THE PEOPLE, Plaintiff and Respondent, v.
S248730
Supreme Court of California
February 27, 2020
Fourth Appellate District, Division Two E060438; San Bernardino County Superior Court FV1901482
February 27, 2020
This opinion precedes companion case S249872, also filed on February 27, 2020.
Justice Groban authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, Cuéllar, and Kruger concurred.
PEOPLE v. PEREZ
S248730
People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) held that an expert cannot relate case-specific hearsay to explain the basis for his or her opinion unless the facts are independently proven or fall within a hearsay exception. We concluded that if the prosecution expert seeks to relate testimonial hearsay, the confrontation clause is violated unless there is a showing of unavailability and the defendant had a prior opportunity for cross-examination or forfeited that right. We granted review in this case to determine whether a defendant‘s failure to object at trial, before Sanchez was decided, forfeited a claim that a gang expert‘s testimony related case-specific hearsay in violation of the confrontation clause. We now conclude that a defense counsel‘s failure to object under such circumstances does not forfeit a claim based upon Sanchez. Accordingly, we reverse the judgment of the Court of Appeal here, which reached the opposite conclusion.
I. BACKGROUND
On June 23, 2009, a motorist driving on U.S. Highway 395 near Victorville encountered a man walking on the road and bleeding from gunshot wounds to his face and abdomen. Police arrived on the scene and followed a trail of blood to a pickup truck parked a few blocks away. There, the police found two other men, who had both died from gunshot wounds. The surviving victim told police that he had been kidnapped a few days earlier in the city of South Gate, near Los Angeles. He was visiting a house on Center Street when a group of men held him at gunpoint and tied him up with zip ties. The group forced the victim to call two other acquaintances and summon them to the house. Upon their arrival, the group then bound the other two as well. The group forced the three victims to arrange for deliveries
In police interviews, defendant Jose Luis Perez admitted that he was present during the crimes up to just before the shooting and that his participation consisted of duct-taping a sock over the eyes of one of the victims and then putting him in zip ties. Perez stated that he got into a vehicle when the group left the house with the victims, but that the vehicle he was in lost track of the other vehicles. Perez incriminated his codefendants Edgar Ivan Chavez Navarro (“Chavez“) and Pablo Sandoval, as well as Sabas Iniguez, Caesar Rodriguez, and Eduardo Alvarado (nicknamed “Lalo“). Perez admitted he heard the plan was to rob the victims and kill them but claimed that he was not supposed to be present and that the others simply showed up earlier than expected at the house on Center Street while he was there. Perez claimed that Sandoval threatened to kill him and his family if he talked.
Chavez, Perez, and Sandoval were all tried together, but Perez had a separate jury. Iniguez testified against them pursuant to plea bargain. He testified that a drug dealer named “Max” owed a debt to other drug dealers (the victims here) for methamphetamine. Max was a cartel member and Sandoval reported to him. Alvarado was also a cartel member and Chavez reported to him. One of the victims who died was a cartel member and reported to “Nacho,” i.e., the “big boss” in Guadalajara. The surviving victim reported to that decedent victim. Max planned to ambush his creditors and rob them of drugs and money. Iniguez, Sandoval, Chavez, Perez, Alvarado, Rodriguez, and three unknown persons all assisted in carrying out the plan.
The prosecution‘s gang expert Jeff Moran testified that the Sinaloa drug cartel produces large amounts of methamphetamine, cocaine, and marijuana and transports them to the United States to sell. The cartel operates as a franchise and is divided into territories, which are subdivided into cells. Each cell connects to someone in the cartel, but each cell works independently of the other cells. At the time of trial, “El Chapo” Guzman was the head of the Sinaloa cartel. “Nacho” was Ignacio Coronel, who was killed in 2010. At the time of the offenses, Coronel worked in Guadalajara and was number three in the Sinaloa drug cartel. In Moran‘s opinion, Iniguez, Sandoval, Chavez, Perez, Alvarado, and Rodriguez were all members or associates of the Sinaloa drug cartel. He testified that the group‘s coordinated efforts are consistent with members or associates of a criminal street gang acting in association or in concert with each other. He testified that he formed his opinions based upon his training, experiences, and information obtained from this investigation. This included information obtained from interviews he and other
On October 31 and November 1, 2013, the juries convicted Chavez, Sandoval, and Perez each of two counts of first degree special circumstance murder (
Defendants appealed. In 2016, before the appeals were resolved, we issued our opinion in Sanchez, supra, 63 Cal.4th 665. In supplemental briefing, Chavez argued in the Court of Appeal that the gang expert‘s testimony was hearsay and had been presented to the jury in violation of the confrontation clause. Chavez claimed that the gang expert testified to case-
specific hearsay in the following ways: (1) Iniguez admitting he was a cartel member; (2) Sandoval‘s activities showed that he was a cartel member; (3) sources told Moran that Sandoval was the one who had direct contact with Max, who was calling the shots; (4) based on his “involvement and participation in this investigation,” Moran believed Chavez was a cartel associate who worked directly for Lalo; (5) Moran‘s investigation, including Perez‘s admission to law enforcement, led Moran to believe Perez was a low-level associate who wanted to work for Sandoval and his involvement in this case was an audition; and (6) sources told Moran and other investigators that the crimes in this case were part of a cartel-ordered hit.
The Court of Appeal held that Chavez‘s failure to object to case-specific hearsay in expert testimony at trial forfeited any Sanchez claim on appeal.
Defendants petitioned for review. We granted the petitions and transferred the matter for the Court of Appeal to reconsider the cause in light of recent amendments to the firearm enhancement statutes. (See
Defendants Chavez and Perez petitioned for review. We granted Chavez‘s petition to consider the limited issue of whether defendant‘s failure to object at trial, before Sanchez was decided, forfeited his claim that a gang expert‘s testimony related case-specific hearsay in violation of his Sixth Amendment right to confrontation. We denied Perez‘s petition.
II. DISCUSSION
Chavez argues that, even though he did not raise a confrontation clause objection to the gang expert‘s testimony at the time of trial, he did not forfeit the claim because Sanchez had not yet been decided and such an objection would therefore have been futile. We agree.
Ordinarily, “the failure to object to the admission of expert testimony or hearsay at trial forfeits an appellate claim that such evidence was improperly admitted.” (People v. Stevens (2015) 62 Cal.4th 325, 333; accord,
At the time of Chavez‘s trial, People v. Gardeley (1996) 14 Cal.4th 605 and People v. Montiel (1993) 5 Cal.4th 877, 919 (Montiel) were controlling authority on expert testimony. Gardeley permitted a qualified expert witness to testify on direct examination to any sufficiently reliable hearsay sources used in formulation of the expert‘s opinion. (See Gardeley, at p. 618.) Consequently, “[c]ourts 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.‘” (Sanchez, supra, 63 Cal.4th at p. 679, quoting Montiel, at p. 919.) “Most often, hearsay problems [were] cured by an instruction that matters admitted through an expert go only to [the] basis of the opinion and should not be considered for their truth. [Citation.] Sometimes a limiting instruction [was] not enough. In such cases,
After Chavez‘s trial, Sanchez found that “this paradigm is no longer tenable because an expert‘s testimony regarding the basis for an opinion must be considered for its truth by the jury.” (Sanchez, supra, 63 Cal.4th at p. 679.) Sanchez explained that “[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert‘s opinion, the statements are hearsay. It cannot
Sanchez consequently disapproved Gardeley “to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules.” (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Sanchez also disapproved “prior decisions concluding that an expert‘s basis testimony is not offered for its truth, or that a limiting instruction, coupled with a trial court‘s evaluation of the potential prejudicial impact of the evidence under
Sanchez thus expressly changed the law previously established by Gardeley and Montiel. “‘[W]e have excused a failure to object where to require defense counsel to raise an objection “would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal.“‘” (Edwards, supra, 57 Cal.4th at p. 705.) We therefore hold that the failure of Chavez‘s counsel to object at trial before Sanchez was decided did not forfeit a claim on appeal based upon Sanchez. The great weight of authority below is consistent with this ruling. (See, e.g., People v. Flint (2018) 22 Cal.App.5th 983, 996-997; People v. Hall (2018) 23 Cal.App.5th 576, 602, fn. 10; Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1283; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508; People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7.)
The Attorney General, however, argues that three confrontation clause cases decided before Chavez‘s trial, Williams v. Illinois (2012) 567 U.S. 50 (Williams), People v. Dungo (2012) 55 Cal.4th 608 (Dungo), and People v. Lopez (2012) 55 Cal.4th 569 (Lopez), provided grounds for objection, and therefore objection at trial would not have been futile.
By its terms, the confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” (
Our court then applied Williams in the companion cases of Dungo and Lopez. Dungo held the confrontation clause was not violated when an expert testified about objective facts concerning the condition of the victim‘s body as recorded in an autopsy report and autopsy photos. (Dungo, supra, 55 Cal.4th at pp. 612-615, 621.) Neither the autopsy report, which a nontestifying pathologist had prepared, nor the photographs were admitted into evidence. (Id. at p. 612.) Justice Kennard, in the majority opinion, reasoned that the evidence was not testimonial, but she did not discuss whether the expert‘s basis testimony was offered for its truth. (Id. at p. 621.) Justice Werdegar, in a concurring opinion that three other justices joined, also opined that physical observations from the autopsy report were not testimonial. (Id. at p. 627 (conc. opn. of Werdegar, J.).) In the process, she commented that those “observations were introduced for their truth.” (Id. at p. 627.) In dissent, Justice Corrigan, joined by Justice Liu, concluded that the expert‘s “description of [the victim‘s] body, drawn from the hearsay contained in [the] autopsy report, violated defendant‘s right to confront and cross-examine [the autopsy doctor].” (Id. at p. 647 (dis. opn. of Corrigan, J.).) Justice Corrigan noted that “[f]ive justices explicitly repudiated th[e] analysis” in the Williams plurality that “[the outside lab] report was not hearsay at all because its contents were not admitted for their truth.” (Id. at p. 635.)
Lopez held that a lab report with defendant‘s blood alcohol concentration results did not violate the confrontation clause. (Lopez, supra, 55 Cal.4th at pp. 582-585.) The analyst who prepared the report did not testify, but a colleague testified about it and the report was admitted into evidence. (Id. at pp. 573-574.) Justice Kennard for the majority reasoned that while a notation
Based upon these decisions, the Attorney General contends that counsel had grounds to object to Gardeley before we decided Sanchez because a majority of the justices on our court and the high court had reasoned that, at least in certain circumstances, testimony concerning the factual basis of an expert‘s opinion was considered for its truth. The Attorney General argues that even before we issued Sanchez, Courts of Appeal found that if our court or the high court “were called upon to resolve this issue, it seems likely” that cases finding “out-of-court statements offered as expert basis evidence are not offered for their truth for confrontation purposes will be significantly undermined.” (People v. Valadez (2013) 220 Cal.App.4th 16, 32 (Valadez); accord, People v. Landau (2016) 246 Cal.App.4th 850, 869; People v. Miller (2014) 231 Cal.App.4th 1301, 1311-1312; People v. Mercado (2013) 216 Cal.App.4th 67, 89 & fn. 6; Hill, supra, 191 Cal.App.4th at p. 1132, fn. 18.)
Nevertheless, we did not expressly hold until Sanchez that “[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert‘s opinion, the statements are hearsay.” (Sanchez, supra, 63 Cal.4th at p. 686.) And Sanchez marked a “paradigm shift” in that a limiting instruction was no longer an effective method of avoiding hearsay problems in an expert‘s basis testimony. (Id. at p. 679.) Indeed, no justice expressly disapproved Gardeley in either Dungo or Lopez, despite it being a staple of our decisional law. (See In re Ruedas (2018) 23 Cal.App.5th 777, 801, fn. 9 [”Gardeley alone was cited in over 2,000 appellate decisions between the time it was decided in 1996 and the time Sanchez was decided in 2016“].) We then continued to cite Gardeley with approval after Dungo and Lopez. (See People v. Prunty (2015) 62 Cal.4th 59, 89 (conc. & dis. opn. of Cantil-Sakauye, C. J.) [“A witness testifying in the form of an opinion may state on direct examination the basis for his or her opinion“]; People v. Jones (2013) 57 Cal.4th 899, 951 [“expert testimony can be based on a wide variety of
“The decisions of this court are binding upon and must be followed by all the state courts of California.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Until we overruled Gardeley, a lower court applying precedent would have, under that case, overruled a case-specific hearsay objection to expert basis testimony. Indeed, our colleagues in the Courts of Appeal repeatedly and expressly stated that they were bound to follow Gardeley in the years leading up to Sanchez. (See, e.g., Hill, supra, 191 Cal.App.4th at p. 1131 [“our position in the judicial hierarchy precludes [rejecting Gardeley]; we must follow Gardeley and the other California Supreme Court cases in the same line of authority“]; accord, In re Thomas (2018) 30 Cal.App.5th 774, 763; People v. Leon (2016) 243 Cal.App.4th 1003, 1016; Valadez, supra, 220 Cal.App.4th at p. 32, fn. 13.) Such a request in a trial court would therefore have been futile. (See, e.g., People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 [request for a jury trial on aggravating circumstances “clearly would have been futile” when then-existing law required the trial court to deny the request and “was binding on the lower courts until it was overruled by the high court“]; People v. Gallardo (2017) 4 Cal.5th 120, 128 [in dicta questioning “whether defendant should be made to bear the burden of anticipating potential changes in the law based on the reasoning of a United States Supreme Court opinion addressed to the proper interpretation of a federal statute not at issue here“].)
The Attorney General suggests forfeiture can occur whenever the argument is not “legally foreclosed,” or the law is “unsettled,” in an “odd state of flux,” or when the high court has not “squarely held as much in a majority opinion,” or when it is just a “restoration” [citation] of a legal principle that over the years had become “blurred.” The Attorney General cites cases that said this court might be prepared to overrule Gardeley in the future. (See, e.g., Valadez, supra, 220 Cal.App.4th at p. 32.) The Attorney General cites cases from other states to show where the law was trending. The Attorney General argues that counsel was required to object because the grounds for objection were “not foreclosed by existing law.”
This, however, is beyond what we have required and too amorphous a standard to place on trial counsel. “The circumstance that some attorneys may
In an alternative argument, the Attorney General contends that even before Sanchez, litigants could “seek to exclude testimony by an expert that would have impermissibly related case-specific hearsay to juries, relying both on the hearsay rule and on section 352 of the Evidence Code.” It is undoubtedly true that Chavez could have objected under
For the reasons stated above, we conclude that the Court of Appeal improperly found that Chavez forfeited his claim on appeal based upon Sanchez by failing to object at a trial occurring before Sanchez was decided. The Court of Appeal here reached the same conclusion as People v. Blessett (2018) 22 Cal.App.5th 903, 925-941. We disapprove Blessett to the extent that it is inconsistent with this decision.
The judgment of the Court of Appeal is reversed, and the cause remanded for further proceedings consistent with this opinion.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Perez
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 22 Cal.App.5th 201
Rehearing Granted
Opinion No. S248730
Date Filed: February 27, 2020
Court: Superior
County: San Bernardino
Judge: John M. Tomberlin
Counsel:
Raymond Mark DiGuiseppe, under appointment by the Supreme Court, for Defendant and Appellant Jose Luis Perez.
Rebecca P. Jones, under appointment by the Supreme Court, for Defendant and Appellant Edgar Ivan Chavez Navarro.
Randall Bookout, under appointment by the Supreme Court, and Henry Russell Halpern for Defendant and Appellant Pablo Sandoval.
Kamala D. Harris and Xavier Becerra, Attorneys General, Edward DuMont, State Solicitor General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael R. Johnsen and Joshua Patashnik, Deputy State Solicitors General, Scott C. Taylor and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Rebecca P. Jones
3549 Camino del Rio S., Suite D
San Diego, CA 92108
(619) 269-7872
Joshua Patashnik
Deputy Solicitor General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 510-3896