People v. ValenciaPeople v. Valencia
Opinion of the Court by Corrigan, J.
This case involves allegations of active gang participation (
I. BACKGROUND
Early on the morning of August 24, 2014, Jose B. and Alejandro P. sаt on the tailgate of a truck at a carwash in the City of Arvin. Multiple shots were fired. One round struck Jose in the leg and others hit the truck tires. Coincidentally, an officer on patrol near the carwash happened to see a pickup driving slowly with its lights off, then saw seven to 10 muzzle
Both defendants were charged with two counts of attempted murder, assault with a firearm, and active street gang participation.1 Garcia was also charged with shooting from a vehicle.2 Valеncia was charged with evading an officer and knowingly allowing a passenger to shoot from the truck.3 Gang and firearm enhancements were attached to the various charges.4
Arvin Police Officer Ryan Calderon testified as a gang expert. A nine-year department veteran, he had specialized in gang enforcement for five and a half years and had personally investigated about 200 crimes involving the Arvina 13 gang. Calderon testified about the gang, describing its monikers, graffiti, tattoos, colors, and territory, which included the
In Officer Calderon‘s opinion, Valencia and Garcia were Arvina 13 gang members, based on their tattoos and police contacts. In response to a hypothetical question, Calderon testified that defendants’ conduct benefitted Arvina 13 by creating community fear and gang notoriety. Calderon also related the facts of three predicate offenses committed by Arvina 13 gang members: a 2008 assault by Jose Arredondo, a 2010 assault by Adam Arellano, and a 2013 attempted robbery and assault by Orion Jimenez. Calderon‘s only knowledge of these offenses came from conversations with other officers and a review of police reports. Certified copies of court documents related to the convictions in each case were admitted into evidence, including the pleadings and court minute orders.
Defendants’ first trial ended when the jury hung on almost all charges.5 A second jury convicted defendants of the remaining allegations. Both men were sentenced to extended prison terms.6 The Court of Appeal held that some of the expert‘s testimony about the predicate offenses constituted inadmissible hearsay. It reversed the active gang participation
II. DISCUSSION
The Attorney General argues the gang expert‘s recitation of hearsay describing the circumstances of the three predicate offenses constituted background information about which the expert could properly testify. To resolve this issue, we examine the statutory scheme covering gang allegations, our decisions in Sanchez and People v. Veamatahau (2020) 9 Cal.5th 16 (Veamatahau), and Court of Appeal decisions that have previously addressed the question.
In 1988, the Legislature enacted the California Street Terrorism Enforcement аnd Prevention Act (STEP Act or Act;
As relevant here, the STEP Act created a substantive offense of active participation “in any criminal street gang” (
Penal Code section 186.22, subdivision (e) does not state that a predicate offense must be committed by a gang member. However, that requirement derives from the definition of a ” ‘criminal street gang,’ ” which includes proof that the gang‘s “members individually or collectively engage in, or have engaged
B. Sanchez and Veamatahau
In Sanchez, the defendant was arrested and found to possess a gun and drugs packaged for sale. (Sanchez, supra, 63 Cal.4th at p. 671.) He was convicted of drug and firearm offenses with attached gang enhancements (
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court hеld that the confrontation clause of the federal Constitution generally bars the admission of what it termed “testimonial” hearsay when offered by the prosecution against a criminal defendant without a showing of witness “unavailability and a prior opportunity for cross-examination.” (Crawford, at p. 68.) It clarified, however, that out-of-court statements not offered for the truth of their content are not hearsay and do not impinge upon the confrontation right. (Id. at pp. 59–60, fn. 9.) Sanchez addressed “whether facts an expert relates as the basis for his opinion are properly considered to be admitted for their truth.” (Sanchez, supra, 63 Cal.4th at p. 674.) Sanchez arose at the intersection of the hearsay rule, the holdings in Crawford and its progeny, and the evidentiary rules applicable to expert testimony.
Exploration of an expert‘s opinion based on case-specific facts outside the expert‘s personal knowledge can still be accomplished through the use of hypothetical questions: “An examiner may ask an expert to assume a certain set of case-specific facts for which there is independent competent evidence, then ask the expert what conclusions the expert would draw
Although “[a]t common law, the treatment of an expert‘s testimony as to general background information and case-specific hearsay differed significantly” (Sanchez, supra, 63 Cal.4th at p. 678), that treatment evolved after enactment of the Evidence Code in 1965: “Evidence Code section 801, subdivision (b) provides that an expert may render an opinion ‘[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an exрert is precluded by law from using such matter as a basis for his opinion.’ (Italics added.) Similarly, Evidence Code section 802 allows an expert to ‘state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.’ ” (Sanchez, at p. 678.) Where an expert relied upon out-of-court statements to explain the bases of an opinion, “[c]ourts [had] 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
Sanchez disapproved the Montiel procedure. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) “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 validity of [the expert‘s] opinion ultimately turn[s] on the truth’ [citation] of the hearsay statement.” (Sanchez, at pp. 682–683.) Sanchez observed that juries are instructed to decide ” ‘whether information on which the expert relied was true and accurate’ ” (id. at p. 684, quoting CALCRIM No. 332), and “[w]ithout independent competent proof of those case-specific facts, the jury simply ha[s] no basis from which to draw such a conclusion.” (Sanchez, at p. 684.) “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
Sanchez concluded the gang expert related case-specific facts.14 “[His] 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. [He also] 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 [citation], evidence of defendant‘s membership and commission of crimes in Delhi‘s territory bolstered the prosecution‘s theory that he acted with intent to benefit his gang, an element it was required to prove.” (Sanchez, supra, 63 Cal.4th at pp. 698–699; see id. at p. 685.)
In Veamatahau, the defendant was charged with possessing contraband pills. The question at trial was whether
Veamatahau clarifies that the distinction between background information and case-specific facts can depend, in part, on what the evidence, considered independently, is offered to prove. The expert‘s testimony about the contents of the database, and expert reliance on it, was offered to prove that all pills with a given imprint contain alprazolam. That testimony, though hearsay, related background information. His opinion was offered to prove that the defendant‘s pills, those at issue in the current proseсution, contained alprazolam. The markings on the defendant‘s pills were case-specific facts. The expert was permitted to testify about them because his own observation of the markings provided personal knowledge. The jury was entitled to consider the expert-provided background information, even though hearsay, along with his personal observations and opinion to determine whether the pills the defendant possessed contained the controlled substance. (See discussion, post.)
C. Distinguishing Background Information from Case-specific Facts
In gang cases, drawing the line of demarcation between background and case-specific information can present challenges, as reflected by the different conclusions drawn by the Courts of Appeal regarding predicate offenses. Several cases have held that predicate offense evidence is merely background similar to other kinds of information about gangs, like their territory, symbols, and operations, that are generally accepted as true by experts in the field. (See People v. Bermudez (2020) 45 Cal.App.5th 358, 363; People v. Blessett (2018) 22 Cal.App.5th 903, 944–945, disapproved on another ground in Perez, supra, 9 Cal.5th at p. 14; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 410–411; People v. Meraz (2016) 6 Cal.App.5th 1162, 1174–1175.) Those cases pointed to language in Sanchez that describes case-specific facts as those “relating to the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) They went on to conclude that testimony about predicate offenses merely conveyed “historical facts” about the gang‘s conduct and activities, as opposed to specific facts relating to the events and participants involved in the case being tried. (Blessett, at p. 944.) Bermudez opined that “so long as the predicate offenses do not involve defendant or individuals involved in the defendant‘s case[,] [s]uch predicate offenses are chapters in a gang‘s biography . . . not case-specific information.” (Bermudez, at. p. 363.)
To determine whether predicate offenses are case-specific or background facts, we must look beyond an isolated phrase in Sanchez and instead probe the underlying rationale permitting experts to rely on and relate certain hearsay. As Sanchez observed, “expert witnesses are given greater latitude” to testify regarding background information beyond matters within their personal knowledge because their testimony may “provide specialized context the jury will need to resolve an issue.” (Sanchez, supra, 63 Cal.4th at p. 675.) Thus, experts are given latitude over lay witnesses only to the extent they are conveying acquired expertise in their field. Sanchez explained that “[o]ur 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
Sanchez and Veamatahau make clear that experts are given greater latitude to testify about matter beyond their personal knowledge because they are allowed to give an opinion on subjects “sufficiently bеyond common experience that the opinion of an expert would assist the trier of fact” (
Conversely, if experts give testimony that goes beyond their own experience or beyond principles generally accepted in their field, the justifications for allowing greater evidentiary latitude cease to apply. One commеntator has noted that the pre-Sanchez “not in for the truth” approach blurred the line between general background knowledge and case-specific fact. The previous approach “opened the door to abuse; namely, expert witnesses being used as conduits to transmit inadmissible hearsay that does not otherwise fall under a statutory exception as assertions of fact to the jury. With such a liberal approach to admissibility, there is a risk that damaging inadmissible evidence, which would be unable to make its way to the jury through the proper channels, could be smuggled to the jury through the expert; or worse, parties may offer expert testimony simply to place such damaging evidence before the fact-finder disguised as expert basis testimony. The Sanchez rule curbs this potential for abuse with its bright-line rule prohibiting an expert from relating all case-specific hearsay statements forming the basis of the expert‘s opinion, unless such hearsay statements fall under an applicable hearsay exception or are properly admitted independent of the expert‘s testimony.” (Hamilton, The End of Smuggling Hearsay: How People v. Sanchez Redefined the Scope of Expert Basis Testimony in California and Beyond (2018) 21 Chap. L.Rev. 509, 511, fns. omitted.) In other words, case-specific facts are not purged of
The challenge, then, in Sanchez and Veamatahau was to accommodate the longstanding rule allowing experts to testify about “information generally accepted in the expert‘s area” or matters “in his field of expertise” (Sanchez, supra, 63 Cal.4th at pp. 675, 676), yet restore the rule that experts may not simply “regurgitate information from another source” (Veamatahau, supra, 9 Cal.5th at p. 34). Sanchez and Veamatahau used the terms “general background information” and “case-specific facts” to distinguish, in the context of expert testimony, between hearsay that may be admitted because it is generally accepted by experts in the field, and facts that cannot be proven by hearsay because that reliability justification is absent.15 These latter case-specific facts must be proven through the testimony of a witness with personal knowledge or by other admissible evidence. (See generally Sanchez, supra, 63 Cal.4th at p. 677.)
The proper role of expert testimony is to help the jury understand the significance of case-specific facts proven by competent evidence, not to place before the jury otherwise unsubstantiated assertions of fact. On the other hand, any
This conclusion mirrors the facts and analysis from Veamatahau. There, hearsay information from the database was properly admitted as background because it was generally accepted in the field that the FDA markings were reliable indications of the drug‘s presence and also that the database itself accurately connected the FDA marks with the presence of that drug. (
D. Predicate Offenses Are Case-specific and Must Be Proven by Competent Evidence
The Attorney General argues that facts used to prove predicate offenses are merely background information properly supplied by expert testimony. This argument fails because of the nature of the facts themselves, the absence of foundation that they are generally accepted as reliable in a field of expertise, and the allegations they are being offered to prove. As Sanchez observed, general testimony about a gang‘s behavior, history, territory, and general operations is usually admissible. (See Sanchez, supra, 63 Cal.4th at p. 698.) The same is true of the gаng‘s name, symbols, and colors. All this background information can be admitted through an expert‘s testimony, even if hearsay, if there is evidence that it is considered reliable and accurate by experts on the gang.
Such information stands in contrast to information regarding the commission of a particular offense on a specific occasion. Experts with no personal knowledge of case-specific facts, or who do not rely on other admissible evidence establishing those facts, are simply “regurgitat[ing] information from another source.” (Veamatahau, supra, 9 Cal.5th at p. 34.) This is the practice rejected in Veamatahau and warned against in Sanchez. “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.” (Sanchez, supra, 63 Cal.4th at p. 686; see Veamatahau, at pp. 33–34.) Without independent admissible evidence of the рarticulars of the predicate offenses, the expert‘s hearsay testimony cannot be used to supply them. In the
The Attorney General relies on the Sanchez description of case-specific facts as those relating to “the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) We acknowledge that the statutorily required predicate offenses do not fit neatly into the description Sanchez provided. At least some of these offenses will most often have occurred before “the case being tried” (ibid.) and will have been committed by others who were not involved in the new charges at issue. But Sanchez was addressing case-specific facts as they arose in the partiсular matter at hand; it did not address the question we face here. For reasons already explained, we conclude that facts concerning particular events and participants alleged to have been involved in predicate offenses, too, constitute case-specific facts that must be proved by independently admissible evidence.
It should be recalled that the STEP Act sought a balance between free association and protecting against the “clear and present danger” posed by this defined kind of organized criminal activity. (
In sum, the particular facts offered to prove predicate offenses as required by the STEP Act are not the sort of background hearsay information about which an expert may testify. Competent evidence of those particulars is required.17 A gang expert may still render an opinion regarding the gang membership of the perpetrator of a predicate offense in response to a propеr hypothetical question based on premises established by competent evidence. (See Sanchez, supra, 63 Cal.4th at pp. 676–677.)
E. The Error Was Prejudicial
Here, Officer Calderon testified regarding the facts of three predicate offenses of which he had no personal knowledge. No independent proof of those facts was tendered by any witness having personal knowledge. The People do not claim that any hearsay exception would support their admission. We need not address what exceptions might apply or what foundations would be required to invoke them. On this record, Calderon‘s recitation of hearsay was inadmissible.
As to the standard for evaluating prejudice, Sanchez observed that “improper admission of hearsay may constitute state law statutory error” (Sanchez, supra, 63 Cal.4th at p. 698), which would ordinarily be assessed under People v. Watson (1956) 46 Cal.2d 818. That test inquires whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absenсe of the error.” (Id. at p. 836.) However, if the improperly admitted hearsay is also testimonial within the meaning of the high court‘s confrontation clause jurisprudence (see, e.g., Crawford, supra, 541 U.S. at pp. 68–69), the error is assessed under the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18, 24, which requires any error to be harmless beyond a reasonable doubt. (See Sanchez, at p. 698.) The Attorney General concedes that, on this record, the Chapman standard applies here. As Sanchez notes, some of the contents of police reports may be testimonial hearsay. (See Sanchez, at pp. 694–695.)
The People argue any error was harmless beyond a reasonable doubt because the gang membership of those committing the predicate offenses was “supplied by admissible expert testimony.” The People primarily point to the sequence of Officer Calderon‘s testimony, where he first described Arvina 13‘s primary activities before giving detailed factual recitations of the three predicate offenses. They argue Cаlderon could have properly opined that the predicate offenses were committed by gang members to benefit Arvina 13.
This argument is flawed. The People concede that, in giving his opinion, Calderon related to the jury facts he gleaned from inadmissible hearsay sources, including police reports, about which he had no personal knowledge.18 Calderon
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.