THE PEOPLE, Plaintiff and Respondent, v. MARCOS ARTURO SANCHEZ, Defendant and Appellant.
No. S216681
Supreme Court of California
June 30, 2016
63 Cal.4th 665
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.
OPINION
CORRIGAN, J.—In Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] (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
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
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.
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. (
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
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 participation5 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.
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
B. State Evidentiary Rules for Expert Testimony
While lay witnesses are allowed to testify only about matters within their personal knowledge (
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.
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 [211 Cal.Rptr. 102, 695 P.2d 189] (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, italics omitted; see Simons, Cal. Evidence Manual, supra, § 4:32, pp. 326-327; 2 Wigmore, Evidence (Chadbourn ed. 1978) § 672, p. 933.) An examiner may ask an expert to assume a certain set of case-specific facts for which there is
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.
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.
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 [21 Cal.Rptr.2d 705, 855 P.2d 1277] (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,
C. Crawford, Hearsay, and Expert Testimony
The admission of expert testimony is governed not only by state evidence law, but also by the Sixth Amendment‘s confrontation clause, which provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” (
Under previous United States Supreme Court precedent, the admission of hearsay did not violate the right to confrontation if it bore ” ‘adequate indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” (Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 100 S.Ct. 2531].) Crawford overturned the Roberts rule. Crawford clarified that a mere showing of hearsay reliability was insufficient to satisfy the confrontation clause. “To be sure, the Clause‘s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. . . . [[] The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one.” (Crawford, supra, 541 U.S. at pp. 61-62.) Under Crawford, if an exception was not recognized at the time of the Sixth Amendment‘s adoption (see Crawford, at p. 56, fn. 6), admission of testimonial hearsay against a criminal defendant violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. (Id. at pp. 62, 68; see Giles v. California (2008) 554 U.S. 353, 357-373 [171 L.Ed.2d 488, 128 S.Ct. 2678].)6
In light of our hearsay rules and Crawford, a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term.
We turn first to the general hearsay inquiry. As discussed, some courts have attempted to avoid hearsay issues by concluding that statements related by experts are not hearsay because they “go only to the basis of [the expert‘s]
In the context of a confrontation challenge to the admission of certain expert “basis” testimony, the high court addressed the not-for-the-truth rationale in Williams v. Illinois (2012) 567 U.S. 50 [183 L.Ed.2d 89, 132 S.Ct. 2221] (Williams). Williams was a rape prosecution in which the identity of the attacker was disputed. Semen samples were collected from the rape victim and sent to a Cellmark laboratory for DNA analysis. (Id. at p. 59 [132 S.Ct. at p. 2229].) Cellmark produced a DNA profile purporting to be an accurate profile of the unknown semen donor. Independent of the rape investigation, a sample of Williams‘s DNA had been acquired and entered in the state‘s database. That “known” sample from Williams was tested and a profile produced. (Ibid.) At trial, a prosecution expert testified that she compared Williams‘s known profile to the Cellmark profile and, in her opinion, they matched. Williams objected that the Cellmark results, related to the factfinder by the expert,7 constituted hearsay because they were out-of-court statements by the report writer and were offered to prove their truth: that the profile was, indeed, an accurate profile of the man who committed the rape for which Williams was being tried.
Considering the hearsay question, a four-member plurality of the Williams court concluded statements in the Cellmark report were not admitted for their truth, but only to allow the judge, sitting as factfinder, to evaluate the testimony of the expert who opined that the two profiles matched. (Williams, supra, 567 U.S. at pp. 78-81 [132 S.Ct. at pp. 2240-2241] (plur. opn. of Alito, J.).) The plurality acknowledged that the prosecution expert “lacked personal knowledge that the profile produced by Cellmark was based on the vaginal swabs taken from the victim,” but reasoned the expert was testifying in the manner of a hypothetical question and any linkage between the sample from the victim to the DNA profile created by Cellmark “was a mere premise of the prosecutor‘s question, and [the expert] simply assumed that premise to be true when she gave her answer indicating that there was a match between the two DNA profiles. There is no reason to think that the trier of fact took [the expert‘s] answer as substantive evidence to establish where the DNA profiles came from.” (Id. at p. 72 [132 S.Ct. at p. 2236].)
The dissent also identified another hearsay problem. In addition to asserting that there was a link between the victim‘s sample and the Cellmark profile, the expert also asserted, as fact, that the Cellmark test was reliable: “Nothing in [the expert‘s] testimony indicates that she was making an assumption or considering a hypothesis. To the contrary, [the expert] affirmed, without qualification, that the Cellmark report showed a ‘male DNA profile found in semen from the vaginal swabs of [the victim].’ [Citation.] Had she done otherwise, this case would be different. There was nothing wrong with [the expert‘s] testifying that two DNA profiles—the one shown in the Cellmark report and the one derived from Williams‘s blood—matched each other; that was a straightforward application of [her] expertise. Similarly, [the expert] could have added that if the Cellmark report resulted from scientifically sound testing of [the victim‘s] vaginal swab, then it would link Williams to the assault. What [the expert] could not do was what she did: indicate that the Cellmark report was produced in this way by saying that [the victim‘s] vaginal swab contained DNA matching Williams‘s.” (Williams, supra, 567 U.S. at p. 129 [132 S.Ct. at p. 2270] (dis. opn. of Kagan, J.), fn. omitted.)
This reasoning points out the flaw in the not-for-the-truth limitation when applied to case-specific facts. When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert‘s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, “the
The reasoning of a majority of justices in Williams calls into question the premise that expert testimony giving case-specific information does not relate hearsay. In the context of a sufficiency of the evidence claim in a gang case, People v. Gardeley (1996) 14 Cal.4th 605 [59 Cal.Rptr.2d 356, 927 P.2d 713] (Gardeley) pointed to established law that “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.” (Id. at p. 619.) However, Gardeley endorsed evidentiary rules allowing a gang expert to rely upon, and testify to, “conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.” (Id. at p. 620.) As generally described in Gardeley, some of that testimony would be based on the expert‘s own knowledge and investigation, thus admissible as personal knowledge. Some might be generally accepted background information, admissible under the latitude afforded experts. But some might relate case-specific hearsay, and thus be inadmissible. Courts, both before and after Gardeley, have applied similar reasoning to allow gang expert testimony. Gardeley‘s reasoning that such expert testimony is not admitted for its truth has also been cited in rejecting confrontation challenges to such testimony. (See, e.g., People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154 [94 Cal.Rptr.3d 98], and cases cited therein; see also People v. Hill (2011) 191 Cal.App.4th 1104, 1129-1131 [120 Cal.Rptr.3d 251] [criticizing Gardeley but following it].)9
offered to prove the speaker did the deed. There may also be times, in a wide variety of cases, when the fact that a statement was made is relevant, regardless of whether the statement was true.
Once we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert‘s opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth. If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception.11 Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.
Our decision does not call into question the propriety of an expert‘s testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert‘s background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth. Thus, our decision does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise. Our conclusion restores the traditional distinction between an expert‘s testimony regarding background information and case-specific facts.
The Attorney General relies on “practical considerations” to support a contrary conclusion. The argument misses the mark. The Attorney General urges that excluding the content of testimonial hearsay would greatly hamper experts from giving opinions about gangs. The argument sweeps too broadly. Gang experts, like all others, can rely on background information accepted in their field of expertise under the traditional latitude given by the
Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must
What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception. It may be true that merely telling the jury the expert relied on additional kinds of information that the expert only generally describes may do less to bolster the weight of the opinion. The answer to this reality is twofold. First, the argument confirms that the proffered case-specific hearsay assertions are being offered for their truth. The expert is essentially telling the jury, “You should accept my opinion because it is reliable in light of these facts on which I rely.” Second, in a criminal prosecution, while Crawford and its progeny may complicate some heretofore accepted evidentiary rules, they do so under the compulsion of a constitutional mandate as established by binding Supreme Court precedent.
In sum, we adopt the following rule: When 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 logically be maintained that the statements are not being admitted for their truth.13 If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.
1. Legal Background
That holding brings us to the second prong of the analysis in this criminal case. If an out-of-court statement is hearsay because it is being offered for the truth of the facts it asserts, is that statement testimonial hearsay? Throughout its evolution of the Crawford doctrine, the high court has offered various formulations of what makes a statement testimonial but has yet to provide a definition of that term of art upon which a majority of justices agree. Crawford itself provided no definition other than that the term “testimonial” “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” (Crawford, supra, 541 U.S. at p. 68.) Crawford described the historical abuses leading to the adoption of the confrontation right, including the civil law practice of “requir[ing] justices of the peace to examine suspects and witnesses in felony cases and to certify the results to the court,” which “came to be used as evidence in some cases.” (Id. at p. 44.) Crawford clarified that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” (Id. at p. 50.)
Crawford was prosecuted for stabbing a man who allegedly tried to rape his wife. After Crawford‘s arrest, both he and his wife were interviewed by police at the stationhouse. The wife did not testify but the court admitted her statements about the stabbing. Crawford concluded that “[s]tatements taken by police officers in the course of interrogations are . . . testimonial under even a narrow standard.” (Crawford, supra, 541 U.S. at p. 52.) Even if the interviews were not given under oath, if officers conducting them acted like the fact-collecting justices of the peace, the content of their reports was testimonial.
As the Crawford doctrine evolved, the court concluded that not all statements made in response to police questioning would constitute testimonial hearsay. In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224, 126 S.Ct. 2266] (Davis), the first of two companion cases (No. 05-5224), a woman called 911 seeking help because her boyfriend was in the process of beating her. The caller did not testify but her hearsay statements to the dispatcher were admitted in Davis‘s subsequent trial. The court concluded that even though the statements were made to a police employee, and some were made in response to the dispatcher‘s questions, the caller‘s statements were not testimonial. In doing so, the high court articulated a test based on
The Davis holding was set out in contrast to its companion case, Hammon v. Indiana (No. 05-5705) (Hammon). In Hammon, police were sent to a home following a report of domestic violence. They were met by Mrs. Hammon, who initially reported that there had been no problem. When interviewed outside her husband‘s presence, she acknowledged he had attacked her. An officer had her ” ‘fill out and sign a battery affidavit’ ” describing the assault. (Davis, supra, 547 U.S. at p. 820.) Mrs. Hammon declined to testify at the subsequent bench trial but the interviewing officer related her statements and “authenticate[d]” her signed affidavit. (Ibid.) The high court concluded the statements were testimonial hearsay. “It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct” and “[t]here was no emergency in progress . . . .” (Id. at p. 829.) Although acknowledging the in-the-field interview was less formal than the station house questioning in Crawford, the court nevertheless reasoned “[i]t was formal enough” and “[s]uch statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.” (Id. at p. 830.)
Michigan v. Bryant (2011) 562 U.S. 344 [179 L.Ed.2d 93, 131 S.Ct. 1143] (Bryant) repeated the principle that a statement is testimonial if made “with a primary purpose of creating an out-of-court substitute for trial testimony.” (Id. at p. 358.) There, in response to a dispatch, officers came upon a badly injured shooting victim lying in a parking lot. The victim answered questions about the circumstances, location, and perpetrator of the shooting. The victim died and Bryant was charged with his murder. The parking lot statements were admitted and the high court ruled they were not testimonial. Bryant refined the “primary purpose” standard by emphasizing the test is objective and takes into account the perspective of both questioner and interviewee: “[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’
A majority in Davis, Hammon, and Bryant adopted the distinguishing principle of primary purpose. Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.14 It should be noted that Justice Thomas has consistently rejected the primary purpose test. He criticized the test as being “not only disconnected from history and unnecessary to prevent abuse” but also “yield[ing] no predictable results to police officers and prosecutors attempting to comply with the law.” (Davis, supra, 547 U.S. at p. 838 (conc. & dis. opn. of Thomas, J.).) He reasoned that determining the primary purpose of a statement “requires constructing a hierarchy of purpose that will rarely be present—and is not reliably discernible. It will inevitably be, quite simply, an exercise in fiction.” (Id. at p. 839.) Instead of the primary purpose test, Justice Thomas has consistently applied a test turning solely on whether the proffered statement was sufficiently formal to resemble the disapproved civil law procedure reflected, inter alia, in the “Marian statutes” that permitted use of an ex parte examination to establish facts. (See Crawford, supra, 541 U.S. at pp. 50-53.) In Davis, Justice Thomas described the degree of formality required as questioning resulting from a “formalized dialogue” or the taking of statements “sufficiently formal to resemble the Marian examinations” (Davis, at p. 840) but not “a mere conversation between a witness or suspect and a police officer” (id. at p. 838). (See Williams, supra, 567 U.S. at
The high court stepped beyond the realm of police questioning and applied Crawford to scientific test results in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2d 314, 129 S.Ct. 2527] (Melendez-Diaz), and Bullcoming v. New Mexico (2011) 564 U.S. 647 [180 L.Ed.2d 610, 131 S.Ct. 2705] (Bullcoming). In Melendez-Diaz, crime lab analysts prepared documents certifying that a sample of material recovered from the defendant was tested and determined to contain an illegal drug. The certificates were sworn to before a notary public, as required by state law, and admitted at trial in lieu of the analyst‘s testimony. (Melendez-Diaz, at p. 308.) The high court reasoned the certificates “are quite plainly affidavits” (id. at p. 310) and “are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination’ ” (id. at pp. 310-311). The court concluded: “[U]nder our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment.” (Id. at p. 311.)
In Bullcoming, an analyst tested the blood sample of an alleged drunk driver. In his lab report, the analyst attested he performed the test using normal protocol and signed the report. The report was admitted into evidence through a surrogate analyst “who was familiar with the laboratory‘s testing procedures, but had neither participated in nor observed the test on Bullcoming‘s blood sample.” (Bullcoming, supra, 564 U.S. at p. 651.) Bullcoming rejected the argument that an opportunity to cross-examine the surrogate analyst satisfied Crawford and Melendez-Diaz. Bullcoming noted that the testing analyst reported several facts relating to past events and human actions rather than machine-produced data.16 The analyst‘s statements were “meet for cross-examination” (Bullcoming, at p. 660), yet the “surrogate testimony . . . could not convey what [the analyst] knew or observed about the events his certification concerned, i.e., the particular test and testing process [the analyst] employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst‘s part” (id. at pp. 661-662, fn. omitted). Bullcoming also rejected the claim that the lab report was nontestimonial. Even though the report was not a formal affidavit, as in Melendez-Diaz, it was a sufficiently formal and official document “created solely for an ‘evidentiary purpose,’ . . . made in aid of a police investigation, [and so] ranks as testimonial.” (Id. at p. 664.)
Both Justice Thomas‘s concurrence and the dissent criticized the plurality‘s expansion of the primary purpose test. Justice Thomas objected that the plurality‘s “reformulated” primary purpose test “lacks any grounding in constitutional text, in history, or in logic.” (Williams, supra, 567 U.S. at p. 114 [132 S.Ct. at p. 2262] (conc. opn. of Thomas, J.).) The four dissenters agreed there was “no basis in our precedents” for the new test. (Id. at p. 135 [132 S.Ct. at p. 2273] (dis. opn. of Kagan, J.).) Justice Thomas reasoned in part that “a declarant could become a ‘witnes[s]’ before the accused‘s identity was known.” (Id. at p. 115 [132 S.Ct. at p. 2262] (conc. opn. of Thomas, J.).) Similarly, the dissent observed that “the typical problem with laboratory analyses—and the typical focus of cross-examination—has to do with careless or incompetent work, rather than with personal vendettas. And as to that predominant concern, it makes not a whit of difference whether, at the time of the laboratory test, the police already have a suspect.” (Id. at pp. 135-136 [132 S.Ct. at p. 2274] (dis. opn. of Kagan, J.), fn. omitted.) Both the concurrence and dissent also criticized the plurality‘s conclusion that an emergency existed because the test was done “to catch a dangerous rapist who was still at large.” (Id. at p. 53 [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.).) The separate opinions noted the DNA testing was conducted several months after the rape. (See id. at p. 116 [132 S.Ct. at p. 2263] (conc. opn. of Thomas, J.); id. at pp. 136-137 [132 S.Ct. at p. 2274] (dis. opn. of Kagan, J.).) The dissent would have concluded the Cellmark report was testimonial under the reasoning of Melendez-Diaz and Bullcoming. (Id. at pp. 140-141 [132 S.Ct. at p. 2277] (dis. opn. of Kagan, J.).)
Our court applied Williams in the companion cases of People v. Lopez (2012) 55 Cal.4th 569 [147 Cal.Rptr.3d 559, 286 P.3d 469] (Lopez) and People v. Dungo (2012) 55 Cal.4th 608 [147 Cal.Rptr.3d 527, 286 P.3d 442] (Dungo).18 Lopez involved a vehicular manslaughter prosecution. A criminalist, Willey, testified that a colleague from his lab, Pena, had analyzed a sample of the defendant‘s blood and concluded the blood-alcohol level was 0.09 percent. Willey was familiar with the procedures Pena used and, “based on his own ‘separate abilities as a criminal analyst,’ he too concluded that the blood-alcohol concentration in defendant‘s blood sample was 0.09 percent.” (Lopez, at p. 574.) Pena‘s report was admitted into evidence. (Ibid.)
The majority opinion concluded Pena‘s report was not testimonial because it was insufficiently formal. (Lopez, supra, 55 Cal.4th at pp. 582-585.) Two concurrences also received majority support. The first agreed the report was not testimonial, but also reasoned that the testimony at issue did not fall within “a fair and practical boundary for applying the confrontation clause.” (Id. at p. 586 (conc. opn. of Werdegar, J.).) “The demands of the confrontation clause were properly satisfied in this case by calling a well-qualified expert witness to the stand, available for cross-examination, who could testify to the means by which the critical instrument-generated data was produced and could interpret those data for the jury, giving his own, independent opinion as to the level of alcohol in defendant‘s blood sample.” (Id. at p. 587 (conc. opn. of Werdegar, J.).) The second concurrence characterized the chain-of-custody notations in Pena‘s report as nontestimonial business records whose primary purpose was to facilitate laboratory operations, not to produce facts for later use at trial. (Id. at pp. 587-590 (conc. opn. of Corrigan, J.).)
Dungo more directly addressed the testimony of an expert witness. That case involved a murder prosecution in which the autopsy surgeon, Dr. Bolduc, was not called as a witness. Instead, pathologist Lawrence
The Dungo majority concluded the objective facts contained in an autopsy report were not sufficiently formal to be testimonial. (Dungo, supra, 55 Cal.4th at p. 619 (maj. opn. of Kennard, J.).) The majority also concluded the primary purpose of recording such facts was not to preserve evidence for a criminal prosecution. Instead, producing evidence “was only one of several purposes.” (Id. at p. 621.) The first concurrence, which also garnered a majority, expanded on these points. With respect to formality, Justice Werdegar reasoned, “The process of systematically examining the decedent‘s body and recording the resulting observations is thus one governed primarily by medical standards rather than by legal requirements of formality or solemnity.” (Id. at p. 624 (conc. opn. of Werdegar, J.).) She also observed that because coroners have a statutory duty to determine cause of death regardless of whether a criminal investigation is ongoing, “the nontestimonial aspects of these anatomical observations predominate over the testimonial.” (Id. at p. 625.) A second concurrence, which likewise garnered a majority, concluded the factual observations in the autopsy report were not testimonial under the combined tests of the plurality and Justice Thomas in Williams. As discussed, Justice Thomas did not join in the plurality‘s reasoning but rested his concurrence on his narrower formality analysis. The second concurrence in Dungo determined that, because the Dungo facts could satisfy both the analyses of the Williams plurality and Justice Thomas, there was sufficient high court precedent to uphold Dungo‘s conviction. (Dungo, at pp. 629-633 (conc. opn. of Chin, J.).)
The high court returned to the primary purpose test in Ohio v. Clark (2015) 576 U.S. 237 [192 L.Ed.2d 306, 135 S.Ct. 2173] (Clark). Clark was tried for beating a three-year-old boy, L.P. The child did not testify but the state presented evidence he told a teacher that Clark had assaulted him. Clark concluded that “[b]ecause neither the child nor his teachers had the primary purpose of assisting in Clark‘s prosecution, the child‘s statements do not implicate the Confrontation Clause and therefore were admissible at trial.” (Id. at p. 246 [135 S.Ct. at p. 2177].) The court also noted as an “additional factor” the informality of the statements. (Id. at p. 247 [135 S.Ct. at p. 2180].) The court reasoned: “There is no indication that the primary purpose of the [teacher/child] conversation was to gather evidence for Clark‘s prosecution. On the contrary, it is clear that the first objective was to protect L.P. At no point did the teachers inform L.P. that his answers would
2. These Police Reports Are Testimonial
As noted, Stow testified about defendant‘s five prior police contacts. He learned about three of these solely through police reports: (1) on August 11, 2007, defendant was standing nearby when his cousin was shot;20 (2) on December 30, 2007, defendant‘s companion, a known Delhi member, was shot; and (3) on December 9, 2009, defendant was arrested with Delhi gang members in a garage where drugs and firearms were found. These reports were not admitted into evidence and are not part of the appellate record. However, Stow‘s testimony reveals that these reports were compiled during police investigation of these completed crimes. Stow relied upon, and related as true, these case-specific facts from a narrative authored by an investigating officer. While less formal, these reports are somewhat similar to the battery affidavit in Hammon. They relate hearsay information gathered during an official investigation of a completed crime.
When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency as in Davis and Bryant, or for some primary purpose other than preserving facts for use at trial. Further, testimonial statements do not become less so simply because an officer summarizes a verbatim statement or compiles the descriptions of multiple witnesses. As the Davis court observed: “[W]e do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of
Similarly, in rejecting the argument that testimony by a surrogate analyst satisfied confrontation principles because the testing analyst merely recorded objective facts, Bullcoming presented the following scenario: “Suppose a police report recorded an objective fact [such as an] address above the front door of a house or the read-out of a radar gun. [Citation.] Could an officer other than the one who saw the number on the house or gun present the information in court—so long as that officer was equipped to testify about any technology the observing officer deployed and the police department‘s standard operating procedures? As our precedent makes plain, the answer is emphatically ‘No.’ ” (Bullcoming, supra, 564 U.S. at p. 660.)
Citing the expanded primary purpose test of the Williams plurality, the Attorney General argues that the police reports regarding the two 2007 shootings were not testimonial as to defendant because they did not accuse him of a crime. He was merely a witness in those shootings and was “neither in custody nor under suspicion at the time.”22 The argument overlooks the fact that the expanded test created by the Williams plurality was expressly rejected by a majority of justices in that case. (See Williams, supra, 567 U.S. at pp. 112-117 [132 S.Ct. at pp. 2261-2263] (conc. opn. of Thomas, J.); id. at pp. 134-136 [132 S.Ct. at pp. 2273-2274] (dis. opn. of Kagan, J.).) As those justices reasoned, the plurality‘s “targeted individual” addendum has no basis in the language of the confrontation clause, its history, or post-Crawford jurisprudence.
Detective Stow also opined that defendant was a gang member based on the retained portion of a STEP notice issued in June 2011. In the course of his testimony, Stow related the content of statements made in the STEP notice. The Attorney General argues that STEP notices are not testimonial because they are not created for the primary purpose of producing evidence for later use at trial. She notes a STEP notice may serve many purposes, including “a community outreach effort to dissuade gang members and associates from continuing to engage in gang behavior by apprising them of the potential penalties they faced if they continued to do so.” Defendant counters that STEP notices are testimonial because the issuing officer signs the notice under penalty of perjury and memorializes any incriminating statements for future evidentiary use.23
It may be true that “[a] STEP notice informs suspected individuals that law enforcement believes they associate with a criminal street gang.” (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1414, fn. 1 [125 Cal.Rptr.3d 903].) As Stow testified, a person need not be engaged in any criminal activity to receive a STEP notice. Because the giving of the notice has a community policing function designed to dissuade future gang participation and criminal activity, the Attorney General argues the notice is not produced for a primary purpose of establishing past facts at a future trial.
However, the portion of the STEP notice relied upon by Stow was that part retained by police. That portion recorded defendant‘s biographical information, whom he was with, and what statements he made. It cannot be said that defendant‘s primary purpose in making the statements was to establish facts to be later used against him or his companions at trial. However, it seems clear the officer recorded the information for that purpose. If that were not the case, there would appear to be no need for the issuing officer to swear to its accuracy. It also appears that another purpose of the STEP notice is its later use to prove that the recipient had actually been made aware that he was associating with a criminal street gang and that he might receive an enhanced punishment should he commit a future crime with members of that gang.
As to formality, the notice is part of an official police form containing the officer‘s sworn attestation that he issued the notice on a given date and
The notice appears sufficiently formal to satisfy Justice Thomas‘s approach as well. In his Williams concurrence, Justice Thomas concluded the Cellmark report was not sufficiently formal to be testimonial. He reasoned the report was “neither a sworn nor a certified declaration of fact” because it did not “attest that its statements accurately reflect the DNA testing processes used or the results obtained.” (Williams, supra, 567 U.S. at p. 111 [132 S.Ct. at p. 2260] (conc. opn. of Thomas, J.).) Here the converse is true. The issuing officer made a sworn declaration under penalty of perjury that the representations in the STEP notice were true.
4. FI Cards May Be Testimonial
Finally, Detective Stow also related facts from an FI card reflecting a police contact with defendant on December 4, 2009, while he was in the company of a known Delhi member. The Attorney General argues the primary purpose of FI cards is to gather information for “community policing efforts” and “potential civil injunctions.” Defendant contends that the particular encounter memorialized in the FI card occurred ” ‘during the course of the investigation’ ” of defendant‘s December 9, 2009, arrest for drug possession. Because the card was “produced” during that later investigation, defendant asserts its primary purpose was evidentiary, rendering it testimonial.
As defendant suggests, Stow‘s testimony regarding the origins of the FI card here was confusing. On cross-examination, Stow acknowledged he did not fill out the card. Defense counsel inquired how Stow could verify the FI card was accurate if he was not there when it was produced. Stow responded: “Well, there is also a police report that supports it. That F.I. was written during the course of the investigation of his ‘09 arrest.” (Italics added.)
If the card was produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial. Because the parties did not focus on this issue, the point was not properly clarified, leaving the circumstances surrounding the preparation of the FI card unclear. We need not decide here whether the content of this FI card was testimonial. Even assuming it was not, for the reasons discussed below, we
5. Harmless Error
As noted, improper admission of hearsay may constitute state law statutory error. Here, however, much of the hearsay was testimonial. Accordingly, defendant contends that because the confrontation violation prejudiced him with respect to the gang enhancement, the enhancement must be stricken. The Attorney General argues that any confrontation error was harmless beyond a reasonable doubt. (See People v. Capistrano (2014) 59 Cal.4th 830, 874 [176 Cal.Rptr.3d 27, 331 P.3d 201]; Lopez, supra, 55 Cal.4th at p. 585; Cage, supra, 40 Cal.4th at p. 979, fn. 8.) Determining prejudice requires an examination of the elements of the gang enhancement and the gang expert‘s specific testimony.
The gang enhancement applies to one who commits a felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (
Defendant raises no confrontation claim against Detective Stow‘s background testimony about general gang behavior or descriptions of the Delhi gang‘s conduct and its territory. This testimony was based on well-recognized sources in Stow‘s area of expertise. It was relevant and admissible evidence as to the Delhi gang‘s history and general operations.
However, Stow‘s case-specific testimony as to defendant‘s police contacts was relied on to prove defendant‘s intent to benefit the Delhi gang when committing the underlying crimes to which the gang enhancement was attached. Stow recounted facts contained in the police reports and STEP notice to establish defendant‘s Delhi membership. While gang membership is not an element of the gang enhancement (People v. Valdez (2012) 55 Cal.4th 82, 132 [144 Cal.Rptr.3d 865, 281 P.3d 924]), evidence of defendant‘s
The Attorney General argues any confrontation violation was harmless because it was uncontradicted that Delhi is a street gang whose primary activities include drug sales and illegal weapons possession. This assertion may be true, but the great majority of evidence that defendant associated with Delhi and acted with intent to promote its criminal conduct was Stow‘s description of defendant‘s prior police contacts reciting facts from police reports and the STEP notice. The Attorney General observes that, when arrested for the charged offenses, defendant possessed several bindles of drugs and an illegal firearm, reflecting the same activities as the gang‘s. Further, Stow testified that no one could sell drugs in gang territory without paying a tax to the gang. If defendant was selling drugs in Delhi territory, he could not have done so without paying a tax, which would have shown he acted with intent to benefit the gang regardless of whether he was a member. Thus, the Attorney General urges, “Detective Stow‘s testimony regarding appellant‘s five prior contacts was mere surplusage.”
These arguments are unconvincing. Excluding Stow‘s case-specific hearsay testimony, the facts of defendant‘s underlying crimes revealed that, acting alone, he possessed drugs for sale along with a weapon to facilitate that enterprise. Stow provided general and admissible evidence that if a nonmember sold drugs in a gang‘s territory and failed to pay a tax, that person risked gang retaliation. However, contrary to the Attorney General‘s claim, one cannot deduce, merely from this evidence, that when defendant possessed drugs for sale in Delhi territory, he was associated with the gang, would pay a tax, or intended to “promote, further, or assist in any criminal conduct by gang members.” (
The true findings on the street gang enhancements are reversed. The judgment of conviction is otherwise affirmed and the matter remanded to the Court of Appeal for proceedings not inconsistent with this opinion.
Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.