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California Supreme Court: Defendant Doesn’t Forfeit Claim for Failing to Object to Expert’s Testimonial Hearsay at Trial That Occurred Before Sanchez Was Decided

The Supreme Court of California held that an appellate claim of a confrontation clause violation based on an expert’s testimonial hearsay is not forfeited due to defense counsel’s failure to object where the trial occurred before People v. Sanchez, 374 P.3d 320 (Cal. 2016), was decided.

Jose Luis Perez, Edgar Ivan Chavez Navarro, and Pablo Sandoval were tried together for their roles in the kidnappings and murders of two men and the attempted murder of another.

Sabas Iniguez testified to the following: A drug dealer named Max owed a debt involving methamphetamine to the three victims (who were also drug dealers). Max was a Sinaloa cartel member, and Sandoval reported to him. Chavez reported to another cartel member named Eduardo Alvarado (whom the surviving victim identified as the shooter). One of the murder victims also was a member of the cartel to whom the survivor had reported.

The prosecution’s gang expert, Jeff Moran, testified that the Sinaloa drug cartel produces large amounts of methamphetamine and transports it to the U.S. to sell. Moran opined that Iniguez, Sandoval, Chavez, Perez, and Alvarado were all members of the Sinaloa cartel and that their coordinated efforts were consistent with criminal street-gang activities. He testified — without objection — that he based his opinion on, among other things, (1) Iniguez’s admission that he was a cartel member and (2) sources that had told Moran that Sandoval had direct contact with Max who was calling the shots.

All three defendants were found guilty of numerous offenses, including murder and gang enhancements, and they appealed to the Court of Appeal. Before the appeals were decided, the California Supreme Court decided Sanchez.

In Sanchez, the Court disapproved People v. Gardeley, 927 P.2d 713 (Cal. 1996), and People v. Montiel, 855 P.2d 1277 (Cal. 1993), which provided that experts could testify to sufficiently reliable case-specific hearsay sources used to formulate their opinions as long as the trial court issued a curative instruction that the jury should not consider the out-of-court sources as true but that the information was being admitted only to show the basis for the expert’s opinion.

Sanchez explained that this paradigm was no longer tenable because the expert was treating case-specific out-of-court statements as true. As such, those statements were being admitted as true, and the jury was considering them for truth. It would be irrational for a jury to assess the expert’s opinion as credible without first assessing whether the out-of-court statements supporting the opinion were true. Consequently, Sanchez ruled that such statements are hearsay and no longer admissible unless amenable to a recognized hearsay exception, e.g., the proponent of the out-of-court statements would testify at trial, or the proponent was legally unavailable but the defendant had prior opportunity to cross-examine the witness, etc.

After the Sanchez decision was issued, Chavez supplemented his appeal, claiming Moran’s testimonial case-specific hearsay violated his rights under the Sixth Amendment’s Confrontation Clause. The Court of Appeal ruled that the claim was forfeited due to counsel’s failure to object at trial. The Supreme Court granted Chavez’s petition for review.

The Court observed that “[o]rdinarily, ‘the failure to object to the admission of expert testimony or hearsay at trial forfeits an appellate claim that such evidence was improperly admitted.’” People v. Stevens, 362 P.3d 408 (Cal. 2015). But parties can be excused for failing to object where the objection would have been futile or wholly unsupported by substantive law then in existence. People v. Brooks, 396 P.3d 480 (Cal. 2017). Failure to object has been excused where requiring counsel to object would place an undue burden on defense to anticipate unforeseen changes in the law and would encourage fruitless objections in other situations where defendants might hope that an established rule of evidence might be changed on appeal. People v. Edwards, 306 P.3d 1049 (Cal. 2013).

In the instant case, defense counsel had no reason to suspect a substantive change in the law. In fact, Gardeley was cited as controlling authority in over 2,000 decisions before Sanchez was decided. In re Ruedas, 23 Cal. App. 5th 777 (2018). Any objection to Moran’s testimonial hearsay would have been futile because the trial court was bound by Gardeley and required to follow it. Auto Equity Sales, Inc. v. Superior Court, 369 P.2d. 937 (Cal. 1962).

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