THE PEOPLE, Plаintiff and Respondent, v. JOSE LUIS VALENCIA, Defendant and Appellant. [Consolidated with THE PEOPLE, Plaintiff and Respondent, v. EDGAR ISIDRO GARCIA, Defendant and Appellant.]
S250218, S250670
In the Supreme Court of California
July 1, 2021
Fifth Appellate District F072943, F073515; Kern County Superior Court LF010246B, LF010246A
Justice Corrigan authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Liu, Cuellar, Kruger, Groban, and Jenkins concurred.
July 1, 2021
Justice Corrigan authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Liu, Cuellar, Kruger, Groban, and Jenkins concurred.
PEOPLE v. VALENCIA*
S250218
This case involves allegations of active gang participation (
I. BACKGROUND
Early on the morning of August 24, 2014, Jose B. and Alejandro P. sat 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
flashes coming from the front passenger window. Shining a light on the pickup, the officer saw defendant Jose Luis Valencia behind the wheel and defendant Edgar Isidro Garcia in the passenger seat. An hour-long vehicle chase ensued, during which Garcia threw something from the truck‘s window. The cylinder of a revolver was later recovered in that vicinity. Defendants were ultimately arrested, and gunshot residue was found on the front passenger door of the pickup.
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, whiсh included the
carwash. Arvina 13‘s primary felonious activities include shootings, assaults, burglaries, and drug sales.
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 cаse 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
and enhancement allegations, as well as Valencia‘s firearm enhancements attached to
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.
A. The STEP Act
In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (STEP Act or Act;
and whose members individually or collectively еngage in, or have engaged in, a pattern of criminal gang activity.” (
in, a pattern of criminal gang activity.” (
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 (
of these contacts but read about them in police reports and other sources. (Id. at p. 673.) The expert was permitted to testify as to the particulars of the police contacts, as described in those documents, to explain the basis of his opinion that Sanchez was a gang member and committed the charged offenses for the gang‘s benefit. (See id. at p. 683; Gardeley, supra, 14 Cal.4th at pp. 618-620.) If offered for the truth of their content, statements repeated from those sources would constitute hearsay. The jury was told, however, that the testimony was not admitted for its truth but only to explain the basis for the expert‘s opinion. (Sanchez, at p. 684.)
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held 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 fоr his opinion are properly considered to be admitted for their truth.” (Sanchez, supra, 63 Cal.4th at p. 674Sanchez arose at the intersection of the hearsay rule, the holdings in Crawford and its progeny, and the evidentiary rules applicable to expert testimony.
Sanchez contrasted general knowledge about facts accepted in the expert‘s field with “case-specific facts about which the expert has no independent knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676Id. at p. 676; see further discussion of what constitutes “case-specific facts” in pts. C & D, post.) “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, even if derived from hearsay, 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.”13 (Sanchez, at p. 676.)
from those assumed facts. If no сompetent evidence of a case-specific fact has been, or will be, admitted, the expert cannot be asked to assume it. The expert is permitted to give his opinion because the significance of certain facts may not be clear to a lay juror lacking the expert‘s specialized knowledge and experience.” (Id. at pp. 676-677.)
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 expert is precluded by law from using such matter as a basis for his opinion.’ (Italics added.) Similarly, Evidence Code section 802 allows an expert to ‘state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.’ ” (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 сonsider 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.’ ” (Id. at p. 679, quoting People v. Montiel (1993) 5 Cal.4th 877, 919.) The jury would be given a limiting instruction that “matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.” (Montiel, at p. 919.) The trial court retained discretion to exclude the evidence under
Sanchez
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. 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.” (Id. at p. 684, fn. omitted.)
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
the recovered pills contained the
is not case specific but is the kind of background information experts have traditionally been able to rely on and relate to the jury.” (Id. at p. 27.)
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 offerеd 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 prosecution, 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.)
In gang cases, drawing the line of demarcation bеtween 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 fаcts 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
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, even when based on hearsay. Our conclusion restores the traditional distinction between an expert‘s testimony regarding background information and case-specific facts.” (Id. at p. 685, italics added.)