People v. Perez

• Decision Date: 12 April 2018
• Docket Number: E060438
• Citation: 231 Cal.Rptr.3d 316,22 Cal.App.5th 201
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Luis PEREZ et al., Defendants and Appellants.

22 Cal.App.5th 201

231 Cal.Rptr.3d 316

The PEOPLE, Plaintiff and Respondent,

v.Jose Luis PEREZ et al., Defendants and Appellants.

E060438

Court of Appeal, Fourth District, Division 2, California.

Filed April 12, 2018

As Modified on Denial of Rehearing May 9, 2018

Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant Jose Luis Perez.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Ivan Chavez Navarro.

Randall Bookout, San Diego, under appointment by the Court of Appeal, and H. Russell Halpern, Tarzana, for Defendant and Appellant Pablo Sandoval.

Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Senior Assistant Attorney General, and Scott C. Taylor and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

A drug dealer identified only as "Max" owed money to a group of other drug dealers for some methamphetamine that had gone missing. He decided to ambush his creditors, tie them up, rob them of any drugs and money they might have, and kill them.

Max delegated the actual commission of these planned crimes to at least nine men. Some of them, including defendant Pablo Sandoval, worked for him; others, including defendant Edgar Ivan Chavez Navarro,¹ worked for a fellow drug dealer named Eduardo Alvarado; and still others, including defendant Jose Luis Perez, worked for (or with) another drug dealer named Flor Iniguez. According to the prosecution's designated gang expert, most, if not all, of the participants—including all three of the defendants named in this case—were members or associates of the Sinaloa drug cartel; the victims were members or associates of a different cell of the same cartel.

The participants carried out the plan, but not flawlessly. One of the victims, although shot in the face and chest, survived, and he was able to provide information that led the police to defendant Perez and to Sabas Iniguez (Flor Iniguez's nephew). Perez gave statements to the police incriminating himself. Iniguez testified at trial pursuant to a plea bargain.

Defendants were convicted of multiple first degree murders, with special circumstances, as well as other crimes. They now appeal.

In the published portion of this opinion, we will hold that trial counsel forfeited any objection to expert testimony to case-specific hearsay, which is inadmissible under People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ), by failing to raise it below. Even though this case was tried before Sanchez was decided, previous cases had already indicated that an expert's testimony to hearsay was objectionable. If anything, Sanchez narrowed the scope of a meritorious objection by limiting it to case-specific hearsay.

In the unpublished portion of this opinion, we will hold that there was insufficient evidence to support the gang special circumstance. We also hold that the trial court erred by failing to instruct on the financial-gain special circumstance. Hence, we will reverse these two special circumstances. We will also direct the trial court to consider whether to strike the firearm enhancements under Penal Code section 12022.53, pursuant to newly enacted Senate Bill 620. Otherwise, however, we find no prejudicial error.

I-II^**

IIIPROCEDURAL BACKGROUND

Defendants were tried together, but Perez had a jury separate from Sandoval and Chavez's jury.

Each defendant was found guilty on two counts of murder ( Pen. Code, § 187, subd. (a) ), one count of premeditated attempted murder ( Pen. Code, §§ 187, subd. (a), (664) ), three counts of kidnapping for ransom ( Pen. Code, § 209, subd. (a) ), three counts of kidnapping for robbery ( Pen. Code, § 209, subd. (b)(1) ), and one count of active gang participation ( Pen. Code, § 186.22, subd. (a) ).

In connection with the murder counts, six special circumstances were found true: financial gain ( Pen. Code, § 190.2, subd. (a)(1) ), multiple murder ( Pen. Code, § 190.2, subd. (a)(3) ), lying in wait ( Pen. Code, § 190.2, subd. (a)(15) ), robbery murder ( Pen. Code, § 190.2, subd. (a)(17)(A) ), kidnapping murder ( Pen. Code, § 190.2, subd. (a)(17)(B) ), and gang-related murder ( Pen. Code, § 190.2, subd. (a)(22) ).

In connection with all counts other than active gang participation, an enhancement for the discharge of a firearm by a principal in a gang-related crime causing great bodily injury or death ( Pen. Code, § 12022.53, subds. (d), (e)(1) ) and a gang enhancement ( Pen. Code, § 186.22, subd. (b) ) were found true.

Each defendant was sentenced to a total of nine consecutive life terms—five without the possibility of parole, three with a minimum parole period of 25 years, and one with the possibility of parole—plus three years.⁶

IV-IX^***

XTHE GANG EXPERT'S TESTIMONY TO CASE-SPECIFIC HEARSAY

Chavez contends that much of the gang expert's testimony consisted of case-specific hearsay, which is inadmissible under Sanchez .

The People respond, among other things, that Chavez's trial counsel forfeited this contention by failing to object to the gang expert's testimony below. Ordinarily, "the failure to object to the admission of expert testimony or hearsay at trial forfeits an appellate claim that such evidence was improperly admitted. [Citations.]" ( People v. Stevens (2015) 62 Cal.4th 325, 333, 195 Cal.Rptr.3d 762, 362 P.3d 408 ; see also Evid. Code, § 353, subd. (a).) Chavez argues, however, that his argument is not subject to forfeiture because it is based on Sanchez , and Sanchez was not decided until after his trial.¹⁴

" ‘ "[W]e have excused a failure to object where to require defense counsel to raise an objection ‘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.’ " ' [Citation.]" ( People v. Edwards (2013) 57 Cal.4th 658, 704-705, 161 Cal.Rptr.3d 191, 306 P.3d 1049.)

"In determining whether the significance of a change in the law excuses counsel's failure to object at trial, we consider the ‘state of the law as it would have appeared to competent and knowledgeable counsel at the time of the trial.’ [Citation.]" ( People v.Black (2007) 41 Cal.4th 799, 811, 62 Cal.Rptr.3d 569, 161 P.3d 1130.) We therefore need to review the applicable law prior to and leading up to Sanchez , even if only to decide the People's forfeiture claim.

A. Crawford .

" ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." ( Evid. Code, § 1200, subd. (a).) Under state law, hearsay is generally inadmissible unless it is within some statutory exception to the hearsay rule. ( Evid. Code, § 1200, subd. (b).)

In California and elsewhere, including in the federal courts, " ‘[a]n expert may generally base his opinion on any "matter" known to him, including hearsay not otherwise admissible, which may "reasonably ... be relied upon" for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. ...’ [Citations.]" ( People v. Catlin (2001) 26 Cal.4th 81, 137, 109 Cal.Rptr.2d 31, 26 P.3d 357 ; see also Fed. Rule Evid. 703.) The thinking is that the out-of-court statements are admitted to shed light on the expert's reasoning, and not for their truth. (See, e.g., CALCRIM No. 360.)

Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 held that if a hearsay statement is "testimonial," the confrontation clause prohibits its admission against a criminal defendant, unless (1) the declarant is unavailable at trial, and (2) the defendant has had a prior opportunity to cross-examine the declarant. ( Id . at pp. 53-54, 55-56, 68, 124 S.Ct. 1354.) However, the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. [Citation.]" ( Id . at p. 59, fn. 9, 124 S.Ct. 1354.)

One of the many questions that arose in the wake of Crawford was whether the confrontation clause limits the admission of an expert's testimony to hearsay that forms a basis for his or her opinions.

B. Williams .

In 2012, the United States Supreme Court took up this question in Williams v. Illinois (2012) 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89, as presented by the following facts.

A state police lab sent vaginal swabs from a rape victim to Cellmark Diagnostics Laboratory (Cellmark); Cellmark sent back a DNA profile. ( Williams v. Illinois , supra, 567 U.S. at p. 59, 132 S.Ct. 2221.) Earlier (as a technician ultimately testified), she had personally developed a DNA profile from the defendant's blood and entered it into a state database. ( Id . at pp. 59, 123, 132 S.Ct. 2221.)

At the defendant's trial, Sandra Lambatos, another technician employed at the state police lab, testified:

" ‘Q Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [the victim] to a male DNA profile that had been identified as having originated from [the defendant]?

" ‘A Yes, there was.

" ‘Q Did you compare the semen ... from the vaginal swabs of [the victim] to the male DNA profile ... from the blood of [the defendant]?

" ‘A Yes, I did ....

" ‘Q [I]s the semen identified in the vaginal swabs of [the victim] consistent with having originated from [the defendant]?

" ‘A Yes.’ [Citation.]" ( Williams v. Illinois , supra , 567 U.S. at p. 124, 132 S.Ct. 2221 [dis. opn. of Kagan, J.]; see also id . at p. 61, 132 S.Ct. 2221 [lead opn. of Alito, J.]; id . at p. 87, 132 S.Ct. 2221 [conc. opn. of Breyer, J.] )

On cross-examination, Lambatos admitted that she relied on the Cellmark DNA profile, and she had no personal knowledge of how Cellmark had developed that DNA profile. ( Williams v. Illinois , supra...