 

Filed 12/18/14 In re Sebastian B. CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT
 

In re SEBASTIAN B., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,                                                                                F067913

         Plaintiff and Respondent,                                            (Super. Ct. No. JJD063970)

                   v.

SEBASTIAN B.,                                                                            OPINION

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
         Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Barton
Bowers, David Andrew Eldridge and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-




                                         SEE CONCURRING OPINION
 


              The juvenile court found appellant, Sebastian B. (minor), committed three counts
of assault with a firearm and one count of possession of a concealed weapon. On appeal,
the minor contends the court erred by permitting the prosecution’s gang expert to rely on
hearsay in violation of the minor’s rights under the confrontation clause of the Sixth
Amendment and, without the expert’s impermissible testimony, there was insufficient
evidence to support the court’s gang-enhancement findings. We reject this contention
and affirm the judgment.
                                        FACTUAL AND PROCEDUAL BACKGROUND1
              The offenses arose from a walk-up shooting in August 2012. At the contested
jurisdictional hearing, the parties stipulated that the Norteño and Sureño gangs were
criminal street gangs within the meaning of the gang-enhancement statute. The
prosecution’s gang expert testified that, in his opinion, the minor and the minor’s
codefendant were active members of the Norteño gang, two of the victims were active
members of the rival Sureño gang,2 and the shooting was gang related.
              A petition was filed, pursuant to Welfare and Institutions Code section 602,
alleging the minor committed the following offenses: shooting at an inhabited dwelling
(Pen. Code,3 § 246; count 1); shooting at an occupied motor vehicle (§ 246; count 2);
assault with a firearm (§ 245, subd. (a)(2); counts 3-5); and possession of a concealed
weapon by a minor (§ 29610; count 6). For counts 3, 4, and 5, the petition alleged the
minor used a firearm (§ 12022.5, subd. (a)(1)). For counts 1, 2, 3, 4, and 5, it alleged he
committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)).
              Following a contested jurisdictional hearing, the juvenile court found the
allegations in counts 3, 4, 5, and 6 to be true, but found the allegations in counts 1 and 2
                                                            
1       We omit a recitation of the facts underlying the charges against the minor because they
are not necessary to resolve his contention on appeal.
2       A third victim of the shooting was the mother of one of the gang-member victims.
3       Further statutory references are to the Penal Code unless otherwise specified. 
                                                               2
 
 


not true. The court denied the minor’s subsequent motion for reconsideration and,
following a contested dispositional hearing, committed the minor to the California
Department of Corrections and Rehabilitation, Division of Juvenile Justice. The court
found the maximum term of confinement, including potential confinement from a prior
petition, was 32 years two months.
                                                               DISCUSSION
              The minor argues that the People’s gang expert relied on hearsay evidence and
that this reliance violated the confrontation clause of the Sixth Amendment.4 This
argument is based on Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford), in
which the United States Supreme Court held that admission of “testimonial” hearsay
violates the confrontation clause unless the declarant is unavailable and the defendant had
a prior opportunity to cross-examine him or her. The court did not provide a definitive
statement of the meaning of “testimonial” hearsay, but one definition it mentioned with
approval was: “‘statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a
later trial.’” (Id. at p. 52.)
              The People contend that this issue has been forfeited because the minor did not
object to the gang expert’s testimony on these grounds in the juvenile court. We agree
with the minor, however, that objection was unnecessary because it would have been
futile. In People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas), which the juvenile
court was bound to follow, the Court of Appeal held that the admission of similar hearsay
did not contravene Crawford.


                                                            
4      In supplemental briefing, the minor correctly observes that the Sixth Amendment right to
confrontation has been held to apply to juvenile proceedings (In re Damon H. (1985) 165
Cal.App.3d 471, 477, fn. 6), and the right is also granted to minors by statute (Welf. & Inst.,
§ 702.5).
                                                                   3
 
 


       In Thomas, a prosecution gang expert testified to establish the elements of the
offense of gang participation under section 186.22, subdivision (a). (Thomas, supra, 130
Cal.App.4th at pp. 1205, 1207.) The expert testified that much of his expertise came
from statements made by other officers and by gang members. (Id. at p. 1207.) His
opinion that the defendant was a gang member was based in part on information he found
in police reports and statements of gang members who said the defendant was a member.
(Id. at p. 1206.) The defendant argued that the admission of the gang expert’s testimony
about the statements of other gang members violated the confrontation clause as
interpreted in Crawford. (Thomas, at p. 1208.)
       The Court of Appeal rejected this argument. It cited People v. Gardeley (1996) 14
Cal.4th 605, 618-619, which held that under Evidence Code sections 801 and 802, an
expert’s opinion can be based on otherwise inadmissible evidence and the expert can
testify about that basis if questioned. The Thomas court explained that this holding
survived Crawford: “Crawford does not undermine the established rule that experts can
testify to their opinions on relevant matters, and relate the information and sources upon
which they rely in forming those opinions. This is so because an expert is subject to
cross-examination about his or her opinions and additionally, the materials on which the
expert bases his or her opinion are not elicited for the truth of their contents; they are
examined to assess the weight of the expert’s opinion. Crawford itself states that the
confrontation clause ‘does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.’ [Citation.]” (Thomas, supra, 130
Cal.App.4th at p. 1210.)
       This holding controlled the hearsay issue in this case. A futile objection is not
necessary to preserve an issue for appellate review. (People v. Sandoval (2007) 41
Cal.4th 825, 837, fn. 4.) We proceed to consider the merits of the issue.



                                               4
 
 


              Visalia Police Officer Shane Logan testified for the prosecution as an expert on
gangs to establish the gang-relatedness of the shooting. To prove the elements of gang-
relatedness under section 186.22, subdivision (b), Logan described to the juvenile court,
and relied upon, police reports, field interview cards, and probation documents, reflecting
the minor’s numerous contacts with law enforcement over a five-year period leading up
to the shooting.5 Based on his review of these documents, his personal contacts with the
minor, and speaking with other officers in the gang unit, Logan opined the minor was an
active member of the Norteño gang, under the relevant criteria, because the minor did all
of the following: admitted gang membership, admitted gang membership in a custodial
facility, associated with gang members, was involved in gang-related crimes, wore gang
clothing or attire, wrote or possessed gang material, and corresponded with or was
identified in correspondences by gang members.
              In contending that Crawford means the evidence the expert relied on and testified
about should have been excluded, and that we should not follow Thomas, the minor cites
Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221] (Williams). As we will explain,
there was no majority opinion in that case, and the minor does not rely on the case’s
outcome (finding no constitutional violation). He relies instead on statements in Justice
Kagan’s dissenting opinion (joined by three other justices) and in Justice Thomas’s
opinion concurring in the judgment.
              Williams underwent a bench trial for rape. A technician from a state laboratory
testified that she analyzed a blood sample taken from Williams after his arrest and
developed a DNA profile. (Williams, supra, 132 S.Ct. at p. 2229.) Another prosecution
expert testified that she compared that profile with a profile developed by a commercial
laboratory from semen found on the victim. (Id. at pp. 2229-2230.) The expert testified

                                                            
5      Logan relied on similar sources of information to form the opinion the minor’s
codefendant and two victims were also active members of their respective gangs.
                                                               5
 
 


that the profile from Williams’s blood and the profile from the semen on the victim’s
body matched. (Id. at p. 2230.) No one from the commercial laboratory testified, and the
expert’s implication that the data received from the commercial laboratory constituted an
accurate profile developed from the semen found on the victim was based on a hearsay
statement, namely, the commercial laboratory’s report. (Id. at pp. 2230, 2235-2236.)
There was also chain-of-custody evidence tending to show that the state laboratory sent
the semen samples taken from the victim’s body to the commercial laboratory. (Id. at
p. 2230.)
       Williams argued that the expert’s implicit affirmation that the results received
from the commercial laboratory were a profile of the DNA found on the victim was based
on testimonial hearsay and should have been excluded under Crawford. (Williams,
supra, 132 S.Ct. at pp. 2235-2236.) Justice Alito, in a plurality opinion that announced
the judgment of the court but was joined only by Chief Justice Roberts and Justices
Kennedy and Breyer (id. at p. 2227), rejected this argument on the grounds like those
relied on in Thomas, i.e., that the hearsay was not admitted to prove the truth of the
matter it asserted. (Williams, at p. 2236.) That the profile from the commercial
laboratory was developed from the semen on the victim was “a mere premise of the
prosecutor’s question” which the expert “simply assumed … to be true when she gave her
answer indicating that there was a match between the two DNA profiles.” The import of
the expert’s statement was only that the two samples she compared matched each other.
She was not testifying about where the samples came from, a matter that was established
by other evidence. (Ibid.) Since it was a bench trial, there was no danger of the trier of
fact failing to understand this. (Id. at pp. 2236-2237.)
       As an alternative theory, Justice Alito’s opinion also stated that the commercial
laboratory’s report, even if statements about it were admitted for the truth of the matter
asserted, was not testimonial because it “was not prepared for the primary purpose of

                                              6
 
 


accusing a targeted individual.” (Williams, supra, 132 S.Ct. at p. 2243.) Instead, when
the state laboratory sent the semen sample to the commercial laboratory, “its primary
purpose was to catch a dangerous rapist who was still at large .…” (Ibid.)
       Justice Thomas concurred in the judgment, adding the fifth vote necessary to
affirm the lower courts’ conclusion. (Williams, supra, 132 S.Ct. at p. 2255 (conc. opn. of
Thomas, J.).) He rejected, however, the plurality’s view that statements from the
commercial laboratory’s report were not admitted for the truth of the matter they asserted.
(Id. at p. 2256.) “[S]tatements introduced to explain the basis of an expert’s opinion are
not introduced for a plausible nonhearsay purpose. There is no meaningful distinction
between disclosing an out-of-court statement so that the fact finder may evaluate the
expert’s opinion and disclosing that statement for its truth,” since the fact finder must
decide whether the statement is true before evaluating the expert’s opinion. (Id. at
p. 2257.) That other evidence might have established the same fact is not relevant to the
constitutional analysis: “The existence of other evidence corroborating the [facts forming
the basis of the expert’s opinion] may render any Confrontation Clause violation
harmless, but it does not change the purpose of such testimony and thereby place it
outside of the reach of the Confrontation Clause.” (Id. at p. 2258.)
       Justice Thomas agreed with the plurality’s result for a different reason: the
hearsay was not testimonial, but not for the same reason the plurality thought it was not
testimonial. In Justice Thomas’s view, “the Confrontation Clause reaches ‘“formalized
testimonial materials,”’ such as depositions, affidavits, and prior testimony, or statements
resulting from ‘“formalized dialogue,”’ such as custodial interrogation. [Citations.]”
(Williams, supra, 132 S.Ct. at p. 2260.) The commercial laboratory’s report “lacks the
solemnity” of these types of materials and therefore was not testimonial. (Ibid.)
       Justice Kagan wrote a dissenting opinion joined by Justices Scalia, Ginsburg and
Sotomayor. (Williams, supra, 132 S.Ct. at p. 2264 (dis. opn. of Kagan, J.).) Like Justice

                                              7
 
 


Thomas, the dissenters concluded that information from the commercial laboratory’s
report was admitted through the expert for the truth of the matter it asserted. “[W]hen a
witness, expert or otherwise, repeats an out-of-court statement as the basis for a
conclusion … the statement’s utility is then dependent on its truth.” (Id. at p. 2268.)
Further, the hearsay was testimonial because the commercial laboratory’s report was “in
every conceivable respect, a statement meant to serve as evidence in a potential criminal
trial.” (Id. at p. 2275.)
       The minor argues that we should combine Justice Thomas’s opinion with Justice
Kagan’s opinion to create Supreme Court authority for the view that the evidence here at
issue is testimonial hearsay, the admission of which violated the confrontation clause.
Those opinions, however, do not add up to that view. They might add up to five votes for
the conclusion that the evidence challenged here was admitted for the truth of the matter
asserted, since Justice Thomas and the dissenters agree that the evidence disclosed as the
basis of an expert’s opinion must be true to support that opinion. But there were not five
votes for any view of when statements are testimonial. The plurality thought the
evidence at issue was not testimonial for one reason, Justice Thomas thought it was not
testimonial for a different reason, and the dissenters thought it was testimonial under yet
a third rationale. The five justices withholding their votes from the plurality’s position
might not agree that the evidence on which Officer Logan relied was testimonial hearsay.
In light of this, the various opinions in Williams do not amount to authority for the
minor’s position.
       In any event, it is not our practice to piece together various nonmajority opinions
by Supreme Court justices for the purpose of anticipating what that court’s conclusions
might be in a case it has not considered. All we can say about Williams is that it upheld
the admission of the testimony at issue and that there was no majority rationale. Williams
fails to support the minor’s position for this reason as well.

                                              8
 
 


       We see no adequate reason to depart from the analysis in Thomas, and the proper
approach, in our view, is to follow Thomas unless and until there is authority to do
otherwise. To hold that the gang expert’s testimony in this case violated the
confrontation clause would imply that section 186.22 prosecutions as currently practiced
are unconstitutional in general, and alternative methods would be hard to find. The
expert here was typical in his reliance on myriad items of hearsay from numerous police
officers, probation officers and gang informants. Presenting all those witnesses at trial
would be an obstacle all but insuperable. We will not impose that obstacle absent clear
authority requiring it.
       Because we reject the minor’s claim that admission of the gang expert’s testimony
violated his constitutional right to confrontation, we reject his related claim that, “without
the constitutionally impermissible testimony,” there was insufficient evidence to support
the gang enhancements. The minor implicitly concedes the gang expert’s testimony, if
properly admitted, was sufficient to support the gang enhancements and we see no basis
in the record to conclude otherwise.
                                       DISPOSITION
       The judgment is affirmed.



                                                                 _____________________
                                                                              HILL, P. J.
I CONCUR:


 _____________________
GOMES, J.




                                              9
 
 


CORNELL, J.
              I am compelled by precedent to concur in the opinion and result. (People v.
Gardeley (1996) 14 Cal.4th 605, 619 (Gardeley); Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455; People v. Thomas (2005) 130 Cal.App.4th 1202.) I
write separately to discuss the problem caused by the practice of allowing the
prosecution’s gang expert to repeat hearsay evidence on which he or she relied in forming
the gang opinions on direct examination. As acknowledged by both counsel at oral
argument, it is not the reliance on hearsay that causes the problem—it is the
disgorgement of the hearsay on direct examination by the expert that is the problem.
              Experts have long relied on hearsay when forming their opinions since hearsay
often is the only way to acquire the basis for an opinion. Evidence Code section 801,
subdivision (b)1 specifically permits experts to rely on hearsay evidence when forming
their opinions (experts limited to stating opinions that are “[b]ased on matter …
perceived by or personally known to the witness or made known to him at or before the
hearing, whether or not admissible …”).
              For many years, the practice in civil and criminal cases, both in California and in
federal court, was to allow the expert to rely on hearsay, but not relate it on direct
examination. (See, e.g., People v. Coleman (1985) 38 Cal.3d 69, 92, overruled on other
grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32 [expert may state on
direct examination matters on which he or she relied, he or she may not testify to details
of such matter if they are otherwise inadmissible].) “‘The rule rests on the rationale that
while an expert may give reasons on direct examination for his opinions, including the
                                                            
1        All further statutory references are to the Evidence Code unless otherwise noted.
         Evidence Code section 801 states: “Based 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.” 

 
 


matters he considered in forming them, he may not under the guise of reasons bring
before the jury incompetent hearsay evidence. [Citation.] Ordinarily, the use of a
limiting instruction that matters on which an expert based his opinion are admitted only
to show the basis of the opinion and not for the truth of the matter cures any hearsay
problem involved, but in aggravated situations, where hearsay evidence is recited in
detail, a limiting instruction may not remedy the problem. [Citations.]’ [Citation.]”
(Ibid.) For example, an expert relying on a treatise in forming an opinion would be
allowed to identify the treatise on direct examination, but would not be allowed to read
from the treatise. Opposing counsel was permitted to explore the contents of the treatise
on cross-examination if he or she was so inclined.
       It appears, however, that since the Supreme Court decided Gardeley, experts in
criminal gang cases have been permitted on direct examination not only to identify the
hearsay on which they rely, but also to relate this hearsay to the jury as fact. I use the
term “appears” because, in my experience, an expert was not permitted to testify to such
hearsay on direct examination before Gardeley was decided.
       Prior to Gardeley, the prosecution expert was allowed to testify on direct that he or
she relied on, for example, field interview cards, conversations with other gang members,
conversations with other police officers, and reports from other crimes. The expert was
not allowed to testify on direct examination as to what was on the field interview card,
what other gang members or police officers said, or what information was gleaned from
police reports from other crimes. Since Gardeley, police officers testifying as expert
witnesses routinely testify on direct examination to all of the hearsay information that
they have reviewed, no matter how attenuated or how many levels of hearsay the
testimony contained. Gardeley thus appears to be the authority for this departure from
the established practice. If so, it is a questionable expansion of the opinion.



                                              2
 
 


       The issues presented in Gardeley related to the sentence enhancement imposed
pursuant to Penal Code section 186.22, subdivision (b)(1) when a crime is committed for
the benefit of a criminal street gang. The prosecution presented evidence that the crimes
of which Gardeley was convicted were committed within the meaning of this section, the
jury found the allegation true, and the trial court imposed the sentence enhancement. The
Court of Appeal vacated the enhancement, finding the enhancement could be imposed
only if the two predicate offenses were shown to be gang related. The Supreme Court
reversed the Court of Appeal.
       For context, I summarize the expert testimony presented by the prosecution. The
expert police officer interviewed both defendants (Gardeley and his accomplice), who
admitted they belonged to the Family Crip gang and stated the gang had approximately
70 gang members. The accomplice also admitted selling cocaine shortly before the attack
that resulted in the current charges. The police officer also interviewed the third
accomplice involved in the attack, who pled guilty in a plea deal before trial. Over the
defense’s objection on hearsay grounds, the expert was permitted to testify to his
interview with the third accomplice. The police officer related that the third accomplice
admitted he was a gang member. The police officer also testified several other
individuals admitted they belonged to the same gang. Prior to this testimony, the trial
court instructed the jury that the testimony was offered not for its truth, but to establish
the basis of the police officer’s opinion. (Gardeley, supra, 14 Cal.4th at pp. 611-612.)
       Next, “the prosecutor asked [the expert witness] for his opinion as to the primary
purpose or activity of the Family Crip gang. [The expert witness] responded that based
on investigations of hundreds of gang-related offenses, conversations with defendants
and other Family Crip members, as well as information from fellow officers and various
law enforcement agencies, it was his opinion that the Family Crip gang’s primary
purpose was to sell narcotics, but that the gang also engaged in witness intimidation and

                                              3
 
 


other acts of violence to further its drug-dealing activities.” (Gardeley, supra, 14 Cal.4th
at p. 612.)
       In discussing the expert witness’s testimony, the Supreme Court began by
reviewing the general law pertaining to expert witnesses, including sections 801 and 802.
The Supreme Court observed that if the “threshold requirement of reliability is satisfied,
even matter that is ordinarily inadmissible can form the proper basis for an expert’s
opinion testimony. [Citations.] And because Evidence Code section 802 allows an
expert witness to ‘state on direct examination the reasons for his opinion and the matter
… upon which it is based,’ an expert witness whose opinion is based on such
inadmissible matter can, when testifying, describe the material that forms the basis of the
opinion. [Citations.]” (Gardeley, supra, 14 Cal.4th at pp. 618-619.) The Supreme Court
next reiterated that the trial court “‘has considerable discretion to control the form in
which the expert is questioned to prevent the jury from learning of incompetent hearsay’”
and “has discretion ‘to weigh the probative value of inadmissible evidence relied upon by
an expert witness … against the risk that the jury might improperly consider it as
independent proof of the facts recited therein.’ [Citation.] This is because 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. [Citations.]” (Id. at p. 619.)
The Supreme Court then concluded that “Consistent with these well-settled principles,
the trial court in this case ruled that [the expert witness] could testify as an expert witness
and could reveal the information on which he had relied in forming his expert opinion,
including hearsay.” (Ibid.)
       This analysis appears consistent with established precedent. The prosecution’s
expert witness, while he testified to the hearsay statements of the third accomplice and
other gang members, relied on (1) his investigation of hundreds of gang-related offenses,
(2) conversations with gang members, (3) conversations with defendants,

                                               4
 
 


(4) conversations with fellow officers, and (5) conversations with law enforcement
agencies in forming his opinion about the primary purpose of the Family Crip gang.
(Gardeley, supra, 14 Cal.4th at p. 620.) Nothing in Gardeley suggests the expert witness
testified to the content of each of these interviews, investigations, and conversations.
       Nonetheless, appellate courts have approved of the prosecutorial practice of
eliciting from gang experts otherwise inadmissible hearsay under the theory that such
testimony is necessary to establish the basis of the expert’s opinion. For example, in
People v. Valdez (1997) 58 Cal.App.4th 494, the Court of Appeal considered such
testimony and concluded, “Because an expert’s need to consider extrajudicial matters and
a jury’s need for information sufficient to evaluate an expert opinion may conflict with an
accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area
must generally be left to the trial court’s sound judgment. [Citation.] [¶] Under
Gardeley, we find it well within the trial court’s discretion to permit [the expert] to relate
in detail the large amount of hearsay upon which he relied.” (Id. at pp. 510-511.) The
appellate court also noted that the trial court repeatedly admonished the jury that it could
only consider the hearsay statement as evidence of the basis of the expert’s opinion and
should not be considered for its truth. (Id. at p. 511.)
       The rationale for allowing hearsay into evidence for the nonhearsay purpose of
forming the basis for the expert’s opinion is now under significant criticism, as it should
be. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
(§ 1200, subd. (a).) For such out-of-court statements to form a relevant and reliable basis
for a gang expert’s testimony, such statements must be true. Therefore, not only is the
gang expert relying on the hearsay statements to be true because they purportedly form
the basis of his opinion, the prosecution expects the jury to accept these hearsay
statements as true or the jury is required to reject the expert’s opinion as lacking
foundation. “For ‘the law does not accord to the expert’s opinion the same degree of

                                              5
 
 


credence or integrity as it does the data underlying the opinion. Like a house built on
sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.]”
(Gardeley, supra, 14 Cal.4th at p. 618.) The inevitable conclusion is that these
statements are offered for their truth, and in most cases the defendant has no ability to
challenge them.
       The defendant’s only protection is the trial court’s admonition to the jury that
these hearsay statements are to be considered only as a basis for the expert’s opinion.
Considering the highly inflammatory nature of gang crimes in general, it seems unlikely
this admonition is truly effective. One merely needs to look at the Legislature’s stated
reasons for enacting the Street Terrorism Enforcement and Prevention Act (Pen. Code,
§ 186.20 et seq.) to doubt the effectiveness of the admonition. “The Legislature,
however, further finds that the State of California is in a state of crisis which has been
caused by violent street gangs whose members threaten, terrorize, and commit a
multitude of crimes against the peaceful citizens of their neighborhoods. These activities,
both individually and collectively, present a clear and present danger to public order and
safety and are not constitutionally protected. The Legislature finds that there are nearly
600 criminal street gangs operating in California, and that the number of gang-related
murders is increasing.” (Id., § 186.21.) Combining this crisis mentality with the
publicity attendant to many of these crimes creates the undeniable danger that once a jury
learns of the multitude of hearsay statements offered by the prosecution, a defendant is
doomed to conviction, regardless of the strength of the evidence that he or she actually
committed the charged crime.
       The problems caused by allowing extensive hearsay evidence in gang cases can be
resolved easily. Returning to the former practice of allowing reliance on, and reference
to, but not the disgorgement of this hearsay evidence on direct examination will eliminate
unnecessary tainting of the jury and also will avoid any possible confrontation clause

                                              6
 
 


concerns related to Crawford v. Washington (2004) 541 U.S. 36 and its progeny, as well
as future Sixth Amendment jurisprudence. This solution would return expert testimony
in gang cases to the practice still followed in civil cases and in federal court.
       The justices of the United States Supreme Court and the California Supreme Court
who have addressed the admissibility of this evidence now question it. Two published
cases dealing with this issue, and the testimonial nature of the evidence under Crawford,
have been granted review by the California Supreme Court (People v. Sanchez (2014)
223 Cal.App.4th 1, review granted May 14, 2014, S216681; People v. Archuleta (2014)
225 Cal.App.4th 527, review granted June 11, 2014, S218640). We all await further
guidance.


                                                   ______________________________
                                                                      CORNELL, J.




                                               7
 
