People v. Sanchez

Filed 6/30/16
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S216681
v. )
) Ct.App. 4/3 G047666
MARCOS ARTURO SANCHEZ, )
) Orange County
Defendant and Appellant. ) Super. Ct. No. 11CF2839
____________________________________)
In Crawford v. Washington (2004) 541 U.S. 36 (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 Evidence Code sections 801 and 802, relating to the scope of
expert testimony.
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 those hearsay
statements were also testimonial and therefore should have been excluded under
Crawford. The error was not harmless beyond a reasonable doubt. Accordingly,
we reverse the jury findings on the street gang enhancements.
1
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
1 Former Penal Code section 12021, subdivision (a)(1) (now § 29800, subd.
(a)(1)), Health and Safety Code section 11370.1, subdivision (a), and Penal Code
section 186.22, subdivisions (a) and (b).
2 Penal Code section 667.5, subdivision (b).
2
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.
As part of the department‟s efforts to control gang activity, officers issue
what are known as “STEP notices”3 to individuals associating with known gang
members. The purpose of the notice is to both provide and gather information.
The notice informs the recipient that he is associating with a known gang; that the
gang engages in criminal activity; and that, if the recipient commits certain crimes
with gang members, he may face increased penalties for his conduct. The issuing
officer records the date and time the notice is given, along with other identifying
information like descriptions and tattoos, and the identification of the recipient‟s
associates. Officers also prepare small report forms called field identification or
“FI” cards that record an officer‟s contact with an individual. The form contains
personal information, the date and time of contact, associates, nicknames, etc.
Both STEP notices and FI cards may also record statements made at the time of
the interaction.
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
3 This acronym is a reference to the California Street Terrorism Enforcement
and Prevention Act. (Pen. Code, § 186.20 et seq.)
3
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. (Pen. Code, § 186.22, subds. (e), (f).)
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 perpetrator as a rival
gang member. (3) On December 4, 2009, an officer contacted defendant in the
company of documented Delhi member John Gomez and completed an FI card.
(4) Five days later, on December 9, 2009, defendant was arrested in a garage with
Gomez and Delhi member Fabian Ramirez. Inside the garage, police found “a
surveillance camera, Ziploc baggies, narcotics, and a firearm.”
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
4
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.
4 Defendant admitted the allegation that he had served a prior prison term.
5 The reversal was based on People v. Rodriguez (2012) 55 Cal.4th 1125,
which established that the substantive offense of active gang participation required
(footnote continued on next page)
5
II. DISCUSSION
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. Evidence Code section 1200, subdivision (a) formally
defines hearsay as “evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the matter
stated.” A “statement” is “oral or written verbal expression” or the “nonverbal
(footnote continued from previous page)
“that a person commit an underlying felony with at least one other gang member.”
(Id. at p. 1134.)
6
conduct of a person intended by him as a substitute for oral or written verbal
expression.” (Evid. Code, § 225.) Senate committee comments to Evidence Code
section 1200 explain that a statement “offered for some purpose other than to
prove the fact stated therein is not hearsay.” (Sen. Com. on Judiciary com., 29B
pt. 4 West‟s Ann. Evid. Code (2015 ed.) foll. § 1200, p. 3; see People v. Davis
(2005) 36 Cal.4th 510, 535-536.) Thus, a hearsay statement is one in which a
person makes a factual assertion out of court and the proponent seeks to rely on
the statement to prove that assertion is true. Hearsay is generally inadmissible
unless it falls under an exception. (Evid. Code, § 1200, subd. (b).) Nothing in our
opinion today changes the basic understanding of the definition of hearsay.
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 contain
multiple levels of hearsay. An emergency room report, for example, may record
the observations made by the writer, along with statements made by the patient. If
offered for its truth, the report itself is a hearsay statement made by the person
who wrote it. Statements of others, related by the report writer, are a second level
of hearsay. Multiple hearsay may not be admitted unless there is an exception for
each level. (People v. Riccardi (2012) 54 Cal.4th 758, 831 (Riccardi).) For
example, in the case of the emergency room document, the report itself may be a
business record (Evid. Code, § 1270 et seq.), while the patient‟s statement may
qualify as a statement of the patient‟s existing mental or physical state (Evid.
Code, § 1250, subd. (a)).
B. State Evidentiary Rules for Expert Testimony
While lay witnesses are allowed to testify only about matters within their
personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given
7
greater latitude. “A person is qualified to testify as an expert if he has special
knowledge, skill, experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd.
(a).) An expert may express an opinion on “a subject that is sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact.”
(Evid. Code, § 801, subd. (a).) In addition to matters within their own personal
knowledge, experts may relate information acquired through their training and
experience, even though that information may have been derived from
conversations with others, lectures, study of learned treatises, etc. This latitude is
a matter of practicality. A physician is not required to personally replicate all
medical experiments dating back to the time of Galen in order to relate generally
accepted medical knowledge that will assist the jury in deciding the case at hand.
An expert‟s testimony as to information generally accepted in the expert‟s area, or
supported by his own experience, may usually be admitted to provide specialized
context the jury will need to resolve an issue. When giving such testimony, the
expert often relates relevant principles or generalized information rather than
reciting specific statements made by others.
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.
8
The hearsay rule has traditionally not barred an expert‟s testimony
regarding his general knowledge in his field of expertise. “[T]he common law
recognized that experts frequently acquired their knowledge from hearsay, and
that „to reject a professional physician or mathematician because the fact or some
facts to which he testifies are known to him only upon the authority of others
would be to ignore the accepted methods of professional work and to insist on . . .
impossible standards.‟ Thus, the common law accepted that an expert‟s general
knowledge often came from inadmissible evidence.” (Volek, Federal Rule of
Evidence 703: The Back Door and the Confrontation Clause, Ten Years Later
(2011) 80 Fordham L.Rev. 959, 965, fn. omitted, quoting 1 Wigmore, A Treatise
on the Anglo-American System of Evidence in Trials at Common Law (2d ed.
1923) § 665; see Simons, Cal. Evidence Manual (2014) § 4:23, pp. 313-316.)
Knowledge in a specialized area is what differentiates the expert from a lay
witness, and makes his testimony uniquely valuable to the jury in explaining
matters “beyond the common experience of an ordinary juror.” (People v.
McDowell (2012) 54 Cal.4th 395, 429; see Evid. Code, § 801, subd. (a).) As such,
an expert‟s testimony concerning his general knowledge, even if technically
hearsay, has not been subject to exclusion on hearsay grounds.
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-
9
specific facts about which he has no personal knowledge. (People v. Coleman
(1985) 38 Cal.3d 69, 92 (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; see Simons, Cal. Evidence Manual, supra,
§ 4:32, pp. 326-327; 2 Wigmore, Evidence (Chadbourn ed. 1978) § 672, p. 933,
italics omitted.) 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 from those assumed facts. If no
competent 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.
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
10
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.
At common law, the treatment of an expert‟s testimony as to general
background information and case-specific hearsay differed significantly.
However, the line between the two has now become blurred. Both the common
law and early California law recognized two exceptions to the general rule barring
disclosure of, and reliance on, otherwise inadmissible case-specific hearsay.
11
These exceptions covered testimony about property valuation and medical
diagnoses. As to the former, “courts recognized that experts frequently derived
their knowledge by both custom and necessity from sources that were technically
hearsay—price lists, newspapers, information about comparable sales, or other
secondary sources.” (Kaye et al., The New Wigmore: Expert Evidence (2d ed.
2011) § 4.5.1, p. 154; see In re Cliquot’s Champagne (1865) 70 U.S. 114, 141.)
Likewise, physicians often relied on patients‟ hearsay descriptions of their
symptoms to form diagnoses. (See Barber v. Merriam (Mass. 1865) 93 Mass.
322, 324-326; see also Kaye et al., § 4.5.1, p. 155; People v. Wilson (1944) 25
Cal.2d 341, 348; Betts v. Southern California Fruit Exch. (1904) 144 Cal. 402,
408; People v. Shattuck (1895) 109 Cal. 673, 678-679; Hammond Lumber Co. v.
Los Angeles County (1930) 104 Cal.App. 235, 248.)
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. 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
12
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.” Under this approach, the
reliability of the evidence is a key inquiry in whether expert testimony may be
admitted. The California Law Revision Commission comments accompanying the
code noted that Evidence Code section 801, subdivision (b) “assures the reliability
and trustworthiness of the information used by experts in forming their opinions.”
(Cal. Law Revision Com. com., reprinted at 29B pt. 3A West‟s Ann. Evid. Code
(2009 ed.) foll. § 801, p. 26.)
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 (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, Evidence
Code section 352 authorizes the court to exclude from an expert‟s testimony any
hearsay matter whose irrelevance, unreliability, or potential for prejudice
13
outweighs its proper probative value. [Citation.]” (Ibid., citing Coleman, supra,
38 Cal.3d at pp. 91-93.) Thus, under this paradigm, there was no longer a need to
carefully distinguish between an expert‟s testimony regarding background
information and case-specific facts. The inquiry instead turned 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. For the reasons discussed below,
we conclude 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.
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.” (U.S. Const., 6th Amend.) As the
United States Supreme Court observed, “this bedrock procedural guarantee applies
to both federal and state prosecutions.” (Crawford, supra, 541 U.S. at p. 42; see
Pointer v. Texas (1965) 380 U.S. 400, 406.) “ „The main and essential purpose of
confrontation is to secure for the opponent the opportunity of cross-
examination.‟ ” (Davis v. Alaska (1974) 415 U.S. 308, 315-316.) “Cross-
examination is the principal means by which the believability of a witness and the
truth of his testimony are tested.” (Id. at p. 316.)
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.) Crawford overturned
14
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.)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
6 Because Crawford is based on the Sixth Amendment right to confrontation,
its rule has not been extended to civil proceedings or circumstances in which
hearsay is offered by an accused in his own defense. Neither we nor the high court
has had occasion to consider the rule when a defendant offers hearsay that may
work to the detriment of a codefendant.
15
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] opinion
and should not be considered for their truth.” (Montiel, supra, 5 Cal.4th at p. 919;
see Coleman, supra, 38 Cal.3d at p. 92.) If statements related by experts as bases
for their opinions are not admitted for their truth, they are not hearsay. Neither the
hearsay doctrine nor the confrontation clause is implicated when an out-of-court
statement is not received to prove the truth of a fact it asserts. (See Crawford,
supra, 541 U.S. at p. 59, fn. 9; Tennessee v. Street (1985) 471 U.S. 409, 413-414.)
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. __ [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. __ [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
16
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 p. __ [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. __ [132 S.Ct.
at p. 2236].)
Five justices, the four-member dissent and Justice Thomas writing
separately, specifically rejected this approach. In doing so, they called into
question the continuing validity of relying on a not-for-the-truth analysis in the
expert witness context. Justice Thomas observed that the expert relied upon, as
7 Williams involved a bench trial. The Cellmark report itself was not
admitted into evidence. The expert witness was not a Cellmark employee.
(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2231].)
17
substantive evidence, Cellmark‟s representation that, in fact, the sample it tested
was that taken from the victim: “[The prosecution expert] opined that petitioner‟s
DNA profile matched the male profile derived from [the victim‟s] vaginal swabs.
In reaching that conclusion, [the expert] relied on Cellmark‟s out-of-court
statements that the profile it reported was in fact derived from [the victim‟s]
swabs, rather than from some other source. Thus, the validity of [the expert’s]
opinion ultimately turned on the truth of Cellmark’s statements. The plurality‟s
assertion that Cellmark‟s statements were merely relayed to explain „the
assumptions on which [the expert‟s] opinion rest[ed],‟ [citation], overlooks that
the value of [the expert‟s] testimony depended on the truth of those very
assumptions.” (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2258] [conc.
opn. of Thomas, J.], italics added.)8)
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
8 Justice Thomas concurred in the judgment because he agreed that the
Cellmark report was not testimonial due to its lack of sufficient formality.
(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at pp. 2259-2260] [conc. opn. of
Thomas, J.]; see discussion post, at pp. 32-33.)
18
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. __ [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 validity of [the
expert‟s] opinion ultimately turn[s] on the truth” (Williams, supra, 567 U.S. at p.
__ [132 S.Ct. at p. 2258] [conc. opn. of Thomas, J.].) of the hearsay statement. If
the hearsay that the expert relies on and treats as true is not true, an important
basis for the opinion is lacking. In Williams, the expert‟s opinion that the
Cellmark profile matched the defendant‟s known profile could not prove that
Williams was the semen donor unless the Cellmark profile was, in truth, linked to
the victim and was scientifically accurate. Relevant evidence is that which has a
“tendency in reason to prove or disprove any disputed fact that is of consequence
to the determination of the action.” (Evid. Code, § 210.) If the hearsay statements
about the linkage and accuracy of the Cellmark profile were not true, the fact that
the two profiles matched would have been irrelevant. That is, the fact that they
matched could not have had a tendency in reason to prove the disputed fact of the
rapist‟s identity.
The reasoning of a majority of justices in Williams calls into question the
premise that expert testimony giving case-specific information does not relate
19
hearsay. In the context of a sufficiency of the evidence claim in a gang case,
People v. Gardeley (1996) 14 Cal.4th 605 (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, and cases cited therein; see also People v. Hill (2011) 191 Cal.App.4th 1104,
1129-1131 [criticizing Gardeley but following it].)9
9 There may be times when an expert does not rely on the truth of a statement
when reaching his opinion. For example, an expert may learn that a gang member
falsely claimed to have committed a crime to shield an associate from guilt. The
expert might conclude that conduct was an example of expected gang loyalty. In
such a case the expert could relate the content of the statement and would not be
reciting hearsay because the statement would not be 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.
20
We find persuasive the reasoning of a majority of justices in Williams.10
When an expert is not testifying in the form of a proper hypothetical question and
no other evidence of the case-specific facts presented has or will be admitted, there
is no denying that such facts are being considered by the expert, and offered to the
jury, as true. Indeed, the jury here was given a standard instruction that it “must
decide whether information on which the expert relied was true and accurate.”
(CALCRIM No. 332 [Expert Witness Testimony].) Without independent
competent proof of those case-specific facts, the jury simply had no basis from
which to draw such a conclusion. The court also confusingly instructed the jury
that the gang expert‟s testimony concerning “the statements by the defendant,
police reports, F.I. cards, STEP notices, and speaking to other officers or gang
members” should not be considered “proof that the information contained in those
statements was true.” Jurors cannot logically follow these conflicting instructions.
They cannot decide whether the information relied on by the expert “was true and
accurate” without considering whether the specific evidence identified by the
instruction, and upon which the expert based his opinion, was also true. “To admit
basis testimony for the nonhearsay purpose of jury evaluation of the experts is . . .
to ignore the reality that jury evaluation of the expert requires a direct assessment
of the truth of the expert‟s basis.” (Kaye et al., The New Wigmore: Expert
Evidence, supra, § 4.7.2, pp. 179-180; see Williams, supra, 567 U.S. at p. __ [132
S.Ct. at pp. 2268-2269] [dis. opn. of Kagan, J.].)
10 Other courts have likewise found persuasive the reasoning of a majority of
justices in Williams that expert basis testimony is admitted for its truth. (See, e.g.,
State v. Navarette (N.M. 2013) 294 P.3d 435, 439; Young v. U.S. (D.C. 2013) 63
A.3d 1033, 1047, fn. 53; Com. v. Greineder (Mass. 2013) 464 Mass. 580, 592.)
21
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.
In the present case, when the gang expert testified to case-specific facts
based upon out-of-court statements and asserted those facts were true because he
relied upon their truth in forming his opinion, he was reciting hearsay. Ordinarily,
an improper admission of hearsay would constitute statutory error under the
Evidence Code. Under Crawford, however, if that hearsay was testimonial and
Crawford‟s exceptions did not apply, defendant should have been given the
opportunity to cross-examine the declarant or the evidence should have been
excluded.12 Improper admission of such prosecution evidence would also be an
error of federal constitutional magnitude.
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
11 As noted, ante, multiple levels of hearsay must each fall within an
applicable hearsay exception. (Riccardi, supra, 54 Cal.4th at p. 831.)
12 The People made no showing that the various declarants were unavailable,
nor do they argue that defendant forfeited his confrontation rights by any
wrongdoing.
22
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 Evidence Code. They can
rely on information within their personal knowledge, and they can give an opinion
based on a hypothetical including case-specific facts that are properly proven.
They may also rely on nontestimonial hearsay properly admitted under a statutory
hearsay exception. What they cannot do is present, as facts, the content of
testimonial hearsay statements. “[T]he confrontation clause is concerned solely
with hearsay statements that are testimonial, in that they are out-of-court analogs,
in purpose and form, of the testimony given by witnesses at trial.” (People v.
Cage (2007) 40 Cal.4th 965, 984 (Cage).) Thus, only when a prosecution expert
relies upon, and relates as true, a testimonial statement would the fact asserted as
true have to be independently proven to satisfy the Sixth Amendment.
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 independently
evaluate the probative value of an expert‟s testimony, Evidence Code section 802
properly allows an expert to relate generally the kind and source of the “matter”
23
upon which his opinion rests. A jury may repose greater confidence in an expert
who relies upon well-established scientific principles. It may accord less weight
to the views of an expert who relies on a single article from an obscure journal or
on a lone experiment whose results cannot be replicated. There is a distinction to
be made between allowing an expert to describe the type or source of the matter
relied upon as opposed to presenting, as fact, case-specific hearsay that does not
otherwise fall under a statutory exception.
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
13 We disapprove our prior decisions concluding that an expert‟s basis
testimony is not offered for its truth, or that a limiting instruction, coupled with a
(footnote continued on next page)
24
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.
D. Testimonial Nature of the Statements in This Case
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 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
(footnote continued from previous page)
trial court‟s evaluation of the potential prejudicial impact of the evidence under
Evidence Code section 352, sufficiently addresses hearsay and confrontation
concerns. (See, e.g., People v. Bell (2007) 40 Cal.4th 582, 608; People v. 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; People v. Coleman, supra, 38
Cal.3d at pp. 91-93.) We also disapprove People v. Gardeley, supra, 14 Cal.4th
605, to the extent it suggested an expert may properly testify regarding case-
specific out-of-court statements without satisfying hearsay rules.
25
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 (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 “primary purpose” for which the statements are made.
“Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
26
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.”
(Id. at p. 822, italics added.) The Davis court concluded the statements were not
testimonial because “the circumstances of [the] interrogation objectively indicate
its primary purpose was to enable police assistance to meet an ongoing
emergency.” (Id. at p. 828.)
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 (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.
27
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‟
statements and actions and the circumstances in which the encounter occurred.”
(Id. at p. 360.) In concluding the shooting victim‟s statements to police were
nontestimonial, Bryant observed that the officers‟ questioning of the victim was
objectively aimed at meeting an ongoing emergency. (Id. at pp. 374-376.) The
victim‟s responses indicated the shooter‟s whereabouts were unknown and there
was “no reason to think that the shooter would not shoot again if he arrived on the
scene.” (Id. at p. 377.) Finally, the court observed that the circumstances in which
the statements were made were far from formal. The scene was chaotic; the
victim was in distress; no signed statement was produced. (Ibid.; see People v.
Blacksher (2011) 52 Cal.4th 769, 816-818.)
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
14 In Bryant, the court noted, “there may be other circumstances, aside from
ongoing emergencies, when a statement is not procured with a primary purpose of
(footnote continued on next page)
28
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
p. __ [132 S.Ct. at pp. 2259-2261] [conc. opn. of Thomas, J.]; Bryant, supra, 562
U.S. at pp. 378-379 [conc. opn. of Thomas, J.].)15
(footnote continued from previous page)
creating an out-of-court substitute for trial testimony.” (Bryant, supra, 562 U.S. at
p. 358.) The existence of an ongoing emergency “is not the touchstone of the
testimonial inquiry” (id. at p. 374) but is “simply one factor . . . that informs the
ultimate inquiry regarding the „primary purpose‟ of an interrogation” (id. at p.
366).
15 Justice Thomas would also exclude under the confrontation clause
“technically informal statements when used to evade the formalized process.”
(Davis, supra, 547 U.S. at p. 838 [conc. & dis. opn. of Thomas, J.].)
29
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 (Melendez-Diaz), and Bullcoming v. New Mexico (2011) 564 U.S. 647(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” (id. at p. 660), yet the
16 As we have noted, “Only people can make hearsay statements; machines
cannot.” (People v. Leon (2015) 61 Cal.4th 569, 603; see People v. Goldsmith
(2014) 59 Cal.4th 258, 274.)
30
“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). 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.)
The next case in the evolution of the doctrine was Williams. As an
alternative to its not-for-the-truth hearsay analysis,17 the plurality modified the
“primary purpose” testimonial test by reasoning the Cellmark report “was not
prepared for the primary purpose of accusing a targeted individual.” (Williams,
supra, 567 U.S. at p. __ [132 S.Ct. at p. 2243] [plur. opn. of Alito, J.], italics
added.) The Williams plurality stated: “[T]he primary purpose of the Cellmark
report, viewed objectively, was not to accuse petitioner or to create evidence for
use at trial. When the [police] lab sent the sample to Cellmark, its primary
purpose was to catch a dangerous rapist who was still at large, not to obtain
evidence for use against petitioner, who was neither in custody nor under
suspicion at that time. Similarly, no one at Cellmark could have possibly known
that the profile that it produced would turn out to inculpate petitioner—or for that
matter, anyone else whose DNA profile was in a law enforcement database.
Under these circumstances, there was no „prospect of fabrication‟ and no incentive
to produce anything other than a scientifically sound and reliable profile.” (132
S.Ct. at pp. 2243-2244, italics added.)
17 See discussion, ante, at pages 16-19.
31
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. __
[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. (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. 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 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. 2243 [plur.
opn. of Alito, J.].) The separate opinions noted the DNA testing was conducted
several months after the rape. (See id. at p. 2263 [conc. opn. of Thomas, J.]; id. 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 p. 2277 [dis. opn. of Kagan, J.].)
While Justice Thomas agreed with the plurality that the report was not
testimonial, he did so on the narrow ground that the statement was not sufficiently
formal. The report lacked “the solemnity of an affidavit or deposition, for it is
neither a sworn nor a certified declaration of fact,” and also did not “attest that its
statements accurately reflect the DNA testing processes used or the results
obtained.” (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2260] [conc. opn.
32
of Thomas, J.].) He also reasoned “it was not the product of any sort of
formalized dialogue resembling custodial interrogation.” (Ibid.)
Our court applied Williams in the companion cases of People v. Lopez
(2012) 55 Cal.4th 569 (Lopez), and People v. Dungo (2012) 55 Cal.4th 608(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
18 We also decided a third case, People v. Rutterschmidt (2012) 55 Cal.4th
650, which involved a confrontation claim against a lab director‟s testimony about
a test he did not conduct. We concluded the testimony was harmless beyond a
reasonable doubt without deciding whether its admission was proper. (Id. at p.
661.)
33
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 testified, relying on
Bolduc‟s autopsy report and photographs. Lawrence opined the victim had been
strangled, basing his opinion on factual observations noted in Bolduc‟s autopsy
report, such as the presence of hemorrhaging in the neck and eyes, the purple color
of her skin, the presence of an intact hyoid bone, and the fact that the victim had
bitten her tongue shortly before death. (Dungo, supra, 55 Cal.4th at p. 614.)
Neither Bolduc‟s report nor autopsy photos were admitted into evidence. (Id. at p.
615.)
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
34
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. __ [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.” (135 S.Ct. at p. 2177.) The court also noted as an
“additional factor” the informality of the statements. (Id. 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 be used to arrest or punish his abuser. L.P.
never hinted that he intended his statements to be used by the police or
prosecutors. And the conversation between L.P. and his teachers was informal
and spontaneous. The teachers asked L.P. about his injuries immediately upon
discovering them, in the informal setting of a preschool lunchroom and classroom,
and they did so precisely as any concerned citizen would talk to a child who might
be the victim of abuse. This was nothing like the formalized station-house
35
questioning in Crawford or the police interrogation and battery affidavit in
Hammon.” (Id. at p. 2181.)19
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
19 In Clark, the high court discussed for the first time an issue it had
“repeatedly reserved,” i.e., “whether statements to persons other than law
enforcement officers are subject to the Confrontation Clause.” (Clark, supra, 576
U.S. at p. __ [135 S.Ct. at p. 2181].) The court “decline[d] to adopt a categorical
rule excluding them from the Sixth Amendment‟s reach” but noted “such
statements are much less likely to be testimonial than statements to law
enforcement officers.” (Ibid.) Accordingly, whether a statement was made by or
to a government investigating agent remains an important, but not dispositive, part
of the analysis.
20 This report contained a second level of hearsay: the cousin‟s statement to
the reporting officer.
36
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 having the declarant sign a
deposition. Indeed, if there is one point for which no case—English or early
American, state or federal—can be cited, that is it.” (Davis, supra, 547 U.S. at p.
826.) Citing Palmer v. Hoffman (1943) 318 U.S. 109, Melendez-Diaz reasoned:
“There we held that an accident report provided by an employee of a railroad
company did not qualify as a business record because, although kept in the regular
course of the railroad‟s operations, it was „calculated for use essentially in the
court, not in the business.‟ [Citation.] The analysts‟ certificates—like police
reports generated by law enforcement officials—do not qualify as business or
public records for precisely the same reason.” (Melendez-Diaz, supra, 557 U.S. at
pp. 321-322, italics added, fn. omitted.)21
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
21 Business records are defined as writings made in the regular course of
business, at or near the time of the event, and created through sources of
information and a method of preparation reflecting its trustworthiness. (Evid.
Code, § 1271; see also Evid. Code, § 1280 [record by public employee].) When a
record is not made to facilitate business operations but, instead, is primarily
created for later use at trial, it does not qualify as a business record. (See Lopez,
supra, 55 Cal.4th at pp. 587-590 [conc. opn. of Corrigan, J.].)
37
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. __ [131 S.Ct. at pp. 2714-2715].)
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 p. __ [132 S.Ct. at pp. 2261-2263
[conc. opn. of Thomas, J.]; 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.
3. This STEP Notice Is Testimonial
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
22 The Attorney General appears to concede that the police report regarding
the December 9, 2009, incident, in which defendant was arrested in the garage,
was accusatory as to him.
38
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.) 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
23 It does not appear that Stow specifically testified an officer issuing a STEP
notice signs the notice or swears to its accuracy. However, the Attorney General
appears to agree that the STEP notice was “sworn by the officer under penalty of
perjury . . . .”
39
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 that it
accurately reflected the attendant circumstances, including defendant‟s statements.
As such, the notice seems little different from the sworn attestation by the analyst
in Melendez-Diaz, and more formal than the unsworn report found testimonial in
Bullcoming. (See Bullcoming, supra, 564 U.S. at p. __ [131 S.Ct. at pp. 2710-
2711]; Melendez-Diaz, supra, 557 U.S. at pp. 308-311.)
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. __ [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
40
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 conclude that Stow‟s testimony
based on the police reports and STEP notice was prejudicial.
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; Lopez, supra, 55
Cal.4th at p. 585; Cage, supra, 40 Cal.4th at p. 979, fn. 8.) Determining prejudice
41
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.” (Pen. Code, § 186.22, subd. (b)(1).) “In addition, the prosecution
must prove that the gang (1) is an ongoing association of three or more persons
with a common name or common identifying sign or symbol; (2) has as one of its
primary activities the commission of one or more of the criminal acts enumerated
in the statute; and (3) includes members who either individually or collectively
have engaged in a „pattern of criminal gang activity‟ by committing, attempting to
commit, or soliciting two or more of the enumerated offenses (the so-called
„predicate offenses‟) during the statutorily defined period.” (Gardeley, supra, 14
Cal.4th at p. 617, italics omitted; see People v. Hernandez (2004) 33 Cal.4th 1040,
1047.)
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), evidence of
defendant‟s membership and commission of crimes in Delhi‟s territory bolstered
42
the prosecution‟s theory that he acted with intent to benefit his gang, an element it
was required to prove.
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.” (Pen. Code, § 186.22, subd.
(b)(1).) A drug dealer may possess drugs in saleable quantities, along with a
firearm for protection, regardless of any gang affiliation, and without an intent to
43
aid anyone but himself. The prosecution‟s theory of the case was that defendant
acted in association with Delhi and committed the underlying offenses intending
to benefit the gang. The main evidence of defendant‟s intent to benefit Delhi was
Stow‟s recitation of testimonial hearsay. Under these circumstances, we cannot
conclude that admission of Stow‟s testimony relating the case-specific statements
concerning defendant‟s gang affiliation was harmless beyond a reasonable doubt.
We therefore reverse the true findings on the street gang enhancements.24
III. DISPOSITION
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.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
24 Whether the gang allegations may be retried is an issue neither raised nor
briefed and we express no views on it.
44
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Sanchez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 223 Cal.App.4th 1Rehearing Granted
__________________________________________________________________________________
Opinion No. S216681
Date Filed: June 30, 2016
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: Steven D. Bromberg
__________________________________________________________________________________
Counsel:
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.
Counsel who argued in Supreme Court (not intended for publication with opinion):
John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA 92780
(714) 731-5572
Steven T. Oetting
Deputy State Solicitor General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2206