People v. Perez

• Decision Date: 27 February 2020
• Docket Number: S248730
• Citation: 459 P.3d 1,259 Cal.Rptr.3d 195,9 Cal.5th 1
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Luis PEREZ et al., Defendants and Appellants.

9 Cal.5th 1

459 P.3d 1

259 Cal.Rptr.3d 195

The PEOPLE, Plaintiff and Respondent,

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

S248730

Supreme Court of California.

February 27, 2020

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

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

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

Kamala D. Harris and Xavier Becerra, Attorneys General, Edward DuMont, State Solicitor General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael R. Johnsen and Joshua Patashnik, Deputy State Solicitors General, Scott C. Taylor and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Groban, J.

People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ) held that an expert cannot relate case-specific hearsay to explain the basis for his or her opinion unless the facts are independently proven or fall within a hearsay exception. We concluded that if the prosecution expert seeks to relate testimonial hearsay, the confrontation clause is violated unless there is a showing of unavailability and the defendant had a prior opportunity for cross-examination or forfeited that right. We granted review in this case to determine whether a defendant’s failure to object at trial, before Sanchez was decided, forfeited a claim that a gang expert’s testimony related case-specific hearsay in violation of the confrontation clause. We now conclude that a defense counsel’s failure to object under such circumstances does not forfeit a claim based upon Sanchez . Accordingly, we reverse the judgment of the Court of Appeal here, which reached the opposite conclusion.

I. BACKGROUND

On June 23, 2009, a motorist driving on U.S. Highway 395 near Victorville encountered a man walking on the road and bleeding from gunshot wounds

to his face and abdomen. Police arrived on the scene and followed a trail of blood to a pickup truck parked a few blocks away. There, the police found two other men, who had both died from gunshot wounds.

The surviving victim told police that he had been kidnapped a few days earlier in the city of South Gate, near Los Angeles. He was visiting a house on Center Street when a group of men held him at gunpoint and tied him up with zip ties. The group forced the victim to call two other acquaintances and summon them to the house. Upon their arrival, the group then bound the other two as well. The group forced the three victims to arrange for deliveries of money and drugs, which the group then took. The group put the victims into vehicles and drove them away from the house. The three victims were eventually shot and left for dead near Victorville. The survivor identified a person named "Lalo" as the shooter.

In police interviews, defendant Jose Luis Perez admitted that he was present during the crimes up to just before the shooting and that his participation consisted of duct-taping a sock over the eyes of one of the victims and then putting him in zip ties. Perez stated that he got into a vehicle when the group left the house with the victims, but that the vehicle he was in lost track of the other vehicles. Perez incriminated his codefendants Edgar Ivan Chavez Navarro ("Chavez") and Pablo Sandoval, as well as Sabas Iniguez, Caesar Rodriguez, and Eduardo Alvarado (nicknamed "Lalo"). Perez admitted he heard the plan was to rob the victims and kill them but claimed that he was not supposed to be present and that the others simply showed up earlier than expected at the house on Center Street while he was there. Perez claimed that Sandoval threatened to kill him and his family if he talked.

Chavez, Perez, and Sandoval were all tried together, but Perez had a separate jury. Iniguez testified against them pursuant to plea bargain. He testified that a drug dealer named "Max" owed a debt to other drug dealers (the victims here) for methamphetamine. Max was a cartel member and Sandoval reported to him. Alvarado was also a cartel member and Chavez reported to him. One of the victims who died was a cartel member and reported to "Nacho," i.e., the "big boss" in Guadalajara. The surviving victim reported to that decedent victim. Max planned to ambush his creditors and rob them of drugs and money. Iniguez, Sandoval, Chavez, Perez, Alvarado, Rodriguez, and three unknown persons all assisted in carrying out the plan.

The prosecution’s gang expert Jeff Moran testified that the Sinaloa drug cartel produces large amounts of methamphetamine, cocaine, and marijuana and transports them to the United States to sell. The cartel operates as a franchise and is divided into territories, which are subdivided into cells. Each cell connects to someone in the cartel, but each cell works independently of the other cells. At the time of trial, "El Chapo" Guzman was the head of the Sinaloa cartel. "Nacho" was Ignacio Coronel, who was killed in 2010. At the time of the offenses, Coronel worked in Guadalajara and was number three in the Sinaloa drug cartel. In Moran’s opinion, Iniguez, Sandoval, Chavez, Perez, Alvarado, and Rodriguez were all members or associates of the Sinaloa drug cartel. He testified that the group’s coordinated efforts are consistent with members or associates of a criminal street gang acting in association or in concert with each other. He testified that he formed his opinions based upon his training, experiences, and information obtained from this investigation. This included information obtained from interviews he and other detectives conducted, Perez’s statements to police, trial testimony, classes, Internet research, reports, articles about the Guzman cartel, and regular discussions with Drug Enforcement Administration agents about cartels. Defense counsel did not object to Moran’s testimony on hearsay, confrontation clause, or Evidence Code section 352 grounds. To establish the pattern of criminal gang activity, the court took judicial notice that Alvarado, Iniguez, and Rodriguez had been convicted of murder, attempted murder, and kidnapping, based upon the same events charged in the present case.¹

On October 31 and November 1, 2013, the juries convicted Chavez, Sandoval, and Perez each of two counts of first degree special circumstance murder ( Pen. Code, §§ 187, subd. (a), 190.2, subd. (a) ),² one count of attempted premeditated murder ( §§ 664, 187, subd. (a) ), three counts of kidnapping for ransom (§ 209, subd. (a)), three counts of kidnapping to commit robbery (§ 209, subd. (b)(1)), and one count of street terrorism (§ 186.22, subd. (a)). The jury found true gang (§ 186.22, subd. (b)) and firearm (§ 12022.53, subds. (d) & (e)(1)) enhancements. The trial court sentenced each defendant to five terms of life without the possibility of parole.

Defendants appealed. In 2016, before the appeals were resolved, we issued our opinion in Sanchez, supra, 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320. In supplemental briefing, Chavez argued in the Court of Appeal that the gang expert’s testimony was hearsay and had been presented to the jury in violation of the confrontation clause. Chavez claimed that the gang expert testified to case-specific hearsay in the following ways: (1) Iniguez admitting he was a cartel member; (2) Sandoval’s activities showed that he was a cartel member; (3) sources told Moran that Sandoval was the one who had direct contact with Max, who was calling the shots; (4) based on his "involvement and participation in this investigation," Moran believed Chavez was a cartel associate who worked directly for Lalo; (5) Moran’s investigation, including Perez’s admission to law enforcement, led Moran to believe Perez was a low-level associate who wanted to work for Sandoval and his involvement in this case was an audition; and (6) sources told Moran and other investigators that the crimes in this case were part of a cartel-ordered hit.

The Court of Appeal held that Chavez’s failure to object to case-specific hearsay in expert testimony at trial forfeited any Sanchez claim on appeal.

The Court of Appeal found that "[e]ven 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." Therefore, "such objections would not have been futile."

Defendants petitioned for review. We granted the petitions and transferred the matter for the Court of Appeal to reconsider the cause in light of recent amendments to the firearm enhancement statutes. (See § 12022.53, subd. (h), added by Stats. 2017, ch. 682, § 1.) On our own motion, we also directed the Reporter of Decisions not to publish the opinion. Upon the case’s return, as relevant here, the Court of Appeal again held that Chavez’s counsel’s failure to object in the trial court forfeited any objection to expert testimony to case-specific hearsay under Sanchez . ( People v. Perez (2018) 22 Cal.App.5th 201, 212, 231 Cal.Rptr.3d 316.)

Defendants Chavez and Perez petitioned for review. We granted Chavez’s petition to consider the limited issue of whether defendant’s failure to object at trial, before Sanchez was decided, forfeited his claim that a gang expert’s testimony related case-specific hearsay in violation of his Sixth Amendment right to confrontation. We denied Perez’s petition.

II. DISCUSSION

Chavez argues that, even though he did not raise a confrontation clause objection to the gang expert’s testimony at the time of trial, he did not forfeit the claim because Sanchez had not yet been decided and such an objection would therefore have been futile. We agree.

Ordinarily, "the failure to object to the...