Filed 7/13/17
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION ONE


THE PEOPLE,
        Plaintiff and Respondent,
                                                  A149067
v.
JEFFREY G.,                                       (Napa County
                                                  Super. Ct. No. CR127321)
        Defendant and Appellant.


        Defendant Jeffrey G. has been confined to a state hospital for over 20 years. In
2015, he petitioned for transfer from the hospital to a conditional release program. At the
hearing on his petition, defendant and a psychologist who had examined him testified
regarding his likelihood of success in the unstructured environment of the conditional
release program. In turn, the prosecution presented the testimony of three expert
witnesses to contest his readiness. Under the law applicable at the time of the hearing, an
expert witness was permitted to testify with respect to the hearsay evidence on which the
expert based his or her opinion, regardless of whether there was competent evidence in
the record to support that testimony. On the basis of such testimony, the trial court
denied defendant’s petition. A short time after the hearing, the Supreme Court issued
People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which substantially limited expert
testimony with respect to case-specific hearsay evidence. Had the hearing been
conducted under Sanchez, it is certain that at least some of the testimony of the
prosecution’s experts would have been excluded.
        We agree with defendant that we must apply the rule of Sanchez and reverse the
trial court’s denial of his petition for conditional release. Defendant’s testimony and the
testimony of his expert provided independent evidence to support some of the otherwise-
hearsay testimony by the prosecution’s experts, but a significant portion of their
testimony was not anticipated by defendant’s evidence. In part because the trial court
found defendant’s petition to present a close case, we conclude it is reasonably probable
that the trial court would have granted defendant’s petition in the absence of the expert
testimony rendered inadmissible by Sanchez.
                                   I. BACKGROUND
       Defendant was committed to the State Department of State Hospitals (DSH) in
1990, after he was found not guilty by reason of insanity of a violent crime, and he has
been confined to a hospital for most of the subsequent time. In May 2016, he agreed to
extend his commitment for an additional two years, until June 2018. (Pen. Code,
§ 1026.5, subd. (b).)
       Notwithstanding his agreement, defendant petitioned to be transferred from a state
hospital to a conditional release program. (Pen. Code, § 1026.2, subd. (a).) At a bench
trial on his petition, defendant testified and called two other witnesses, a consulting
psychologist and a hospital employee who had observed defendant’s conduct during his
commitment. The prosecution called three witnesses, all psychologists or psychiatrists,
two of whom had recent supervisory responsibility over defendant’s confinement for
periods of six months each.
       Defendant is diagnosed with schizoaffective disorder, bipolar type, and narcissistic
personality disorder. His symptoms have included aural and visual illusions and mental
delusions. These are controlled by treatment, but they can be triggered by drug or
alcohol use or the failure to maintain his medication regimen. Defendant has not suffered
psychotic symptoms during his time in his current institution, a period of over 10 years.
In testifying, he acknowledged his illness and recognized the necessity of maintaining
sobriety and adhering to the medication regimen in order to avoid an onset of symptoms.
He committed to continue both if conditionally released.
       There was general agreement at trial that defendant, while in confinement, had
complied with his medication regime and was free of psychotic symptoms. His three
prior attempts to live outside the hospital under the conditional release program


                                              2
(CONREP), however, had ended in failure.1 His first attempt, in 1991, lasted only 18
days. The second attempt was more successful, lasting around two years before
defendant violated the terms of the program by going absent without leave in 1996. The
most recent attempt, in 2005, lasted only 12 days because an apparently ill-advised
change in defendant’s medication caused him to decompensate.
         A primary focus of the testimony was defendant’s relatively recent conduct in the
hospital. Within the prior year, defendant had broken hospital rules by selling goods to
other patients and having sexual contact with another patient in a public area of the
hospital.2 Within the prior six months, he had a run-in with a staff person at the hospital.
When the staff person told defendant to stop watering a plant before he killed it,
defendant responded that he would kill the staff person before he killed the plant. There
was also inconsistent testimony about defendant’s attendance at treatment groups, which
is discussed in more detail below.
         Defendant’s expert did not believe that these incidents disqualified him from
conditional release. As the expert pointed out, the primary threat to defendant’s mental
health was substance abuse, which led to reduced medication compliance and a
reappearance of his symptoms. Although drugs and alcohol were illicitly available in the
hospital, the expert noted, defendant had avoided the temptation to use them for the
duration of his confinement, suggesting to the expert that he could do the same on
conditional release. The prosecution’s experts, in turn, viewed defendant as a “moderate
risk of danger,” particularly if presented with stressful situations, and concluded on the



         1
         According to DSH’s Web site, CONREP is the conditional release program
operated by the department for persons found not guilty by reason of insanity,
incompetent to stand trial, or to be mentally disordered offenders. Its goal “is to ensure
public protection in California communities while providing an effective and
standardized outpatient treatment system.” (See
<http://www.dsh.ca.gov/Forensics/CONREP.aspx> [as of July 13, 2017].)
         2
             While sexual relations between patients is permitted, it must occur in a private
place.


                                                 3
basis of his rule violations, his interpersonal relationships, and his purportedly spotty
attendance at treatment programs that he was not ready for conditional release.
       The trial judge found the decision difficult, noting he was “very sympathetic to the
position [defendant is] in.” The court believed defendant “doesn’t present much of a
danger right now,” but it recognized he would present a danger if he decompensated upon
conditional release. In denying the petition, the court found decisive defendant’s failure
on three prior occasions to succeed upon conditional release, his failure to follow hospital
rules, despite suffering discipline as a result of the violations, and his failure to attend
treatment programs consistently. As to the latter, the court recognized that such
programs could be “amazingly boring,” but it believed that enduring the programs was
critical because they would assist defendant in avoiding the temptations present in the
world outside the hospital. Until defendant demonstrated that he could cope with reduced
structure, the court concluded, he was not ready for conditional release.
                                      II. DISCUSSION
       Defendant’s hearing occurred less than two weeks prior to the Supreme Court’s
issuance of Sanchez, which significantly changed the rules governing testimony by expert
witnesses about the hearsay upon which they relied in forming their opinions.3 Under the
law prevailing at the time of defendant’s hearing, an expert was permitted to testify
relatively freely about the content of hearsay evidence relating to the circumstances of the
case at hand, if the evidence constituted a basis for his or her opinion. (E.g., People v.
Montiel (1993) 5 Cal.4th 877, 919 (Montiel).) Sanchez now bars such testimony unless
there is direct evidence of the matter discussed or the hearsay evidence has been admitted
under an appropriate exception. (Sanchez, supra, 63 Cal.4th at pp. 670–671; see People
v. Stamps (2016) 3 Cal.App.5th 988, 996 [summarizing the holding of Sanchez].) At
defendant’s hearing, the testimony of the prosecution experts was peppered with hearsay-
based references to his history and his conduct during confinement. This testimony was

       3
       Sanchez also addresses issues raised by Crawford v. Washington (2004) 541 U.S.
36. Because those issues are not pertinent here, we have not discussed this aspect of
Sanchez.


                                               4
unobjectionable under the law at the time of the hearing, but it would have been improper
under Sanchez in the absence of independent evidence in the record regarding those
incidents.
       As it happened, the record did contain evidence of many of these incidents.
Unlike at a typical criminal proceeding, in which the prosecution’s witnesses testify first,
defendant and his witnesses opened the trial. Both he and his expert discussed these
various incidents, and their testimony was admitted without objection. Accordingly,
although the prosecution experts’ testimony was based on hearsay, there was evidence in
the record to support much of this otherwise improper testimony under Sanchez. The
primary issues in this appeal are therefore (1) the exact nature of the case-specific
evidence to which the prosecution experts testified without evidentiary support and
(2) whether this testimony was prejudicial to defendant.
A. Preliminary Issues
       First, we conclude the rule of Sanchez applies to this appeal, rather than the law
governing the admission of hearsay testimony by experts prevailing at the time of
defendant’s hearing. In general, “[a] new rule for the conduct of criminal prosecutions is
applied retroactively to all cases pending on appeal or not yet final, even if the new rule
presents a ‘clear break’ with the past.” (People v. Song (2004) 124 Cal.App.4th 973,
982.) While this general principle was developed specifically with respect to new rules
of law announced by the United States Supreme Court (People v. Cage (2007) 40 Cal.4th
965, 974, fn. 4), California similarly recognizes that “ ‘[a]s a rule, judicial decisions
apply “retroactively.” [Citation.] Indeed, a legal system based on precedent has a built-
in presumption of retroactivity.’ ” (People v. Guerra (1984) 37 Cal.3d 385, 399.)
Because Sanchez does not “expand criminal liability or enhance punishment,” we apply it
here. (Correa v. Superior Court (2002) 27 Cal.4th 444, 463, fn. 5; see People v. Welch
(1999) 20 Cal.4th 701, 732, fn. 4 [“In the criminal law, similarly, the rule is that
‘convictions should ordinarily be tested on appeal under the law then applicable, not the
law prevailing at the time of trial.’ ”].)



                                               5
       Second, defendant’s trial counsel did not forfeit this legal claim by failing to
object to the prosecution experts’ testimony on this ground at the hearing. There is little
doubt that objecting would have been futile. Because the experts’ testimony was
unobjectionable under the law prevailing at the time of the hearing, any objection would
presumably have been overruled.4 “ ‘[R]eviewing courts have traditionally excused
parties for failing to raise an issue at trial where an objection would have been futile or
wholly unsupported by substantive law then in existence.’ ” (People v. Brooks (2017)
3 Cal.5th 1, 92.) In addition, parties are generally not required to anticipate rulings that
significantly change the prevailing law. Our Supreme Court has consistently entertained
claims premised on Crawford v. Washington, supra, 541 U.S. 36, despite a defendant’s
failure to object on that ground, if the hearing occurred prior to Crawford’s issuance. As
the court explained in People v. Banks (2014) 59 Cal.4th 1113, overruled on other
grounds in People v. Scott (2015) 61 Cal.4th 363, 391, footnote 3, “[b]ecause Crawford
‘was a dramatic departure from prior confrontation clause case law,’ a defendant’s failure
to raise a Crawford claim in a pre-Crawford trial ‘is excusable because defense counsel
could not reasonably have been expected to anticipate this change in the law.’ ” (Banks,
at p. 1167; see similarly People v. Harris (2013) 57 Cal.4th 804, 840; People v. Kitchens
(1956) 46 Cal.2d 260, 263 [“A contrary holding would place an unreasonable burden on
defendants to anticipate unforeseen changes in the law and encourage fruitless objections
in other situations where defendants might hope that an established rule of evidence
would be changed on appeal. Moreover, in view of the decisions of this court . . . , an
objection would have been futile, and ‘The law neither does nor requires idle acts.’ ”].)
While Sanchez might not have been as dramatic a departure from prior law as Crawford,
it certainly worked a significant change.

       4
          There is no dispute that Sanchez materially changed the law governing expert
testimony in effect at the time of the hearing. The Sanchez court expressly disapproved
six prior Supreme Court decisions, noting, in particular, “We also disapprove People v.
Gardeley [(1996)] 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.”
(Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.)


                                              6
       In arguing for forfeiture, the Attorney General points out that the basis for much of
the testimony of the prosecution’s experts was in all likelihood admissible hearsay,
including hospital records and defendant’s own statements in the course of interviews by
the experts. Had an appropriate objection been made, it is argued, the prosecution would
have laid an evidentiary foundation for the experts’ testimony. While the failure to
provide an opportunity to cure would argue in favor of forfeiture under ordinary
circumstances, it fails to overcome the futility concern present here. Even if defense
counsel had interposed appropriate hearsay objections, the objections would undoubtedly
have been resisted by the prosecution and overruled by the court, which would have left
the experts’ testimony unchanged and lacking the foundation required by Sanchez. Only
if the trial court had refused to follow applicable precedent would the prosecution have
been forced to lay a Sanchez-appropriate foundation.
       The Attorney General also argues that if trial counsel had paid more attention to
our Supreme Court’s docket and recent developments in the law governing experts from
other jurisdictions, counsel could have anticipated that Sanchez would one day issue and
change the law. We decline to require such prescience.5
B. Application of Sanchez
       In Sanchez, an expert witness testified about the defendant’s gang affiliation.6
(Sanchez, supra, 63 Cal.4th at p. 670.) As the court explained, expert witnesses are
provided greater latitude than lay witnesses in presenting hearsay testimony, particularly
with respect to generalized knowledge in their area of expertise. (Id. at pp. 675–676.)
Yet, the court noted, experts had “traditionally” been precluded from testifying to “case-


       5
        Because we find the Sanchez issue preserved, we need not address defendant’s
claim of ineffective assistance of counsel resulting from the failure to object on hearsay
grounds.
       6
         Sanchez was a criminal case, but the court did not limit the application of its
expert testimony ruling to criminal cases. (See People ex rel. Reisig v. Acuna (2017)
9 Cal.App.5th 1, 34 [Sanchez applies to civil cases]; People v. Burroughs (2016)
6 Cal.App.5th 378, 383 [applying Sanchez in the context of a sexually violent predator
hearing].)


                                             7
specific” facts, defined as “those relating to the particular events and participants alleged
to have been involved in the case being tried,” since experts rarely have first-hand
knowledge of the events underlying the cases in which they testify. (Id. at p. 676.)
Instead, in former times experts would be asked to apply their generalized knowledge to
the case-specific facts through the use of appropriate hypothetical questions, premised on
matters established through independent competent evidence. (Id. at pp. 676–677.) More
recently, however, “the line between [expert testimony about general background
knowledge and case-specific facts] has . . . become blurred” (id. at p. 678), as
exemplified by Montiel, in which the court allowed expert testimony about case-specific
facts under a limiting jury instruction. The holding was premised on the conclusion that
the expert’s testimony was not offered for its truth and therefore did not constitute
hearsay. (Montiel, supra, 5 Cal.4th 877, 919; see Sanchez, at p. 678.)
       In Sanchez, the court rejected the legal fiction that an expert’s testimony about
case-specific facts is not offered for its truth. Finding support in a concurring opinion of
Justice Clarence Thomas in Williams v. Illinois (2012) 567 U.S. 50, 108 and footnote 3,
the court recognized that the validity of an expert’s opinion depends on the assumption
that the hearsay underlying the opinion is true, since “[i]f the hearsay that the expert
relies on and treats as true is not true, an important basis for the opinion is lacking.”
(Sanchez, supra, 63 Cal.4th at pp. 682–683.) If the underlying hearsay is not true, the
opinion is rendered irrelevant to the case at hand. In acknowledgment of this conclusion,
the court held, the law regarding an expert’s use of hearsay must be changed. (Ibid.)
“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’ upon which his opinion rests. . . . [¶]
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.” (Id. at pp. 685–686.) “Like any other hearsay evidence, [case-
specific evidence considered by an expert] must be properly admitted through an


                                               8
applicable hearsay exception. Alternatively, the evidence can be admitted through an
appropriate witness and the expert may assume its truth in a properly worded
hypothetical question in the traditional manner.” (Id. at p. 684, fn. omitted.)
       We evaluate prejudice resulting from the allowance of expert testimony in
violation of Sanchez under the standard of People v. Watson (1956) 46 Cal.2d 818, which
requires reversal if “it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.” (Id. at p. 836; see People v.
Ochoa (2017) 7 Cal.App.5th 575, 589.)
       The parties to this proceeding understandably failed to anticipate the change in the
law created by Sanchez. In his opening brief, defendant presents a long list of case-
specific matters to which the prosecution’s witnesses testified, all of which are improper
under Sanchez without independent evidentiary support in the record. The Attorney
General counters with a demonstration that evidence of many of these matters was
introduced into the record through the testimony of defendant’s witnesses. If prior
unobjected testimony supported the prosecution experts’ case-specific testimony, the
testimony was not objectionable under Sanchez. We have compared the parties’ lists and
examined the trial transcript to determine the evidentiary support for the testimony of the
prosecution’s witnesses. We present our conclusions without recounting the details of
our examination.7
       The prosecution experts’ testimony about many of the specific events during
defendant’s detention was supported by evidence in the record. For example, both
defendant and his expert testified about his sexual contact with another patient in a public


       7
         Defendant contends we should not consider the hearsay-based testimony by his
expert to constitute independent evidence because the expert “discussed certain incidents
without asserting they were true.” We do not accept the premise of the argument. None
of the experts who testified were in a position to “assert” the hearsay evidence to be true,
since they did not have direct knowledge of it. All of the experts assumed it to be true
and based their opinions on that assumption. Defendant’s expert’s testimony was no
different. He assumed the evidence to be true yet found it no bar to defendant’s
conditional release.


                                              9
area, his resale of goods to obtain money, his three prior failures at conditional release,
his purported threat to a staff person, an altercation with another patient in 2012, and his
long history of detention in a treatment facility. The prosecution experts, however,
sometimes testified to specific details that were not recounted by defendant’s witnesses or
characterized the incidents in an unsupported way. For example, one expert testified that
defendant had a “lengthy history” of rule violations, but the record reveals only a few
isolated violations over the past two or three years. There was also testimony that
defendant was moved briefly to a discharge unit in 2013 before he “decompensated,” but
there is no evidence in the record of any decompensation since 2005. More significantly,
there is little or no evidence in the record to support the prosecution experts’
characterizations of defendant’s interpersonal relations. The experts testified that
defendant had difficult personal relationships, leading him to react with hostility and
aggression. Beyond the specific incidents mentioned above, there is little evidence in the
record about defendant’s personal relationships, let alone of aggression and hostility
toward others. Defendant was similarly said to have a history of being too aggressive and
argumentative in getting his needs met, but, again, nothing in the record supports this
characterization by the prosecution experts. Finally, and most importantly, there was no
other testimony to support the prosecution experts’ testimony about defendant’s
inconsistent attendance at treatment programs. Although the prosecution witnesses
asserted that defendant attended less than 85 percent of his treatment groups in recent
months, had particularly low attendance in a substance abuse treatment group, and
stopped attending treatment groups altogether at some point, the defense witnesses
testified that defendant’s attendance at treatment groups met or exceeded 85 percent,
which is considered an acceptable level by CONREP.
       We conclude that introduction of the unsupported testimony described above was
prejudicial. The trial court found this to be a close call. As the court noted at the outset
of its oral decision, “I don’t find this a very easy decision on either side, and I’ve been on
both sides of it and I may be on a different side of it by the time I articulate it.” For this
reason, relatively small changes in the record could be important. Here, the trial court


                                              10
found three factors critical to its conclusion: defendant’s prior failures on conditional
release, his recent rule violations, and his spotty attendance at treatment programs. One
of those factors, defendant’s purported irregular attendance, was unsupported by evidence
in the record. Under the rule of Sanchez, the trial court would have known only that
defendant’s attendance at treatment programs was adequate. Given the close nature of
the court’s decision, it is “reasonably probable” that the court would have found
defendant suitable for release, notwithstanding his prior failures and rule violations, if it
concluded he had worked diligently at treatment. Adding to our conviction is other
unfavorable evidence that would have been excluded under Sanchez, such as an expert’s
unsupported characterization of defendant’s purported “lengthy history” of rule
violations, his purported decompensation in 2013, and his hostile and aggressive
interpersonal relations. Because this evidence reinforced the trial court’s decision, its
absence would have made a different decision more likely.
                                    III. DISPOSITION
       The trial court’s order denying defendant’s petition for conditional release under
Penal Code section 1026.2 is reversed, and the matter is remanded for a new hearing on
the petition.




                                              11
                                 _________________________
                                 Margulies, J.



We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.




A149067




                            12
Trial Court: Napa County Superior Court

Trial Judge: Hon. J. Michael Byrne

Counsel:

Julia Freis, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler and Jeffrey M.
Laurence, Assistant Attorneys General, Rene A. Chacon and Katie L. Stowe, Deputy
Attorneys General, for Plaintiff and Respondent.




                                          13
