People v. Perez ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE LUIS PEREZ et al.,
Defendants and Appellants.
S248730
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
Opinion of the Court by Groban, J.
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.
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Opinion of the Court by Groban, J.
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 of money and drugs, which the group
then took. The group put the victims into vehicles and drove
them away from the house. The three victims were eventually
shot and left for dead near Victorville. The survivor identified a
person named “Lalo” as the shooter.
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
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Opinion of the Court by Groban, J.
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 detectives conducted, Perez’s
statements to police, trial testimony, classes, Internet research,
reports, articles about the Guzman cartel, and regular
discussions with Drug Enforcement Administration agents
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Opinion of the Court by Groban, J.
about cartels. Defense counsel did not object to Moran’s
testimony on hearsay, confrontation clause, or Evidence Code
section 352 grounds. To establish the pattern of criminal gang
activity, the court took judicial notice that Alvarado, Iniguez,
and Rodriguez had been convicted of murder, attempted
murder, and kidnapping, based upon the same events charged
in the present case.1
On October 31 and November 1, 2013, the juries convicted
Chavez, Sandoval, and Perez each of two counts of first degree
special circumstance murder (Pen. Code, §§ 187, subd. (a),
190.2, subd. (a)),2 one count of attempted premeditated murder
(§§ 664, 187, subd. (a)), three counts of kidnapping for ransom (§
209, subd. (a)), three counts of kidnapping to commit robbery (§
209, subd. (b)(1)), and one count of street terrorism (§ 186.22,
subd. (a)). The jury found true gang (§ 186.22, subd. (b)) and
firearm (§ 12022.53, subds. (d) & (e)(1)) enhancements. The
trial court sentenced each defendant to five terms of life without
the possibility of parole.
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-
1
Alvarado and Rodriguez were tried separately and were
convicted of similar offenses as the defendants in this matter.
Perez was originally tried jointly with Iniguez on the same
charges here but with different juries. Iniguez’s jury convicted
him on all counts, but Perez’s hung on all counts.
2
All further unspecified statutory references refer to the
Penal Code.
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Opinion of the Court by Groban, J.
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. The Court of Appeal found that
“[e]ven though this case was tried before Sanchez was decided,
previous cases had already indicated that an expert’s testimony
to hearsay was objectionable. If anything, Sanchez narrowed
the scope of a meritorious objection by limiting it to case-specific
hearsay.” Therefore, “such objections would not have been
futile.”
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 § 12022.53, subd. (h),
added by Stats. 2017, ch. 682, § 1.) On our own motion, we also
directed the Reporter of Decisions not to publish the opinion.
Upon the case’s return, as relevant here, the Court of Appeal
again held that Chavez’s counsel’s failure to object in the trial
court forfeited any objection to expert testimony to case-specific
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Opinion of the Court by Groban, J.
hearsay under Sanchez. (People v. Perez (2018) 22 Cal.App.5th
201, 212.)
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, Evid. Code, § 353, subd. (a).)
“ ‘The reason for the [objection] requirement is manifest: a
specifically grounded objection to a defined body of evidence
serves to prevent error. It allows the trial judge to consider
excluding the evidence or limiting its admission to avoid
possible prejudice. It also allows the proponent of the evidence
to lay additional foundation, modify the offer of proof, or take
other steps designed to minimize the prospect of reversal.’ ”
(People v. Partida (2005) 37 Cal.4th 428, 434.) Even when not
required under our forfeiture doctrine, an objection can still
serve these important purposes and can be crucial to developing
the law.
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Opinion of the Court by Groban, J.
Nevertheless, “[a]s this court has explained, ‘[r]eviewing
courts have traditionally excused parties for failing to raise an
issue at trial where an objection would have been futile or wholly
unsupported by substantive law then in existence.’ ” (People v.
Brooks (2017) 3 Cal.5th 1, 92, quoting People v. Welch (1993) 5
Cal.4th 228, 237.) Indeed, “ ‘ “[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.’ ” ’ ” (People v. Edwards (2013) 57 Cal.4th 658, 705
(Edwards).) “In determining whether the significance of a
change in the law excuses counsel’s failure to object at trial, we
consider the ‘state of the law as it would have appeared to
competent and knowledgeable counsel at the time of the trial.’ ”
(People v. Black (2007) 41 Cal.4th 799, 811 (Black), quoting
People v. De Santiago (1969) 71 Cal.2d 18, 23.) “The
circumstance that some attorneys may have had the foresight to
raise th[e] issue does not mean that competent and
knowledgeable counsel reasonably could have been expected to
have anticipated the high court’s decision . . . .” (Black, at p.
812.)
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,
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Opinion of the Court by Groban, J.
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, Evidence Code section 352 authorize[d] the court to
exclude from an expert’s testimony any hearsay matter whose
irrelevance, unreliability, or potential for prejudice outweighs
its proper probative value.” (Montiel, at p. 919.)
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 logically be maintained that the statements
are not being admitted for their truth.” (Id. at p. 686.) “If an
expert testifies to case-specific out-of-court statements to
explain the bases for his [or her] 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.
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 clarified that an
“expert may still rely on hearsay in forming an opinion, and may
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Opinion of the Court by Groban, J.
tell the jury in general terms that he did so” (id. at p. 685), that
is, the expert may “relate generally” the “kind and source of the
‘matter’ upon which his opinion rests” (id. at p. 686).
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 Evidence
Code section 352, sufficiently addresses hearsay and
confrontation concerns.” (Ibid.) Specifically, Sanchez
disapproved People v. Bell (2007) 40 Cal.4th 582, 608; Montiel,
supra, 5 Cal.4th at pp. 918–919; People v. Ainsworth (1988) 45
Cal.3d 984, 1012; People v. Milner (1988) 45 Cal.3d 227, 238–
240; and People v. Coleman (1985) 38 Cal.3d 69, 91–93.
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
9PEOPLE v. PEREZ
Opinion of the Court by Groban, J.
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.)
This ruling is also consistent with our numerous decisions
holding that a defendant need not predict subsequent
substantive changes in law in order to preserve objections. (See
People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5 [failure to object
to the admissibility of prior inconsistent statements did not
forfeit claim because a number of appellate cases had upheld the
admissibility of such statements in the face of similar
challenges]; In re Gladys R. (1970) 1 Cal.3d 855, 861 [failure to
object to trial court’s reading of social services report prior to the
jurisdictional hearing in a juvenile court proceeding did not
forfeit issue because a subsequent appellate decision interpreted
the controlling statutes “in a manner contrary to the apparently
prevalent contemporaneous interpretation”].)
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.” (U.S. Const.,
6th Amend.) In 2004, the high court “adopted a fundamentally
new interpretation of the confrontation right” (Williams, supra,
567 U.S. at p. 64) and held that “[w]here testimonial evidence is
at issue,” the confrontation clause “demands what the common
law required: unavailability and a prior opportunity for
cross-examination.” (Crawford v. Washington (2004) 541 U.S.
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Opinion of the Court by Groban, J.
36, 68.) Relevant here, statements that are not offered for their
truth do not implicate the confrontation clause. (Id. at p. 59,
fn. 9; accord, People v. Blacksher (2011) 52 Cal.4th 769, 808, fn.
23.) While Gardeley was decided before Crawford, every Court
of Appeal to address the issue in a published decision after
Crawford, but before Sanchez, continued to rely on Gardeley to
reject a confrontation clause challenge. Each of these decisions
found, contrary to our subsequent decision in Sanchez, that
expert basis evidence was not offered for its truth. (See People
v. Hill (2011) 191 Cal.App.4th 1104, 1127–1128 (Hill); People v.
Sisneros (2009) 174 Cal.App.4th 142, 153–154; People v. Cooper
(2007) 148 Cal.App.4th 731, 746–747; People v. Fulcher (2006)
136 Cal.App.4th 41, 57; People v. Thomas (2005) 130
Cal.App.4th 1202, 1209–1210.)
Subsequently, in Williams, the high court held in a four-
one-four decision that a lab technician’s testimony regarding
work performed by another lab was not admitted to prove the
truth of the matter and, alternatively, the underlying outside
lab report, which was not admitted into evidence, was not
testimonial. (Williams, supra, 567 U.S. at pp. 57–58, 62, 69–86
(plur. opn. of Alito, J.).) However, while the plurality opinion
found that the testimony did not violate the confrontation
clause, Williams “called into question the continuing validity of
relying on a not-for-the-truth analysis in the expert witness
context,” because between the concurrence and the dissent
“[f]ive justices . . . specifically rejected this approach.” (Sanchez,
supra, 63 Cal.4th at p. 682.) Justice Thomas concurred
narrowly in the judgment on the ground the outside lab report
was not testimonial, but he “share[d] the dissent’s view of the
plurality’s flawed analysis.” (Williams, supra, 567 U.S. at p. 104
(conc. opn. of Thomas, J.); see id. at pp. 109–118.) Notably, he
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Opinion of the Court by Groban, J.
found that the challenged testimony was admitted for its truth.
(Id. at pp. 104–109.) Justice Kagan, joined by three other
justices in dissent, found both that the statements were
testimonial and that the challenged testimony was admitted for
its truth. (Id. at pp. 125–132 (dis. opn. of Kagan, J.).)
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.)
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Opinion of the Court by Groban, J.
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 in the report linking defendant’s name to a
particular blood sample “was admitted for its truth,” the
notation was not testimonial. (Id. at p. 584.) Justice Kennard
observed that in Williams, “[l]ike Justice Thomas in his
concurrence, the dissent rejected the Williams plurality’s
conclusion that [the expert’s] testimony about the report was not
admitted for the truth of the matters asserted in the report.”
(Id. at p. 580.) In dissent, Justice Liu found that “the records at
issue here, including the analyst’s notations linking defendant
to the lab record in question, are testimonial. [Citation.]
Because the statements were introduced through a surrogate
with no personal knowledge of those facts, they were offered in
violation of the confrontation clause.” (Id. at pp. 602–603 (dis.
opn. of Liu, J.).)
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
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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 information
so long as it is reliable”].) Furthermore, at the time of Chavez’s
trial, Edwards was our most recent decision regarding expert
testimony relating case-specific hearsay. (See Edwards, supra,
57 Cal.4th at pp. 706–707.) Edwards, like Dungo and Lopez, did
not overrule Gardeley, and the Edwards majority stressed that
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it was not persuaded by the Dungo dissent. (Id. at p. 707, fn.
13.)
“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
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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 have had the foresight to
raise this issue does not mean that competent and
knowledgeable counsel reasonably could have been expected to
have anticipated the high court’s decision . . . .” (Black, supra,
41 Cal.4th at p. 812.) Asking attorneys at the trial level to
predict that our court might in the future overrule its prior
precedent — or risk forfeiting constitutional claims of their
clients — simply requires too much. (See People v. Champion
(1995) 9 Cal.4th 879, 908, fn. 6 [“Because the question whether
defendants have preserved their right to raise this issue on
appeal is close and difficult, we assume [they] have preserved
their right, and proceed to the merits”].) It likewise burdens
trial courts with ruling on objections they have little power to
sustain unless and until contrary authority is overruled. If
objection would be futile under current precedent, counsel is not
obligated to object on pain of forfeiture simply because a future
change in the law might be foreseeable. Here, Gardeley was still
binding on lower courts at the time of Chavez’s trial and
therefore, a trial court applying this precedent would have
overruled the objection.
16
PEOPLE v. PEREZ
Opinion of the Court by Groban, J.
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
Evidence Code section 352 based on “whether the jury could
properly follow the court’s limiting instruction in light of the
nature and amount of the out-of-court statements admitted.”
(Sanchez, supra, 63 Cal.4th at p. 679.) However, an objection
under Evidence Code section 352 is completely different from a
Sanchez objection that the expert has “relate[d] as true case-
specific facts asserted in hearsay statements.” (Sanchez, at p.
686.) Thus, the specific objection Sanchez contemplated would
have been futile under Gardeley and its progeny unless a
defendant could additionally show that the statements the
expert related were excessive, inflammatory, or confusing,
regardless of whether they were case-specific. (See, e.g., People
v. Coleman (1985) 38 Cal.3d 69, 93 [court abused its discretion
by allowing “extensive questioning of the expert witnesses”
regarding letters written by the victim].) Our decision in
Sanchez therefore meant that, for the first time, it was no longer
futile to object to case-specific expert basis testimony that was
not excessive, inflammatory, or confusing.
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.
17
PEOPLE v. PEREZ
Opinion of the Court by Groban, J.
III. DISPOSITION
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.
18
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 201Rehearing 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