In re Ruedas

Filed 5/24/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
G054523
In re ALBERT LUGO RUEDAS
(Super. Ct. No. 08CF2288)
on Habeas Corpus.
OPINION
Original proceeding on a petition for a writ of habeas corpus after a
judgment from the Superior Court of Orange County, James Edward Rogan, Judge.
Petition denied.
Elizabeth Garfinkle, under appointment by the Court of Appeal, for
Petitioner.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Warren J. Williams, Deputy Attorneys General, for Respondent.
The jurisprudence of retroactivity is a labyrinthine edifice of both critical
importance and daunting complexity. It is located at one of those intersections of
freedom, justice, and pragmatism that are all too common in the criminal law, and make
its practice a humbling experience. In this case, we are asked to offer our best judgment
about whether the rule announced in People v. Sanchez (2016) 63 Cal. 4th 665 (Sanchez)
is prospective or retroactive. We do so with a caution bordering on apprehension, but we
arrive at a firm conclusion the rule is prospective only.
Petitioner Albert Lugo Ruedas was charged with various gang-related
crimes and enhancements, including the special circumstances allegation he committed
murder to further the activities of a criminal street gang. To prove the gang charges, the
prosecution called an expert witness who based his opinions on a variety of extrajudicial
sources, including testimonial hearsay. When defense counsel objected to the expert’s
reliance on this evidence, the trial court overruled the objection and instructed the jury
not to consider the evidence for its substantive truth, but only as a basis for the expert’s
opinions. Ultimately, the jury convicted petitioner as charged, and the trial court
sentenced him to life in prison without parole. We affirmed the judgment on appeal, and
it became final in 2015.
The following year, the California Supreme Court decided the Sanchez
case. Sanchez held that to properly evaluate an expert witness’ opinions, the jury
generally must consider the evidence he relies on for the truth of the matter asserted
therein, and therefore that evidence is subject to exclusion under the hearsay rule and the
Confrontation Clause of the Sixth Amendment to the United States Constitution. In this
proceeding, petitioner asks us to apply Sanchez retroactively to his case and find the gang
expert’s reliance on testimonial hearsay violated his confrontation rights. But we hold
Sanchez does not apply retroactively to cases like petitioner’s that were already final by
the time Sanchez was decided. Therefore, petitioner cannot avail himself of that decision,
and we deny his petition for a writ of habeas corpus.
2
FACTS AND PROCEDURAL HISTORY
A detailed statement of the facts is set forth in our prior opinion in People
1
v. Ruedas (Nov. 14, 2014, G048545) [nonpub. opn.], which we incorporate by reference.
In summary, Daniel Lopez was attacked and fatally shot by two men as he was walking
in Santa Ana late one evening in 2008. Five days later, the gun used in the shooting was
found in petitioner’s possession, and when interviewed by the police, petitioner admitted
he shot Lopez during an attempted robbery.
During his interrogation, petitioner also answered questions about his gang
status. He said he “used to bang” with the Anaheim Boys gang, aka Boys from the Hood
but had stopped hanging out with them about three years earlier, when he turned 18. He
said he had to pay a “tax” of $10,000 to get out of the gang and suggested he “jacked”
Lopez because he wanted to get money for the tax.
Petitioner’s trial commenced in 2013. Testifying as an expert witness,
Anaheim gang investigator Jonathan Yepes told the jury that gang members commit
crimes to spread fear and gain respect. And when they commit a crime such as robbery,
it not only benefits them personally, it also helps their gang because it brings in money
and sends a message the gang is not to be trifled with. According to Yepes, robbery was
one of the primary activities of Boys from the Hood when this case arose in 2008. He
said petitioner first got involved with that gang in 2004, and he was a full-fledged
member when he shot Lopez four years later. Yepes also believed petitioner’s
companion during the shooting was a member of Boys from the Hood.
Yepes based his opinions on a variety of sources. He said he relied on
information he acquired from personally investigating Boys from the Hood’s criminal
activities and talking to its various members. In addition, he considered information he
acquired by reading books about gangs, speaking with other police officers, and attending
1
We also judicially notice the appellate record in that case. (Evid. Code, § 452, subd. (d).)
3
meetings of the California Gang Investigators Association. Yepes testified these are
standard ways gang investigators acquire knowledge about gang activity and ongoing
trends within the gang culture.
Yepes also relied on certified court documents showing Boys from the
Hood members other than petitioner have engaged in gang-related criminal conduct in the
past. This evidence was used to support his opinion that Boys from the Hood constituted
a criminal street gang under California law. He said Boys from the Hood had the dubious
distinction of being one of only three gangs served with a civil injunction in Anaheim.
In forming his opinions about the case, Yepes relied on other sources of
information, as well. These included police reports from this case and others, field
interview cards that were prepared by officers during street encounters with suspected
gang members, and S.T.E.P. notices, which are designed to inform individuals of the
2
consequences of associating with members of a criminal street gang. Yepes not only
identified these materials during his testimony, he divulged a considerable amount of
information contained therein. The record is somewhat unclear as to what specific
information he derived from which particular materials, but Yepes described several
incidents during which petitioner was stopped by the police in 2004 and 2005, a few
years before the shooting.
Yepes explained that during one of those incidents, petitioner was in a park
with a group of Boys from the Hood members. Upon seeing the police, the group tried to
flee, but they were detained. Another time, petitioner was given a S.T.E.P. notice for
congregating with Boys from the Hood members. And on yet another occasion, the
police found spray paint cans and items covered with gang writing in petitioner’s car
2
S.T.E.P. is an acronym for the California Street Terrorism Enforcement and Prevention Act set
forth in Penal Code section 186.20 et seq. Unless noted otherwise, all further statutory references are to the Penal
Code.
4
during a traffic stop. That stop was unrelated to a separate incident during which
petitioner was detained in Fullerton and found to have a gun in his car.
In addition to these police contacts, Yepes testified that when the police
executed a search warrant at the residence of Boys from the Hood member Julio Ortiz in
2005, they found several photos showing petitioner making gang signs with members of
that gang. They also discovered a letter that was written from petitioner to Ortiz. Among
other things, the letter states, “We stand as a family” and “Can’t stop, won’t stop
Anaheim Boys.” Although Yepes did not personally seize this letter during the search, he
reviewed it as part of his preparation for testifying in this case. Yepes also relied on a
series of notes that were prepared by the prosecutor. On cross-examination, Yepes
admitted the notes were like a “script” that contained information about petitioner and his
fellow gang members.
Yepes also based his opinions on the fact petitioner has a gang moniker,
“Gizmo,” and he has the word “Anaheim” tattooed across his back. Yepes interpreted the
tattoo as a sign petitioner was a loyal member of Boys from the Hood. He said he also
got that impression from reading the statements petitioner made when he was interviewed
by the police in this case.
Explaining his thought process, Yepes stated that no one particular source
of information he reviewed was dispositive of his opinions about the case. Rather, he
considered all of the above-mentioned information in coming to the conclusion Boys
from the Hood was a criminal street gang and that petitioner was a member of the gang
when he murdered Lopez.
Throughout Yepes’ testimony, defense counsel repeatedly objected on
hearsay grounds. He was concerned that in discussing the various bases for his opinions,
Yepes was disclosing prejudicial information the jury would be inclined to consider for
its substantive truth. The trial court overruled defense counsel’s objections, but in
recognition of this concern, it advised the jury the basis evidence for Yepes’ opinions was
5
“not being offered for the truth of the matter asserted[.]” “The court is receiving it for the
limited purpose of how it relates to [Yepes’] ultimate opinion[s] . . ., so you are to
consider it only for that purpose.”
In the end, the jury convicted petitioner of first degree murder and active
participation in a criminal street gang. (§§ 187, subd. (a), 186.22, subd. (a).) It also
found true special circumstance allegations the murder was gang related and committed
during the course of an attempted robbery. (§§ 190.2, subds. (a)(17) & (a)(22).) In
addition, the jury found true enhancement allegations petitioner committed the murder to
benefit his gang and by means of intentionally discharging a firearm. (§§ 186.22, subd.
(b), 12022.53, subd. (d).) The trial court sentenced him to prison for life without parole
for the murder, plus 25 years to life on the firearm enhancement, and stayed sentence on
the remaining terms.
On appeal, petitioner did not challenge the admissibility of Yepes’
testimony in any respect. He did argue insufficient evidence, instructional error,
prosecutorial misconduct, ineffective assistance of counsel, and evidentiary error in the
admission of his confession, but we rejected those claims and affirmed the judgment in
its entirety. (People v. Ruedas, supra, G048545 at pp. 2-17.) The California Supreme
Court denied review, and since petitioner did not file a petition for a writ of certiorari in
the United States Supreme Court, the judgment against him became final 90 days later,
on April 28, 2015. (Clay v. United States (2003) 537 U.S. 522, 527; People v. Vieira
(2005) 35 Cal. 4th 264, 306.)
DISCUSSION
In 2016, the California Supreme Court decided Sanchez. Sanchez involved
the same situation presented in this case: an expert witness relying on hearsay evidence in
forming his opinions about the defendant’s gang status. In a departure from established
precedent, Sanchez held that while an expert witness may base his opinions on hearsay
evidence, he cannot divulge the contents of that evidence to the jury unless it fits within
6
an exception to the hearsay rule. And if the hearsay is testimonial, it must also satisfy the
Sixth Amendment’s Confrontation Clause. Here, the parties agree that gang expert
Yepes conveyed testimonial hearsay to the jury in violation of petitioner’s confrontation
rights, as interpreted in Sanchez. The question is whether Sanchez applies retroactively
in this collateral proceeding. For the reasons explained below, we conclude it does not.
Constitutional Framework
Sanchez’s retroactivity cannot be examined without analyzing the doctrinal
underpinnings and historical context of that decision. At its core, Sanchez is a case about
the scope and reach of the Sixth Amendment’s Confrontation Clause. Long considered
an essential component of due process (Pointer v. Texas (1965) 380 U.S. 400, 404), the
clause provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” (U.S. Const., 6th Amend.)
The confrontation clause not only affords defendants the right to personally
examine adverse witnesses, it also “‘(1) insures that the witness will give his statements
under oath — thus impressing him with the seriousness of the matter and guarding
against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit
to cross-examination, the “greatest legal engine ever invented for the discovery of truth”;
[and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of
the witness in making his statement, thus aiding the jury in assessing his credibility.’
[Citation.] [¶] The combined effect of these elements of confrontation . . . serves the
purposes of the Confrontation Clause by ensuring that evidence admitted against an
accused is reliable and subject to the rigorous adversarial testing that is the norm of
Anglo–American criminal proceedings. [Citations.]” (Maryland v. Craig (1990) 497
U.S. 836, 845-846.)
The common law rule barring the admission of hearsay evidence – out of
court statements used to prove the truth of the matter asserted therein – is likewise
designed to enhance the reliability of trial evidence. (See United States v. Winters (6th
7
Cir. 1994) 33 F.3d 720, 723 [citing the reliability of evidence and the opportunity for
cross-examination as the twin goals of the hearsay rule]; McCormick on Evidence (2d ed.
1972) § 250 at pp. 598–99 [the hearsay rule is intended to guard against “imperfections of
perception, memory, and narration”].) To that end, the rule generally precludes the jury
from considering extrajudicial statements that are relayed through a witness other than
the declarant. (Evid. Code, § 1200, subd. (b).) Like all evidentiary rules, this prohibition
aims to ensure “both fairness and reliability in the ascertainment of guilt and innocence.”
(Chambers v. Mississippi (1973) 410 U.S. 284, 302.)
In Ohio v. Roberts (1980) 448 U.S. 56 (Roberts), the United States held the
admission of hearsay evidence does not violate the Sixth Amendment if it bears
“adequate ‘indicia of reliability.’” (Id. at p. 66.) Finding a close relationship between the
hearsay rule and the confrontation clause, the Roberts court ruled, “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.” (Ibid., fn. omitted.)
But a quarter-century later, Roberts’ indicia-of-reliability test was scrapped
in favor of a different standard in Crawford v. Washington (2004) 541 U.S. 36
(Crawford). After tracing the historical development of the Sixth Amendment, Crawford
rejected the idea that application of the confrontation clause should turn primarily on the
rules governing the admissibility of evidence. (Id. at pp. 50-51.) While recognizing that
the ultimate goal of both the hearsay rule and the confrontation clause is to ensure the
reliability of trial evidence, the court determined that when the state seeks to introduce a
hearsay statement testimonial in nature, i.e., made under circumstances indicating it
would later be used at trial, it must show the declarant is unavailable and the defendant
had a prior opportunity for cross-examination. (Id. at pp. 61, 68.) Because this test
pertains only to testimonial statements, it means nontestimonial statements are not subject
to exclusion under the confrontation clause, even if they are unreliable. (Davis v.
8
Washington (2006) 547 U.S. 813, 821; United States v. Larson (9th Cir. 2007) 495 F.3d
1094, 1099, fn. 4.) Nevertheless, Crawford determined this test was consistent with the
framers’ intent and preferable to Roberts’ reliability standard, which it described as
“malleable,” “amorphous,” and “unpredictable.” (Crawford, supra, 541 U.S. at pp. 60,
63.)
After Crawford, the hearsay rule ceased to be the primary guiding principle
in determining whether out-of-court statements are admissible under the Sixth
Amendment. Nonetheless, the hearsay rule and the confrontation clause still have one
thing in common: Neither is implicated unless the extrajudicial statement at issue is
admitted for its substantive truth. (Evid. Code, § 1200, subd. (a); Crawford, supra, 541
U.S. at p. 59, fn. 9.) That is a key point to keep in mind when it comes to understanding
how courts have analyzed hearsay evidence in the context of expert witness testimony, an
issue to which we now turn.
Expert Basis Evidence
At common law, expert witnesses were only allowed to testify about
matters they had personally observed or facts proven at the trial in which they were
testifying. (Volek, Federal Rule of Evidence 703: The Back Door and the Confrontation
Clause, Ten Years Later, 80 Fordham L.Rev. (2011) 959, 962.) With limited exceptions,
they were not permitted to base their opinions on extrajudicial sources that were not
subject to cross-examination. (Id. at pp. 965-967.) Over time, however, the strict
common law rule eventually gave way to a more flexible approach, as reflected in the
California rules of evidence. Those rules allow experts to rely on any such matter –
including hearsay evidence – that is reasonably relied upon by experts in their field.
(Evid. Code, § 801.) And they permit the expert to disclose the contents of those
materials to the jury, regardless of whether they would be admissible in their own right.
(Evid. Code, § 802.)
9
The benefit of this practice is that it provides the jury with information
from which it can ascertain the reliability of the expert’s opinions. “If the jury does not
know the underlying facts or bases for an expert’s conclusions, it is difficult to see how
the jury could rationally asses the plausibility of the expert’s judgment.” (J. Mnookin,
Expert Evidence and the Confrontation Clause after Crawford v. Washington, 15 Journal
of Law and Policy (2008) 791, 802.) On the other hand, when an expert is allowed to
relate information to the jury that is not subject to cross-examination, it opens the door to
prejudicial hearsay that would not otherwise be admissible at the trial. “[S]o long as
experts may rely on inadmissible factual matters as the bases for their conclusion, there is
an inevitable tension between jury education and adherence to the rest of the rules of
evidence.” (Id. at p. 803.)
To prevent expert witnesses from becoming mere conduits for the
introduction of prejudicial hearsay, courts established various safeguards. The preferred
approach in California was to instruct the jury that “matters admitted through an expert
go only to the basis of his opinion and should not be considered for their truth.
[Citation.]” (People v. Montiel (1993) 5 Cal. 4th 877, 919 (Montiel).) In Montiel, the
California Supreme Court recognized there may be instances where a limiting instruction
of this nature would be insufficient to overcome the prejudice occasioned by the
introduction of expert basis evidence. (Ibid. [noting “Evidence Code section 352
authorizes the court to exclude from an expert’s testimony any hearsay matter whose
irrelevance, unreliability, or potential for prejudice outweighs its proper probative
value.”].) But the court stated a limiting instruction would suffice in most cases (ibid.),
and that became the prevailing view in California. Indeed, in People v. Gardeley (1996)
14 Cal. 4th 605, 618-619 (Gardeley), the California Supreme Court expressly approved
the use of hearsay evidence to support a gang expert’s opinions on the theory the
evidence was not admitted for its substantive truth. (Id. at pp. 612, 618-620; see also
Sanchez, supra, 63 Cal.4th at p. 683, discussing Gardeley.)
10
In theory, this approach avoided problems with the hearsay rule and the
confrontation clause because those precepts only apply to out-of-court statements that are
used to prove the truth of the matter asserted therein. Eventually, however, courts began
to question whether, for purposes of the Sixth Amendment, there was actually a
meaningful “‘distinction between a statement offered for its truth and a statement offered
to shed light on an expert’s opinion[.]”’ (People v. Hill (2011) 191 Cal. App. 4th 1104,
1130, quoting People v. Goldstein (N.Y. 2005) 843 N.E.2d 727, 732-733.)
In 2012, the United States Supreme Court grappled with this question in
Williams v. Illinois (2012) 567 U.S. 50 (Williams). Williams involved a sex crime that
was solved with DNA evidence. During a bench trial, the prosecution called an expert
forensic specialist who testified a DNA profile derived from semen found inside the
victim matched a DNA profile that was generated from a sample of the defendant’s
blood. (Id. at p. 56.) That testimony was used to establish the defendant was the source
of the semen, but because the DNA profile derived from the semen was produced by an
outside lab, Cellmark, the expert did not have any personal knowledge about how it was
made. (Id. at pp. 61-62.) Consequently, she had to rely on Cellmark’s report – which
was not admitted into evidence – in forming her opinions about the case. (Id. at p. 62.)
The question before the high court was whether this procedure violated the defendant’s
right to confront the people who contributed to the making of the report.
Justice Alito, joined by Chief Justice Roberts, Justice Kennedy and Justice
Breyer, believed the expert’s reliance on the Cellmark report was constitutionally
permissible because she only used the report as a foundation for her opinions, not for its
substantive truth. In the view of these four justices, “Out-of-court statements that are
related by the expert solely for the purpose of explaining the assumptions on which that
opinion rests are not offered for their truth and thus fall outside the scope of the
Confrontation Clause.” (Williams, supra, 567 U.S. at p. 58.)
11
However, a majority of the justices – consisting of the four dissenters and a
concurring-in-part vote from Justice Thomas – rejected this notion. (Williams, supra,
567 U.S. at pp. 103-141.) In their view, when an expert witness relies on an extrajudicial
statement as the basis for his or her opinions, “the statement’s utility is then dependent on
its truth. If the statement is true, then the conclusion based on it is probably true; if not,
not. So to determine the validity of the witness’s conclusion, the factfinder must assess
the truth of the out-of-court statement on which it relies.” (Id. at p. 126, Kagan, J., with
whom Justice Scalia, Justice Ginsburg and Justice Sotomayor joined, dissenting; see also
Justice Thomas’ concurring opinion at p. 106, in which he concluded, “There is no
meaningful distinction between disclosing an out-of-court statement so that the factfinder
may evaluate the expert’s opinion and disclosing that statement for its truth.”].)
Although Williams ultimately upheld the defendant’s conviction on the basis the
3
Cellmark report was nontestimonial, the opinion adumbrated the demise of the not-
admitted-for-its-truth paradigm that had so long governed the admissibility of expert
basis evidence in California.
As did the California Supreme Court’s decision in People v. Dungo (2012)
55 Cal. 4th 608 (Dungo), which was decided shortly after Williams. As in Williams,
Dungo was ultimately decided on the ground the expert basis evidence in question (an
autopsy report) was not testimonial. (Id. at pp. 616-621.) However, all six justices who
opined on the issue agreed substantive truth was essential to the evidence’s admissibility,
and therefore had it been testimonial, it “would have been inadmissible under Crawford.”
(Id. at p. 627 [conc. opn. of Werdegar, J., joined by Cantil-Sakauye, C. J., Baxter, J. and
4
Chin, J.]; see also id. at p. 635, fn. 3 [dis. opn. of Corrigan, J., joined by Lui, J.].)
3
Justice Thomas joined Justices Alito, Roberts, Kennedy and Breyer on that point. (Williams,
supra, 567 U.S. at pp. 110-118.)
4
Justice Kennard, who authored the majority opinion in Dungo, did not weigh in on this issue.
12
Following Williams and Dungo, the law was in an odd state of flux. Those
decisions signaled “a five justice majority of the high court and at least six of the seven
justices on the California Supreme Court . . . agree that, for purposes of the confrontation
clause, out-of-court statements admitted as basis evidence during expert testimony are
admitted for their truth if treated as factual by the expert . . . .’ [Citation.]” (People v.
Mercado (2013) 216 Cal. App. 4th 67, 89, fn. 6.) However, neither the United States
Supreme Court nor the California Supreme Court had squarely held as much in a majority
opinion. That changed in 2016, when our state’s highest court handed down its ruling in
Sanchez.
The Sanchez Decision
The Sanchez case arose in Orange County. As petitioner does here, the
defendant in that case challenged the testimony of an expert witness that was used to
prove his crimes were gang related. The case turned on whether the expert’s recitation of
hearsay evidence in the form of police reports, a S.T.E.P. notice and a field interview
card was permissible. The defendant argued this practice violated his Sixth Amendment
right to confront the people who prepared those documents. However, we construed
Gardeley, supra, 14 Cal. 4th 605 as binding authority to the contrary. Based on
Gardeley’s rationale that expert basis evidence is not admitted for its truth, we ruled its
admission did not implicate the defendant’s confrontation rights. (People v. Sanchez
(2014) 223 Cal. App. 4th 1, revd. in part and affirmed in part in Sanchez, supra, 63 Cal. 4th
5
665.)
On further review, the California Supreme Court rejected Gardeley.
6
Finding “the reasoning of a majority of the justices in Williams” to be “persuasive,” the
5
We were not the only court to rule in this fashion. In the post-Crawford era, several other courts
rejected confrontation claims based on the reasoning of Gardeley. (See, e.g., People v. Steppe (2013) 213
Cal. App. 4th 1116, 1127; People v. Hill, supra, 191 Cal.App.4th at p. 1131; People v. Sisneros (2009) 174
Cal. App. 4th 142, 153-154; People v. Thomas (2005) 130 Cal. App. 4th 1202, 1210.)
6
By “a majority of the justices in Williams,” our Supreme Court was referring to the four dissenting
justices and Justice Thomas. (See Sanchez, supra, 63 Cal.4th at pp. 681-684.)
13
court adopted 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.” (Sanchez, supra, 63 Cal.4th at
pp. 684, 686.) Consequently, “hearsay and confrontation problems [can no longer] be
avoided by giving a limiting instruction that such [evidence] should not be considered for
its truth.” (Id. at p. 684.) In so holding, the Supreme Court disapproved of Gardeley,
Montiel and other cases that had ruled otherwise. (Id. at p. 686, fn. 13.)
Sanchez “restore[d] the traditional distinction between an expert’s
testimony regarding background information and case-specific facts.” (Sanchez, supra,
63 Cal.4th at p. 685.) As was the case at common law, Sanchez determined experts may
relate hearsay that is accepted in their area of expertise or supported by their own
experience, but they generally may not relate hearsay that pertains to the events at issue
in the case at hand – very much what the common law rule had been. (Id. at pp. 675-676,
685.) In the latter situation, involving case-specific facts, the proponent of the evidence
must show it fits within an exception to the hearsay rule. (Id. at p. 676.) And if the
evidence is testimonial in nature, then per Crawford, “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.” (Id. at p. 686.)
There was no question the expert basis evidence in Sanchez was case-
specific given its specificity on the gang enhancement allegations. The real dispute
centered on whether that evidence was “testimonial” for purposes of the confrontation
clause. While recognizing that the precise contours of that term are still being fleshed out
by the courts, Sanchez determined evidence generally will be considered testimonial if it
was obtained for the purpose of preserving facts for trial. (Sanchez, supra, 63 Cal.4th at
pp. 687-694.) Applying that test, the Sanchez court determined the police reports and
S.T.E.P. notice at issue in that case were testimonial because they were formally prepared
for later use at trial. (Id. at pp. 694-697.) The court was unable to tell whether the field
14
interview card at issue there was testimonial given the confusing nature of the evidence
surrounding its origin. (Id. at p. 697.) However, it stated, “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.” (Ibid.)
Irrespective of that issue, Sanchez determined the gang expert’s recitation
of information contained in the police reports and S.T.E.P. notice violated the defendant’s
Sixth Amendment right to confront his accusers. (Sanchez, supra, 63 Cal.4th at pp. 694-
697.) And because that information was the primary evidence in support of the gang
enhancement allegations, the court could not say its admission was harmless beyond a
reasonable doubt. (Sanchez, supra, 63 Cal.4th at p. 699.) Therefore, it reversed the
jury’s true findings on those allegations. (Id. at p. 700.)
In the course of its analysis, the Sanchez court also addressed the broader
implications of its holding regarding expert basis evidence. While acknowledging it
would generally bar experts from disclosing “case-specific facts asserted in hearsay
statements,” the court clarified that an “expert may still rely on hearsay in forming an
opinion, and may tell the jury in general terms that he did so.” (Sanchez, supra, 63
Cal.4th at pp. 685-686.) Sanchez understood that in the latter scenario, the jury would
have less information with which to assess the reliability of the expert’s opinions, but the
court determined that circumstance was a necessary consequence of protecting the
defendant’s constitutional right to confront his accusers. (Id. at p. 686.)
Retroactivity Analysis
The Attorney General, attorney for respondent, concedes a Sanchez
violation occurred in this case. To his credit, he admits that gang expert Yepes recited to
the jury case-specific testimonial hearsay from police documents in forming his opinions
about petitioner’s gang status, and because the sources of that hearsay were not shown to
be unavailable, the trial court’s instruction regarding the limited use of that evidence was
insufficient to protect petitioner’s Sixth Amendment rights. However, the Attorney
15
General contends that under the state and federal rules governing the retroactive
application of new judicial opinions, Sanchez is not applicable in this collateral
proceeding. We agree.
1. Federal Standard for Retroactivity of Judicial Opinions
(a) Overview of federal law and petitioner’s position
The current guidelines for determining retroactivity under federal law were
developed by the United States Supreme Court in Teague v. Lane (1989) 489 U.S. 288
(Teague). Under Teague, judicial decisions that create a new rule of law are generally
not given retroactive effect to cases on collateral review that were already final when the
rule was announced. (Id. at pp. 303-310.) While Teague recognized two exceptions to
this rule, it made clear those exceptions are narrow because the government has a strong
interest in ensuring judgments become and remain final. In that regard, the court
emphasized that without finality “the criminal law is deprived of much of its deterrent
effect” and the state is continually forced “to marshal resources in order to keep in prison
defendants whose trials and appeals conformed to then-existing constitutional standards.”
(Id. at pp. 309-310.)
The first Teague exception applies if the new rule is substantive in nature,
meaning “it places ‘certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe[.]’ [Citation.]” (Teague, supra,
489 U.S. at p. 311.) The second exception comes into play when the new rule establishes
a “watershed” rule of procedure that implicates the fundamental fairness and accuracy of
criminal trials. (Id. at pp. 311-313; accord, Montgomery v. Louisiana (2016) __ U.S. __,
__, 136 S. Ct. 718, 728; Schriro v. Summerlin (2004) 542 U.S. 348, 351.)
Petitioner admits the rule established in Sanchez pertaining to expert basis
evidence is procedural and thus outside the scope of Teague’s first exception. While
arguing Teague applies here, petitioner also acknowledges Teague’s second exception for
watershed rules is rarely satisfied. Indeed, the United States Supreme Court has observed
16
that any rule qualifying for retroactive application under Teague’s second exception
would have to be so central to an accurate determination of guilt or innocence “‘it is
unlikely any [such rule] “ha[s] yet to emerge.”’ [Citation.]” (Schriro v. Summerlin,
supra, 542 U.S. at p. 352; Teague, supra, 489 U.S. at p. 313; Beard v. Banks (2004) 542
U.S. 406, 417.) That is a significant hurdle for petitioner to overcome.
(b) Does Sanchez constitute a new rule of criminal procedure?
Before analyzing the applicability of Teague’s second exception in this
case, there is a threshold question we must address: We must determine whether the rule
announced in Sanchez is actually “new.” Rules that are not new generally apply to cases
on collateral review whereas rules that are new must meet one of the two exceptions set
forth in Teague. (Whorton v. Bockting (2007) 549 U.S. 406, 416.) Because those
exceptions are so limited, the question of whether a rule is new is often dispositive of the
retroactivity issue.
It is not as easy as it might seem to ascertain when a case announces a new
rule for purposes of retroactivity. (Teague, supra, 489 U.S. at p. 301.) Teague explained
that a case does so if its result was “not dictated by precedent existing at the time the
defendant’s conviction became final. [Citation.]” (Ibid.) A case is not dictated by
existing precedent if its outcome was “susceptible to debate among reasonable minds.”
(Butler v. McKellar (1990) 494 U.S. 407, 415.) Therefore, “unless reasonable jurists
hearing petitioner’s claim at the time his conviction became final ‘would have felt
compelled by existing precedent’” to apply the rule in question, the rule will be
considered new and presumed not to apply on collateral review. (Graham v. Collins
(1993) 506 U.S. 461, 468, italics added, quoting Saffle v. Parks (1990) 494 U.S. 484,
488.) This standard preserves the principle of finality by “‘validat[ing] reasonable, good-
faith interpretations of existing precedents made by state courts’ . . . even if those good-
faith interpretations ‘are shown to be contrary to later decisions.’” (Ibid.)
17
As petitioner correctly notes, by the time his case became final in 2015,
Crawford, Williams and Dungo were already in the books. Thus, if those cases dictated
the rule announced in Sanchez – that expert basis evidence is generally admitted for the
truth of the matter asserted therein, and therefore subject to the hearsay rule and
confrontation clause – then the rule was not new for retroactivity purposes, and petitioner
would be entitled to have it applied in this proceeding. Petitioner argues Crawford and
its progeny did dictate the Sanchez rule, even though the California Supreme Court had
previously endorsed a contrary rule in Montiel and Gardeley. The way he sees it,
Sanchez merely “distinguished” and “reconciled” those prior decisions with Crawford
and its progeny, and therefore Sanchez did not establish a rule of law that was actually
new. That is not our interpretation of the historical record.
Sanchez did not just tweak the law, as petitioner suggests. “In vigorously
rejecting the not-admitted-for-its-truth rationale, the Supreme Court . . . dealt a death
blow to the notion that juries can make any sense of the distinction traditionally espoused
in cases such as Gardeley.” (People v. Stamps (2016) 3 Cal.App.5th 988, 994-995, fn.
omitted.) Indeed, Sanchez marked a “paradigm shift” in the proper use of expert basis
evidence by abandoning the idea “that a limiting instruction intended to restrict jurors’
consideration of such evidence to the purpose of serving as the basis for the expert’s
opinion” was a permissible method of avoiding hearsay problems. (Id. at p. 995.)
Any question as to whether this shift marked a major change in California
jurisprudence was laid to rest when Sanchez expressly disapproved of the
Montiel/Gardeley line of cases that had employed the old, not-admitted-for-its-truth
rationale in dealing with expert basis evidence. (Sanchez, supra, 63 Cal.4th at p. 686, fn.
13.) This alone is strong evidence Sanchez created a new rule for retroactivity purposes.
(See Whorton v. Bockting, supra, 549 U.S. at p. 416 [by overruling Roberts, Crawford
signaled it was breaking with past precedent and announcing a new rule of law].)
18
In arguing Crawford and its progeny dictated Sanchez’s result, petitioner
overestimates the effect those cases had on the Sanchez decision. They may have laid the
groundwork for Sanchez, but Crawford did not deal with the issue of expert basis
evidence; rather, it focused more broadly on the constitutional standard governing the
admissibility of hearsay evidence. Williams did involve expert basis evidence. However,
as explained above, the justices in that case were sharply divided on the question of
whether such evidence is admitted for its substantive truth, which was the core issue in
Sanchez. The fact five of the justices (the four dissenters and one concurring justice)
answered that question in the affirmative does not mean their view became the prevailing
law of the land. To the contrary, because the case was ultimately decided on other
grounds, their view has no precedential value in the traditional sense of the term. (See
Seminole Tribe v. Florida (1996) 517 U.S. 44, 67 [the precedential scope of a United
States Supreme Court decision extends only to the result in that case and those portions
of the decision that are necessary to that result]; Bailey v. United States (D. Alaska 1962)
201 F. Supp. 604, 605 [“dissenting opinions, however logical they appear to be, are not
the law of the case”].)
A careful reading of Sanchez indicates the California Supreme Court was
fully aware of this when it decided that case. While the court found the reasoning of the
five justice majority in Williams to be “persuasive” (Sanchez, supra, 63 Cal.4th at p.
684), it never suggested their reasoning dictated the outcome in Sanchez. Instead, the
court took it upon itself to analyze the issue of expert basis evidence and formulate its
own decision on that issue. In so doing, the court fulfilled its constitutional obligation to
independently rule on questions that come before it. (See People v. Lopez (2012) 55
Cal. 4th 569, 593-594 (dis. opn. of Liu, J.) [“As a court tasked with applying an evolving
line of jurisprudence, our role is not simply to determine what outcome will likely garner
five votes on the high court. Our job is to render the best interpretation of the law in light
of the legal texts and authorities binding on us.”].) And even though Sanchez’s ultimate
19
decision on that issue realigned California with the traditional common law rule
regarding expert basis evidence, most jurists would probably consider the Sanchez
decision quite novel, considering how the law in that area had evolved over the years.
(People v. Stamps, supra, 3 Cal.App.5th at p. 995.) At the very least, the outcome in
Sanchez was sufficiently uncertain as to foreclose the label of foregone conclusion.
In arguing otherwise, petitioner relies on People v. Perez (2018) 22
Cal.App.5th 201 (Perez). The Perez court considered whether the defendant had
forfeited his right to invoke the Sanchez decision on appeal by failing to object at trial to
a gang expert’s testimony that consisted of case-specific hearsay. Because Perez’s trial
preceded Sanchez, the forfeiture issue turned on whether Sanchez constituted an
unforeseeable change in the law so as to excuse defense counsel’s failure to object.
Given that Crawford, Williams and Dungo had already been decided by the time the
defendant’s trial took place, Perez determined it would not have been “futile” for defense
counsel to object because those cases “indicated” an expert witness’ reliance on hearsay
was objectionable. (Id. at pp. 212, 201.) Therefore, the forfeiture rule applied, and the
defendant was barred from challenging the expert’s testimony on appeal. (Id. at p. 212.)
But to say Crawford and its progeny foreshadowed the result in Sanchez for
purposes of defeating the futility exception to the waiver requirement is not the same as
saying those decisions dictated the result in Sanchez for purposes of determining whether
it announced a new rule of law under Teague. While those decisions clearly provided the
impetus for our supreme court to revisit the rules regarding the permissible basis for
expert testimony, they did not compel the court’s ultimate decision to reconfigure the
analytical framework respecting such testimony. And, in fact, as several courts have
recognized, objecting to expert basis evidence before Sanchez was decided would have
been a pointless exercise because California Supreme Court precedent (i.e., Montiel and
Gardeley) had firmly established such evidence does not implicate the hearsay rule.
(See, e.g., People v. Flint (2018) 22 Cal.App.5th 983, __, fn. 12; People v. Jeffrey G.
20
(2017) 13 Cal.App.5th 501, 511; People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7,
rev. granted Mar. 22, 2017, S239442.) Thus, to the extent Perez is applicable to the issue
before us we respectfully decline to adopt its reasoning.
In any event, there is simply no denying the Sanchez decision has required
every prosecutor, defense attorney and judge in this state to rethink their approach to
expert basis evidence. Notwithstanding Crawford and its progeny, we hold a decent
respect for the language and Teague’s definition of the word “new” requires the
conclusion Sanchez announced a new rule of law under the federal rubric for assessing
7
the retroactivity of judicial decisions.
(c) Does Sanchez come within the watershed exception?
That brings us to the question whether the Sanchez rule constitutes a
watershed rule of criminal procedure so as to fit within the second exception to the
presumption against retroactivity set forth in Teague. Our analysis of that issue is
informed by Whorton v. Bockting, supra, 549 U.S. 406, in which the United States
Supreme Court held its decision in Crawford does not apply retroactively to cases that
were already final at the time Crawford was decided. In so holding, Bockting explained,
“In order to qualify as watershed, a new rule must meet two requirements. First, the rule
must be necessary to prevent ‘an “‘impermissibly large risk’”’ of an inaccurate
conviction. [Citations.] Second, the rule must ‘alter our understanding of the bedrock
procedural elements essential to the fairness of the proceeding.’ [Citation.]” (Id. at p.
418.)
To illustrate just how difficult it is for a case to obtain watershed status,
Bockting used Gideon v. Wainwright (1963) 372 U.S. 335 (Gideon), the landmark
decision granting indigent defendants the right to court-appointed counsel, as the
7
Because Sanchez made new law by bringing expert basis evidence within the scope of the hearsay
rule and the confrontation clause petitioner’s failure to challenge Yepes’ testimony on direct appeal is not a
procedural bar to his doing so in this habeas proceeding. (In re King (1970) 3 Cal. 3d 226, 229, fn. 2.)
21
touchstone for its analysis. (Whorton v. Bockting, supra, 549 U.S. at p. 419.) Finding
“[t]he Crawford rule is in no way comparable to the Gideon rule” (ibid.), Bockting noted
Crawford may enhance the accuracy of factfinding in some cases by subjecting
testimonial hearsay to a more rigorous standard of admissibility than previously existed
under Roberts. (Ibid.) But with respect to hearsay statements that are nontestimonial,
Crawford actually “permits their admission even if they lack indicia of reliability.” (Id.
at p. 420.) Given that Crawford cuts both ways on the issue of reliability, Bockting found
it was “unclear” whether Crawford’s implementation would seriously diminish the
likelihood of a wrongful conviction in future cases. (Ibid.) Therefore, it concluded
Crawford did not meet the first requirement for a watershed rule. (Ibid.)
Bockting also found Crawford lacking in terms of its constitutional
magnitude. While recognizing the Sixth Amendment right of confrontation is a
fundamental component of due process, Bockting clarified it is not enough that the rule in
question pertains to a core constitutional right. Instead, the rule “must itself constitute a
previously unrecognized bedrock procedural element that is essential to the fairness of a
proceeding.” (Whorton v. Bockting, supra, 549 U.S. at p. 421, italics added.) Again,
using Gideon as a benchmark, Bockting determined Crawford came up short in this
regard because, “while certainly important,” Crawford “lacks the ‘primacy’ and
‘centrality’ of the Gideon rule,” which “effected a profound and ‘“‘sweeping’”’ change to
the criminal justice system. (Ibid.) Thus, Bockting held Crawford “does not fall within
the Teague exception for watershed rules.” (Ibid.; see also In re Moore (2005) 133
Cal. App. 4th 68 [ruling similarly].)
Given this guidance, we cannot see how the Sanchez decision could qualify
as a watershed rule. After all, Sanchez is but an extension of Crawford; it merely
considered the degree to which Crawford applies in the context of expert testimony.
(Sanchez, supra, 63 Cal.4th at p. 670.) And as it turned out, Sanchez actually limited the
scope of Crawford in that context. Whereas Crawford applies broadly to all testimonial
22
hearsay, Sanchez’s reach extends only to testimonial hearsay that is case-specific to the
matter at hand. Thus, overall, Sanchez is – for purposes of a Teague analysis – less likely
than Crawford to increase the accuracy of the factfinding process.
That’s not to say the Sanchez rule is not significant. To the contrary, its
importance is obvious. As we have noted, it requires rethinking a large body of evidence
precedent in our state. But compared to the landmark ruling in Gideon, which
fundamentally altered the playing field in criminal proceedings, Sanchez is far less likely
to have an impact on the fairness and accuracy of criminal trials. We thus conclude
Sanchez did not establish a watershed rule of criminal procedure under Teague. And
because, as petitioner concedes, Sanchez does not meet Teague’s exception for
substantive rules, it does not qualify for retroactive application under federal law.
2. Retroactivity under California Law
But our finding that Sanchez is ineligible for retroactive application under
Teague is not dispositive of petitioner’s claim. California is free to adopt its own
standard and rules regarding the retroactivity of new judicial opinions. (In re Gomez
(2009) 45 Cal. 4th 650, 655, fn. 3.) This freedom stems from the recognition that states
are “independent sovereigns with plenary authority to make and enforce their own laws
as long as they do not infringe on federal constitutional guarantees.” (Danforth v.
Minnesota (2008) 552 U.S. 264, 280.)
(a) New rule analysis
As under federal law, the threshold question in determining the retroactivity
of a judicial decision under state law is whether the decision established a new rule. “If it
does, the new rule may or may not be retroactive, as we discuss below; but if it does not,
‘no question of retroactivity arises’ because there is no material change in the law.
[Citations.]” (People v. Guerra (1984) 37 Cal. 3d 385, 399.) A decision of the California
Supreme Court establishes a new rule of law if it expressly overrules a precedent of that
court or disapproves a practice it had impliedly sanctioned in an earlier case. (Id. at p.
23
401; In re Lucero (2011) 200 Cal. App. 4th 38, 45.) While Sanchez did not overrule
Gardeley in so many words, it did “disapprove” of that decision “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.) By
renouncing this practice, Sanchez created a new rule for purposes of state retroactivity
analysis. We must now deal with whether that rule must be retroactively applied under
state law.
(b) State standard for retroactivity
Although states are free to establish their own rules for determining the
retroactivity of judicial opinions, California courts have generally hewed to the federal
standard. (See, e.g., In re Gomez, supra, 45 Cal. 4th 650; In re Moore, supra, 133
Cal.App.4th at pp. 74-77.) We have already explained why Sanchez does not qualify for
retroactive application under the current federal standard articulated in Teague.
However, prior to Teague, the federal standard was more forgiving, so in this case,
petitioner invokes the old federal standard as a separate analytical basis for his
retroactivity claim. Although that standard is outdated for purposes of federal law, the
Attorney General admits it still has potential application in deciding the retroactivity of
California Supreme Court decisions. (See, e.g., In re Lucero, supra, 200 Cal.App.4th at
p. 45 [applying the old federal standard to determine whether the rule created in People v.
Chun (2009) 45 Cal. 4th 1172 should be given retroactive effect].) Therefore, out of an
abundance of caution, we will engage in an analysis of the Sanchez decision under that
standard.
Applying that standard, the retroactivity analysis is informed by three
factors: 1) The purpose of the new rule, 2) the reliance placed on the old rule, and 3) the
effect retroactive application would have on the administration of justice. (Stovall v.
Denno (1967) 388 U.S. 293, 297; Linkletter v. Walker (1965) 381 U.S. 618, 629.)
However, the first factor is of primary importance and will generally be deemed
24
controlling if the purpose of the new rule plainly favors retroactive or prospective
application. (In re Johnson (1970) 3 Cal. 3d 404, 410.) In this context, the purpose of a
new rule is determined by examining its relationship to the reliability and integrity of the
fact-finding process at trial. (Id. at pp. 411, 416.) “[T]he more directly the [rule] serves
to preclude the conviction of innocent persons, the more likely it is that the rule we be
afforded retrospective application.” (Id. at p. 413.)
In assessing its likely impact on criminal trials, it is important to remember
Sanchez did not create a substantive rule of law or a watershed rule of criminal
procedure. It simply established an evidentiary framework for analyzing the
admissibility of expert basis evidence. As we have explained, the chief takeaway from
Sanchez is that expert witnesses may no longer recite case-specific testimonial hearsay to
the jury in explaining the foundation for their opinions, absent a showing of
unavailability and a prior opportunity for cross-examination. That means a prosecutor
will have two choices when those criteria are not met. The first option will be to call the
hearsay declarant as a witness to supply the evidentiary foundation for the expert’s
opinions. In that situation, the reliability of the fact-finding process will be enhanced
because the declarant will be available for cross-examination.
Alternatively, the prosecutor can simply instruct his expert witness to
describe the hearsay information he relied on in general terms without divulging its
contents to the jury. (See Sanchez, supra, 63 Cal.4th at pp. 685-686.) Doing so would
prevent jurors from being exposed to inadmissible and potentially prejudicial hearsay, but
it would also deprive them of information with which to assess the expert’s opinions. (Id.
at p. 686.) So, in some cases, complying with Sanchez could be seen as decreasing the
8
reliability of the jury’s verdict.
8
While this is counter-intuitive, the criminal law includes many rules – such as the exclusionary
rule and California’s Evidence Code section 352 – which result in jury’s getting a fairer but less complete set of
facts.
25
In that sense, Sanchez is similar to Crawford in that there is no guarantee it
will seriously diminish the likelihood of an inaccurate conviction. Neither decision is so
fundamental to the reliability of the fact-finding process that it is necessary to ensure the
acquittal of innocent persons. And because Sanchez only pertains to a particular subset
of testimony – that derived from expert witnesses – its impact on the accuracy of criminal
trials is likely to be less far-reaching than Crawford. Because Sanchez is not central to
the integrity of the truth-determining process, the purpose factor does not favor giving it
retroactive effect.
Nor do the remaining factors – the extent of reliance on the old rule and the
administrative effect of retroactivity. Prior to Sanchez, prosecutors in California had
relied on the Montiel/Gardeley line of cases for over two decades. That reliance was
justified by the fact Montiel and Gardeley were controlling Supreme Court precedent on
the issue of expert basis evidence. (Sanchez, supra, 63 Cal.4th at pp. 679, 683.) And not
only was past reliance on that precedent reasonable, it was also widespread in cases like
9
the one at hand. It cannot be gainsaid that it would be exceedingly disruptive and costly
to retry the many thousands of cases that were adjudicated under the old framework.
Considering the purpose of the Sanchez rule, the extent to which prosecutors justifiably
relied on the old rule, and the tremendous administrative burden associated with a
contrary ruling, we do not believe Sanchez qualifies for retroactive application under the
California standard, i.e., the old federal standard.
In arguing otherwise, petitioner draws our attention to two per curiam
decisions of the United States Supreme Court that were adjudicated under the old federal
standard, Roberts v. Russell (1968) 392 U.S. 293 (Roberts) and Berger v. California
(1969) 393 U.S. 314 (Berger). At issue in Roberts was the retroactivity of Bruton v.
United States (1968) 391 U.S. 123, which found a confrontation clause violation in the
9
According to Westlaw’s computerized database, 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.
26
admission of a nontestifying defendant’s confession that implicated his codefendant.
Roberts determined that because the admission of such confessions create “a serious risk
that the issue of guilt or innocence may not have been reliably determined,” Bruton must
be given retroactive effect. (Roberts, supra, 392 U.S. at p. 295.)
Likewise in Berger, the court gave retroactive effect to Barber v. Page
(1968) 390 U.S. 719, which ruled the confrontation clause prohibits the introduction of a
witness’ preliminary hearing testimony unless the prosecution has made a good faith
effort to secure the witness’ presence at trial. Berger reasoned retroactive application of
Barber was warranted because it corrected an error that significantly impaired “the
‘integrity of the fact-finding process.’ [Citations.]” (Berger, supra, 393 U.S. at p. 315;
see also In re Montgomery (1970) 2 Cal. 3d 863 [ruling similarly].)
The key distinguishing feature of Roberts and Berger is that they addressed
the retroactivity of rules that were designed to remedy the situation that existed when the
defendant did not have any opportunity to cross-examine the subject witness at trial.
(Roberts, supra, 392 U.S. at p. 293 [complete inability to cross-examine codefendant];
Berger, supra, 393 U.S. at p. 314 [complete inability to cross-examine victim].) That is
not our case. Petitioner here was permitted to cross-examine gang expert Yepes at his
trial. By exposing the shortcomings of Yepes’ testimony, he provided the jury with
valuable information with which to assess the reliability of his opinions.
Petitioner is correct that his ability to cross-examine Yepes was not wholly
unfettered. Because Yepes lacked personal knowledge of the hearsay evidence on which
he relied, he was in no position to answer questions about that evidence. If that evidence
consisted of opinions from other people that Yepes simply parroted to the jury, petitioner
would have greater cause to complain. However, Yepes did not act as a mere conduit for
the opinion of others. Instead, he used the hearsay evidence to form his own opinions
about the case. In so doing, Yepes created an “‘original product’” of substantive
evidence that could be “‘tested through cross-examination.’ [Citation.]” (United States
27
v. Summers (4th Cir. 2011) 666 F.3d 192, 202.) This provided petitioner with a
meaningful opportunity for cross-examination. (Ibid.; State v. Stanfield (Idaho 2015)
347 P.3d 175, 186-187, fn. 6 [collecting cases that have drawn a distinction between an
expert witness using hearsay evidence to arrive at an independent opinion and an expert
witness using hearsay evidence simply to convey the opinion of others].) Because the
defendants in Roberts and Berger did not have such an opportunity, let alone any chance
10
to cross-examine the subject witnesses at trial, we find those cases inapt.
In light of all the pertinent considerations, we conclude Sanchez is not
retroactive to cases on collateral review. Therefore, petitioner cannot avail himself of
that decision in this proceeding.
DISPOSITION
The petition for a writ of habeas corpus is denied.
BEDSWORTH, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
10
Petitioner also relies on People v. Guerra, supra, 37 Cal. 3d 385, which gave retroactive effect to a
rule barring the use of testimony from persons who have been hypnotized to restore their memory. However, that
decision arose in the context of a direct appeal, which is more favorable to a finding of retroactivity. Attuned to this
fact, the Supreme Court specifically declined to consider whether the hypnosis rule “applies on collateral attack to
cases now final.” (Id. at p. 413, fn. 24.)
28