63 Cal.4th 665, S216681, People v. Sanchez

Docket Nº:S216681
Citation:63 Cal.4th 665, 374 P.3d 320, 204 Cal.Rptr.3d 102
Opinion Judge:CORRIGAN, J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. MARCOS ARTURO SANCHEZ, Defendant and Appellant
Attorney:John L. Dodd, under appointment by the Supreme Court, for Defendant and Appellant. Lisa M. Romo for Pacific Juvenile Defender Center as Amicus Curiae on behalf of Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General,...
Judge Panel:Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.
Case Date:June 30, 2016
Court:Supreme Court of California

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63 Cal.4th 665

374 P.3d 320, 204 Cal.Rptr.3d 102

THE PEOPLE, Plaintiff and Respondent,


MARCOS ARTURO SANCHEZ, Defendant and Appellant


Supreme Court of California

June 30, 2016

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Superior Court of Orange County, No. 11CF2839, Steven D. Bromberg, Judge. Court of Appeal, Fourth Appellate District, Division Three, No. G047666.

John L. Dodd, under appointment by the Supreme Court, for Defendant and Appellant.

Lisa M. Romo for Pacific Juvenile Defender Center as Amicus Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Peter Quon, Jr., Susan Miller and Lynne McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.


[204 Cal.Rptr.3d 106] [374 P.3d 324] CORRIGAN, J.

In Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] ( Crawford ), the United States Supreme Court held, with exceptions not relevant here, that the admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses. Here we consider the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion. In addition, we clarify the proper application of Evidence Code sections 801 and 802, relating to the scope of expert testimony.

We hold that the case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of

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those hearsay statements were also testimonial and therefore should have been excluded under Crawford. The error was not harmless beyond a reasonable doubt. Accordingly, we reverse the jury findings on the street gang enhancements.


On October 16, 2011, two uniformed Santa Ana police officers made eye contact [204 Cal.Rptr.3d 107] with defendant Marcos Arturo Sanchez, who was standing nearby. He reached into an electrical box with one hand, then ran upstairs into an apartment while holding his other hand near his waistband. When told defendant did not live in the apartment, the officers entered and apprehended him. A boy who had been in the apartment testified the man arrested was a stranger who ran through the residence and into the bathroom. A loaded gun and a plastic baggie were found on a tarp several feet below the bathroom window. The items appeared to have been recently deposited. The downstairs neighbor, who owned the tarp, testified the items were not his and he had given no one permission to place them there. The baggie contained 14 bindles of heroin and four baggies of methamphetamine, all packaged for sale. Sanchez was charged with possession of a firearm by a felon, possession of drugs while armed with a loaded firearm, active participation in the " Delhi" street gang, and commission of a felony for the benefit of the Delhi gang. 1 He was also alleged to have been convicted of a felony for which he had served a state prison sentence. 2

Santa Ana Police Detective David Stow testified for the prosecution as a gang expert. He had been a gang suppression officer for 17 of his 24 years on the force. His experience included investigating gang-related crime; interacting with gang members, as well as their relatives; and talking to other community members who may have information about gangs and their impact on the areas where they operate. As part of his duties, Stow read reports about gang investigations; reviewed court records relating to gang prosecutions; read jail letters; and became acquainted with gang symbols, colors, and art work. He had received over 100 hours of formal training in gang recognition and subcultures, offered by various law-enforcement agencies in Southern California and around the nation. He had been involved in over 500 gang-related investigations.

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As part of the department's efforts to control gang activity, officers issue what are known as " STEP notices" 3 to individuals associating with known gang members. The purpose of the notice is to both provide and gather information. The notice informs the recipient that he is associating with a known gang; that the gang engages in criminal activity; and that, if the recipient commits certain crimes with gang members, he may face increased penalties for his conduct. The issuing officer records the date and time the [374 P.3d 325] notice is given, along with other identifying information like descriptions and tattoos, and the identification of the recipient's associates. Officers also prepare small report forms called field identification or " FI" cards that record an officer's contact with an individual. The form contains personal information, the date and time of contact, associates, nicknames, etc. Both STEP notices and FI cards may also record statements made at the time of the interaction.

Stow testified generally about gang culture, how one joins a gang, and about the Delhi gang in particular. Gangs have defined territories or turf that they control through intimidation. They commit crimes on their turf and protect it against [204 Cal.Rptr.3d 108] rivals. Nonmembers who sell drugs in the gang's territory and who do not pay a " tax" to the gang risk death or injury. The Delhi gang is named after a park in its territory and has over 50 members. Its primary activities include drug sales and illegal gun possession. Defendant was arrested in Delhi turf. Stow testified about convictions suffered by two Delhi members to establish that Delhi members engage in a pattern of criminal activity. (Pen. Code, § 186.22, subds. (e), (f).)

The questioning then turned to defendant. The prosecutor asked Stow if he was aware that defendant received a STEP notice on June 14, 2011. The prosecutor inquired, " Did the defendant indicate to the police officer in the STEP notice that the defendant for four years had kicked it with guys from Delhi?" and " did the defendant also indicate 'I got busted with two guys from Delhi?'" Stow responded, " Correct" to both. He explained that " kicking it" means " hanging out and associating" with gang members and that people often used the phrase to avoid openly admitting gang membership.

The prosecutor next asked about four other police contacts with defendant between 2007 and 2009. Stow gave the details of each, relating statements contained in police documents: (1) On August 11, 2007, defendant's cousin, a known Delhi member, was shot while defendant stood next to him. Defendant told police then that he grew up " in the Delhi neighborhood." (2) On December 30, 2007, defendant was with Mike Salinas when Salinas was shot from a passing car. Salinas, a documented Delhi member, identified the

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perpetrator as a rival gang member. (3) On December 4, 2009, an officer contacted defendant in the company of documented Delhi member John Gomez and completed an FI card. (4) Five days later, on December 9, 2009, defendant was arrested in a garage with Gomez and Delhi member Fabian Ramirez. Inside the garage, police found " a surveillance camera, Ziploc baggies, narcotics, and a firearm."

In preparing for trial, Stow compiled a " gang background" on defendant that included the STEP notice and defendant's statements, his contacts with police while in the company of Delhi members, and the circumstances of the present case occurring in Delhi territory. Based on this information, Stow opined that defendant was a member of the Delhi gang. The prosecutor then asked a lengthy hypothetical in which he asked Stow to assume that (1) a Delhi gang member, " who's indicated to the police he kicks it with Delhi and has been contacted in a residence where narcotics and a firearm have been found in the past," is contacted by police in Delhi territory on October 16, 2011; (2) that gang member " grabbed something, and then grabs his waistband" as he runs up the stairs into an apartment; and (3) he runs into the bathroom and police later find a loaded firearm and drugs on a tarp outside the bathroom window. Assuming those facts, Stow gave his opinion that the conduct benefitted Delhi because the gang member was willing to risk incarceration by possessing a firearm and narcotics for sale in Delhi's turf. Stow added that this conduct also created fear in the community redounding to Delhi's benefit.

On cross-examination, Stow admitted he had never met defendant. He was not present when defendant was given the STEP notice, or during any of defendant's other police contacts. Stow's knowledge of the two shootings, as well as the 2009 garage incident, was derived from police reports. His knowledge of the December 4, 2009, contact was based on the FI card. Stow clarified that an officer may fill out an FI card or issue a STEP notice to [204 Cal.Rptr.3d 109] someone not engaged in any crime or suspicious behavior.

[374 P.3d 326] The jury convicted defendant as charged. 4 The Court of Appeal reversed defendant's conviction for active gang participation 5 and otherwise affirmed. We granted defendant's petition for review.

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Defendant contends the expert's description of defendant's past contacts with police was offered for its truth and constituted testimonial hearsay. He urges its admission violated the...

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