Supreme Court of California Justia
Docket No. S216681

People v. Sanchez

Filed 6/30/16



Plaintiff and Respondent,



Ct.App. 4/3 G047666


Orange County

Defendant and Appellant.

Super. Ct. No. 11CF2839

In Crawford v. Washington (2004) 541 U.S. 36 (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 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 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


Former Penal Code section 12021, subdivision (a)(1) (now § 29800, subd.

(a)(1)), Health and Safety Code section 11370.1, subdivision (a), and Penal Code
section 186.22, subdivisions (a) and (b).

Penal Code section 667.5, subdivision (b).


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.

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 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 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


This acronym is a reference to the California Street Terrorism Enforcement

and Prevention Act. (Pen. Code, § 186.20 et seq.)


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 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 someone not engaged in

any crime or suspicious behavior.

The jury convicted defendant as charged.4 The Court of Appeal reversed

defendant‟s conviction for active gang participation5 and otherwise affirmed. We

granted defendant‟s petition for review.


Defendant admitted the allegation that he had served a prior prison term.


The reversal was based on People v. Rodriguez (2012) 55 Cal.4th 1125,

which established that the substantive offense of active gang participation required

(footnote continued on next page)



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 federal confrontation clause because the declarants were

not unavailable and he had not been given an earlier opportunity to cross-examine

them. The Attorney General responds that the statements upon which the gang

expert based his opinions were not admitted for their truth and, even if they had

been, most of the statements were not testimonial.

We first address whether facts an expert relates as the basis for his opinion

are properly considered to be admitted for their truth. The confrontation clause

“does not bar the use of testimonial statements for purposes other than establishing

the truth of the matter asserted.” (Crawford, supra, 541 U.S. at p. 59, fn. 9.) If the

Attorney General is correct that statements offered as the basis for an opinion are

not admitted for their truth, the statements are not hearsay and our inquiry is at an

end. If defendant is correct, the propriety of the statements‟ admission in this case

would turn on whether they constitute testimonial hearsay.

A. State Evidentiary Rules for Hearsay

Hearsay may be briefly understood as an out-of-court statement offered for

the truth of its content. Evidence Code section 1200, subdivision (a) formally

defines hearsay as “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.” A “statement” is “oral or written verbal expression” or the “nonverbal

(footnote continued from previous page)

“that a person commit an underlying felony with at least one other gang member.”
(Id. at p. 1134.)


conduct of a person intended by him as a substitute for oral or written verbal

expression.” (Evid. Code, § 225.) Senate committee comments to Evidence Code

section 1200 explain that a statement “offered for some purpose other than to

prove the fact stated therein is not hearsay.” (Sen. Com. on Judiciary com., 29B

pt. 4 West‟s Ann. Evid. Code (2015 ed.) foll. § 1200, p. 3; see People v. Davis

(2005) 36 Cal.4th 510, 535-536.) Thus, a hearsay statement is one in which a

person makes a factual assertion out of court and the proponent seeks to rely on

the statement to prove that assertion is true. Hearsay is generally inadmissible

unless it falls under an exception. (Evid. Code, § 1200, subd. (b).) Nothing in our

opinion today changes the basic understanding of the definition of hearsay.

Documents like letters, reports, and memoranda are often hearsay because

they are prepared by a person outside the courtroom and are usually offered to

prove the truth of the information they contain. Documents may also contain

multiple levels of hearsay. An emergency room report, for example, may record

the observations made by the writer, along with statements made by the patient. If

offered for its truth, the report itself is a hearsay statement made by the person

who wrote it. Statements of others, related by the report writer, are a second level

of hearsay. Multiple hearsay may not be admitted unless there is an exception for

each level. (People v. Riccardi (2012) 54 Cal.4th 758, 831 (Riccardi).) For

example, in the case of the emergency room document, the report itself may be a

business record (Evid. Code, § 1270 et seq.), while the patient‟s statement may

qualify as a statement of the patient‟s existing mental or physical state (Evid.

Code, § 1250, subd. (a)).

B. State Evidentiary Rules for Expert Testimony

While lay witnesses are allowed to testify only about matters within their

personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given


greater latitude. “A person is qualified to testify as an expert if he has special

knowledge, skill, experience, training, or education sufficient to qualify him as an

expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd.

(a).) An expert may express an opinion on “a subject that is sufficiently beyond

common experience that the opinion of an expert would assist the trier of fact.”

(Evid. Code, § 801, subd. (a).) In addition to matters within their own personal

knowledge, experts may relate information acquired through their training and

experience, even though that information may have been derived from

conversations with others, lectures, study of learned treatises, etc. This latitude is

a matter of practicality. A physician is not required to personally replicate all

medical experiments dating back to the time of Galen in order to relate generally

accepted medical knowledge that will assist the jury in deciding the case at hand.

An expert‟s testimony as to information generally accepted in the expert‟s area, or

supported by his own experience, may usually be admitted to provide specialized

context the jury will need to resolve an issue. When giving such testimony, the

expert often relates relevant principles or generalized information rather than

reciting specific statements made by others.

The jury is not required to accept an expert‟s opinion. The final resolution

of the facts at issue resides with the jury alone. The jury may conclude a fact

necessary to support the opinion has not been adequately proven, even though

there may be some evidence in the record tending to establish it. If an essential

fact is not found proven, the jury may reject the opinion as lacking foundation.

Even if all the necessary facts are found proven, the jury is free to reject the

expert‟s opinion about them as unsound, based on faulty reasoning or analysis, or

based on information the jury finds unreliable. The jury may also reject an

opinion because it finds the expert lacks credibility as a witness.


The hearsay rule has traditionally not barred an expert‟s testimony

regarding his general knowledge in his field of expertise. “[T]he common law

recognized that experts frequently acquired their knowledge from hearsay, and

that „to reject a professional physician or mathematician because the fact or some

facts to which he testifies are known to him only upon the authority of others

would be to ignore the accepted methods of professional work and to insist on . . .

impossible standards.‟ Thus, the common law accepted that an expert‟s general

knowledge often came from inadmissible evidence.” (Volek, Federal Rule of

Evidence 703: The Back Door and the Confrontation Clause, Ten Years Later

(2011) 80 Fordham L.Rev. 959, 965, fn. omitted, quoting 1 Wigmore, A Treatise

on the Anglo-American System of Evidence in Trials at Common Law (2d ed.

1923) § 665; see Simons, Cal. Evidence Manual (2014) § 4:23, pp. 313-316.)

Knowledge in a specialized area is what differentiates the expert from a lay

witness, and makes his testimony uniquely valuable to the jury in explaining

matters “beyond the common experience of an ordinary juror.” (People v.

McDowell (2012) 54 Cal.4th 395, 429; see Evid. Code, § 801, subd. (a).) As such,

an expert‟s testimony concerning his general knowledge, even if technically

hearsay, has not been subject to exclusion on hearsay grounds.

By contrast, an expert has traditionally been precluded from relating case-

specific facts about which the expert has no independent knowledge. Case-

specific facts are those relating to the particular events and participants alleged to

have been involved in the case being tried. Generally, parties try to establish the

facts on which their theory of the case depends by calling witnesses with personal

knowledge of those case-specific facts. An expert may then testify about more

generalized information to help jurors understand the significance of those case-

specific facts. An expert is also allowed to give an opinion about what those facts

may mean. The expert is generally not permitted, however, to supply case-


specific facts about which he has no personal knowledge. (People v. Coleman

(1985) 38 Cal.3d 69, 92 (Coleman).)

Going back to the common law, this distinction between generally accepted

background information and the supplying of case-specific facts is honored by the

use of hypothetical questions. “Using this technique, other witnesses supplied

admissible evidence of the facts, the attorney asked the expert witness to

hypothetically assume the truth of those facts, and the expert testified to an

opinion based on the assumed facts. . . .” (Imwinkelried, The Gordian Knot of the

Treatment of Secondhand Facts Under Federal Rule of Evidence 703 Governing

the Admissibility of Expert Opinions: Another Conflict Between Logic and Law

(2013) 3 U.Den. Crim. L.Rev. 1, 5; see Simons, Cal. Evidence Manual, supra,

§ 4:32, pp. 326-327; 2 Wigmore, Evidence (Chadbourn ed. 1978) § 672, p. 933,

italics omitted.) An examiner may ask an expert to assume a certain set of case-

specific facts for which there is independent competent evidence, then ask the

expert what conclusions the expert would draw from those assumed facts. If no

competent evidence of a case-specific fact has been, or will be, admitted, the

expert cannot be asked to assume it. The expert is permitted to give his opinion

because the significance of certain facts may not be clear to a lay juror lacking the

expert‟s specialized knowledge and experience.

The following examples clarify these general principles and their


(1) That 15 feet of skid marks were measured at an auto accident scene

would be case-specific information. Those facts could be established, for

example, through the testimony of a person who measured the marks. How

automobile skid marks are left on pavement and the fact that a given equation can

be used to estimate speed based on those marks would be background information

an expert could provide. That the car leaving those marks had been traveling at 80


miles per hour when the brakes were applied would be the proper subject of an

expert opinion.

(2) That hemorrhaging in the eyes was noted during the autopsy of a

suspected homicide victim would be a case-specific fact. The fact might be

established, among other ways, by the testimony of the autopsy surgeon or other

witnesses who saw the hemorrhaging, or by authenticated photographs depicting

it. What circumstances might cause such hemorrhaging would be background

information an expert could provide. The conclusion to be drawn from the

presence of the hemorrhaging would be the legitimate subject for expert opinion.

(3) That an associate of the defendant had a diamond tattooed on his arm

would be a case-specific fact that could be established by a witness who saw the

tattoo, or by an authenticated photograph. That the diamond is a symbol adopted

by a given street gang would be background information about which a gang

expert could testify. The expert could also be allowed to give an opinion that the

presence of a diamond tattoo shows the person belongs to the gang.

(4) That an adult party to a lawsuit suffered a serious head injury at age four

would be a case-specific fact. The fact could be established, inter alia, by a

witness who saw the injury sustained, by a doctor who treated it, or by diagnostic

medical records. How such an injury might be caused, or its potential long-term

effects, would be background information an expert might provide. That the party

was still suffering from the effects of the injury and its manifestations would be

the proper subject of the expert‟s opinion.

At common law, the treatment of an expert‟s testimony as to general

background information and case-specific hearsay differed significantly.

However, the line between the two has now become blurred. Both the common

law and early California law recognized two exceptions to the general rule barring

disclosure of, and reliance on, otherwise inadmissible case-specific hearsay.


These exceptions covered testimony about property valuation and medical

diagnoses. As to the former, “courts recognized that experts frequently derived

their knowledge by both custom and necessity from sources that were technically

hearsay—price lists, newspapers, information about comparable sales, or other

secondary sources.” (Kaye et al., The New Wigmore: Expert Evidence (2d ed.

2011) § 4.5.1, p. 154; see In re Cliquot’s Champagne (1865) 70 U.S. 114, 141.)

Likewise, physicians often relied on patients‟ hearsay descriptions of their

symptoms to form diagnoses. (See Barber v. Merriam (Mass. 1865) 93 Mass.

322, 324-326; see also Kaye et al., § 4.5.1, p. 155; People v. Wilson (1944) 25

Cal.2d 341, 348; Betts v. Southern California Fruit Exch. (1904) 144 Cal. 402,

408; People v. Shattuck (1895) 109 Cal. 673, 678-679; Hammond Lumber Co. v.

Los Angeles County (1930) 104 Cal.App. 235, 248.)

The justification for these exceptions was threefold: “the routine use of the

same kinds of hearsay by experts in their conduct outside the court; the experts‟

experience, which included experience in evaluating the trustworthiness of such

hearsay sources; and the desire to avoid needlessly complicating the process of

proof . . . .” (Kaye et al., The New Wigmore: Expert Evidence, supra, § 4.5.1, p.

155; see 3 Wigmore, Evidence, supra, § 688, p. 4.)

The Legislature‟s enactment of the Evidence Code in 1965 generalized

these common law exceptions. Evidence Code section 801, subdivision (b)

provides that an expert may render an opinion “[b]ased 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.” (Italics added.) Similarly, Evidence Code section 802 allows an expert


to “state on direct examination the reasons for his opinion and the matter

(including, in the case of an expert, his special knowledge, skill, experience,

training, and education) upon which it is based, unless he is precluded by law from

using such reasons or matter as a basis for his opinion.” Under this approach, the

reliability of the evidence is a key inquiry in whether expert testimony may be

admitted. The California Law Revision Commission comments accompanying the

code noted that Evidence Code section 801, subdivision (b) “assures the reliability

and trustworthiness of the information used by experts in forming their opinions.”

(Cal. Law Revision Com. com., reprinted at 29B pt. 3A West‟s Ann. Evid. Code

(2009 ed.) foll. § 801, p. 26.)

Accordingly, in support of his opinion, an expert is entitled to explain to the

jury the “matter” upon which he relied, even if that matter would ordinarily be

inadmissible. When that matter is hearsay, there is a question as to how much

substantive detail may be given by the expert and how the jury may consider the

evidence in evaluating the expert‟s opinion. It has long been the rule that an

expert may not “ „under the guise of reasons [for an opinion] bring before the jury

incompetent hearsay evidence.‟ ” (Coleman, supra, 38 Cal.3d at p. 92.) Courts

created a two-pronged approach to balancing “an expert‟s need to consider

extrajudicial matters, and a jury‟s need for information sufficient to evaluate an

expert opinion” so as not to “conflict with an accused‟s interest in avoiding

substantive use of unreliable hearsay.” (People v. Montiel (1993) 5 Cal.4th 877,

919 (Montiel).) The Montiel court opined that “[m]ost often, hearsay problems

will be cured by an instruction that matters admitted through an expert go only to

the basis of his opinion and should not be considered for their truth. [Citation.] [¶]

Sometimes a limiting instruction may not be enough. In such cases, Evidence

Code section 352 authorizes the court to exclude from an expert‟s testimony any

hearsay matter whose irrelevance, unreliability, or potential for prejudice


outweighs its proper probative value. [Citation.]” (Ibid., citing Coleman, supra,

38 Cal.3d at pp. 91-93.) Thus, under this paradigm, there was no longer a need to

carefully distinguish between an expert‟s testimony regarding background

information and case-specific facts. The inquiry instead turned on whether the

jury could properly follow the court‟s limiting instruction in light of the nature and

amount of the out-of-court statements admitted. For the reasons discussed below,

we conclude this paradigm is no longer tenable because an expert‟s testimony

regarding the basis for an opinion must be considered for its truth by the jury.

C. Crawford, Hearsay, and Expert Testimony

The admission of expert testimony is governed not only by state evidence

law, but also by the Sixth Amendment‟s Confrontation Clause, which provides

that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” (U.S. Const., 6th Amend.) As the

United States Supreme Court observed, “this bedrock procedural guarantee applies

to both federal and state prosecutions.” (Crawford, supra, 541 U.S. at p. 42; see

Pointer v. Texas (1965) 380 U.S. 400, 406.) “ „The main and essential purpose of

confrontation is to secure for the opponent the opportunity of cross-

examination.‟ ” (Davis v. Alaska (1974) 415 U.S. 308, 315-316.) “Cross-

examination is the principal means by which the believability of a witness and the

truth of his testimony are tested.” (Id. at p. 316.)

Under previous United States Supreme Court precedent, the admission of

hearsay did not violate the right to confrontation if it bore “adequate „indicia of

reliability.‟ Reliability can be inferred without more in a case where the evidence

falls within a firmly rooted hearsay exception. In other cases, the evidence must

be excluded, at least absent a showing of particularized guarantees of

trustworthiness.” (Ohio v. Roberts (1980) 448 U.S. 56, 66.) Crawford overturned


the Roberts rule. Crawford clarified that a mere showing of hearsay reliability

was insufficient to satisfy the confrontation clause. “To be sure, the Clause‟s

ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a

substantive guarantee. . . . [¶] The Roberts test allows a jury to hear evidence,

untested by the adversary process, based on a mere judicial determination of

reliability. It thus replaces the constitutionally prescribed method of assessing

reliability with a wholly foreign one.” (Crawford, supra, 541 U.S. at pp. 61-62.)

Under Crawford, if an exception was not recognized at the time of the Sixth

Amendment‟s adoption (see Crawford, at p. 56, fn. 6), admission of testimonial

hearsay against a criminal defendant violates the confrontation clause unless (1)

the declarant is unavailable to testify and (2) the defendant had a previous

opportunity to cross-examine the witness or forfeited the right by his own

wrongdoing. (Id. at pp. 62, 68; see Giles v. California (2008) 554 U.S. 353, 357-


In light of our hearsay rules and Crawford, a court addressing the

admissibility of out-of-court statements must engage in a two-step analysis. The

first step is a traditional hearsay inquiry: Is the statement one made out of court; is

it offered to prove the truth of the facts it asserts; and does it fall under a hearsay

exception? If a hearsay statement is being offered by the prosecution in a criminal

case, and the Crawford limitations of unavailability, as well as cross-examination

or forfeiture, are not satisfied, a second analytical step is required. Admission of


Because Crawford is based on the Sixth Amendment right to confrontation,

its rule has not been extended to civil proceedings or circumstances in which
hearsay is offered by an accused in his own defense. Neither we nor the high court
has had occasion to consider the rule when a defendant offers hearsay that may
work to the detriment of a codefendant.


such a statement violates the right to confrontation if the statement is testimonial

hearsay, as the high court defines that term.

We turn first to the general hearsay inquiry. As discussed, some courts

have attempted to avoid hearsay issues by concluding that statements related by

experts are not hearsay because they “go only to the basis of [the expert‟s] opinion

and should not be considered for their truth.” (Montiel, supra, 5 Cal.4th at p. 919;

see Coleman, supra, 38 Cal.3d at p. 92.) If statements related by experts as bases

for their opinions are not admitted for their truth, they are not hearsay. Neither the

hearsay doctrine nor the confrontation clause is implicated when an out-of-court

statement is not received to prove the truth of a fact it asserts. (See Crawford,

supra, 541 U.S. at p. 59, fn. 9; Tennessee v. Street (1985) 471 U.S. 409, 413-414.)

In the context of a confrontation challenge to the admission of certain

expert “basis” testimony, the high court addressed the not-for-the-truth rationale in

Williams v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221] (Williams). Williams was

a rape prosecution in which the identity of the attacker was disputed. Semen

samples were collected from the rape victim and sent to a Cellmark laboratory for

DNA analysis. (Id. at p. __ [132 S.Ct. at p. 2229].) Cellmark produced a DNA

profile purporting to be an accurate profile of the unknown semen donor.

Independent of the rape investigation, a sample of Williams‟s DNA had been

acquired and entered in the state‟s database. That “known” sample from Williams

was tested and a profile produced. (Ibid.) At trial, a prosecution expert testified

that she compared Williams‟s known profile to the Cellmark profile and, in her

opinion, they matched. Williams objected that the Cellmark results, related to the


factfinder by the expert,7 constituted hearsay because they were out-of-court

statements by the report writer and were offered to prove their truth: that the

profile was, indeed, an accurate profile of the man who committed the rape for

which Williams was being tried.

Considering the hearsay question, a four-member plurality of the Williams

court concluded statements in the Cellmark report were not admitted for their

truth, but only to allow the judge, sitting as factfinder, to evaluate the testimony of

the expert who opined that the two profiles matched. (Williams, supra, 567 U.S.

at p. __ [132 S.Ct. at pp. 2240-2241] [plur. opn. of Alito, J.].) The plurality

acknowledged that the prosecution expert “lacked personal knowledge that the

profile produced by Cellmark was based on the vaginal swabs taken from the

victim,” but reasoned the expert was testifying in the manner of a hypothetical

question and any linkage between the sample from the victim to the DNA profile

created by Cellmark “was a mere premise of the prosecutor‟s question, and [the

expert] simply assumed that premise to be true when she gave her answer

indicating that there was a match between the two DNA profiles. There is no

reason to think that the trier of fact took [the expert‟s] answer as substantive

evidence to establish where the DNA profiles came from.” (Id. at p. __ [132 S.Ct.

at p. 2236].)

Five justices, the four-member dissent and Justice Thomas writing

separately, specifically rejected this approach. In doing so, they called into

question the continuing validity of relying on a not-for-the-truth analysis in the

expert witness context. Justice Thomas observed that the expert relied upon, as


Williams involved a bench trial. The Cellmark report itself was not

admitted into evidence. The expert witness was not a Cellmark employee.
(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2231].)


substantive evidence, Cellmark‟s representation that, in fact, the sample it tested

was that taken from the victim: “[The prosecution expert] opined that petitioner‟s

DNA profile matched the male profile derived from [the victim‟s] vaginal swabs.

In reaching that conclusion, [the expert] relied on Cellmark‟s out-of-court

statements that the profile it reported was in fact derived from [the victim‟s]

swabs, rather than from some other source. Thus, the validity of [the expert’s]

opinion ultimately turned on the truth of Cellmark’s statements. The plurality‟s

assertion that Cellmark‟s statements were merely relayed to explain „the

assumptions on which [the expert‟s] opinion rest[ed],‟ [citation], overlooks that

the value of [the expert‟s] testimony depended on the truth of those very

assumptions.” (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2258] [conc.

opn. of Thomas, J.], italics added.)8)

The dissent also identified another hearsay problem. In addition to

asserting that there was a link between the victim‟s sample and the Cellmark

profile, the expert also asserted, as fact, that the Cellmark test was reliable:

“Nothing in [the expert‟s] testimony indicates that she was making an assumption

or considering a hypothesis. To the contrary, [the expert] affirmed, without

qualification, that the Cellmark report showed a „male DNA profile found in

semen from the vaginal swabs of [the victim].‟ [Citation.] Had she done

otherwise, this case would be different. There was nothing wrong with [the

expert‟s] testifying that two DNA profiles—the one shown in the Cellmark report

and the one derived from Williams‟s blood—matched each other; that was a


Justice Thomas concurred in the judgment because he agreed that the

Cellmark report was not testimonial due to its lack of sufficient formality.
(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at pp. 2259-2260] [conc. opn. of
Thomas, J.]; see discussion post, at pp. 32-33.)


straightforward application of [her] expertise. Similarly, [the expert] could have

added that if the Cellmark report resulted from scientifically sound testing of [the

victim‟s] vaginal swab, then it would link Williams to the assault. What [the

expert] could not do was what she did: indicate that the Cellmark report was

produced in this way by saying that [the victim‟s] vaginal swab contained DNA

matching Williams‟s.” (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2270]

[dis. opn. of Kagan, J.], fn. omitted.)

This reasoning points out the flaw in the not-for-the-truth limitation when

applied to case-specific facts. When an expert relies on hearsay to provide case-

specific facts, considers the statements as true, and relates them to the jury as a

reliable basis for the expert‟s opinion, it cannot logically be asserted that the

hearsay content is not offered for its truth. In such a case, “the validity of [the

expert‟s] opinion ultimately turn[s] on the truth” (Williams, supra, 567 U.S. at p.

__ [132 S.Ct. at p. 2258] [conc. opn. of Thomas, J.].) of the hearsay statement. If

the hearsay that the expert relies on and treats as true is not true, an important

basis for the opinion is lacking. In Williams, the expert‟s opinion that the

Cellmark profile matched the defendant‟s known profile could not prove that

Williams was the semen donor unless the Cellmark profile was, in truth, linked to

the victim and was scientifically accurate. Relevant evidence is that which has a

“tendency in reason to prove or disprove any disputed fact that is of consequence

to the determination of the action.” (Evid. Code, § 210.) If the hearsay statements

about the linkage and accuracy of the Cellmark profile were not true, the fact that

the two profiles matched would have been irrelevant. That is, the fact that they

matched could not have had a tendency in reason to prove the disputed fact of the

rapist‟s identity.

The reasoning of a majority of justices in Williams calls into question the

premise that expert testimony giving case-specific information does not relate


hearsay. In the context of a sufficiency of the evidence claim in a gang case,

People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) pointed to established law

that “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.” (Id.

at p. 619.) However, Gardeley endorsed evidentiary rules allowing a gang expert

to rely upon, and testify to, “conversations with the defendants and with other

Family Crip members, his personal investigations of hundreds of crimes

committed by gang members, as well as information from his colleagues and

various law enforcement agencies.” (Id. at p. 620.) As generally described in

Gardeley, some of that testimony would be based on the expert‟s own knowledge

and investigation, thus admissible as personal knowledge. Some might be

generally accepted background information, admissible under the latitude afforded

experts. But some might relate case-specific hearsay, and thus be inadmissible.

Courts, both before and after Gardeley, have applied similar reasoning to allow

gang expert testimony. Gardeley‟s reasoning that such expert testimony is not

admitted for its truth has also been cited in rejecting confrontation challenges to

such testimony. (See, e.g. People v. Sisneros (2009) 174 Cal.App.4th 142, 153-

154, and cases cited therein; see also People v. Hill (2011) 191 Cal.App.4th 1104,

1129-1131 [criticizing Gardeley but following it].)9


There may be times when an expert does not rely on the truth of a statement

when reaching his opinion. For example, an expert may learn that a gang member
falsely claimed to have committed a crime to shield an associate from guilt. The
expert might conclude that conduct was an example of expected gang loyalty. In
such a case the expert could relate the content of the statement and would not be
reciting hearsay because the statement would not be offered to prove the speaker
did the deed. There may also be times, in a wide variety of cases, when the fact
that a statement was made is relevant, regardless of whether the statement was


We find persuasive the reasoning of a majority of justices in Williams.10

When an expert is not testifying in the form of a proper hypothetical question and

no other evidence of the case-specific facts presented has or will be admitted, there

is no denying that such facts are being considered by the expert, and offered to the

jury, as true. Indeed, the jury here was given a standard instruction that it “must

decide whether information on which the expert relied was true and accurate.”

(CALCRIM No. 332 [Expert Witness Testimony].) Without independent

competent proof of those case-specific facts, the jury simply had no basis from

which to draw such a conclusion. The court also confusingly instructed the jury

that the gang expert‟s testimony concerning “the statements by the defendant,

police reports, F.I. cards, STEP notices, and speaking to other officers or gang

members” should not be considered “proof that the information contained in those

statements was true.” Jurors cannot logically follow these conflicting instructions.

They cannot decide whether the information relied on by the expert “was true and

accurate” without considering whether the specific evidence identified by the

instruction, and upon which the expert based his opinion, was also true. “To admit

basis testimony for the nonhearsay purpose of jury evaluation of the experts is . . .

to ignore the reality that jury evaluation of the expert requires a direct assessment

of the truth of the expert‟s basis.” (Kaye et al., The New Wigmore: Expert

Evidence, supra, § 4.7.2, pp. 179-180; see Williams, supra, 567 U.S. at p. __ [132

S.Ct. at pp. 2268-2269] [dis. opn. of Kagan, J.].)


Other courts have likewise found persuasive the reasoning of a majority of

justices in Williams that expert basis testimony is admitted for its truth. (See, e.g.,
State v. Navarette (N.M. 2013) 294 P.3d 435, 439; Young v. U.S. (D.C. 2013) 63
A.3d 1033, 1047, fn. 53; Com. v. Greineder (Mass. 2013) 464 Mass. 580, 592.)


Once we recognize that the jury must consider expert basis testimony for its

truth in order to evaluate the expert‟s opinion, hearsay and confrontation problems

cannot be avoided by giving a limiting instruction that such testimony should not

be considered for its truth. If an expert testifies to case-specific out-of-court

statements to explain the bases for his opinion, those statements are necessarily

considered by the jury for their truth, thus rendering them hearsay. Like any other

hearsay evidence, it must be properly admitted through an applicable hearsay

exception.11 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.

In the present case, when the gang expert testified to case-specific facts

based upon out-of-court statements and asserted those facts were true because he

relied upon their truth in forming his opinion, he was reciting hearsay. Ordinarily,

an improper admission of hearsay would constitute statutory error under the

Evidence Code. Under Crawford, however, if that hearsay was testimonial and

Crawford‟s exceptions did not apply, defendant should have been given the

opportunity to cross-examine the declarant or the evidence should have been

excluded.12 Improper admission of such prosecution evidence would also be an

error of federal constitutional magnitude.

Our decision does not call into question the propriety of an expert‟s

testimony concerning background information regarding his knowledge and

expertise and premises generally accepted in his field. Indeed, an expert‟s


As noted, ante, multiple levels of hearsay must each fall within an

applicable hearsay exception. (Riccardi, supra, 54 Cal.4th at p. 831.)

The People made no showing that the various declarants were unavailable,

nor do they argue that defendant forfeited his confrontation rights by any


background knowledge and experience is what distinguishes him from a lay

witness, and, as noted, testimony relating such background information has never

been subject to exclusion as hearsay, even though offered for its truth. Thus, our

decision does not affect the traditional latitude granted to experts to describe

background information and knowledge in the area of his expertise. Our

conclusion restores the traditional distinction between an expert‟s testimony

regarding background information and case-specific facts.

The Attorney General relies on “practical considerations” to support a

contrary conclusion. The argument misses the mark. The Attorney General urges

that excluding the content of testimonial hearsay would greatly hamper experts

from giving opinions about gangs. The argument sweeps too broadly. Gang

experts, like all others, can rely on background information accepted in their field

of expertise under the traditional latitude given by the Evidence Code. They can

rely on information within their personal knowledge, and they can give an opinion

based on a hypothetical including case-specific facts that are properly proven.

They may also rely on nontestimonial hearsay properly admitted under a statutory

hearsay exception. What they cannot do is present, as facts, the content of

testimonial hearsay statements. “[T]he confrontation clause is concerned solely

with hearsay statements that are testimonial, in that they are out-of-court analogs,

in purpose and form, of the testimony given by witnesses at trial.” (People v.

Cage (2007) 40 Cal.4th 965, 984 (Cage).) Thus, only when a prosecution expert

relies upon, and relates as true, a testimonial statement would the fact asserted as

true have to be independently proven to satisfy the Sixth Amendment.

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. A jury may repose greater confidence in an expert

who relies upon well-established scientific principles. It may accord less weight

to the views of an expert who relies on a single article from an obscure journal or

on a lone experiment whose results cannot be replicated. There is a distinction to

be made between allowing an expert to describe the type or source of the matter

relied upon as opposed to presenting, as fact, case-specific hearsay that does not

otherwise fall under a statutory exception.

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. It may be true that merely telling the jury

the expert relied on additional kinds of information that the expert only generally

describes may do less to bolster the weight of the opinion. The answer to this

reality is twofold. First, the argument confirms that the proffered case-specific

hearsay assertions are being offered for their truth. The expert is essentially

telling the jury: “You should accept my opinion because it is reliable in light of

these facts on which I rely.” Second, in a criminal prosecution, while Crawford

and its progeny may complicate some heretofore accepted evidentiary rules, they

do so under the compulsion of a constitutional mandate as established by binding

Supreme Court precedent.

In sum, we adopt the following rule: When any expert relates to the jury

case-specific out-of-court statements, and treats the content of those statements as

true and accurate to support the expert‟s opinion, the statements are hearsay. It

cannot logically be maintained that the statements are not being admitted for their

truth.13 If the case is one in which a prosecution expert seeks to relate testimonial


We disapprove our prior decisions concluding that an expert‟s basis

testimony is not offered for its truth, or that a limiting instruction, coupled with a

(footnote continued on next page)


hearsay, there is a confrontation clause violation unless (1) there is a showing of

unavailability and (2) the defendant had a prior opportunity for cross-examination,

or forfeited that right by wrongdoing.

D. Testimonial Nature of the Statements in This Case

1. Legal Background

That holding brings us to the second prong of the analysis in this criminal

case. If an out-of-court statement is hearsay because it is being offered for the

truth of the facts it asserts, is that statement testimonial hearsay? Throughout its

evolution of the Crawford doctrine, the high court has offered various

formulations of what makes a statement testimonial but has yet to provide a

definition of that term of art upon which a majority of justices agree. Crawford

itself provided no definition other than the term “testimonial” “applies at a

minimum to prior testimony at a preliminary hearing, before a grand jury, or at a

former trial; and to police interrogations. These are the modern practices with

closest kinship to the abuses at which the Confrontation Clause was directed.”

(Crawford, supra, 541 U.S. at p. 68.) Crawford described the historical abuses

leading to the adoption of the confrontation right, including the civil law practice

of “requir[ing] justices of the peace to examine suspects and witnesses in felony

(footnote continued from previous page)

trial court‟s evaluation of the potential prejudicial impact of the evidence under
Evidence Code section 352, sufficiently addresses hearsay and confrontation
concerns. (See, e.g., People v. Bell (2007) 40 Cal.4th 582, 608; People v. Montiel,
5 Cal.4th at pp. 918-919; People v. Ainsworth (1988) 45 Cal.3d 984, 1012;
People v. Milner (1988) 45 Cal.3d 227, 238-240; People v. Coleman, supra, 38
Cal.3d at pp. 91-93.) We also disapprove People v. Gardeley, supra, 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.


cases and to certify the results to the court,” which “came to be used as evidence

in some cases.” (Id. at p. 44.) Crawford clarified that “the principal evil at which

the Confrontation Clause was directed was the civil-law mode of criminal

procedure, and particularly its use of ex parte examinations as evidence against the

accused.” (Id. at p. 50.)

Crawford was prosecuted for stabbing a man who allegedly tried to rape his

wife. After Crawford‟s arrest, both he and his wife were interviewed by police at

the stationhouse. The wife did not testify but the court admitted her statements

about the stabbing. Crawford concluded that “[s]tatements taken by police

officers in the course of interrogations are . . . testimonial under even a narrow

standard.” (Crawford, supra, 541 U.S. at p. 52.) Even if the interviews were not

given under oath, if officers conducting them acted like the fact-collecting justices

of the peace, the content of their reports was testimonial.

As the Crawford doctrine evolved, the court concluded that not all

statements made in response to police questioning would constitute testimonial

hearsay. In Davis v. Washington (2006) 547 U.S. 813 (Davis), the first of two

companion cases (No. 05-5224), a woman called 911 seeking help because her

boyfriend was in the process of beating her. The caller did not testify but her

hearsay statements to the dispatcher were admitted in Davis‟s subsequent trial.

The court concluded that even though the statements were made to a police

employee, and some were made in response to the dispatcher‟s questions, the

caller‟s statements were not testimonial. In doing so, the high court articulated a

test based on the “primary purpose” for which the statements are made.

“Statements are nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate that there is no such


ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.”

(Id. at p. 822, italics added.) The Davis court concluded the statements were not

testimonial because “the circumstances of [the] interrogation objectively indicate

its primary purpose was to enable police assistance to meet an ongoing

emergency.” (Id. at p. 828.)

The Davis holding was set out in contrast to its companion case, Hammon

v. Indiana (No. 05-5705) (Hammon). In Hammon, police were sent to a home

following a report of domestic violence. They were met by Mrs. Hammon, who

initially reported that there had been no problem. When interviewed outside her

husband‟s presence, she acknowledged he had attacked her. An officer had her

“ „fill out and sign a battery affidavit‟ ” describing the assault. (Davis, supra, 547

U.S. at p. 820.) Mrs. Hammon declined to testify at the subsequent bench trial but

the interviewing officer related her statements and “authenticate[d]” her signed

affidavit. (Ibid.) The high court concluded the statements were testimonial

hearsay. “It is entirely clear from the circumstances that the interrogation was part

of an investigation into possibly criminal past conduct” and “[t]here was no

emergency in progress . . . .” (Id. at p. 829.) Although acknowledging the in-the-

field interview was less formal than the station house questioning in Crawford, the

court nevertheless reasoned “[i]t was formal enough” and “[s]uch statements under

official interrogation are an obvious substitute for live testimony, because they do

precisely what a witness does on direct examination; they are inherently

testimonial.” (Id. at p. 830.)

Michigan v. Bryant (2011) 562 U.S. 344 (Bryant) repeated the principle

that a statement is testimonial if made “with a primary purpose of creating an out-

of-court substitute for trial testimony.” (Id. at p. 358.) There, in response to a

dispatch, officers came upon a badly injured shooting victim lying in a parking lot.


The victim answered questions about the circumstances, location, and perpetrator

of the shooting. The victim died and Bryant was charged with his murder. The

parking lot statements were admitted and the high court ruled they were not

testimonial. Bryant refined the “primary purpose” standard by emphasizing the

test is objective and takes into account the perspective of both questioner and

interviewee: “[T]he relevant inquiry is not the subjective or actual purpose of the

individuals involved in a particular encounter, but rather the purpose that

reasonable participants would have had, as ascertained from the individuals‟

statements and actions and the circumstances in which the encounter occurred.”

(Id. at p. 360.) In concluding the shooting victim‟s statements to police were

nontestimonial, Bryant observed that the officers‟ questioning of the victim was

objectively aimed at meeting an ongoing emergency. (Id. at pp. 374-376.) The

victim‟s responses indicated the shooter‟s whereabouts were unknown and there

was “no reason to think that the shooter would not shoot again if he arrived on the

scene.” (Id. at p. 377.) Finally, the court observed that the circumstances in which

the statements were made were far from formal. The scene was chaotic; the

victim was in distress; no signed statement was produced. (Ibid.; see People v.

Blacksher (2011) 52 Cal.4th 769, 816-818.)

A majority in Davis, Hammon, and Bryant adopted the distinguishing

principle of primary purpose. Testimonial statements are those made primarily to

memorialize facts relating to past criminal activity, which could be used like trial

testimony. Nontestimonial statements are those whose primary purpose is to deal

with an ongoing emergency or some other purpose unrelated to preserving facts

for later use at trial.14 It should be noted that Justice Thomas has consistently


In Bryant, the court noted, “there may be other circumstances, aside from

ongoing emergencies, when a statement is not procured with a primary purpose of

(footnote continued on next page)


rejected the primary purpose test. He criticized the test as being “not only

disconnected from history and unnecessary to prevent abuse” but also “yield[ing]

no predictable results to police officers and prosecutors attempting to comply with

the law.” (Davis, supra, 547 U.S. at p. 838 [conc. & dis. opn. of Thomas, J.].) He

reasoned that determining the primary purpose of a statement “requires

constructing a hierarchy of purpose that will rarely be present—and is not reliably

discernible. It will inevitably be, quite simply, an exercise in fiction.” (Id. at p.

839.) Instead of the primary purpose test, Justice Thomas has consistently applied

a test turning solely on whether the proffered statement was sufficiently formal to

resemble the disapproved civil law procedure reflected, inter alia, in the “Marian

statutes” that permitted use of an ex parte examination to establish facts. (See

Crawford, supra, 541 U.S. at pp. 50-53.) In Davis, Justice Thomas described the

degree of formality required as questioning resulting from a “formalized dialogue”

or the taking of statements “sufficiently formal to resemble the Marian

examinations” (Davis, at p. 840) but not “a mere conversation between a witness

or suspect and a police officer” (id. at p. 838). (See Williams, supra, 567 U.S. at

p. __ [132 S.Ct. at pp. 2259-2261] [conc. opn. of Thomas, J.]; Bryant, supra, 562

U.S. at pp. 378-379 [conc. opn. of Thomas, J.].)15

(footnote continued from previous page)

creating an out-of-court substitute for trial testimony.” (Bryant, supra, 562 U.S. at
p. 358.) The existence of an ongoing emergency “is not the touchstone of the
testimonial inquiry” (id. at p. 374) but is “simply one factor . . . that informs the
ultimate inquiry regarding the „primary purpose‟ of an interrogation” (id. at p.

Justice Thomas would also exclude under the confrontation clause

“technically informal statements when used to evade the formalized process.”
(Davis, supra, 547 U.S. at p. 838 [conc. & dis. opn. of Thomas, J.].)


The high court stepped beyond the realm of police questioning and applied

Crawford to scientific test results in Melendez-Diaz v. Massachusetts (2009) 557

U.S. 305 (Melendez-Diaz), and Bullcoming v. New Mexico (2011) 564 U.S. 647

(Bullcoming). In Melendez-Diaz, crime lab analysts prepared documents

certifying that a sample of material recovered from the defendant was tested and

determined to contain an illegal drug. The certificates were sworn to before a

notary public, as required by state law, and admitted at trial in lieu of the analyst‟s

testimony. (Melendez-Diaz, at p. 308.) The high court reasoned the certificates

“are quite plainly affidavits” (id. at p. 310) and “are functionally identical to live,

in-court testimony, doing „precisely what a witness does on direct examination‟ ”

(id. at pp. 310-311). The court concluded: “[U]nder our decision in Crawford the

analysts‟ affidavits were testimonial statements, and the analysts were „witnesses‟

for purposes of the Sixth Amendment.” (Id. at p. 311.)

In Bullcoming, an analyst tested the blood sample of an alleged drunk

driver. In his lab report, the analyst attested he performed the test using normal

protocol and signed the report. The report was admitted into evidence through a

surrogate analyst “who was familiar with the laboratory‟s testing procedures, but

had neither participated in nor observed the test on Bullcoming‟s blood sample.”

(Bullcoming, supra, 564 U.S. at p. 651.) Bullcoming rejected the argument that an

opportunity to cross-examine the surrogate analyst satisfied Crawford and

Melendez-Diaz. Bullcoming noted that the testing analyst reported several facts

relating to past events and human actions rather than machine-produced data.16

The analyst‟s statements were “meet for cross-examination” (id. at p. 660), yet the


As we have noted, “Only people can make hearsay statements; machines

cannot.” (People v. Leon (2015) 61 Cal.4th 569, 603; see People v. Goldsmith
(2014) 59 Cal.4th 258, 274.)


“surrogate testimony . . . could not convey what [the analyst] knew or observed

about the events his certification concerned, i.e., the particular test and testing

process [the analyst] employed. Nor could such surrogate testimony expose any

lapses or lies on the certifying analyst‟s part” (id. at pp. 661-662). Bullcoming

also rejected the claim that the lab report was nontestimonial. Even though the

report was not a formal affidavit, as in Melendez-Diaz, it was a sufficiently formal

and official document “created solely for an „evidentiary purpose,‟ . . . made in aid

of a police investigation, [and so] ranks as testimonial.” (Id. at p. 664.)

The next case in the evolution of the doctrine was Williams. As an

alternative to its not-for-the-truth hearsay analysis,17 the plurality modified the

“primary purpose” testimonial test by reasoning the Cellmark report “was not

prepared for the primary purpose of accusing a targeted individual.” (Williams,

supra, 567 U.S. at p. __ [132 S.Ct. at p. 2243] [plur. opn. of Alito, J.], italics

added.) The Williams plurality stated: “[T]he primary purpose of the Cellmark

report, viewed objectively, was not to accuse petitioner or to create evidence for

use at trial. When the [police] lab sent the sample to Cellmark, its primary

purpose was to catch a dangerous rapist who was still at large, not to obtain

evidence for use against petitioner, who was neither in custody nor under

suspicion at that time. Similarly, no one at Cellmark could have possibly known

that the profile that it produced would turn out to inculpate petitioner—or for that

matter, anyone else whose DNA profile was in a law enforcement database.

Under these circumstances, there was no „prospect of fabrication‟ and no incentive

to produce anything other than a scientifically sound and reliable profile.” (132

S.Ct. at pp. 2243-2244, italics added.)


See discussion, ante, at pages 16-19.


Both Justice Thomas‟s concurrence and the dissent criticized the plurality‟s

expansion of the primary purpose test. Justice Thomas objected that the

plurality‟s “reformulated” primary purpose test “lacks any grounding in

constitutional text, in history, or in logic.” (Williams, supra, 567 U.S. at p. __

[132 S.Ct. at p. 2262] [conc. opn. of Thomas, J.].) The four dissenters agreed

there was “no basis in our precedents” for the new test. (132 S.Ct. at p. 2273 .dis.

opn. of Kagan, J.].) Justice Thomas reasoned in part that “a declarant could

become a „witnes[s]‟ before the accused‟s identity was known.” (Id. at p. 2262

[conc. opn. of Thomas, J.].) Similarly, the dissent observed that “the typical

problem with laboratory analyses—and the typical focus of cross-examination—

has to do with careless or incompetent work, rather than with personal vendettas.

And as to that predominant concern, it makes not a whit of difference whether, at

the time of the laboratory test, the police already have a suspect.” (Id. at p. 2274

[dis. opn. of Kagan, J.], fn. omitted.) Both the concurrence and dissent also

criticized the plurality‟s conclusion that an emergency existed because the test was

done “to catch a dangerous rapist who was still at large.” (Id. at p. 2243 [plur.

opn. of Alito, J.].) The separate opinions noted the DNA testing was conducted

several months after the rape. (See id. at p. 2263 [conc. opn. of Thomas, J.]; id. at

p. 2274 [dis. opn. of Kagan, J.].) The dissent would have concluded the Cellmark

report was testimonial under the reasoning of Melendez-Diaz and Bullcoming. (Id.

at p. 2277 [dis. opn. of Kagan, J.].)

While Justice Thomas agreed with the plurality that the report was not

testimonial, he did so on the narrow ground that the statement was not sufficiently

formal. The report lacked “the solemnity of an affidavit or deposition, for it is

neither a sworn nor a certified declaration of fact,” and also did not “attest that its

statements accurately reflect the DNA testing processes used or the results

obtained.” (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2260] [conc. opn.


of Thomas, J.].) He also reasoned “it was not the product of any sort of

formalized dialogue resembling custodial interrogation.” (Ibid.)

Our court applied Williams in the companion cases of People v. Lopez

(2012) 55 Cal.4th 569 (Lopez), and People v. Dungo (2012) 55 Cal.4th 608

(Dungo).18 Lopez involved a vehicular manslaughter prosecution. A criminalist,

Willey, testified that a colleague from his lab, Pena, had analyzed a sample of the

defendant‟s blood and concluded the blood-alcohol level was 0.09 percent. Willey

was familiar with the procedures Pena used and, “based on his own „separate

abilities as a criminal analyst,‟ he too concluded that the blood-alcohol

concentration in defendant‟s blood sample was 0.09 percent.” (Lopez, at p. 574.)

Pena‟s report was admitted into evidence. (Ibid.)

The majority opinion concluded Pena‟s report was not testimonial because

it was insufficiently formal. (Lopez, supra, 55 Cal.4th at pp. 582-585.) Two

concurrences also received majority support. The first agreed the report was not

testimonial, but also reasoned that the testimony at issue did not fall within “a fair

and practical boundary for applying the confrontation clause.” (Id. at p. 586

[conc. opn. of Werdegar, J.].) “The demands of the confrontation clause were

properly satisfied in this case by calling a well-qualified expert witness to the

stand, available for cross-examination, who could testify to the means by which

the critical instrument-generated data was produced and could interpret those data

for the jury, giving his own, independent opinion as to the level of alcohol in

defendant‟s blood sample.” (Id. at p. 587 [conc. opn. of Werdegar, J.].) The


We also decided a third case, People v. Rutterschmidt (2012) 55 Cal.4th

650, which involved a confrontation claim against a lab director‟s testimony about
a test he did not conduct. We concluded the testimony was harmless beyond a
reasonable doubt without deciding whether its admission was proper. (Id. at p.


second concurrence characterized the chain-of-custody notations in Pena‟s report

as nontestimonial business records whose primary purpose was to facilitate

laboratory operations, not to produce facts for later use at trial. (Id. at pp. 587-590

[conc. opn. of Corrigan, J.].)

Dungo more directly addressed the testimony of an expert witness. That

case involved a murder prosecution in which the autopsy surgeon, Dr. Bolduc, was

not called as a witness. Instead, pathologist Lawrence testified, relying on

Bolduc‟s autopsy report and photographs. Lawrence opined the victim had been

strangled, basing his opinion on factual observations noted in Bolduc‟s autopsy

report, such as the presence of hemorrhaging in the neck and eyes, the purple color

of her skin, the presence of an intact hyoid bone, and the fact that the victim had

bitten her tongue shortly before death. (Dungo, supra, 55 Cal.4th at p. 614.)

Neither Bolduc‟s report nor autopsy photos were admitted into evidence. (Id. at p.


The Dungo majority concluded the objective facts contained in an autopsy

report were not sufficiently formal to be testimonial. (Dungo, supra, 55 Cal.4th at

p. 619 [maj. opn. of Kennard, J.].) The majority also concluded the primary

purpose of recording such facts was not to preserve evidence for a criminal

prosecution. Instead, producing evidence “was only one of several purposes.” (Id.

at p. 621.) The first concurrence, which also garnered a majority, expanded on

these points. With respect to formality, Justice Werdegar reasoned, “The process

of systematically examining the decedent‟s body and recording the resulting

observations is thus one governed primarily by medical standards rather than by

legal requirements of formality or solemnity.” (Id. at p. 624 [conc. opn. of

Werdegar, J.].) She also observed that because coroners have a statutory duty to

determine cause of death regardless of whether a criminal investigation is ongoing,

“the nontestimonial aspects of these anatomical observations predominate over the


testimonial.” (Id. at p. 625.) A second concurrence, which likewise garnered a

majority, concluded the factual observations in the autopsy report were not

testimonial under the combined tests of the plurality and Justice Thomas in

Williams. As discussed, Justice Thomas did not join in the plurality‟s reasoning

but rested his concurrence on his narrower formality analysis. The second

concurrence in Dungo determined that, because the Dungo facts could satisfy both

the analyses of the Williams plurality and Justice Thomas, there was sufficient

high court precedent to uphold Dungo‟s conviction. (Dungo, at pp. 629-633

[conc. opn. of Chin, J.].)

The high court returned to the primary purpose test in Ohio v. Clark (2015)

576 U.S. __ [135 S.Ct. 2173] (Clark). Clark was tried for beating a three-year-old

boy, L.P. The child did not testify but the state presented evidence he told a

teacher that Clark had assaulted him. Clark concluded that “[b]ecause neither the

child nor his teachers had the primary purpose of assisting in Clark‟s prosecution,

the child‟s statements do not implicate the Confrontation Clause and therefore

were admissible at trial.” (135 S.Ct. at p. 2177.) The court also noted as an

“additional factor” the informality of the statements. (Id. at p. 2180.) The court

reasoned: “There is no indication that the primary purpose of the [teacher/child]

conversation was to gather evidence for Clark‟s prosecution. On the contrary, it is

clear that the first objective was to protect L.P. At no point did the teachers

inform L.P. that his answers would be used to arrest or punish his abuser. L.P.

never hinted that he intended his statements to be used by the police or

prosecutors. And the conversation between L.P. and his teachers was informal

and spontaneous. The teachers asked L.P. about his injuries immediately upon

discovering them, in the informal setting of a preschool lunchroom and classroom,

and they did so precisely as any concerned citizen would talk to a child who might

be the victim of abuse. This was nothing like the formalized station-house


questioning in Crawford or the police interrogation and battery affidavit in

Hammon.” (Id. at p. 2181.)19

2. These Police Reports Are Testimonial

As noted, Stow testified about defendant‟s five prior police contacts. He

learned about three of these solely through police reports: (1) on August 11, 2007,

defendant was standing nearby when his cousin was shot;20 (2) on December 30,

2007, defendant‟s companion, a known Delhi member, was shot; and (3) on

December 9, 2009, defendant was arrested with Delhi gang members in a garage

where drugs and firearms were found. These reports were not admitted into

evidence and are not part of the appellate record. However, Stow‟s testimony

reveals that these reports were compiled during police investigation of these

completed crimes. Stow relied upon, and related as true, these case-specific facts

from a narrative authored by an investigating officer. While less formal, these

reports are somewhat similar to the battery affidavit in Hammon. They relate

hearsay information gathered during an official investigation of a completed


When the People offer statements about a completed crime, made to an

investigating officer by a nontestifying witness, Crawford teaches those hearsay


In Clark, the high court discussed for the first time an issue it had

“repeatedly reserved,” i.e., “whether statements to persons other than law
enforcement officers are subject to the Confrontation Clause.” (Clark, supra, 576
U.S. at p. __ [135 S.Ct. at p. 2181].) The court “decline[d] to adopt a categorical
rule excluding them from the Sixth Amendment‟s reach” but noted “such
statements are much less likely to be testimonial than statements to law
enforcement officers.” (Ibid.) Accordingly, whether a statement was made by or
to a government investigating agent remains an important, but not dispositive, part
of the analysis.

This report contained a second level of hearsay: the cousin‟s statement to

the reporting officer.


statements are generally testimonial unless they are made in the context of an

ongoing emergency as in Davis and Bryant, or for some primary purpose other

than preserving facts for use at trial. Further, testimonial statements do not

become less so simply because an officer summarizes a verbatim statement or

compiles the descriptions of multiple witnesses. As the Davis court observed:

“[W]e do not think it conceivable that the protections of the Confrontation Clause

can readily be evaded by having a note-taking policeman recite the unsworn

hearsay testimony of the declarant, instead of having the declarant sign a

deposition. Indeed, if there is one point for which no case—English or early

American, state or federal—can be cited, that is it.” (Davis, supra, 547 U.S. at p.

826.) Citing Palmer v. Hoffman (1943) 318 U.S. 109, Melendez-Diaz reasoned:

“There we held that an accident report provided by an employee of a railroad

company did not qualify as a business record because, although kept in the regular

course of the railroad‟s operations, it was „calculated for use essentially in the

court, not in the business.‟ [Citation.] The analysts‟ certificates—like police

reports generated by law enforcement officials—do not qualify as business or

public records for precisely the same reason.” (Melendez-Diaz, supra, 557 U.S. at

pp. 321-322, italics added, fn. omitted.)21

Similarly, in rejecting the argument that testimony by a surrogate analyst

satisfied confrontation principles because the testing analyst merely recorded

objective facts, Bullcoming presented the following scenario: “Suppose a police


Business records are defined as writings made in the regular course of

business, at or near the time of the event, and created through sources of
information and a method of preparation reflecting its trustworthiness. (Evid.
Code, § 1271; see also Evid. Code, § 1280 [record by public employee].) When a
record is not made to facilitate business operations but, instead, is primarily
created for later use at trial, it does not qualify as a business record. (See Lopez,
55 Cal.4th at pp. 587-590 [conc. opn. of Corrigan, J.].)


report recorded an objective fact [such as an] address above the front door of a

house or the read-out of a radar gun. [Citation.] Could an officer other than the

one who saw the number on the house or gun present the information in court—so

long as that officer was equipped to testify about any technology the observing

officer deployed and the police department‟s standard operating procedures? As

our precedent makes plain, the answer is emphatically „No.‟ ” (Bullcoming, supra,

564 U.S. at p. __ [131 S.Ct. at pp. 2714-2715].)

Citing the expanded primary purpose test of the Williams plurality, the

Attorney General argues that the police reports regarding the two 2007 shootings

were not testimonial as to defendant because they did not accuse him of a crime.

He was merely a witness in those shootings and was “neither in custody nor under

suspicion at the time.”22 The argument overlooks the fact that the expanded test

created by the Williams plurality was expressly rejected by a majority of justices

in that case. (See Williams, supra, 567 U.S. at p. __ [132 S.Ct. at pp. 2261-2263

[conc. opn. of Thomas, J.]; 132 S.Ct. at pp. 2273-2274 [dis. opn. of Kagan, J.]].)

As those justices reasoned, the plurality‟s “targeted individual” addendum has no

basis in the language of the confrontation clause, its history, or post-Crawford


3. This STEP Notice Is Testimonial

Detective Stow also opined that defendant was a gang member based on the

retained portion of a STEP notice issued in June 2011. In the course of his

testimony, Stow related the content of statements made in the STEP notice. The

Attorney General argues that STEP notices are not testimonial because they are


The Attorney General appears to concede that the police report regarding

the December 9, 2009, incident, in which defendant was arrested in the garage,
was accusatory as to him.


not created for the primary purpose of producing evidence for later use at trial.

She notes a STEP notice may serve many purposes, including “a community

outreach effort to dissuade gang members and associates from continuing to

engage in gang behavior by apprising them of the potential penalties they faced if

they continued to do so.” Defendant counters that STEP notices are testimonial

because the issuing officer signs the notice under penalty of perjury and

memorializes any incriminating statements for future evidentiary use.23

It may be true that “[a] STEP notice informs suspected individuals that law

enforcement believes they associate with a criminal street gang.” (People v.

Sifuentes (2011) 195 Cal.App.4th 1410, 1414, fn. 1.) As Stow testified, a person

need not be engaged in any criminal activity to receive a STEP notice. Because

the giving of the notice has a community policing function designed to dissuade

future gang participation and criminal activity, the Attorney General argues the

notice is not produced for a primary purpose of establishing past facts at a future


However, the portion of the STEP notice relied upon by Stow was that part

retained by police. That portion recorded defendant‟s biographical information,

whom he was with, and what statements he made. It cannot be said that

defendant’s primary purpose in making the statements was to establish facts to be

later used against him or his companions at trial. However, it seems clear the

officer recorded the information for that purpose. If that were not the case, there

would appear to be no need for the issuing officer to swear to its accuracy. It also


It does not appear that Stow specifically testified an officer issuing a STEP

notice signs the notice or swears to its accuracy. However, the Attorney General
appears to agree that the STEP notice was “sworn by the officer under penalty of
perjury . . . .”


appears that another purpose of the STEP notice is its later use to prove that the

recipient had actually been made aware that he was associating with a criminal

street gang and that he might receive an enhanced punishment should he commit a

future crime with members of that gang.

As to formality, the notice is part of an official police form containing the

officer‟s sworn attestation that he issued the notice on a given date and that it

accurately reflected the attendant circumstances, including defendant‟s statements.

As such, the notice seems little different from the sworn attestation by the analyst

in Melendez-Diaz, and more formal than the unsworn report found testimonial in

Bullcoming. (See Bullcoming, supra, 564 U.S. at p. __ [131 S.Ct. at pp. 2710-

2711]; Melendez-Diaz, supra, 557 U.S. at pp. 308-311.)

The notice appears sufficiently formal to satisfy Justice Thomas‟s approach

as well. In his Williams concurrence, Justice Thomas concluded the Cellmark

report was not sufficiently formal to be testimonial. He reasoned the report was

“neither a sworn nor a certified declaration of fact” because it did not “attest that

its statements accurately reflect the DNA testing processes used or the results

obtained.” (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2260] [conc. opn.

of Thomas, J.].) Here the converse is true. The issuing officer made a sworn

declaration under penalty of perjury that the representations in the STEP notice

were true.

4. FI Cards May Be Testimonial

Finally, Detective Stow also related facts from an FI card reflecting a police

contact with defendant on December 4, 2009, while he was in the company of a

known Delhi member. The Attorney General argues the primary purpose of FI

cards is to gather information for “community policing efforts” and “potential civil

injunctions.” Defendant contends that the particular encounter memorialized in


the FI card occurred “ „during the course of the investigation‟ ” of defendant‟s

December 9, 2009, arrest for drug possession. Because the card was “produced”

during that later investigation, defendant asserts its primary purpose was

evidentiary, rendering it testimonial.

As defendant suggests, Stow‟s testimony regarding the origins of the FI

card here was confusing. On cross-examination, Stow acknowledged he did not

fill out the card. Defense counsel inquired how Stow could verify the FI card was

accurate if he was not there when it was produced. Stow responded: “Well, there

is also a police report that supports it. That F.I. was written during the course of

the investigation of his ’09 arrest.” (Italics added.)

If the card was produced in the course of an ongoing criminal investigation,

it would be more akin to a police report, rendering it testimonial. Because the

parties did not focus on this issue, the point was not properly clarified, leaving the

circumstances surrounding the preparation of the FI card unclear. We need not

decide here whether the content of this FI card was testimonial. Even assuming it

was not, for the reasons discussed below, we conclude that Stow‟s testimony

based on the police reports and STEP notice was prejudicial.

5. Harmless Error

As noted, improper admission of hearsay may constitute state law statutory

error. Here, however, much of the hearsay was testimonial. Accordingly,

defendant contends that because the confrontation violation prejudiced him with

respect to the gang enhancement, the enhancement must be stricken. The Attorney

General argues that any confrontation error was harmless beyond a reasonable

doubt. (See People v. Capistrano (2014) 59 Cal.4th 830, 874; Lopez, supra, 55

Cal.4th at p. 585; Cage, supra, 40 Cal.4th at p. 979, fn. 8.) Determining prejudice


requires an examination of the elements of the gang enhancement and the gang

expert‟s specific testimony.

The gang enhancement applies to one who commits a felony “for the

benefit of, at the direction of, or in association with any criminal street gang, with

the specific intent to promote, further, or assist in any criminal conduct by gang

members.” (Pen. Code, § 186.22, subd. (b)(1).) “In addition, the prosecution

must prove that the gang (1) is an ongoing association of three or more persons

with a common name or common identifying sign or symbol; (2) has as one of its

primary activities the commission of one or more of the criminal acts enumerated

in the statute; and (3) includes members who either individually or collectively

have engaged in a „pattern of criminal gang activity‟ by committing, attempting to

commit, or soliciting two or more of the enumerated offenses (the so-called

„predicate offenses‟) during the statutorily defined period.” (Gardeley, supra, 14

Cal.4th at p. 617, italics omitted; see People v. Hernandez (2004) 33 Cal.4th 1040,


Defendant raises no confrontation claim against Detective Stow‟s

background testimony about general gang behavior or descriptions of the Delhi

gang‟s conduct and its territory. This testimony was based on well-recognized

sources in Stow‟s area of expertise. It was relevant and admissible evidence as to

the Delhi gang‟s history and general operations.

However, Stow‟s case-specific testimony as to defendant‟s police contacts

was relied on to prove defendant‟s intent to benefit the Delhi gang when

committing the underlying crimes to which the gang enhancement was attached.

Stow recounted facts contained in the police reports and STEP notice to establish

defendant‟s Delhi membership. While gang membership is not an element of the

gang enhancement (People v. Valdez (2012) 55 Cal.4th 82, 132), evidence of

defendant‟s membership and commission of crimes in Delhi‟s territory bolstered


the prosecution‟s theory that he acted with intent to benefit his gang, an element it

was required to prove.

The Attorney General argues any confrontation violation was harmless

because it was uncontradicted that Delhi is a street gang whose primary activities

include drug sales and illegal weapons possession. This assertion may be true, but

the great majority of evidence that defendant associated with Delhi and acted with

intent to promote its criminal conduct was Stow‟s description of defendant‟s prior

police contacts reciting facts from police reports and the STEP notice. The

Attorney General observes that, when arrested for the charged offenses, defendant

possessed several bindles of drugs and an illegal firearm, reflecting the same

activities as the gang‟s. Further, Stow testified that no one could sell drugs in

gang territory without paying a tax to the gang. If defendant was selling drugs in

Delhi territory, he could not have done so without paying a tax, which would have

shown he acted with intent to benefit the gang regardless of whether he was a

member. Thus, the Attorney General urges, “Detective Stow‟s testimony

regarding appellant‟s five prior contacts was mere surplusage.”

These arguments are unconvincing. Excluding Stow‟s case-specific

hearsay testimony, the facts of defendant‟s underlying crimes revealed that, acting

alone, he possessed drugs for sale along with a weapon to facilitate that enterprise.

Stow provided general and admissible evidence that if a nonmember sold drugs in

a gang‟s territory and failed to pay a tax, that person risked gang retaliation.

However, contrary to the Attorney General‟s claim, one cannot deduce, merely

from this evidence, that when defendant possessed drugs for sale in Delhi territory,

he was associated with the gang, would pay a tax, or intended to “promote, further,

or assist in any criminal conduct by gang members.” (Pen. Code, § 186.22, subd.

(b)(1).) A drug dealer may possess drugs in saleable quantities, along with a

firearm for protection, regardless of any gang affiliation, and without an intent to


aid anyone but himself. The prosecution‟s theory of the case was that defendant

acted in association with Delhi and committed the underlying offenses intending

to benefit the gang. The main evidence of defendant‟s intent to benefit Delhi was

Stow‟s recitation of testimonial hearsay. Under these circumstances, we cannot

conclude that admission of Stow‟s testimony relating the case-specific statements

concerning defendant‟s gang affiliation was harmless beyond a reasonable doubt.

We therefore reverse the true findings on the street gang enhancements.24


The true findings on the street gang enhancements are reversed. The

judgment of conviction is otherwise affirmed and the matter remanded to the

Court of Appeal for proceedings not inconsistent with this opinion.





Whether the gang allegations may be retried is an issue neither raised nor

briefed and we express no views on it.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Sanchez

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 223 Cal.App.4th 1
Rehearing Granted


Opinion No.
Date Filed: June 30, 2016

County: Orange
Judge: Steven D. Bromberg



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

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

Counsel who argued in Supreme Court (not intended for publication with opinion):

John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA 92780
(714) 731-5572

Steven T. Oetting
Deputy State Solicitor General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2206

Opinion Information
Date:Docket Number:
Thu, 06/30/2016S216681