchaleun was drunk. The group arrived at Sunland at approximately 1:55 a.m.
As they walked up to Sunland, Thammavongsa and Sisoukchaleun both used the word "cuz" in their conversation, and Thammavongsa said something about wanting to race. According to Vue, an African-American male, 5'6? or 5'7? tall with closely cropped hair and wearing a black leather jacket and blue jeans with a design of wings or flames on them, who was standing near the door to Sunland, responded, " 'Yeah, I know what you mean. [¶] I like that, too, Blood, but you know, this is Blood all the way.' "
According to Manivong, defendant walked to a white pickup truck parked nearby, opened a tool box, grabbed something, and put it in his back pocket. Sisoukchaleun removed his shirt and it appeared that he and defendant would fight. Sisoukchaleun and defendant walked into the street. Thammavongsa followed. The other guys in their group were "[r]ight there with us" according to Thammavongsa. Thammavongsa acknowledged that he would have intervened if Sisoukchaleun was getting beaten up.
Thammavongsa and Manivong both testified that no one in their group had any weapons that night. Vue never observed Sisoukchaleun or any of the other guys in their group with any weapons. Manivong
The parties stipulated that a video recording of the scene in the vicinity of the shooting recorded by a surveillance camera owned by the City of Sacramento accurately depicted that location on February 9, 2012, and the recording was introduced into evidence. We have reviewed the video. There is no sound, and the actual shooting takes place out of the camera view, but events before and after the shooting can be seen on the recording.
In the events as shown on the video recording, defendant was standing outside of Sunland when Thammavongsa and Sisoukchaleun, identified at trial on the video by Thammavongsa, arrived and approached the store. Manivong, who identified himself in the video, and Ketphanh approached from the other direction. Both Sisoukchaleun and Manivong made hand gestures. As the group approached, defendant emerged from Sunland's recessed entry and stood in front of the store. Defendant was briefly among Thammavongsa, Manivong, and an unidentified individual in front of the recessed entry. Thammavongsa almost bumped into defendant as he passed. It appears that defendant spoke with members of the group.
Officer Paul Fong, who arrived at the scene shortly after 2:00 a.m. was the first officer on the scene. Manivong relayed to Fong the license plate number of the pickup, and Fong broadcast that information immediately.
Later in the morning, Officer Konrad Von Schoech stopped a Kia in which defendant was a passenger. Von Schoech transported defendant to the police station. There, Detective Thomas Shrum intended to swab defendant's hands for gunshot residue. However, after his arrest, defendant asked to use the restroom. He was accompanied by Detective Shrum. As defendant was walking to the sink after urinating, Detective Shrum told defendant not to wash his hands. Defendant put his hands on the soap dispenser, looked at Shrum, soaped up his hands, and washed them anyway. Thereafter, Detective Shrum interviewed defendant briefly. During the interview, defendant claimed someone had stolen his truck.
Alonso also participated in a search at a residence. In the backyard, police discovered a white F-150 pickup truck without license plates. The vehicle identification number of the truck corresponded to the license plates discovered earlier inside the Kia. In the truck, police found an empty prescription bottle bearing defendant's name and address.
Alonso participated in a search at defendant's apartment. Police discovered items bearing defendant's name. Additionally, police discovered a suitcase in the living room containing .380-caliber auto and nine-millimeter ammunition. Behind a television in the bedroom, police discovered a .40-caliber magazine and a black holster. Police also discovered a box of Remington .357-caliber ammunition containing 10 rounds and a box of Remington .38-caliber ammunition containing 33 rounds.
According to the forensic pathologist who conducted the autopsy on Sisoukchaleun, he sustained one gunshot wound"pretty much on the bridge of the nose, near the center of his face," and another on the left side of his torso. Sisoukchaleun died as a result of these gunshot wounds. The muzzle of the gun was approximately six inches away when it fired the shot that struck Sisoukchaleun in the face. The muzzle was approximately eight to ten inches away, possibly as little as six inches, when the bullet was fired that struck Sisoukchaleun in the torso. The bullet recovered from Sisoukchaleun's torso was a .38-caliber round. Sisoukchaleun's blood alcohol level was 0.28 percent.
Recorded Phone Calls from the Jail
Excerpts of recorded phone calls defendant made from the county jail were played for the jury. In a phone conversation later in the day after his arrest with someone he referred to as "Momma," defendant responded to a question about whether he committed the murder by repeating the claim that someone stole his truck. He said, "Somebody stole my damn truck man and they went and did a crime
In a phone conversation a day later with someone defendant identified as Grandma, he again said somebody had used his truck to commit a crime. When asked what kind of crime, defendant replied, "I think murder." He said he did not report his truck stolen because he had been drinking that night.
In a second call that day, defendant spoke with a male. The conversation begins after the male accepted the collect call from defendant.
"Defendant: Man, it's looking all bad for the home team blood .
"Male: Blood , come on now.
"Defendant: Yep. It's real bad.
"Male: I'm hella mad b-I'm hella mad at you blood . I'm hella mad but, uh.
"Defendant: [¶] ... [¶] ... I don't even know what to do, man. I don't even know what to do. Right now it's just hush mode and wait until they say something to me, you dig what I'm saying?
"Male: Well, that's what you do then, blood ....
"Defendant: [¶] ... [¶] ... I mean somebody stole my shit man. And I [¶] ... [¶] I was too drunk to even call the police. I was too drunk, nigga. I had drunk two fifths to myself man." (Italics added.)
The following day, defendant had a phone conversation with a woman, during which she informed him that she had heard on the news that there was video of the shooting. Defendant's response was: "Are you serious?" He asked if his picture was on the video and then said again somebody had stolen his truck. He said he was too drunk to report it to the police and then said, "Shit. That's my story and I'm sticking with it." In discussing people with whom he was housed at the jail, defendant said, "They had a Crip in here. Long as that nigga don't say nothing crazy to me. [¶] ... [¶] Yeah and they forget. They remember when a mother fucker shot me in my back. That's why I can't be associated with no Crip. Because they-they remember when they-I got shot in my back. [¶] ... [¶] ... But when they shot me in my back, I was a youngster but I went to jail too. [¶] ... [¶] Because I was in sort of a gang shooting."
Defendant did not claim that he shot Sisoukchaleun out of fear for his safety or in self-defense during any of the recorded phone conversations.
Gang Expert Testimony
Detective Justin Saario testified as an expert in African-American criminal street gangs. According to Saario, respect is the ultimate driving force in gang culture. However, respect to gang members is not the same as respect understood by members of society at large. In gang culture, respect is forced
Saario testified that Meadowview Bloods are a subset of the Bloods criminal street gang. They identify with the color red. Crip gangs, rivals to the Bloods, identify with the color blue. Crips use the term "cuz" in referring to one another, whereas Bloods use the term "Blood."
According to Saario, the primary activities of the Meadowview Bloods are robbery, burglary, narcotic sales, weapons possession, and assaults with deadly weapons, which have led to murders. Saario testified about predicate offenses involving three Meadowview Blood gang members, occurring on one occasion. He testified that they beat a Crip gang member and when the Crip fled, one of the three Bloods attempted to follow the Crip into his house armed with a firearm. The Crip obtained a gun, came out and shot one of the three Bloods. One of the Bloods was convicted of active participation in a criminal street gang, specifically the Meadowview Bloods; another was convicted of active participation in a criminal street gang, specifically the Meadowview Bloods, and felony battery; and the third was convicted of residential burglary, assault with a with force likely to cause great bodily injury, and being a felon in possession of a firearm and ammunition. Certified court records of these convictions were admitted into evidence. None of these individuals were involved in defendant's trial.
Saario testified about a series of prior crimes and contacts defendant previously had with law enforcement that aided in his opinion about defendant's gang affiliation. This testimony is the primary subject of defendant's confrontation clause claim.
In November 1991, defendant was walking in South Sacramento when a vehicle occupied by several African-American males drove by. One of the individuals shot at defendant, striking him in the back. At the time, defendant was wearing a red 49ers jacket and a red 49ers hat. Defendant initially denied being a gang member, but then acknowledged that "sometimes people think that he is with the Meadowview Bloods." According to defendant's friend or cousin, defendant was shot by a member of the Oak Park Bloods because of a rivalry that existed between the Meadowview Bloods and the Oak Park Bloods.
On June 2, 1993, police stopped a vehicle occupied by defendant and the driver, Oscar Daniels, a "Blood associate." In the vehicle, police discovered a .22-caliber semiautomatic handgun in the driver's door.
On October 26, 1993, a police officer observed defendant riding a bicycle. The officer attempted to stop defendant, but defendant dismounted from the bicycle and ran. As the police officer chased defendant, defendant pulled out a rifle which he had concealed in his pants, and the officer shot defendant. At the time, defendant was wearing a red bandana. According to Saario, at that time, gang members commonly identified themselves with red or blue bandanas depending upon their affiliation. Defendant was identified in the police system
On January 11, 1995, police contacted defendant in connection with a domestic violence call. Defendant was wearing burgundy pants and was described as a Meadowview Blood.
On September 2, 1995, defendant and Daniels, wearing ski masks, drove up to a male who was in a parking lot placing his daughter into his vehicle. Either defendant or Daniels pulled out a gun and demanded the victim's wallet and keys. The victim ran away, and defendant and Daniels drove off. Sheriff's deputies-responding to this incident-stopped the vehicle defendant was driving. In the vehicle, officers discovered a red ski mask under the driver's seat and another ski mask under the passenger seat. Officers also discovered a .41-caliber Smith and Wesson revolver on the passenger's side of the vehicle. Defendant and Daniels were identified in a showup.
In April 2002, defendant committed gang-related crimes with Lawrence Barnett, a Del Paso Heights Blood.
Saario also relied upon the recorded phone call defendant made from the jail to the woman in which defendant said there was a Crip in custody with
On cross-examination, the defense asked Saario about the phone conversation defendant had with the male the previous day, during which the male initially referred to defendant as " 'cuz.' " Saario stated that, while it was unusual for a Blood to call another Blood "cuz," these rules were not "etched in stone." Saario also noted that, during the conversation, the male speaking to defendant referred to defendant as " 'Blood' " multiple times and defendant also referred to the male as " 'Blood.' "
Saario testified that it is common for gang members to obtain tattoos identifying themselves. Saario personally observed a tattoo on defendant's left arm that said "Meadowview," and testified that this also weighed into his opinion regarding defendant's gang affiliation.
Based on defendant's background, his prior contacts with law enforcement, his Meadowview tattoo, and his statements about the Bloods and Meadowview just prior to shooting Sisoukchaleun, Saario opined that defendant was a member of the Meadowview Bloods.
Saario further opined that, in a hypothetical situation mirroring the facts of this case, the shooter's actions would benefit the Bloods. Saario elaborated: "That benefits the Bloods, based on the fact that the individual, the Blood gang member when being-it goes to the whole respect and disrespect aspect of a Crip gang member calling out using Crip terminology, and the [B]lood gang member taking offense to that, and challenging the Crip by saying, 'No, this is Bloods.' That puts everybody on notice. Crip gang member and anybody else that is there, that by you doing that, that is disrespectful to me being a Blood gang member. And by me saying, No, it's Bloods. This is Meadowview. I'm announcing that I'm a Blood gang member. And what you're doing is disrespect. [¶] There's two ways that it can go right there. The Crip can, 'Hey, man, sorry. You know, it all cool. Let's just hang out' or take offense to the challenge of him not respecting and challenging him by saying 'It's Blood'
Saario testified that the hypothetical scenario was a typical gang escalation; "[w]e see it all of the time."
Defense Case
Defendant did not testify and the defense presented no witnesses. Trial counsel argued to the jury that defendant acted in self-defense or imperfect self-defense.
Verdict and Sentencing
The jury found defendant guilty of murder in the first degree ( §§ 187, subd. (a), 189 ) and possession of a firearm by a felon (§ 29800, subd. (a)(1) ). The jury also found all three firearm enhancements true (§§ 12022.5, subd. (a), 12022.53, subd. (b), 12022.53, subd. (d) ), as well as the gang enhancement (§ 186.22, subd. (b)(1) ).
The court sentenced defendant to a term of 85 years to life, calculated as follows: 25 years to life for murder in the first degree, doubled to 50 years to life for a prior strike conviction; a consecutive term of 25 years to life for the personal use of a firearm enhancement pursuant to section 12022.53, subdivision (d); and a consecutive term of 10 years on the gang enhancement (§ 186.22, subd. (b)(1)(C) ). The trial court stayed imposition of sentence on the section 12022.5, subdivision (a), and section 12022.53, subdivision (b),
DISCUSSION
I. Confrontation Clause Claim
Defendant contends that the trial court impermissibly allowed the prosecution's
We agree with the People that defendant forfeited these claims. Contrary to defendant's contention, his failure to raise the Crawford issue before the trial court is not excused on the ground that such an objection would have been futile. We further conclude that defendant has not met his burden in establishing ineffective assistance of counsel because he has not established that the failure to object to background hearsay was unreasonable, and, with respect to both the background hearsay and the case-specific testimonial hearsay that is the focus of his confrontation clause claim, he has failed to establish prejudice under the test in Strickland v. Washington (1984)
A. Additional Background
Trial counsel filed two sets of written in limine motions on behalf of defendant. In one of the filings, counsel sought various in limine rulings not specific to the gang evidence (general in limine motions). One such motion in the general in limine motions requested the court to exclude evidence of prior
In a separate filing, defendant's trial counsel requested that the court exclude specific testimony of the prosecution's gang expert (gang-specific in limine motions).
Trial counsel's gang-specific in limine motion contained no confrontation clause analysis and did not specifically object to any aspect of the gang expert's anticipated testimony on Crawford grounds. Indeed, again counsel did not even cite Crawford . Nor did counsel cite and discuss the then-evolving case law on the admissibility of expert opinion basis testimony we discuss post .
During oral argument on the in limine motions, defense counsel did not mention the boilerplate confrontation clause claim,
Regarding the gang expert's testimony, trial counsel also contended that evidence underlying defendant's then-pending separate prosecution for violating section 69, obstructing or resisting an executive officer, should not be admitted. Counsel contended there were no gang overtones associated with that case. The prosecution agreed not to introduce evidence of that matter in its case-in-chief.
Thereafter, the trial court asked trial counsel, "So then on the gang expert, [defense counsel], is there anything else?" Counsel replied there was not. The court then asked, "Anything you want me to decide before he testifies?" Again, counsel said there was not.
In arguing the in limine motions orally, and in a subsequent colloquy concerning the gang expert's testimony,
B. Crawford and Sanchez
In Crawford , the United States Supreme court held that the admission of testimonial hearsay violates the confrontation clause
In Sanchez , our high court considered "the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion," and held that "case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law." ( Sanchez, supra ,
C. Forfeiture, Foreseeability, and Futility
We conclude that defendant forfeited the confrontation clause contention he belatedly makes on appeal by failing to make specific objections in the trial court. Requiring a timely, specific objection on confrontation clause grounds in the trial court would not have placed an unreasonable burden on defendant to anticipate an unforeseen change in the law. To the contrary, as we will discuss, the change in the law was foreseeable given the state of the decisional law prior to the introduction of the evidence at trial.
"[A]s a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on
Here, the boilerplate claim in trial counsel's general in limine motions that unspecified other crimes evidence not specifically noticed by the prosecution would violate defendant's rights to due process and confrontation under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution
Similarly, defendant's bare reference to the confrontation clause in his general in limine motions, without reference to the gang expert testimony, is not enough here. A specific objection identifying a specific constitutional theory is required. (See People v. Williams (2010)
On appeal, defendant does not claim trial counsel's boilerplate objection sufficed to preserve his confrontation clause arguments; he acknowledges that that the claim was not raised in the trial court and that key cases we discuss post concerning the emerging law on testimonial hearsay were not cited by trial counsel. Instead, defendant contends that he has not forfeited his claim because any objection would have been futile under case law as it existed at the time. Defendant points out that the decisional law at the time provided that an expert witness may testify as to the material that forms the basis of his or her opinion, even if it would otherwise be inadmissible. ( Gardeley, supra , 14 Cal.4th at pp. 618-619,
The foreseeability rule was recently discussed by our high court in Rangel , supra ,
Here, that standard was not satisfied and consequently, the failure to object is not excused. As we shall discuss, the grounds for objecting were far from "scant." Rather, the legal writing was on the wall and key changes in the law discussed in Sanchez were not unforeseeable . Thus, we conclude that the answer to the relevant question of whether requiring the objection would have placed an unreasonable burden on defendant to anticipate an unforeseen change in the law is no, it would not. Instead of relying on boilerplate motions with vague objections not specific to the case, trial counsel was required to make objections on specific grounds related to the foreseeable changes in confrontation clause law based on the decisional law in existence at the time.
We are not the first among the Courts of Appeal to reach this conclusion since our high court decided Sanchez . The foreseeability standard was recently applied to a Crawford / Sanchez claim similar to that in the instant case by our colleagues in Division Two, of the Fourth Appellate District in People v. Perez (2018)
At the time of defendant's trial, issues involving the confrontation clause-specifically the admission of hearsay evidence as the bases for experts' opinions and whether that evidence is admitted for its truth-could no longer be considered settled as defendant suggests. It is true that in 1996, our high court in Gardeley held that experts may relate to the jury hearsay statements that were part of the basis of their opinion when such information was the type of information reasonably relied upon by experts in the field. ( Gardeley, supra , 14 Cal.4th at pp. 618-619,
Addressing the confrontation clause question not presented in Gardeley , the Thomas court reasoned that Crawford did not undermine the established rule that gang experts can testify about the information and sources upon which they rely in forming their opinions. ( Thomas, supra ,
But the reasoning in Thomas was later roundly criticized in People v. Hill (2011)
Defendant also relied on People v. Dungo (2012)
Defendant also cited People v. Mercado (2013)
Williams , Dungo , and Mercado all point to the inescapable conclusion that the confrontation clause analysis had changed
Thus, by the time of defendant's in limine motion and well before the gang expert here testified, it was reasonably foreseeable that our state's high court would hold: (1) statements upon which a gang expert relies in forming his or her opinion are offered for the truth of the matter, a viewpoint that is directly contrary to the Thomas court's observation that allowing the jury to hear such statements did not violate the confrontation clause because such statements are "not elicited for the truth of their contents" ( Thomas , supra ,
Had defendant made the objection in the trial court, the prosecution would have been on notice of the need to establish the non-hearsay, non-testimonial nature of the statements upon which the gang expert relied if it could, or perhaps determine whether the expert could base his opinion solely on matters that were not hearsay and not testimonial. Indeed, faced with the objection defendant makes here on appeal along with citations to Crawford , Williams , Dungo , and Mercado , the prosecutor could have decided it prudent
Defendant argues that he should be excused from failing to object. He asserts that any objection would have been futile because Gardeley and Thomas were binding on the trial court. He relies essentially on two cases, Kitchens, supra , 46 Cal.2d at pages 262-263,
In Kitchens , the defendant contended on appeal that drug evidence was obtained during an illegal search, but his case was tried when illegally obtained evidence was admissible, and the search was not challenged in the trial court. ( Kitchens, supra ,
In Sandoval , the defendant contended on appeal that the upper term sentence imposed by the trial court violated her constitutional right to a jury trial as explained in Cunningham v. California (2007)
But the situation presented here is different from Sandoval . First, unlike in Black I where the California Supreme Court previously had squarely addressed the constitutional objection at issue, our high court had not yet addressed the constitutionality of admitting gang expert basis testimony when faced with a confrontation clause objection. As we noted, Gardeley did not address the constitutional implications of expert opinion basis testimony.
In referencing the futility rule in its footnote, the Sandoval court cited People v. Welch (1993)
Kitchens , Sandoval , and Welch have one thing in common that made application of the futility rule appropriate in those cases-the law regarding the specific objection at issue was settled prior to the change in the law, and
Indeed, when there is a reasonably foreseeable change in the law, it can hardly be said that an objection based on decisional law from which the change will result is futile or that such an objection would be an idle act. Even if the trial court is bound to follow previous precedent, it may exercise its discretion differently when considering
The dissent rejects our analysis, reasoning that foreseeability of changes in the law is not the test for forfeiture and asserting that the Rangel court never mentions such a rule. (Dis. opn., post , at p. 212.) We respectfully disagree. As we have noted, the Rangel court referred to unforeseeability as a "standard," stating "the relevant question is whether requiring defense counsel to raise an objection ' " ' "would place an unreasonable burden on defendants to anticipate unforeseen changes in the law," ' " ' " and then concluding, "[b]ecause that standard is satisfied here, we conclude that defendant has not forfeited his Crawford claim." ( Rangel, supra ,
The dissent relies upon People v. Gallardo (2017)
Here, unlike in Gallardo , the change in the law was foreseeable based not only the reasoning of five of the nine justices of the United States Supreme Court, but also on opinions signed off on by six of the seven justices on our high court. Added as components of the foreseeability equation here are the observations of the court in Mercado and the court's earlier prediction in Hill that "[t]here is some reason to believe that the California Supreme Court may be prepared to recognize the logical error in Gardeley and Thomas ." ( Hill, supra ,
The dissent actually appears to concede that the change in the law here was foreseeable, acknowledging that " Williams and Dungo suggested that if called upon to decide the issue, a majority of justices on the United States Supreme Court and our Supreme Court, as then constituted , would likely find that the extrajudicial basis of an expert's opinion is necessarily considered for its truth for confrontation purposes." (Dis. opn., post , at p. 213.) However, the dissent contends that because there was no indication that either court would reach the issue in the foreseeable future at the time of defendant's trial, somehow the change in the law was therefore unforeseeable for forfeiture purposes. (Dis. opn., post , p. 213.) We disagree, but also note that the timing of when the issue would be reached seems beside the point. What is relevant is the foreseeability of how the court would decide the issue whenever it was presented. As we see it, if Sanchez was never decided, the instant case could have been the case upon which our high court reached the issue.
The dissent states that our invocation of the forfeiture rule is premised on the requirement that a defendant create a record in support of an objection for use on appeal and suggests that the record here would have been the same if defendant had objected. (Dis. opn., post , at pp. 209, 211-12.) Again, we respectfully disagree. It is true that a defendant's failure to object can result in an undeveloped record. We also note again that one court has already rejected a defendant's confrontation clause objection because he failed to make the objection in the trial court, resulting in an undeveloped record as to the testimonial nature (solemnity and primary purpose) of the hearsay statements. ( Ochoa, supra ,
We also disagree with the dissent's conclusion that the record would have been the same if defendant objected. (Dis. opn., post , at pp. 209, 211-12.) In our view, the record is enhanced by timely, specific objections to each piece of objectionable testimony, highlighting trial counsel's position that the evidence is inadmissible testimonial hearsay, even if the prosecution does not provide rebuttal. The dissent is also critical of our observation that the trial court might have exercised its discretion differently had specific objections been made to specific evidence, and Williams , Dungo , and Mercado been cited. (Dis. opn. post , at p. 211-12.) While the dissent dismisses our observation as speculation, we see this as the role of the trial court in the exercise of its discretion. As our high court has noted in a case cited by the dissent, the requirement to make a specific and timely objection "allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice." ( Morris , supra , 53 Cal.3d at pp. 187-188,
Defendant and the dissent note that some courts have rejected the forfeiture argument made here on the grounds that
Defendant and the dissent also rely upon People v. Jeffrey G . (2017)
In our view, Rangel and the other cases stating that failure to object is excused where requiring an objection would place an "unreasonable burden on defendants to anticipate unforeseen changes in the law" necessarily contemplates the inverse, requiring defendants to make timely and specific objections where the change in law is reasonably foreseeable. Such a requirement is not onerous and serves the purposes of requiring specific and timely objections we have discussed. When one considers Dungo , and Mercado , and the opinions in Williams and the authorities cited therein, the change Sanchez brought was foreseeable and making the objection did not present an unreasonable burden.
We conclude the failure to object is excused when the objection " ' "would place an unreasonable burden on defendants to anticipate unforeseen changes in the law." ' " ( Rangel, supra ,
D. Ineffective Assistance of Counsel Claim Related to the Failure to Object on Specific Confrontation Clause Grounds
Defendant contends that counsel was ineffective for failing to adequately object on confrontation clause grounds to the prior crimes and police contact evidence about which the prosecution's gang expert testified as part of the basis of his opinion concerning defendant's Meadowview Bloods gang membership. Defendant also argues on appeal that the admission of the expert's testimony about the predicate felonies offered to prove that the Meadowview Bloods are a criminal street gang and defendant's phone conversations from the jail violated his confrontation clause rights, but does not specifically argue that trial counsel's failure to object to those parts of the expert's testimony amount to ineffective assistance of counsel. We shall, nevertheless, address those contentions to forestall future claims of ineffective assistance of trial and appellate counsel.
1. Ineffective Assistance of Counsel Principles
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. ( Strickland,
To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " ( Richter,
2. The Gang Expert's Testimony
We now turn to the expert's testimony to consider what portions of this testimony should not have been relayed to the jury, because the failure to object to that evidence bears on the first prong of the ineffective assistance of counsel test-whether trial counsel's performance was deficient. We first look at his testimony regarding the prior crimes and contacts defendant had with law enforcement used as part of the basis for the expert's opinion that defendant was a member of the Meadowview Bloods.
The prosecution's gang expert testified about the following events, which served as part of the basis for his opinion concerning defendant's gang membership: the November 1991 incident when defendant was shot in the back allegedly in relation to a rivalry between the Oak Park Bloods and the Meadowview Bloods; the December 1992 incident where defendant was arrested for a felony warrant and admitted possession of rock cocaine found at the location; the June 1993 incident when he was in a car with others where a firearm was found; an incident in October 1993 when, while running from the police, he displayed a firearm and was shot by the officer; the January 1995 police contact involving a domestic violence call; his commission of armed robbery in September 1995; and his commission of unspecified gang crimes in April 2002 with a Del Paso Heights Blood. These events each had gang overtones
In addition to the hearsay upon which the expert relied in opining about defendant's gang membership, defendant also now objects on Crawford / Sanchez grounds to the expert's testimony concerning the predicate offense testimony offered to establish that the Meadowview Bloods is a criminal street gang. To establish that an organization is a criminal street gang, the prosecution must prove, among other things, that the group has engaged in a pattern of criminal conduct, and this requires a showing that the group has engaged in the requisite number of enumerated predicate offenses. (§ 186.22,
Sanchez did "not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his [or her] expertise." ( Sanchez, supra ,
Defendant, asserted in his original briefing that admission of the gang expert's testimony relaying the facts of the predicate offenses required to prove the gang enhancement violated his confrontation clause rights. The expert's testimony on the predicate offenses here included the gang membership of the people involved in those prior offenses. In his supplemental reply brief, defendant asserts that the facts necessary to prove a pattern of criminal gang activity pursuant to section 186.22 are case-specific facts within the meaning of Sanchez because they are facts used to prove the gang enhancement which is charged in the particular case. Citing Sanchez, supra ,
Sanchez did not address facts underlying predicate offenses; rather, the court's focus was on facts used by the gang
Having outlined the applicable confrontation clause principles and the body of evidence to which defendant now objects on Crawford / Sanchez grounds, we now address whether defendant has met his burden of showing trial counsel's performance was deficient, the first prong of the Strickland test for ineffective assistance of counsel. ( Strickland, supra , 466 U.S. at pp. 688, 691-692,
Prevailing professional standards dictate that competent counsel are required to know the state of the law applicable to issues in their cases. (See Harris v. Thompson (7th Cir. 2012)
We conclude that counsel's performance in failing to object to the introduction of defendant's prior crimes and contacts with law enforcement on the specific confrontation clause grounds defendant asserts on appeal fell below an objective standard of reasonableness under prevailing professional norms. ( Strickland,
The prior crime and police contact testimony relevant specifically to defendant here, which our high court now characterizes as case-specific testimonial hearsay, supported the prosecution's position that defendant was an active member of the Meadowview Bloods, that, when he shot Sisoukchaleun, he did so for the benefit of that particular criminal street gang, and that he had the specific intent to assist, further, or promote criminal conduct by gang members within the meaning of section 186.22. In our view, given the evolution of the decisional law prior to defendant's trial and the foreseeable analytical path our high court would take on gang expert opinion basis testimony when presented with that issue post- Dungo , there was no satisfactory explanation for trial counsel's failure to object to the introduction of this evidence. Indeed, even if the trial court had overruled the objection, in the environment where the analytical rules concerning confrontation clause violations were so obviously and quickly evolving, the objection would have served the useful purpose of preserving the contention for appeal, as the defendant in Sanchez apparently did, thus requiring application of the Chapman harmless beyond a reasonable doubt standard,
However, the expert's testimony concerning the underlying facts of the predicate offenses did not violate defendant's confrontation clause rights. As we have said, this evidence was general background information about the gang's history and prior conduct. (See Sanchez, supra ,
4. Prejudice
a. Ineffective Assistance Prejudice-First Degree Murder ( §§ 187, 189 )
Given the admissible evidence heard by the jury, we conclude that defendant has not suffered Strickland prejudice. There is no reasonable probability defendant would have received a more favorable result on the murder charge had the gang expert been precluded from providing testimonial hearsay basis testimony about his prior contacts with the police.
The jury heard evidence from Vue, Thammavongsa, and Manivong concerning the circumstances leading up to the altercation, culminating in defendant shooting Sisoukchaleun. Their testimony was augmented by the surveillance video.
With regard to planning, the trial evidence demonstrated that defendant walked out from the recessed entry where had been standing to the sidewalk in front of the entry as Sisoukchaleun and Thammavongsa approached from one direction and Manivong and Ketphanh approached from the opposite direction. There on the sidewalk, defendant exchanged words with the group. When the truck pulled up, defendant turned and left the entryway, unimpeded, leaving Sisoukchaleun's group in the entryway.
As for motive, the jury properly had before it witness testimony that defendant invoked the name of the Meadowview Bloods criminal street gang after Sisoukchaleun and Manivong walked up making hand gestures and Thammavongsa and Sisoukchaleun uttered the term "cuz." After defendant invoked the name of Meadowview Bloods, Sisoukchaleun invoked the name of the LGC or Lao Gangster Crip, with which both Thammavongsa and Sisoukchaleun were affiliated. Thammavongsa acknowledged that such an
Additionally, the expert testified that he personally observed defendant's "Meadowview" tattoo at trial. This was further evidence of defendant's gang affiliation, and this evidence was admissible under Sanchez . ( Sanchez, supra ,
The jury also heard defendant's jail phone conversations. In one conversation, he and the person with whom he spoke referred to each other as "blood" several times. As the gang expert explained, Blood gang members commonly refer to one another by the word, "blood." In another conversation, defendant talked about having previously been shot by a Crip " 'because it was sort of a gang shooting' " and that he was housed near a Crip in the jail, but he did not care " '[l]ong as that nigga don't say nothing crazy.' " What can be inferred from this evidence is that, unlike the Crip with whom defendant was housed in the jail, Sisoukchaleun had said something crazy to defendant by disrespecting defendant and his criminal street gang. The motive here was quite obviously gang related, even without the case-specific testimonial hearsay in the gang expert's testimony.
As for manner of killing, after defendant retrieved his firearm from the truck and re-engaged Sisoukchaleun, he followed Sisoukchaleun
In addition to the very strong evidence of planning, motive, and manner of killing, there was also evidence evincing defendant's consciousness of guilt. When he was arrested later in the day, the pants with the distinctive red design he had worn earlier during the shooting were in a bag. Also found in the car in which defendant was riding were the license plates from his truck. After he finished urinating at a police facility restroom, he was told not to
Defendant contends that the jury rejected self-defense and imperfect self-defense because of the testimony concerning his prior law enforcement contacts. The trial court instructed the jury with CALCRIM No. 505 on complete self-defense and imperfect self-defense. Instead of leaving after the initial confrontation,
Based on the totality of the evidence, we conclude that, had the gang expert's objectionable case-specific testimonial hearsay testimony not been allowed, the jury would have still found defendant guilty of first degree murder. There is no reasonable probability that defendant would have achieved a more favorable result on the
The parties stipulated that defendant previously had been convicted of a felony. There is no dispute that defendant possessed a firearm. The video shows defendant going to the pickup truck to retrieve it. Witnesses testified that, in the midst of the altercation with Sisoukchaleun in the street, defendant pulled out a gun. Manivong heard a woman say, " 'He's got a gun.' " Defendant then shot Sisoukchaleun twice.
This evidence established a violation of section 29800, subdivision (a)(1). There is no reasonable probability that the jury would have found defendant not guilty on count two, possession of a firearm by a felon, if the objectionable testimonial hearsay evidence from the gang expert had been precluded.
c. Ineffective Assistance Prejudice-Firearm Enhancements (§§ 12022.53, subds. (b), (d), 12022.5, subd. (a) )
In the commission of murder, defendant personally and intentionally discharged a firearm causing Sisoukchaleun's death. Again, defendant did not dispute shooting Sisoukchaleun. He only maintained that he did so in self-defense or imperfect self-defense. Subdivision (l ) of section 12022.53 provides that "[t]he enhancements specified in this section shall not apply to the lawful use or discharge of a firearm ... by any person in lawful self-defense, lawful defense of another, or lawful defense of property, as provided in Sections 197, 198, and 198.5." However, as can be readily seen, the jury appropriately rejected defendant's claims of self-defense and imperfect self-defense and would have done so without the inadmissible basis testimony given the evidence we recounted in our discussion of defendant's ineffective assistance of counsel claim related to his first degree murder conviction.
We conclude there is no reasonable probability that, but for of the objectionable gang expert testimony, the jury would have found the firearm allegations not true.
d. Ineffective Assistance Prejudice-Criminal Street Gang Enhancement (§ 186.22, subd. (b)(1) )
To prove the section 186.22, subdivision (b)(1), enhancement, the People were required to prove that the defendant committed the murder for the benefit of a criminal street gang, and that he had the specific intent to assist, further, or promote criminal conduct by gang members. (§ 186.22, subd. (b)(1); CALCRIM No. 1401 ;
In considering whether defendant suffered Strickland prejudice as to the gang enhancement, we shall exclude the testimonial hearsay, specifically the gang expert's case-specific testimony concerning defendant's prior crimes and contacts with law enforcement as indicators of defendant's involvement in the Meadowview Bloods criminal street gang. After excluding that evidence from the calculus, we consider what evidence is left to prove the section 186.22, subdivision (b)(1), enhancement.
As we have noted, Sisoukchaleun and Manivong both made hand gestures as they walked up to Sunland, and they can be seen doing so on the surveillance video. Thammavongsa and Sisoukchaleun both uttered the term " 'cuz.' " According to Thammavongsa, after he said, " 'Cuz, get some drink,' " defendant said, " 'Blood, Meadowview, Meadowview bloods' " or " 'Blood, Meadowviews, 69.' " According to Vue, the man who was involved in the confrontation with Sisoukchaleun said, " 'I am a Blood.' " Vue also testified that, after Thammavongsa said something about wanting to race, the man fitting defendant's description and whom she identified in a photographic lineup stated: " 'Yeah, I know what you mean. [¶] I like that, too, Blood, but you know, this is Blood all the way.' " According to Thammavongsa, Sisoukchaleun " 'got tired of hearing' " defendant say " 'Blood, Meadowview' " Sisoukchaleun invoked the name LGC or Lao Gangster Crip, with which both Thammavongsa and Sisoukchaleun were affiliated. Thammavongsa acknowledged that such an exchange would amount to "[f]ighting words" because Bloods and Crips do not get along. The gang expert testified that, in a hypothetical situation mirroring the facts of this case, the shooter's actions would benefit the Bloods. He indicated that by invoking the name of the Blood gang after Sisoukchaleun's group invoked the name of the Crips, defendant "put[ ] everyone on notice" that what they were doing was "disrespectful to [him] being a Blood gang member. ... [¶] There's two ways that it can go right there. The Crip can, 'Hey, man, sorry. You know, it all cool. Let's just hang out' or take offense to the challenge of him not respecting and
There was additional evidence establishing defendant's gang membership. The use of the word "blood" during the recorded phone conversations and defendant's acknowledgment that he had been previously shot by a Crip in a gang-related shooting tended to establish that defendant was a Meadowview Blood. Additionally, defendant's Meadowview tattoo further proves his gang membership, another fact the gang expert considered in forming his opinion. Lastly, the gang expert opined that defendant was a Meadowview gang member based on the facts of the case.
Based on the foregoing, we conclude that there is no reasonable probability that defendant would have achieved a not true finding on the gang enhancement had counsel made the confrontation clause objection he asserts on appeal and successfully achieved the preclusion of the gang expert's testimony concerning defendant's prior crimes and contacts with law enforcement.
5. Ineffective Assistance Claim-Conclusion
We conclude that trial counsel's failure to register specific objections to the gang expert's case-specific testimonial hearsay testimony on Crawford / Sanchez grounds resulted in no prejudice to defendant as to any of the charges or enhancement allegations.
E. Chapman
As we have noted, when an evidentiary error is forfeited and a claim of ineffective assistance of counsel has been made, we must review the error under the less burdensome Strickland standard for prejudice instead of the stricter Chapman harmless error standard related to evidentiary error based on constitutional claims. The dissent rejects forfeiture and concludes that the error requires reversal of the murder conviction and the firearm and gang enhancement findings based on Chapman, supra ,
Even if we were to conclude that defendant did not forfeit his confrontation clause contentions, we would conclude that the error in admitting the gang expert's testimony discussed at length
For the same reasons we discussed in our Strickland prejudice analysis regarding the murder conviction and gang and firearm enhancements, we
The dissent maintains that an alternative "interpretation" of the video exists that suggests Sisoukchaleun was the aggressor and that the defendant acted in self-defense. According to this interpretation, it is "possible that [defendant] simply returned to pick up his alcohol and Sisoukchaleun and his friends re-engaged defendant" (Dis. opn., post , at p. 219) as opposed to our view that defendant re-engaged the group after retrieving his gun from his truck. Without going back over the detail of the video again, suffice it to say that we simply disagree with the dissent's view of the sequence of events reflected therein. Moreover, in arriving at the interpretation where Sisoukchaleun was the aggressor, the dissent overlooks the fact that an unidentified individual walked out from the recessed entryway to where defendant was standing on the sidewalk and put his arm out to stop defendant from following Sisoukchaleun into the street. Defendant pointed his finger at that person's chest, appeared to argue with him, then stepped around him, and went into the street where the other evidence shows defendant ultimately aimed his gun between Sisoukchaleun's eyes and pulled the trigger. Also, in rejecting our Chapman conclusion, the dissent fails to address the statements defendant made to others where he never claimed self-defense or that he was in fear, and further fails to address the evidence of defendant's consciousness of guilt.
The error here did not contribute to the first degree murder verdict or the enhancement findings and thus the People have satisfied their burden of establishing that the error was harmless beyond a reasonable doubt.
DISPOSITION
We remand this matter to the trial court with directions to: (1) strike the 10-year sentence imposed pursuant to section 186.22, subdivision (b)(1)(C);
The judgment is otherwise affirmed.
I concur:
NICHOLSON J.
Notes
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Manivong testified that he was not a gang member, and he did not "represent nothing."
At trial, Vue did not identify the African-American male she observed on the night of the shooting. However, according to a former Sacramento Police Department sergeant, on February 15 or 16, 2012, Vue identified defendant in a photo lineup as the shooter.
Only Vue used the term " 'Little Asian Crip.' " Thammavongsa testified that both he and Sisoukchaleun were "affiliated" with LGC, or Lao Gangster Crips. Neither Thammavongsa nor Manivong said they recalled hearing anyone say "LGC" or "Little Gangster Crip." However, Thammavongsa testified that a possible response if defendant said, " 'Meadowview Blood' " would be to say, " 'No, this is LGC.' "
When viewing the surveillance video during her testimony, Vue initially pointed to a different unidentified African-American individual as being the person who spoke with Sisoukchaleun and who subsequently walked over to the white pickup truck. Defendant's trial counsel argued in closing that it was not clear defendant was the individual who spoke with Sisoukchaleun. Nonetheless, ultimately, at trial and on appeal, defendant does not dispute he was the individual who interacted with, and ultimately shot and killed, Sisoukchaleun.
Although not raised by the parties, we address the trial court's failure to impose a sentence on each of these enhancements and then stay execution thereof in part X. of the Discussion, post .
The record does not reflect what crimes, if any, the gang expert testified about that were not "specifically noticed by the prosecution."
In the gang-specific in limine motions, trial counsel asked the court to "place reasonable and appropriate limits on the gang expert's testimony." Under the heading "Issues to be Addressed," counsel contended the following aspects of Saario's anticipated testimony should not be admitted: (1) Saario's opinion that defendant had the intent to promote or assist the gang; (2) that defendant actively participates in the Meadowview Bloods because such would be "unfounded speculation"; (3) the primary activities of the Meadowview Bloods, purportedly because Saario had insufficient knowledge upon which to base an opinion; (4) "hearsay statements about [d]efendant's association with the Meadowview Bloods because he explicitly states that his opinion is not based in any way on such information" (boldface omitted); (5) an incident that took place on January 11, 2012, when defendant was visiting a residence where a search warrant was served and he resisted handcuffing, resulting in a struggle where the officers choked defendant.
The other arguments counsel made in the gang-specific in limine motions were: the trial court is the "gatekeeper regarding the admissibility of expert opinion," (uppercase omitted) citing cases pertaining to the Federal Rules of Evidence, including Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
In later arguing, "whether defendant 'actively participates' in a criminal street gang is not the proper subject of expert opinion," (uppercase omitted) counsel cited some of the same decisional law pertaining to section 186.22, subdivision (a).
Defendant does not contend on appeal that the trial court abused its discretion in admitting the gang expert's testimony concerning any or all of the events over his written Evidence Code sections 1101 and 352 objections, but he does assert that counsel's failure to register specific and timely objections on those statutory grounds amounted to constitutional ineffective assistance of counsel. We reject that contention for failure to show prejudice in the unpublished portion of this opinion, post .
Defendant does not challenge the trial court's ruling on the oral bifurcation motion in this appeal.
Trial counsel clarified an apparent agreement between her and the prosecutor that the gang expert would not mention defendant's 2002 conviction for pimping and pandering. Rather, the expert would simply say that "on 4/22/02, [defendant] was committing a gang-related crime with Lawrence Barnett, who is a Del Paso Heights Blood."
In pertinent part, 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." (Italics added.)
We acknowledge, as did the Perez court, that "Williams , Dungo , and Mercado did not anticipate the distinction that Sanchez ultimately drew between case-specific and non-case-specific hearsay." (Perez,
The four-justice plurality concluded that the report was nontestimonial because the report was not made for the primary purpose of targeting a specific individual or to create evidence for use at trial. (Williams, supra ,
While the Gardeley court allowed hearsay as basis testimony, it cautioned that admission of otherwise inadmissible hearsay is not automatic. "A trial court ... 'has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.' [Citation.] A trial court also has discretion 'to weigh the probative value of inadmissible evidence relied upon by an expert witness ... against the risk that the jury might improperly consider it as independent proof of the facts recited therein .' [Citation.] This is because a witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact." (Gardeley, supra ,
The court concluded it need not resolve the question of the defendant's forfeiture because the People had forfeited the forfeiture argument by failing to raise it in the Court of Appeal. (Gallardo , supra ,
In beginning the direct examination concerning defendant's prior crimes and police contacts, the prosecutor asked the expert whether he "had an opportunity to review [defendant]'s background and a number of the contacts that he's had." The expert said he had. The prosecutor did not ask whether the expert reviewed police reports and/or similar materials, and the expert did not volunteer as much. However, the expert did not begin working with the police department until 2000 and was not assigned to the problem-oriented policing team addressing gang activity until three years later. Consequently, the expert's knowledge of virtually all of these matters could not have been based on firsthand knowledge or anything other than police reports and the like. Also, on this record, there is no indication that any of the statements qualified under any exception to the hearsay rule. Furthermore, these matters all related to defendant and were thus case-specific facts since they related to a "participant[ ] alleged to have been involved in the case being tried." (Sanchez, supra ,
We do not address in this case a situation where a predicate offense was committed by a defendant charged in the case being tried.
The court in Ochoa appears to have treated all predicate offense information as case-specific hearsay. (Ochoa , supra , 7 Cal.App.5th at pp. 583, 588-589,
"A violation of the Sixth Amendment's confrontation right requires reversal of the judgment against a criminal defendant unless the prosecution can show beyond a reasonable doubt that the error did not contribute to the verdict obtained." (People v. Pettie (2017)
We realize, of course, that an assailed person has no duty to retreat and is entitled to stand his ground or pursue the assailant until the danger of bodily injury or death has passed, even if safety could have been achieved by retreating. (People v. Hughes (1951)
In a petition for rehearing, defendant asserts the video shows Thammavongsa ''raising and lowering his arm in an angry gesture as the group surrounds defendant.'' (Petn. for rehg., pp. 8-9) We disagree. At the point defendants cites in the video, defendant walked out from the recessed entry to Sisoukchaleun's group on the sidewalk and words were exchanged. Thammavongsa, who had his back to this group and to defendant and was facing the glass window of the store, gestured to someone or something in the store with his right arm. Because defendant joined Sisoukchaleun's group in the entryway, they were around him, but the video does not show Thammavongsa marking the gesture towards defendant he describes.
Additionally, even assuming the predicate offense testimony we discussed ante should have been precluded, there is still compelling evidence in the form of the certified court records showing convictions for the predicate offenses the expert testified about. Those records include verdict forms showing two of the defendants were convicted of active participation of a criminal street gang and noted the name of the gang-"Meadowview Bloods."
Defendant also claims on appeal that counsel was ineffective for failure to register specific and timely objections to this evidence pursuant to Evidence Code sections 350 (Only relevant evidence admissible), 352 (Discretion of court to exclude evidence), and 1101 (Evidence of character to prove conduct). " '[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' " (People v. Carrasco (2014)
We discuss and reject defendant's other ineffective assistance claims in the unpublished part of this opinion, post .
See footnote *, ante .
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Dissenting Opinion
I respectfully dissent. The majority concludes that defendant forfeited his confrontation clause claim by failing to object in the trial court even though the trial court would have been duty bound to overrule any such objection under the governing law in effect at that time. The basis of the forfeiture doctrine is Evidence Code section 353, subdivision (a). It is premised on the requirement that a defendant create a record in support of an objection for use on appeal. Where, as here, the trial court is required to overrule an objection, the record for use on appeal is not enhanced. In other words, had defendant objected below, we would have the same record we have today. The majority's holding that defendant forfeited his confrontation clause claim by failing to object in the trial court renders the futility doctrine futile.
The majority bases its conclusion that defendant forfeited his confrontation clause claim by failing to object in the trial court on its finding that the change in the law effected by People v. Sanchez (2016)
Over 20 years ago in People v. Gardeley (1996)
For example, in Thomas,
After Thomas (and before our Supreme Court's recent decision in Sanchez ), every division of every district court of appeal to address the issue in a published decision concluded that gang expert basis evidence is not offered for its truth but only to evaluate the expert's opinion to defeat a confrontation clause challenges under Crawford . (See, e.g., Hill, supra ,
These cases were binding on the trial court at the time of defendant's trial in May 2013. ( Auto Equity Sales, Inc. v. Superior Court (1962)
As the majority notes, the general rule that a party objecting to evidence must make a timely and specific objection in the trial court is found in
The majority's suggestion that "faced with the objection defendant makes here
The majority concludes that defendant was required to raise his confrontation clause claim in the trial court because at the time of defendant's trial "the legal writing was on the wall and key changes in the law discussed in Sanchez were not unforeseeable" to competent and knowledgeable counsel based on the concurring and dissenting opinions in Williams and Dungo . (Maj. opn. ante, at p. 185, italics omitted.) The common view expressed in the concurring and dissenting opinions in those cases could not be taken as a holding by either court since it was not the basis of any judgment. (See Dungo , supra, 55 Cal.4th at pp. 627-629,
In Rangel , the defendant argued that the trial court's admission of certain statements as adoptive admissions violated his right to confrontation under Crawford , which was not decided until after the defendant's trial. ( Rangel, supra ,
Here, as in Rangel, defendant's failure to object on confrontation clause grounds during his trial was excusable because governing law at the time held that expert basis testimony was not elicited for its truth, but to assess the weight of the expert's opinion, and thus could not give rise to a confrontation clause violation. (See, e.g., Gardeley , supra,
In Gallardo , the trial court increased the defendant's sentence for second degree robbery and transportation of marijuana based on its finding that her prior conviction for assault with a deadly weapon or with force likely to produce great bodily injury involved an assault with a deadly weapon and thus qualified as a serious felony under Penal Code section 667, subdivision (a). ( Gallardo,
At the time of the defendant's sentencing in Gallardo , the law was in flux. In People v. McGee (2006)
In addressing the People's forfeiture argument, the court in Gallardo explained: "At the time defendant was sentenced, California law allowed a
Unlike Gallardo, here there was not a majority opinion calling into question the governing law. Rather, there were concurring and dissenting opinions in Williams and Dungo, and the common view expressed in those opinions could not be taken as a holding by either court since it was not the basis of any judgment. (See Dungo, supra , 55 Cal.4th at pp. 627-629,
Until very recently, no published decision of a California court of appeal had held that a defendant forfeited a claim by failing to raise it in the trial court based on the ground that a change in the law was reasonably foreseeable. To the contrary, in People v. Meraz , supra,
More recently, however, our colleagues in Division Two of the Fourth District, reached the opposite conclusion. (Perez,
As previously discussed, the common view expressed in the concurring and dissenting opinions in Williams and Dungo could not be taken as a holding by either court since it was not the basis of any judgment. (See Dungo, supra, 55 Cal.4th at pp. 627-629,
I do not dispute that the better practice in this case may have been to raise a confrontation clause objection in the trial court, particularly with the benefit of hindsight. I disagree, however, with the majority that defendant forfeited
Turning to the merits, the People properly concede that much, if not all, of the gang expert's testimony concerning defendant's prior gang activity consists of case-specific testimonial hearsay, and its admission ran afoul of the confrontation clause under Sanchez .
Having concluded that the gang expert's testimony concerning defendant's prior gang activity violated defendant's rights under the confrontation clause, I next consider whether defendant was prejudiced by the violation.
Defendant contends that the confrontation clause violation requires reversal of the entire judgment because the People "cannot establish beyond a reasonable doubt that the improperly admitted evidence did not affect the jury's evaluation of the defense argument that Sisoukchaleun and his companions were the aggressors and [defendant] only obtained the gun and then shot Sisoukchaleun in self-defense." I agree with respect to the murder conviction.
At trial, defendant did not dispute that he shot and killed Sisoukchaleun. Rather, the defense's theory was that defendant acted in self-defense, or at worst, imperfect self-defense. The defense argued that it was Sisoukchaleun, not defendant, who was the aggressor. According to the defense, Sisoukchaleun could not let a rival gang member's statements go, especially when the statements were made in the presence of his friends, at least one of whom was a fellow gang member. The defense claimed that defendant retrieved the gun after being confronted by Sisoukchaleun, and had he not done so, Sisoukchaleun and his friends would be on trial for defendant's murder. The defense urged that defendant shot Sisoukchaleun after Sisoukchaleun took a swing a him because he believed it was his only option.
The prosecutor's gang expert testified about gang-related activities in which defendant participated as part of the basis for his opinion that defendant was a Meadowview Bloods gang member. Those activities included pulling a loaded rifle on a police officer, committing an armed
Evidence defendant engaged in gang activity in the past, particularly activity that involved the use of firearms, supported the prosecution's theory that the shooting was gang-motivated, which necessarily undercut the defense's theory that defendant was acting in self-defense. As the majority recognizes, such evidence "supported the prosecution's position that defendant was an active member of the Meadowview Bloods, that, when he shot Sisoukchaleun, he did so for the benefit of that particular criminal street gang, and that he had the specific intent to assist, further, or promote criminal conduct by gang members within the meaning of [Penal Code] section 186.22." (Maj. opn. ante, at p. 201.)
While there was substantial evidence in addition to defendant's prior gang activity that supported the prosecution's theory that the shooting was gang-motivated, such as defendant repeatedly calling out Meadowview Bloods, the record did not foreclose a finding that Sisoukchaleun was the aggressor, and that defendant was acting in self-defense when he shot him.
The evidence adduced at trial included the following: Sisoukchaleun and Manivong flashed gang signs as they approached the liquor store, and Sisoukchaleun and Thammavongsa used the word "cuz," which is associated with the Crips street gang. When defendant, who was standing just outside the liquor store, indicated that he was a member of the Meadowview Bloods,
The People assert that the jury's verdict finding defendant guilty of first degree murder shows that "the jury clearly rejected defense counsel's argument that appellant shot the victim in self-defense." As defendant points out, "The [People's] analysis clearly begs the question: has the state shown beyond a reasonable doubt, that the jury would have rejected the substantial evidence that the shooting was in self-defense in the absence of the highly prejudicial, improperly admitted case-specific testimonial hearsay about appellant's past gang activity?" Based on the record and the prejudicial nature of the evidence in question, I would find that the People have failed to establish beyond a reasonable doubt that the error did not contribute to the first degree murder verdict.
For the reasons set forth above, I would reverse the judgment for first degree murder and the findings on the gang and firearm enhancements.
Section 353 provides in pertinent part: "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."
The majority cites People v. Mercado (2013)
The People concede that "[u]nder Sanchez, the ... testimony, in which the gang expert related case-specific, out-of-court statements documenting appellant's prior gang and police contacts, amounted to testimonial hearsay," but argue that the error was harmless beyond a reasonable doubt. The majority accepts the concession.