Filed 4/11/14 opinion on transfer from Supreme Court See Concurring Opinion

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E049095

v. (Super.Ct.No. FVI802610)

FRED EDWARD ARCHULETA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed.

Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and

Appellant.

Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette,

Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland, Assistant

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III.

1 Attorneys General, and Peter Quon, Jr., Angela Borzachillo, and Lynne G. McGinnis,

Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant Fred Edward Archuleta guilty as charged of possessing a

controlled substance, methamphetamine, and active gang participation. (Health & Saf.

Code, § 11377, subd. (a); Pen. Code, § 186.22, subd. (a).)1 Defendant was arrested on

December 5, 2008, after law enforcement officers found him in his garage in possession

of methamphetamine and in the company of a gang member who admitted he was selling

methamphetamine. At trial, the prosecution’s gang expert testified defendant was a high-

ranking member of and an active participant in the East Side Victoria (ESV) criminal

street gang at the time of his arrest, and had been for a long time. The expert based his

opinion in part on the testimonial hearsay statement of another ESV gang member,

Fernando Perez. According to the expert, Perez “told investigators” that defendant

directed the November 2008 robbery of a Victorville drug dealer by Perez and other ESV

gang members. Perez apparently made the statement during a custodial police

interrogation following his arrest for the November 2008 robbery and the provocative act

murder of an ESV gang member who was shot and killed during the robbery. Defendant

was not charged for the robbery or the murder.

In a 2011 decision in this case (People v. Archuleta (Dec. 29, 2011, E049095)

[nonpub. opn.]) (Archuleta I), we rejected defendant’s claim that the admission of Perez’s

testimonial hearsay statement as basis evidence to support the gang expert’s opinion

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 violated defendant’s Sixth Amendment confrontation rights under Crawford v.

Washington (2004) 541 U.S. 36 (Crawford). We followed a series of decisions by this

and other appellate courts that the admission of out-of-court hearsay statements as basis

evidence to support an expert’s opinion against a criminal defendant at trial does not

violate the confrontation clause because the statements are not offered for their truth; they

are offered for the distinct and permissible purpose of supporting the expert’s opinion.

(People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210 (Thomas) [Fourth Dist.,

Div. Two]; People v. Cooper (2007) 148 Cal.App.4th 731, 746-747 (Cooper); People v.

Ramirez (2007) 153 Cal.App.4th 1422, 1426-1427 (Ramirez); People v. Sisneros (2009)

174 Cal.App.4th 142, 153-154 (Sisneros).)

Defendant petitioned the state Supreme Court for review of Archuleta I, review

was granted and deferred, and the matter was transferred to this court with directions to

vacate our decision in Archuleta I and reconsider the cause in light of Williams v. Illinois

(2012) ___ U.S. ___ [132 S.Ct. 2221] (Williams), People v. Lopez (2012) 55 Cal.4th 569

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

(2012) 55 Cal.4th 650 (Rutterschmidt). (Cal. Rules of Court, rules 8.512(d)(2), 8.528(d).)

Nothing in any of these decisions affects our conclusion in Archuleta I that Perez’s out-of

court statement that defendant directed the November 2008 robbery—made to

investigators during a custodial interrogation—was testimonial “under any conceivable

definition.” (Crawford, supra, 541 U.S. at pp. 51-52, 54, fn. 4.)

3 But five of the nine United States Supreme Court justices in Williams and six of

the seven state Supreme Court justices in Dungo agreed that out-of-court testimonial

statements—even when offered solely as basis evidence to support an expert’s opinion

and not, purportedly, as substantive evidence of their truth—may nonetheless be offered

for their truth and violate the confrontation clause. (Williams, supra, 132 S.Ct. at pp.

2255-2264 (conc. opn. of Thomas, J.); id. at pp. 2264-2277 (dis. opn. of Kagan, J., joined

by Scalia, J., Ginsburg, J., and Sotomayor, J.); Dungo, supra, 55 Cal.4th at pp. 621-627

(con. opn. of Werdegar, J., joined by Cantil-Sakauye, C.J., Baxter, J., and Chin, J.); id. at

pp. 633-649 (dis. opn. of Corrigan, J., joined by Liu, J.).) We believe that if either high

court were to consider defendant’s confrontation claim today, a majority of the justices of

each court would agree that Perez’s statement was effectively offered for its truth through

the testimony of the gang expert and violated defendant’s Sixth Amendment right to

confront and cross-examine Perez. The prosecution did not show that Perez was

unavailable or that defendant had a prior opportunity to cross-examine him. (Crawford,

supra, 541 U.S. at p. 59.) We therefore conclude that the use or admission of the

statement violated Crawford.

As we further explain, however, the federal constitutional error was harmless

beyond a reasonable doubt. The use of Perez’s testimonial hearsay statement for its truth,

as basis evidence to support the gang expert’s opinion, could not have affected the verdict

on the methamphetamine possession or the active gang participation charge. In the

4 nonpublished portion of this opinion, we explain why defendant’s other claims of error

are without merit. We therefore affirm the judgment in its entirety.

I. FACTUAL BACKGROUND

A. The Circumstances of the Charged Offenses

Around 1:00 a.m. on December 5, 2008, San Bernardino County Sheriff’s Deputy

Brian Roper and several other officers, including Detective Garth Goodell, a member of

the department’s high desert regional gang team, went to defendant’s residence in

Victorville looking for George Espinosa, a homicide suspect known as “Little Sleepy.”

Around one week earlier, Deputy Roper received information from Natividad Ramirez

that Espinosa could be at defendant’s residence.

After the deputies arrived at defendant’s residence, Detective Goodell stood next

to the garage while Deputy Roper and another detective went to the front door. The

garage door opened, and defendant and Ramirez were in the garage. Defendant was

using a cellular telephone, and Ramirez dropped a bag of suspected methamphetamine on

the garage floor. Espinosa was not found at the residence.

Deputy Roper searched Ramirez and found a plastic scale and a bag of suspected

methamphetamine in his pockets. Detective Goodell searched defendant and found $100

cash in his left pants pocket and a bag of suspected methamphetamine wrapped around

his right belt loop and tucked into his coin pocket. A vehicle parked in front of the

residence had recently been reported stolen.

5 Detective Goodell collected the $100 cash, cellular telephone, plastic scale, and

the two suspected bags of methamphetamine found on defendant and Ramirez, together

with the third suspected bag Ramirez dropped. The detective also found a fourth

“empty” bag on the garage floor that appeared to contain methamphetamine residue, but

he did not believe it had any evidentiary value and threw it away. Defendant was placed

under arrest, but Ramirez was allowed to leave.

The three suspected bags of methamphetamine were later tested and determined to

contain 2.92, 0.40, and 0.27 grams, respectively, of methamphetamine. Apparently, the

bag containing the smallest amount of methamphetamine was the bag found on

defendant.

Ramirez and defendant were originally charged in the same two-count information

with simple possession of methamphetamine and active gang participation. During jury

selection at their joint trial, Ramirez pled guilty to both charges and admitted a prior

strike conviction and four prison priors. He was later sentenced to five years four months

in prison.

B. Expert Gang Testimony

San Bernardino County Sheriff’s Deputy Josh Conley testified as a gang expert for

the prosecution. At the time of trial in May 2009, Deputy Conley had been a deputy

sheriff for over seven years, first in Los Angeles County and later in San Bernardino

County. He was trained in gang investigations and identifications, and had attended two

“jail operations courses,” which included additional instruction in gang “investigation,

6 trends, identification . . . .” He later attended an “advanced gang awareness course” and

received “more informal” training in gang investigation, identification, tattoos, trends,

activity, and prosecution while working in the West Valley Detention Center (the

WVDC) in Rancho Cucamonga.

Deputy Conley had experienced many personal contacts with gang members while

working in jails in Los Angeles and San Bernardino Counties. Before July 2005, he

worked in the WVDC’s high security unit, which housed the “most violent and most

reputed” gang members in San Bernardino County. He recalled that defendant was

housed in the WVDC’s high security unit some time before July 2005 when the deputy

was working in the WVDC.

In July 2005, Deputy Conley was assigned to the Victorville sheriff’s station.

After completing a field training program and working on patrol for two years, he was

assigned to the station’s gang enforcement detail. In that capacity, he performed parole

compliance checks and contacted parole agents and gang members at parole offices.

During the course of his seven-year career, he had spoken with over 1,000 gang members

and had documented over 300 gang members.

Eight criteria were used to “document” or identify a person as a gang member on a

gang identification card: (1) the gang member’s “self-admission”; (2) “classification

admit” (the gang member’s admission of his gang membership during a booking

interview); (3) gang tattoos; (4) gang signs; (5) gang apparel; (6) “reliable source,” for

example, a confidential informant identifying the person as a gang member; (7) prison

7 documentation; and (8) intercepting mail in a custodial facility with gang-related writing.

At least two criteria were required to document a person as a gang member, with the

exception of “classification admit” which was alone sufficient.

Not all gang members wear “gang specific” tattoos identifying their gang. The

deputy had encountered persons who had been gang members for decades who did not

have tattoos identifying their “higher status” in the gang. It had recently become

common for gang members not to get gang-related tattoos in order to prevent law

enforcement officers from easily identifying them as gang members. The deputy kept

currently informed on gangs and their activities through speaking with other

investigators, professional associations, and “validation packets” prepared by the

California Department of Corrections and Rehabilitation (CDCR) which documented

persons as gang members.

Through his work at the Victorville station, Deputy Conley was familiar with a

criminal street gang known as “East Side Victoria.” The gang had approximately 150

documented members and 50 associates, and generally claimed the east side of

Victorville as its turf. The deputy had personally contacted between 40 and 50 ESV gang

members. Various signs and symbols were associated with the gang, including “ESV,”

“VCG,” “EVG,” and “ESVR.” The gang’s principal activities included murder,

attempted murder, assault with a deadly weapon, and drug sales. Between May 2006 and

2008, three of its documented members had committed felony “predicate offenses” listed

in the California Street Terrorism Enforcement and Prevention Act. (§ 186.20 et seq.)

8 Since 2007, an injunction had been in effect prohibiting ESV members from associating

with each other in the area claimed by the gang, which was known as the “safety zone.”

Gang members were subject to arrest for violating the injunction.

As a southern Hispanic gang, ESV was affiliated with and subordinate to the

Mexican Mafia in the state prison system. The Mexican Mafia is a prison gang that

controls all southern Hispanic gangs under the “Sureno umbrella.” In gang parlance, the

Mexican Mafia “calls down the shots” or directs the criminal activities of its subordinate

gang members who act as its “foot soldiers.” Subordinate gangs are required to “funnel

up taxes” or pay a portion of the proceeds of their criminal activities to the Mexican

Mafia, including drug sales, to remain in good standing. The failure to pay taxes could

result in a gang member or an entire neighborhood being “green lighted” or targeted for

retaliation.

Particular symbols indicate that a southern Hispanic gang is affiliated with the

Mexican Mafia. These include the acronym SUR, the number 13, La Eme, and a kanpol

symbol, which is two lines and three dots signifying the Mayan number 13. The acronym

SUR stands for Southern United Raza, and “big homie” is a term normally used to denote

a Mexican Mafia member.

A person can become a member of a southern Hispanic criminal street gang

mainly in three ways: by “criming in” or putting in work for the gang, by being “jumped

in” or beaten for 13 seconds, or by being “walked in,” which is usually reserved for

members with older siblings in the gang. “Shot callers” for the gangs are usually over 30

9 years old and are looked up to as leaders by younger members. A person can also be

“jumped out” or “crimed out” of a southern Hispanic gang just as they can be jumped in

or crimed in. A member can also ask an older gang member or “veterano” to be allowed

out of the gang. Mexican Mafia membership, by contrast, is “blood in, blood out.” In

order to gain membership in the Mexican Mafia, a person has to “spill blood” or commit

a violent assault, and the only way out of the Mexican Mafia is by death.

At the time of trial in May 2009, Deputy Conley was assigned to the Adelanto

Detention Center (the ADC) in Adelanto where Ramirez was in custody. The deputy had

personally completed a gang identification card documenting Ramirez as an ESV gang

member. He told Ramirez he was documenting him as an ESV member, and Ramirez did

not object or correct him. Ramirez had ESV and Mexican Mafia-related gang tattoos,

including “ESV,” “SUR”, “X3,” and “3CE.”

Deputy Conley became involved in the investigation of the present case after he

searched Ramirez’s property at the ADC and found a letter that defendant had written to

Ramirez. In the letter, defendant discussed the charges against himself and Ramirez and

wrote: “Just be sure that you don’t agree to anything without us agreeing on it, because

the charges are . . . real . . . petty.”

Deputy Conley was familiar with defendant through his training, through speaking

with other gang investigators, and through reviewing “documentation from CDC[R] and

prior gang cards.” A “validation packet” from the CDCR “validated” or identified

defendant as a Mexican Mafia associate at the beginning of 1989. The deputy explained

10 that the CDCR’s “validation process” of labeling someone a gang member is a lengthy

process that involves checking several sources of documentation or other proof. In

addition, a 1993 gang identification card documented defendant as a member of the ESV.

A September 2004 “classification sheet” identified defendant as a member of

“Vario Victoria Rifa,” a clique of ESV, and indicated he was being housed in the high

security unit. Defendant signed the 2004 classification sheet acknowledging his gang

status. The document was placed on an overhead projector and published to the jury.

Deputy Conley was familiar with an offense defendant committed on September 1, 2004,

namely, attempted possession of a firearm by a felon. (§ 664; former § 12021 [repealed

eff. Jan. 1, 2012, and reenacted as § 29800, subd. (a)(1) without substantive change].)

The court took judicial notice of a court file concerning the offense.

A second classification sheet dated December 5, 2008, the date defendant was

arrested on the current charges, indicated he was a member of the Vario Victoria Rifa and

the Mexican Mafia. Defendant signed the 2008 classification sheet, “self admitting” its

contents. The notation “red suit” was marked on the 2008 classification sheet, indicating

defendant was “high security.” The 2008 classification sheet was also published to the

jury.

Deputy Conley opined defendant was an “active” member of ESV at the time of

trial and had been for a long time. Defendant was also a “shot caller” for the gang.

Deputy Conley based this opinion on his contacts with defendant, his subsequent

conversations with other gang members, including Ramirez, and with gang investigators,

11 including Detective Goodell and Deputy Roper, on defendant’s CDCR validation file, the

1993 gang identification card, and on the 2004 and 2008 gang classification sheets.

Defendant was also an associate of the Mexican Mafia and enjoyed a high level of

“influence and status” which allowed him to direct the activities of southern Hispanic

gang members.2

Defendant expressed his high-level status in ESV by directing the activities of

other gang members. As an example that defendant directed the activities of other gang

members, Deputy Conley pointed to defendant’s April 2009 letter to Ramirez, telling him

not to enter into a plea bargain unless defendant also agreed. According to the deputy,

the letter indicated that defendant exercised “a certain amount of influence” over Ramirez

and other members of ESV.3

As another example of defendant directing the activities of other gang members,

Deputy Conley explained that, in November 2008, around one month before defendant’s

December 5, 2008, arrest on the current charges, three ESV gang members, namely,

George Espinosa (Little Sleepy), Fernando Perez (Bam-Bam), and Joseph Delonie (Little

Goofy) committed a residential robbery in downtown Victorville. The robbery was a

“taxation” of a drug dealer who was dealing drugs in the old town area of Victorville, an

2 On cross-examination, Deputy Conley clarified that although defendant was a “shot caller” for ESV and a “validated” Mexican Mafia associate for ESV, he was not a shot caller for the Mexican Mafia.

3 The court then took judicial notice of its records in which Ramirez “entered a plea as charged [on] May 20th, 2009.”

12 area claimed by ESV. During the robbery, Delonie was shot and killed by the drug

dealer, and Perez was shot and wounded. Perez later recovered, and Perez and

Espinosa—the homicide suspect the officers were looking for when they went to

defendant’s home on December 5, 2008—were charged with the murder of Delonie.

Over defense objections, Deputy Conley then testified that “Perez gave a statement to

investigators stating that [defendant] directed that robbery and taxation.”4

The prosecutor next asked Deputy Conley whether defendant’s possession of

methamphetamine on December 5, 2008, was a gang-related activity. The deputy

responded that it was in view of the “totality of the circumstances.” These included: (1)

defendant’s “classification admission” of his gang status in jail following his December

5, 2008, arrest, as evidenced by the 2008 classification sheet; (2) defendant’s association

with Ramirez, another ESV gang member, at defendant’s home; (3) the fact defendant’s

house was in ESV territory and subject to the 2007 injunction; and (4) the fact a stolen

car was parked in front of defendant’s house at the time defendant and Ramirez possessed

4 Defense counsel objected to the admission of Perez’s statement on “multiple levels of hearsay and lack of foundation” grounds. The court overruled these objections. Defendant did not object on confrontation clause grounds or on the ground the statement’s irrelevance, unreliability, or potential for prejudice substantially outweighed its probative value as basis evidence under Evidence Code section 352. We consider the confrontation clause claim preserved for review. (People v. Edwards (2013) 57 Cal.4th 658, 704 [failure to object on confrontation clause grounds excused when governing law at time of trial afforded scant grounds for the objection].) At the time of trial in 2009, this court’s 2005 decision in Thomas represented the governing law—that testimonial statements offered solely as basis evidence to support an expert opinion are not offered for their truth and therefore do not violate the confrontation clause. (Thomas, supra, 130 Cal.App.4th at pp. 1209-1210.) In light of Thomas, defense counsel’s failure to object on confrontation grounds was excusable.

13 the methamphetamine. The deputy explained that stolen cars are common in gang culture

because they can be used for “drive-bys” and other gang-related activity, and can be

traded for weapons, drugs, or cash.

The prosecutor next posed a hypothetical question, asking Deputy Conley to

assume Ramirez went to defendant’s home to sell defendant methamphetamine, and the

sale was interrupted by the arrival of law enforcement officers. When asked how that

hypothetical sale of drugs to defendant could have furthered, assisted, or promoted

criminal conduct by members of ESV, the deputy responded that sales of drugs, even

between gang members, further the gang’s criminal activities by generating profits that

can be used to buy more drugs, cars, or weapons for the gang, or pay taxes to the

Mexican Mafia.

Under cross-examination, Deputy Conley admitted defendant was the first “high

ranking” gang member he had ever encountered who did not have gang-related tattoos.

He also admitted that a gang member could distance himself from a gang and not commit

crimes for the gang for several years while still claiming membership in the gang, but that

normally entailed leaving the gang’s territory and getting away from other members of

the gang. Deputy Conley had never arrested defendant or any other ESV gang member

for violating the 2007 injunction.

Deputy Conley did not complete or sign defendant’s 2004 or 2008 classification

sheets, and said it would be unethical to change a classification sheet after the inmate

14 signed it. If a change had to be made, he would conduct a “reclassification interview”

and complete a new classification sheet for the inmate to sign.

In April 2008, when defendant was in jail, Deputy Conley spoke with defendant

and asked him about his status and CDCR validation as a Mexican Mafia associate.

Defendant said he had been validated as a Mexican Mafia associate in 1988, and he was a

member of “Victoria,” not “East Side Victoria.” Defendant explained he was around

when the gang was formed; it started when members of different families who were

associated with the gang were tagging “Victorville South Side.” Then someone crossed

out South Side and wrote East Side, and eventually East Side “stuck.” During the April

2008 contact, the deputy also asked defendant whether he was in good standing with

“Victoria” and the Mexican Mafia, and defendant responded, “I’m in good standing until

I am not.”

Lastly, Deputy Conley testified that, through a process known as “debriefing,” a

Mexican Mafia associate can “decloak” himself from that classification in the state prison

system. The associate is placed in protective custody and must disclose all his past

criminal activity on behalf of his gang and everything he knows about his gang’s current

activities. To the deputy’s knowledge, defendant had never “debriefed.”

C. Defense Evidence

Ramirez and defendant testified for the defense.

15 1. Ramirez’s Testimony

Ramirez testified that on the night of December 5, 2008, he drove to defendant’s

house in a white Camry. He did not know the car had been reported stolen. He brought

some methamphetamine, a scale, and a cellular telephone with him. He used some of the

drug to get “high,” and gave some of the drug to defendant. He believed defendant also

got high, but he did not actually see defendant use the drug. As he was getting high

himself, he was not paying attention.

After he was high, Ramirez separated the rest of the methamphetamine into bags

and gave defendant a bag containing some “crumbs” of the drug. He did not see what

happened to the bag he gave defendant. Then “the SMASH officers rolled up,” and

Ramirez panicked. He grabbed his bags of methamphetamine and dropped a couple of

them as he was going toward the garage door. Ramirez insisted that the

methamphetamine belonged to him and he could not let defendant spend the rest of his

life in prison for something he (Ramirez) did. He did not sell defendant any

methamphetamine, though he supported his own methamphetamine habit by selling the

drug.

The jury heard that the week before he testified Ramirez pled guilty to possession

of methamphetamine and active gang participation. He had prior felony convictions for

negligent discharge of a firearm in 1996, possession of a stolen vehicle in 2003, and

being a felon in possession of a firearm in 2007. Ramirez denied being a member of ESV

until the week earlier, when he pled guilty to the active gang participation charge. The

16 tattoos on his body, including “13,” “IE,” and “SUR,” did not signify his membership in

any gang. He got the tattoos in prison 10 years earlier.

Ramirez had grown up his “whole life” with ESV gang members, but defendant

was “just a good friend” and never told Ramirez he was a gang member. Ramirez and

defendant had known each other since the mid-1990’s or earlier, when Ramirez was in

his early to mid-20’s.

When asked under cross-examination why he was putting the methamphetamine

into bags, Ramirez said he was going to give one bag to the lady who gave him the

Camry in exchange for her allowing him to use the car for a couple of days. He needed

the car for transportation to “sell dope,” and he was going to sell or give away the rest of

the methamphetamine he was putting into bags. Ramirez sought defendant’s advice

concerning the Camry, because “the whole situation” did not seem right to Ramirez. The

woman who gave him the car did not give him the car keys; the ignition was punched;

and he started the car with a screwdriver. Ramirez understood the car was about to be

repossessed, and the woman told him he could take the car if he gave her some

methamphetamine. Ramirez just wanted to know what defendant thought about the

situation.

The prosecutor also questioned Ramirez about the letter defendant wrote to him

after December 5, 2008, in which defendant discussed the charges against himself and

Ramirez and wrote: “Just be sure that you don’t agree to anything without us agreeing on

it, because the charges are . . . real . . . petty.” Ramirez recalled receiving the letter but

17 did not interpret it to mean he could not enter into a plea bargain without defendant’s

consent.

Ramirez denied telling Deputy Roper he could find George Espinosa, also known

as Little Sleepy, at defendant’s house. Ramirez said he was not arrested on December 5,

2008, and was let go after Deputy Roper told him: “We got Fred. We got who we want.”

Ramirez heard one of the officers tell defendant that they “got him this time,” and they

were going to “put him away for life[.]”

2. Defendant’s Testimony

Defendant was 45 years old at the time of trial in May 2009. In 1982, he was

convicted of attempted murder, assault with a deadly weapon, and second degree

burglary, and served eight and one-half years in prison. In 1994 and 1995, he was

convicted of being a felon in possession of a firearm. In 2005, he pled guilty to

attempting to possess a dangerous weapon, a dismantled shotgun. Since he was 12 years

old, the longest time he had been out of custody was an eight-month period in 2007.

When he was still a minor, he was sent to the California Youth Authority for assault with

a deadly weapon.

Around 1:00 a.m. on December 5, 2008, Ramirez called defendant and said he

wanted to talk. Defendant said he was getting ready to go to bed, but allowed Ramirez to

come over after Ramirez said he was just down the street and he would not take long.

Defendant waited for Ramirez in his garage. When Ramirez arrived, he pulled out some

methamphetamine and offered some to defendant. Defendant said he would take some of

18 the drug, and Ramirez put some in a bag for defendant and put the bag on a table.

Ramirez had a large bag and several smaller bags of methamphetamine with him. He did

not make any other bags of methamphetamine in defendant’s presence.

Minutes later, sheriff’s deputies arrived. The bag Ramirez made for defendant

was with the other bags Ramirez grabbed when the officers were outside. The bag of

methamphetamine that Detective Goodell found wrapped around defendant’s belt loop

and tucked into his coin pocket was a bag defendant had earlier that day; he did not get

that bag from Ramirez. Defendant did not use any methamphetamine with Ramirez, but

had used the drug earlier that day.

Defendant denied he was a member of ESV or “Vario Victoria Rifa,” as the gang

was also known, or a “high ranking” member of any gang. In “the system,” however, he

had always claimed “Victoria SUR.”

Defendant was familiar with how ESV began and explained its history. In the late

1970’s, when he was 14 or 15 years old, defendant was fighting with other “families” in

the Victorville area, and he and a friend were tagging “Victoria” and “South Side.”

Someone crossed out “South Side” and wrote “East Side,” and that was how “East Side”

began.

Around 1979, defendant and other South Side families were involved in a fight

against East Side families, but defendant later made peace with the East Side families.

Thus, defendant was “originally an enemy of East Side.” By the time he got out of prison

around 1991, the East Side families had started “East Side.” Defendant knew “all these

19 kids” from “East Side” because he had grown up with them or their older family

members.

Defendant said the “kids” from East Side looked up to him with “a great deal of

respect,” but the respect he had gained over the years was not based on his membership

in any gang; he was respected because he “followed the rules” and did not “snitch” on

people. When he told Deputy Conley he was “in good standing,” he meant he was not

being threatened and was not in danger. Others sought his advice because he had

experience and “three strikes.”

Defendant said the CDCR “validated” him as a Mexican Mafia associate in 1988

based on information provided by other inmates. He denied he was a Mexican Mafia

associate, but because he had never “debriefed” the CDCR still considered him an

associate. He also denied he signed the 2004 classification sheet when it stated he was a

Mexican Mafia “member,” because admitting he was a member of the Mexican Mafia

would be like signing his own “death warrant.”

D. Verdicts and Sentencing

The jury found defendant guilty as charged of possessing methamphetamine and

active gang participation on or about December 5, 2008. (Health & Saf. Code, § 11377,

subd. (a), count 1; Pen. Code, § 186.22, sub. (a), count 2.) The trial court found

defendant had three prior strike convictions (Pen. Code, § 667, subds. (b)-(e)), three prior

serious felony convictions (Pen. Code, § 667, subd. (a)), and three prison priors (Pen.

Code, § 667.5, subd. (b)). Defendant was sentenced to 40 years to life, comprised of 25

20 years to life for his active gang participation plus five years for each of his three prior

serious felony convictions. An additional 25-year-to-life term and three 1-year terms

were imposed but stayed on defendant’s conviction for possessing methamphetamine and

his three prison priors. (Pen. Code, § 654.)

II. DISCUSSION/CONFRONTATION CLAUSE ISSUE

A. Background

The confrontation clause of the Sixth Amendment to the United States

Constitution grants a criminal defendant the right to confront adverse witnesses. (Dungo,

supra, 55 Cal.4th at p. 612.) This “bedrock procedural guarantee” apples to both federal

and state prosecutions. (Crawford, supra, 541 U.S. at p. 42.) In Ohio v. Roberts (1980)

448 U.S. 56, 66, the high court interpreted the confrontation clause as permitting the

admission of hearsay evidence against a criminal defendant if the declarant was

unavailable to testify and the hearsay bore “‘indicia of reliability,’” that is, if the hearsay

fell within a “firmly rooted hearsay exception” or otherwise had “particularized

guarantees of trustworthiness.” (Fn. omitted.)

In Crawford, the high court overruled Roberts and changed confrontation clause

jurisprudence from focusing on the reliability of the hearsay statement to whether it was

“testimonial” and, if so, whether the criminal defendant had a prior opportunity to

confront and cross-examine the declarant. Crawford held that the confrontation clause

prohibits “‘testimonial hearsay’” from being admitted in evidence against a criminal

defendant unless the declarant is available to testify or the defendant had a prior

21 opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 53, 59 &

fn. 9; People v. Jennings (2010) 50 Cal.4th 616, 651.) Unlike testimonial hearsay, the

admissibility of nontestimonial hearsay against a criminal defendant is governed

exclusively by state hearsay law. (See Crawford, supra, at p. 68.)

Crawford noted that the confrontation clause “does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted,” that is,

for nonhearsay purposes. (Crawford, supra, 541 U.S. at p. 59, fn. 9, citing Tennessee v.

Street (1985) 471 U.S. 409, 414 (Street); Thomas, supra, 130 Cal.App.4th at p. 1210.) In

a series of cases decided in the wake of Crawford, this and other California appellate

courts held that the confrontation clause does not prohibit the admission of testimonial

hearsay as basis evidence to support an expert opinion. (Thomas, supra, at pp. 1209-

1210; Cooper, supra, 148 Cal.App.4th at pp. 746-747; Ramirez, supra, 153 Cal.App.4th

at pp. 1426-1427; Sisneros, supra, 174 Cal.App.4th at pp. 153-154.)

Thomas explained: “Crawford does not undermine the established rule that

experts can testify to their opinions on relevant matters, and relate the information and

sources upon which they rely in forming those opinions. This is so because an expert is

subject to cross-examination about his or her opinions and additionally, the materials on

which the expert bases his or her opinion are not elicited for the truth of their contents;

they are examined to assess the weight of the expert’s opinion.” (Thomas, supra, 130

Cal.App.4th at p. 1210, italics added.) Cooper similarly observed: “Crawford was

concerned with the substantive use of hearsay evidence . . . . It did not suggest that the

22 confrontation clause was implicated by admission of hearsay for nonhearsay

purposes. . . .” (Cooper, supra, 148 Cal.App.4th at p. 747, italics added.)

This critical distinction between the “substantive use” of hearsay evidence for its

truth and its use for nonhearsay purposes, including as basis evidence to support an

expert opinion, was established in California long before Crawford was decided. (E.g.,

People v. Gardeley (1996) 14 Cal.4th 605, 618-619 (Gardeley); People v. Gonzalez

(2006) 38 Cal.4th 932, 944-946.) As Gardeley explained, experts may base their

opinions “‘on reliable hearsay, including out-of-court declarations of other persons,’” and

may “‘state on direct examination the reasons’” for their opinions. (Gardeley, supra, at

p. 618; Evid. Code, §§ 801, subd. (b) [expert opinion may be based on matter “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”], 802 [expert may

generally explain basis of opinions on direct examination].)

Gardeley thus concluded that a gang expert properly relied on and revealed to the

jury the contents of otherwise inadmissible hearsay in testifying on direct examination

that a hypothetical assault by three gang members was a gang-related assault. (Gardeley,

supra, 14 Cal.4th at pp. 611-613, 618-619.) It was proper for the expert to relate the

contents of the hearsay to the jury because it was not offered for its truth; it was offered

for the nonhearsay purpose of explaining the basis of the expert’s opinion. (Id. at pp.

618-619; Evid. Code, § 802.) Gardeley was decided eight years before Crawford ,

however, and did not address whether any of the hearsay the gang expert relayed to the

23 jury as basis evidence to support his opinion should have been limited or excluded

because it was testimonial.5

Relying on California law articulated in Gardeley and on Crawford’s admonition

that the confrontation clause does not bar the use of testimonial hearsay for nonhearsay

purposes, this court concluded in Thomas that a gang expert, in opining that the defendant

was a gang member, properly relied on and testified to the contents of hearsay statements

by other gang members that the defendant was a gang member. (Thomas, supra, 130

Cal.App.4th at pp. 1206, 1208-1210.)

Before we issued our 2011 decision in Archuleta I, our appellate court colleagues

in People v Hill (2011) 191 Cal.App.4th 1104 (Hill) observed that Gardeley and Thomas

were based on the “implied assumption that the out-of-court statements may help the jury

evaluate the expert’s opinion without regard to the truth of the statements. Otherwise,

the conclusion that the statements should remain free of Crawford review because they

are not admitted for their truth is nonsensical. But this assumption appears to be

incorrect.” (Hill, supra, at pp. 1129-1130, italics added.) This incorrect assumption, the

5 Gardeley acknowledged but did not apply the long-standing rule that an expert’s ability to recite hearsay evidence to explain the bases of the expert’s opinions is limited by the trial court’s “‘considerable discretion’” to limit or exclude the use of hearsay as basis evidence under Evidence Code section 352, if its probative value as basis evidence is substantially outweighed by “‘the risk that the jury might improperly consider it as independent proof of the facts recited therein.’” (Gardeley, supra, 14 Cal.4th at p. 619.) Cooper also pointed out that Evidence Code section 352 gives the trial court “considerable authority and discretion to prevent the wholesale admission of incompetent hearsay” from being presented to the jury under the guise of supporting the expert’s opinion. (Cooper, supra, 148 Cal.App.4th at p. 747.)

24 court pointed out, masked violations of both the hearsay rule and the confrontation

clause. (Id. at pp. 1130-1132.)

To illustrate the point, Hill discussed People v. Goldstein (2005) 6 N.Y.3d 119

[810 N.Y.S.2d 100, 843 N.E.2d 727] (Goldstein). There, a forensic psychiatrist, in

testifying as an expert for the prosecution, claimed the defendant was not insane when he

pushed a woman in front of a subway train. On direct examination, the expert relied on

and testified to out-of-court statements to support her opinion. (Hill, supra, 191

Cal.App.4th at p. 1130.) She explained that, prior to the murder, a security guard and an

acquaintance of the defendant each claimed a woman who looked remarkably like the

murder victim had “‘sexually frustrated’” the defendant. (Id. at p. 1130, fn. 15.) The

court in Goldstein concluded the admission of the out-of-court statements as basis

evidence to support the expert’s opinion violated the defendant’s confrontation rights.

(Goldstein, supra, 843 N.E.2d at p. 730.) In rejecting the prosecution’s argument that the

statements were not admitted for their truth but only to assist the jury in evaluating the

expert’s opinion, the Goldstein court reasoned: “We find the distinction the People make

unconvincing. We do not see how the jury could use the statements . . . to evaluate [the

expert’s] opinion without accepting as a premise either that the statements were true or

that they were false. Since the prosecution’s goal was to buttress [the expert’s] opinion,

the prosecution obviously wanted and expected the jury to take the statements as true. . . .

The distinction between a statement offered for its truth and a statement offered to shed

light on an expert’s opinion is not meaningful in this context.” (Id. at pp. 732-733.)

25 Hill agreed with Goldstein’s point and noted that “where basis evidence consists

of an out-of-court statement, the jury will often be required to determine or assume the

truth of the statement in order to utilize it to evaluate the expert’s opinion.” (Hill, supra,

191 Cal.App.4th at p. 1131, fn. omitted.)6 Still, Hill recognized it was bound by

Gardeley and similar state Supreme Court precedent: “But for the long line of California

Supreme Court precedent supporting Thomas, we would reject that opinion and adopt

Goldstein’s logic, which seems compelling. But our position in the judicial hierarchy

precludes that option; we must follow Gardeley and the other California Supreme Court

cases in the same line of authority.” (Hill, supra, 191 Cal.App.4th at p. 1131, fn.

omitted.) Hill accordingly concluded that the admission of several hearsay statements as

expert opinion basis evidence, including a testimonial hearsay statement, violated neither

the hearsay rule nor the confrontation clause because they were not offered as substantive

evidence of their truth under the state of the law at that time. (Id. at pp. 1135-1137.)

In Archuleta I, we agreed with the Hill court’s observation that it is often difficult,

if not logically impossible, for juries to disregard the truth of hearsay statements when

6 Hill noted that substantial academic commentary had been critical of the assumption that juries can avoid considering basis evidence for its truth when the expert relies on the evidence for its truth. (Hill, supra, 191 Cal.App.4th at p. 1130, fn. 16, citing, e.g., Kaye et al., New Wigmore Treatise on Evidence (2010 Cumulative Supp.) Expert Evidence, § 3.10.1, p. 59 [“‘The factually implausible, formalist claim that experts’ basis testimony is being introduced only to help in the evaluation of the expert’s conclusions but not for its truth ought not permit an end-run around a constitutional prohibition.’”] & Mnookin, Expert Evidence and the Confrontation Clause After Crawford v. Washington (2007) 15 J.L. & Pol’y 791, 816 [“‘To say that [inadmissible] evidence offered for the purpose of helping the jury to assess the expert’s basis is not being introduced for the truth of its contents rests on an inferential error.’”].)

26 they are purportedly offered solely as basis evidence to support an expert opinion. (Hill,

supra, 191 Cal.App.4th at pp. 1129-1131.) But like Hill, we recognized we were bound

by Gardeley and similar state Supreme Court precedent. (Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450, 455.) And as discussed, this precedent adheres to a

long-established legal—if illogical—distinction between the use of hearsay statements as

substantive evidence of their truth and their purportedly distinct use as basis evidence to

support an expert opinion. (See Gardeley, supra, 14 Cal.4th at pp. 618-619.)

Thus, in Archuleta I, we rejected defendant’s claim that his confrontation rights

were violated by the admission of Perez’s testimonial statement that defendant directed

the November 2008 robbery as basis evidence to support Deputy Conley’s opinion that

defendant was an active gang participant at the time of his December 5, 2008, arrest.

(Archuleta I, supra, E049095.) Still, we noted that jurors in California state courts are

neither expected nor instructed to disregard hearsay basis evidence for its truth in

evaluating expert opinion testimony. To the contrary, CALCRIM No. 332, the standard

jury instruction on expert opinion testimony, which was given here, instructs the jury it

“must decide whether information on which the expert relied was true and accurate,” and

it may “disregard any opinion” it finds “unbelievable, unreasonable, or unsupported by

the evidence.” (See § 1127b [sua sponte instructions required on expert testimony].) The

instruction reflects the accepted wisdom that “any expert’s opinion is only as good as the

truthfulness of the information on which it is based.” (Ramirez, supra, 153 Cal.App.4th

at p. 1427.) This accepted wisdom contradicts the established principle that hearsay,

27 when offered to support an expert opinion, is not offered for its truth. (Gardeley, supra,

14 Cal.4th at pp. 618-619.)

B. The Williams, Lopez, Dungo, and Rutterschmidt Decisions

As indicated, we have been instructed to vacate our 2011 decision in Archuleta I

and reconsider the cause in light of the United States Supreme Court’s 2012 decision in

Williams and the California Supreme Court’s subsequent decisions in Lopez, Dungo, and

Rutterschmidt. In order to discern the full impact of these decisions on defendant’s Sixth

Amendment confrontation claim, we describe their contents in detail.

1. The Four-one-four Williams Decision

Williams arose from the kidnap, rape, and robbery of a woman in Chicago. Semen

from a vaginal swab taken from the rape victim was sent to Cellmark Diagnostics

Laboratory (Cellmark) for DNA analysis, and Cellmark produced a report containing a

DNA profile of the semen donor. The defendant, Williams, had not been identified as a

suspect in the crimes at the time the Cellmark DNA profile was generated. Williams was

later arrested on unrelated charges, and the state crime lab generated a DNA profile based

on his blood sample. Thereafter, state crime lab analyst Sandra Lambatos conducted a

computer search of DNA profiles in the state police database to determine whether any of

them matched the Cellmark DNA profile of the semen donor in the rape case. Lambatos

found that the Cellmark DNA profile matched Williams’s DNA profile. The victim then

identified the defendant as her attacker in a police lineup. (Williams, supra, 132 S.Ct. at

p. 2229.)

28 At Williams’s bench trial for aggravated criminal sexual assault, kidnapping, and

robbery, Lambatos answered “yes’ when asked whether the two DNA profiles matched,

over the defense counsel’s objection for “lack of foundation.” (Williams, supra, 132

S.Ct. at pp. 2229-2230.) The Cellmark report containing the DNA profile of the semen

donor was not admitted into evidence. (Id. at p. 2230.) Nor did Lambatos quote from or

read from the Cellmark DNA report or identify it as the source of any of her opinions.

(Ibid.) Williams was found guilty and the judgment was upheld on appeal by the state

Court of Appeals and Supreme Court. (Id. at p. 2231.) The question presented to the

high court in Williams was “‘the constitutionality of allowing an expert witness to discuss

others’ testimonial statements if the statements were not themselves admitted as

evidence.’” (Id. at p. 2233.) At issue was whether Lambatos’s testimony that the two

DNA profiles matched violated the defendant’s confrontation rights, and whether the

underlying Cellmark report containing the DNA profile of the donor of the semen found

on the vaginal swabs was testimonial. (Id. at p. 2227.)

(a) The Four-justice Plurality Decision

In a plurality decision by Justice Alito and joined by three other justices, Chief

Justice Roberts and Justices Kennedy and Breyer, the four justices rejected Williams’s

confrontation clause claim on two independent grounds. The plurality first concluded

that Lambatos’s expert testimony that the two DNA profiles matched did not violate

Williams’s confrontation rights. (Williams, supra, 132 S.Ct. at pp. 2228, 2240.) It

reasoned that the confrontation clause “has no application to out-of-court statements that

29 are not offered to prove the truth of the matter asserted,” including statements “related”

by an expert witness “solely for the purpose of explaining the assumptions” on which the

expert’s opinion is based. (Id. at p. 2228.) Such statements “are not offered for their

truth and thus fall outside the scope of the Confrontation Clause.” (Ibid.)

The plurality distinguished the high court’s decisions in Melendez-Diaz v.

Massachusetts (2009) 557 U.S. 305 and Bullcoming v. New Mexico (2011) 564 U.S. ___

[131 S.Ct. 2705], as involving scientific reports containing “‘testimonial certification[s],

made in order to prove a fact at a criminal trial.’” (Williams, supra, 132 S.Ct. at p. 2233.)

Melendez-Diaz involved reports or “certificates of analysis” affirming that white powdery

substances found in the defendant’s possession were cocaine (see Williams, supra, at p.

2232), and Bullcoming involved a certified report that the defendant’s blood-alcohol

content was “0.21 grams per hundred milliliters, well above the legal limit” (see

Williams, supra, at p. 2233). In both cases, a majority of the high court held the reports

were erroneously admitted as substantive evidence against the defendants through the

surrogate testimony of other laboratory analysts who had not signed and certified the

reports. (See id. at pp. 2232-2233, 2240-2241.)

The Williams plurality observed that, “[f]or more than 200 years, the law of

evidence has permitted the sort of testimony” given by Lambatos, and “[m]odern rules of

evidence continue to permit experts to express opinions based on facts about which they

lack personal knowledge . . . .” (Williams, supra, 132 S.Ct. at pp. 2228, 2233-2235.)

“[T]he truth of Lambatos’ testimony, properly understood, was not dependent on the truth

30 of any predicate facts,” including whether the Cellmark report was true and accurate. (Id.

at p. 2239.) Whether the Cellmark report was true and accurate, and scientifically

reliable, went to the weight of the expert’s opinion that the two DNA profiles matched,

not its admissibility. (Id. at pp. 2239-2240.) In addition, the foundational fact of the

truth of the Cellmark report and its scientific reliability was shown by circumstantial

evidence, including chain of custody evidence. (Id. at pp. 2238-2239.)

As a second and independent ground for rejecting Williams’s confrontation clause

claim, the plurality concluded the Cellmark report was not testimonial. (Williams, supra,

132 S.Ct. at pp. 2242-2244.) In every post-Crawford case in which the high court had

found a confrontation clause violation, “the statement at issue had the primary purpose of

accusing a targeted individual.” (Williams, supra, at p. 2243.) But the Cellmark report

was “very different. It plainly was not prepared for the primary purpose of accusing a

targeted individual.” (Ibid.) Instead, its primary purpose was to catch a dangerous rapist

who was still at large, not to obtain evidence against Williams, who was neither in

custody nor a suspect when the Cellmark report was prepared. (Ibid.)

(b) Concurring Opinion of Justice Breyer

In a concurring opinion, Justice Breyer joined the plurality opinion in full but

wrote separately to explain why the Cellmark report—and generally all crime laboratory

reports and underlying technical statements written or made by laboratory technicians—

should not be considered testimonial under Crawford. (Williams, supra, 132 S.Ct. at pp.

2244-2252 (conc. opn. of Breyer, J.).) Justice Breyer explained that “[o]nce one

31 abandons the traditional rule” of treating expert opinion basis evidence as not offered for

its truth, “there would seem to be no logical stopping place between requiring the

prosecution to call as a witness one of the laboratory experts who worked on the matter

and requiring the prosecution to call all of the laboratory experts who did so.” (Id. at p.

2246.) Lower courts and treatise writers had come up with a variety of solutions to this

problem, and all of them assumed “some kind of Crawford boundary—some kind of

limitation upon the scope of its application . . . .” (Id. at pp. 2247-2248 (conc. opn. of

Breyer, J.).) Justice Breyer called for allowing states to have “constitutional leeway to

maintain traditional expert testimony rules as well as hearsay exceptions where there are

strong reasons for doing so and Crawford’s basic rationale does not apply.” (Id. at p.

2248.)

(c) Concurring Opinion of Justice Thomas

In a concurring opinion, Justice Thomas agreed that the disclosure of Cellmark’s

out-of-court statements through the expert testimony of Lambatos did not violate the

confrontation clause, but only because the statements “lacked the requisite ‘formality and

solemnity’ to be considered ‘“testimonial’” for purposes of the Confrontation Clause.”

(Williams, supra, 132 S.Ct. at pp. 2255, 2259-2260 (conc. opn. of Thomas, J.).) Justice

Thomas’s agreement with the plurality’s conclusion that the Cellmark report was not

testimonial—though for a different reason than the plurality adopted—provided the fifth

and deciding vote for upholding the judgment of conviction in Williams.

32 Justice Thomas disagreed with the plurality’s reasoning in every respect, including

its conclusion that the Cellmark report was not admitted for its truth but only to show the

basis of Lambatos’s opinion that the two DNA profiles, including the one recorded in the

Cellmark report, matched. (Williams, supra, 132 S.Ct. at pp. 2255-2259 (conc. opn. of

Thomas, J.).) In Justice Thomas’s view, “there was no plausible reason for the

introduction of Cellmarks’ statements other than to establish their truth.” (Id. at p. 2256.)

He remarked that the rules of evidence—that basis evidence to support an expert opinion

not offered for its truth—should not “so easily trump a defendant’s confrontation right.”

(Ibid.)

Justice Thomas distinguished Street, supra, 471 U.S. at page 417, the case cited in

Crawford for the proposition that the confrontation clause does not bar the use of out-of-

court statements for purposes other than their truth. (Williams, supra, 132 S.Ct. at p.

2256 (conc. opn. of Thomas, J.); Crawford, supra, 541 U.S. at p. 59, fn. 9.) The

defendant in Street testified he gave a false confession after the police coerced him to

adopt his accomplice’s confession. (Street, supra, at p. 411.) The prosecution then

introduced the accomplice’s confession to show the ways the two confessions differed

and counter the defendant’s claim that he gave a false confession. (Id. at pp. 411-412.)

In rejecting the defendant’s confrontation clause claim, the high court held the

accomplice’s out-of-court confession was not offered for its truth, but only to impeach

the defendant’s version of events, and the out-of-court confession was therefore not

hearsay “under traditional rules of evidence.” (Id. at pp. 413-414.) Justice Thomas

33 pointed out that the high court in Street “did not accept that nonhearsay label at face

value,” but “thoroughly examined the use of the out-of-court confession and the efficacy

of a limiting instruction before concluding that the Confrontation Clause was satisfied

‘[i]n this context.’” (Williams, supra, at p. 2257 (conc. opn. of Thomas, J.).)

Justice Thomas concluded that in contrast to the out-of-court confession in Street,

“statements introduced to explain the basis of an expert’s opinion are not introduced for a

plausible nonhearsay purpose. There is no meaningful distinction between disclosing an

out-of-court statement so that the factfinder may evaluate the expert’s opinion and

disclosing that statement for its truth.” (Williams, supra, 132 S.Ct. at p. 2257 (conc. opn.

of Thomas, J.).) Justice Thomas also took issue with the plurality’s claim that there was

a long-standing historical practice of exempting expert basis testimony from “the rigors”

of the confrontation clause. (Ibid.) He warned that “[t]oday’s holding” would “reach

beyond scientific evidence to ordinary out-of-court statements,” including interviews

with third parties, upon which experts commonly rely in forming their opinions. (Id. at p.

2259, citing Goldstein, supra, 843 N.E.2d at pp. 729-730.)

(d) The Four-justice Dissenting Opinion

Justice Kagan wrote a dissenting opinion joined by Justices Scalia, Ginsburg, and

Sotomayor. (Williams, supra, 132 S.Ct. at pp. 2264-2277 (dis. opn. of Kagan, J.).) The

dissenters agreed with Justice Thomas that the Cellmark report, conforming the DNA

profile produced from the semen taken from the rape victim’s vaginal swab, was

effectively admitted for its truth through the “conduit” testimony of Lambatos. (Id. at pp.

34 2266-2267.) The dissenters viewed the case as “functionally identical” to Bullcoming

and Melendez-Diaz, which involved out-of-court scientific reports impermissibly

introduced for their truth through the “‘surrogate’” testimony of experts, in violation of

the defendants’ right to confront the analysts who prepared the testimonial reports. (Id. at

p. 2266.) Like Justice Thomas, the four dissenters agreed the Cellmark report “ha[d] no

purpose separate from its truth[.]” (Id. at p. 2269.)

The dissenters disagreed with the plurality’s claim that Lambatos merely

“assumed” the Cellmark DNA profile came from the victim’s vaginal swabs. (Williams,

supra, 132 S.Ct. at p. 2270 (dis. opn. of Kagan, J.).) To the contrary, they pointed out

that Lambatos “affirmed, without qualification,” that the report contained a male DNA

profile found in the semen taken from the victim’s vaginal swabs. (Ibid.) And

Lambatos’s description of the report was offered for its truth because “that is all such

‘basis evidence’ can be offered for; . . . the only way the factfinder could consider

whether [the Cellmark report] supported her opinion (that the DNA on [the victim’s]

swabs came from Williams) was by assessing the statement’s truth.” (Id. at p. 2271 (dis.

opn. of Kagan, J.).) The dissenters criticized the plurality’s “not-for-the-truth rationale”

as an “abdication to state-law labels,” and noted that the high court did “not typically

allow state law to define constitutional requirements.” (Id. at p. 2256 (conc. opn. of

Thomas, J.); id. at p. 2272 (dis. opn. of Kagan, J.).)

The dissenters found the Cellmark report testimonial because it “was made for the

primary purpose of establishing ‘past events potentially relevant to later criminal

35 prosecution’—in other words, for the purpose of providing evidence.” (Williams, supra,

132 S.Ct. at p. 2273 (dis. opn. of Kagan, J.), quoting Davis v. Washington (2006) 547

U.S. 813, 822 (Davis).) The dissenters criticized the plurality’s conclusion that the report

was not testimonial because it was “‘not prepared for the primary purpose of accusing a

targeted individual.’” (Williams, supra, at p. 2273.) The dissenters and Justice Thomas

criticized the plurality’s “targeted individual” or “accusation test” as having no basis in

the text or history of the confrontation clause. (Id. at p. 2263 (conc. opn. of Thomas, J.);

id. at p. 2273 (dis. opn. of Kagan, J.).)

2. Lopez, Dungo, and Rutterschmidt

In this trio of companion decisions, the California Supreme Court considered how

Williams and other high court decisions applied to out-of-court statements recorded in

forensic reports and relayed at the defendants’ criminal trials through the testimony of

expert witnesses. (Lopez, supra, 55 Cal.4th 569 [laboratory report recorded percentage of

alcohol found in the defendant’s blood sample]; Dungo, supra, 55 Cal.4th 608 [autopsy

report recorded condition of alleged murder victim’s body]; Rutterschmidt, supra, 55

Cal.4th 650 [toxicology report showed alleged murder victim had drugs in his system that

could have caused drowsiness].) The justices wrote nine separate opinions in these

decisions, illustrating the “muddled state” of the confrontation clause jurisprudence.

(Lopez, supra, at p. 590 (dis. opn. of Liu, J.).)

36 (a) Lopez

Lopez involved a laboratory analyst’s report on the percentage of alcohol found in

a blood sample taken from the defendant two hours after her vehicle collided with

another, killing its driver. (Lopez, supra, 55 Cal.4th at p. 573.) According to the report,

the defendant had a blood-alcohol concentration (BAC) of 0.09 percent at the time her

blood sample was drawn. (Id. at p. 574.) The laboratory analyst who prepared and

signed the report, Jorge Pena, did not testify at the defendant’s trial for vehicle

manslaughter while intoxicated, and the prosecution did not assert Pena was unavailable.

(Id. at pp. 573-574.) Another analyst, John Willey, who was employed by the same

laboratory as Pena and was familiar with its “‘procedures for processing blood samples

for alcohol analysis,’” testified that Pena’s report showed the defendant’s BAC was 0.09

percent. (Id. at p. 574.) Willey “added that based on his own ‘separate abilities as a

criminal analyst,’ he too concluded that the [BAC] in defendant’s blood sample was 0.09

percent.” (Ibid.) A toxicologist testified a person with a BAC of 0.09 percent two hours

after a collision who had consumed no alcohol after the collision would have been

intoxicated at the time of the collision, with a BAC level of .012 percent. (Id. at pp. 574-

575 & fn. 1.) A jury found the defendant guilty. (Id. at p. 575.)

In a five-justice majority opinion by Justice Kennard, the court held that “critical

portions” of Pena’s “machine-generated” report were not made with “the requisite degree

of formality or solemnity to be considered testimonial.” (Lopez, supra, 55 Cal.4th at pp.

582-584.) A log sheet notation on the report showed the defendant’s blood sample was

37 labeled “laboratory No. 070-7737,” and the notation was entered by a laboratory

assistant, Constantino. (Id. at p. 584.) The notation linked the defendant’s name to blood

sample No. 070-7737, but the report indicated the notation was made “FOR LAB USE

ONLY,” and the court found the notation was “nothing more than an informal record of

data for internal purposes . . . .” (Ibid.) Thus, the majority concluded the notation was

not made with the requisite degree of formality required for testimonial statements. (Id.

at pp. 584-585.) In addition, neither Pena nor Constantino “signed, certified, or swore to

the truth of the contents of page 1 of the report,” which showed the defendant’s BAC was

0.09 percent based on the blood sample. (Id. at pp. 582-584.) The court distinguished

the “laboratory certificates” in Melendez-Diaz and Bullcoming as made with a sufficient

degree of solemnity and formality to be testimonial. (Lopez, supra, at pp. 584-585;

Melendez-Diaz v. Massachusetts, supra, 557 U.S. at p. 308; Bullcoming v. New Mexico,

supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2717].) Because the notation in Pena’s report

that the defendant’s BAC was 0.09 was not sufficiently formal to be testimonial, the court

found no need to consider the primary purpose of that part of the report. (Lopez, supra, at

p. 582.) There was no confrontation clause violation because the critical parts of Pena’s

report were not testimonial. (Id. at p. 585.)

(b) Dungo

In Dungo, forensic pathologist Dr. Robert Lawrence testified that after reviewing

an autopsy report prepared by a nontestifying pathologist, Dr. George Bolduc, and

photographs taken at the autopsy, the alleged murder victim died from asphyxia caused

38 by strangulation. (Dungo, supra, 55 Cal.4th at pp. 613-614.) In support of his opinion,

Dr. Lawrence described the condition of the victim’s body based on the autopsy report

and photographs, which were not admitted into evidence. (Id. at pp. 614-615.) Dr.

Lawrence did not describe Dr. Bolduc’s opinion of the cause of the victim’s death stated

in the autopsy report; he only gave his “independent opinion” of the cause of death as a

forensic pathologist. (Ibid.) Nor did Dr. Lawrence say whether his opinion of the cause

of death was based solely on the autopsy report, the autopsy photographs, or a

combination of the two. (Ibid.) The defendant was found guilty of second degree

murder. (Id. at p. 615.)

(i) Majority Opinion by Justice Kennard

In a majority opinion by Justice Kennard, joined by four other justices, the Dungo

court concluded that Dr. Lawrence’s testimony describing the condition of the victim’s

body (based on the autopsy report and photographs) did not violate the defendant’s right

to confront Dr. Bolduc, the author of the report. (Dungo, supra, 55 Cal.4th at pp. 613-

614.) First, the court found it unnecessary to decide whether the “entire report” was

testimonial because it was not admitted into evidence. (Id. at p. 619.) The court also

declined to determine whether Dr. Bolduc’s conclusion regarding the cause of death, as

set forth in the autopsy report, was testimonial because Dr. Lawrence did not rely on the

conclusion in forming his opinion of the cause of death. (Ibid.)

Based on Williams and the court’s companion decision in Lopez, the court distilled

a general test for determining whether a statement is testimonial: “[T]estimonial out-of-

39 court statements have two critical components. First, to be testimonial the statement

must be made with some degree of formality or solemnity. Second, the statement is

testimonial only if its primary purpose pertains in some fashion to a criminal

prosecution.” (Dungo, supra, 55 Cal.4th at p. 619.) Still, the court noted that the justices

of the United States Supreme Court had yet to agree on what the out-of-court statement’s

primary purpose must be. (Ibid.)

Applying this two-part test, the Dungo majority held Dr. Bolduc’s observations of

the condition of the victim’s body (set forth in the autopsy report) were nontestimonial

because such observations “merely record objective facts [and] are less formal than

statements setting forth a pathologist’s expert conclusions.” (Dungo, supra, 55 Cal.4th at

p. 619, italics added.) Further, “criminal investigation” was only one of several purposes

and not the primary purpose of describing the condition of the body in the report. (Id. at

p. 621.) Descriptions of the condition of the body serve other purposes; they help the

decedent’s relatives determine whether to file an action for wrongful death; they help

insurance companies determine whether the death is covered by insurance; and they

allow grieving family members and members of the public to know the condition of the

body and cause of death. (Ibid.)

(ii) Concurring Opinion by Justice Werdegar

Justice Werdegar wrote a concurring opinion joined by Chief Justice Cantil-

Sakauye and Justices Baxter and Chin. (Dungo, supra, 55 Cal.4th at pp. 621-627 (conc.

opn. of Werdegar, J.).) The opinion emphasized that the most significant part of Dr.

40 Bolduc’s out-of-court recordings of the condition of the victim’s body was his

observation that the victim’s larynx and hyoid bone were both unbroken. (Id. at p. 622

(conc. opn. of Werdegar, J.).) Based on these observations, Dr. Lawrence concluded the

victim was strangled for “‘a period of minutes . . . certainly more than two minutes,’” and

the prosecution used this part of the doctor’s opinion in arguing to the jury that the killing

was intentional and premeditated. (Ibid.)

Still, the concurring justices agreed the nontestimonial aspects of Dr. Bolduc’s

out-of-court observations on the state of the victim’s larynx and hyoid bone predominated

over the testimonial. (Dungo, supra, 55 Cal.4th at p. 625 (conc. opn. of Werdegar, J.).)

The process of performing an autopsy by examining the decedent’s body and recording

the resulting observations is governed “primarily by medical standards rather than by

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

J.).) And even though such observations on the condition of the decedent’s body are

made “partly ‘to provide evidence for court,’” they are also made “‘to serve as a record’”

and “‘to support or refute interpretations.’” (Id. at p. 625 (conc. opn. of Werdegar, J.).)

The opinion pointed out that a statement “should also be deemed more testimonial

to the extent it was produced through the agency of government officers engaged in a

prosecutorial effort, and less testimonial to the extent it was produced for purposes other

than prosecution or without the involvement of police or prosecutors.” (Dungo, supra, 55

Cal.4th at pp. 625-626 (conc. opn. of Werdegar, J.).) It did not appear that Dr. Bolduc’s

observations on the condition of the decedent’s body, including the fact her larynx and

41 hyoid bone were unbroken, were “produced through a prosecutorial effort to obtain

evidence against [the] defendant, or anyone else, for use at trial.” (Id. at pp. 626-627

(conc. opn. of Werdegar, J.).)

In the final paragraph of her concurring opinion, Justice Werdegar acknowledged

that “Dr. Bolduc’s observations were introduced for their truth, and since Dr. Bolduc was

not shown to be unavailable and had not been subject to prior cross-examination on this

matter by defendant, his statements, were they testimonial, would have been inadmissible

under Crawford.” (Dungo, supra, 55 Cal.4th at p. 627 (conc. opn. of Werdegar, J.).)

(iii) Concurring Opinion by Justice Chin

In a concurring opinion joined by three other justices, Justice Chin concluded

there was no confrontation clause violation in Dungo under the reasoning of the plurality

opinion in Williams and Justice Thomas’s concurring opinion and fifth and deciding vote

in Williams. (Dungo, supra, 55 Cal.4th at pp. 627-633 (conc. opn. of Chin, J.).)

(iv) Dissenting Opinion by Justice Corrigan

In a dissenting opinion joined by Justice Liu, Justice Corrigan concluded that Dr.

Bolduc’s autopsy report was “sufficiently formal and primarily made for an evidentiary

purpose, as the United States Supreme Court has explicated those terms to date.”

(Dungo, supra, 55 Cal.4th at pp. 633-649 (dis. opn. of Corrigan, J.).) The dissenting

opinion also noted that five of the nine justices in Williams disagreed with the four-justice

plurality’s conclusion that the Cellmark report “was not hearsay at all because its

contents were not admitted for their truth.” (Dungo, supra, at p. 635.) And in a footnote,

42 the dissenting opinion pointed out that out-of-court statements may or may not be offered

for their truth: “There are of course, many instances in which out-of-court statements are

not offered for their truth. The long-standing rule that unless a statement is admitted for

its truth it is not hearsay remains unchanged. The question is whether a statement is

admitted for its truth. When an expert witness treats as factual the contents of an out-of-

court statement, and relates as true the contents of that statement to the jury, a majority of

the high court in Williams . . . rejects the premise that the out-of-court statement is not

admitted for its truth.” (Id. at p. 635, fn. 3.)

(c) Rutterschmidt

In Rutterschmidt, two female codefendants in their mid-70’s were convicted of

murdering two men on separate occasions by running over them with cars.

(Rutterschmidt, supra, 55 Cal.4th at p. 652.) The prosecution claimed one of the victims

was drugged before he was killed. (Id. at p. 655.) To prove this, the prosecution

presented the expert testimony of Joseph Muto, a laboratory director, toxicologist, and

certified blood analyst who testified that several laboratory analysts working under his

supervision had tested samples of the victim’s blood and found the presence of drugs

causing sleep, pain killers, and other drugs with side effects of sedation and dizziness.

(Id. at pp. 655-656.) The laboratory reports were not admitted into evidence. (Id. at p.

656.) A forensic toxicologist testified the combination of the drugs in the victim’s blood

would cause a person who did not regularly use them to fall asleep, and would cause a

regular user of the drugs to become drowsy and confused. (Ibid.)

43 One of the defendants, Helen Golay, claimed Muto’s expert testimony violated her

Sixth Amendment right to confront the laboratory analysts who prepared the reports.

(See Rutterschmidt, supra, 55 Cal.4th at p. 661.) In a unanimous decision, the

Rutterschmidt court found it unnecessary to determine whether Muto’s expert testimony

violated Golay’s right to confront the laboratory analyst who tested the victim’s blood

and prepared the report because there was overwhelming evidence of the defendants’

guilt notwithstanding Muto’s expert testimony. (Ibid.)

C. Application and Analysis

1. The “For Truth” Consensus

Five of the nine United States Supreme Court justices in Williams agreed that the

Cellmark report, which recorded the DNA profile of the male donor of the semen found

on the rape victim’s vaginal swabs, was effectively offered for its truth, even though it

was not admitted into evidence and was offered solely as basis evidence to support

Lambatos’s expert opinion that the DNA profile recorded in the Cellmark report matched

the DNA profile generated from the defendant’s blood sample. (Williams, supra, 132

S.Ct. at pp. 2255-2259 (conc. opn. of Thomas J.); id. at pp. 2264-2277 (dis. opn. of

Kagan. J.).) Four of the seven California Supreme Court justices in Dungo agreed that

the out-of-court observations of the nontestifying expert, Dr. Buldoc, concerning the

condition of the victim’s body and recorded in the autopsy report, “were introduced for

their truth,” and because Dr. Buldoc was not shown to be unavailable to testify, his

observations would have been inadmissible under Crawford, had they been testimonial.

44 (Dungo, supra, 55 Cal.4th at p. 627 (conc. opn. of Werdegar, J., joined by Cantil-

Sakauye, C.J., Baxter, J., and Chin, J.).) And the dissenting justices in Dungo observed:

“When an expert witness treats as factual the contents of an out-of-court statement, and

relates as true the contents of that statement to the jury, a majority of the high court in

Williams . . . rejects the premise that the out-of-court statement is not admitted for its

truth.” (Id. at p. 635, fn. 3 (dis. opn. of Corrigan, J., joined by Liu, J.).)

This new consensus for treating expert opinion basis evidence as offered for its

truth when the expert testifies to its contents reflects the Hill and Goldstein courts’

observations that it makes no sense to hold that out-of-court statements are not offered or

understood for their truth when an expert relies on them for their truth and relays their

contents to the trier of fact for the purpose of explaining the basis of the expert’s opinion.

(Hill, supra, 191 Cal.App.4th at pp. 1129-1132; Goldstein, supra, 843 N.E.2d at pp. 732-

733.) In their dissenting opinion in Dungo, Justices Corrigan and Liu explained that out-

of-court statements may or may not be offered for their truth through expert witness

testimony. (Dungo, supra, 55 Cal.4th at p. 635, fn. 3 (dis. opn. of Corrigan, J.).) They

are offered for their truth “[w]hen an expert witness treats as factual the contents of [the]

out-of-court statement, and relates as true the contents of that statement to the jury . . . .”

(Ibid.)

The court in People v. Valadez (2013) 220 Cal.App.4th 16 recently acknowledged

the majority consensus in Williams and Dungo for treating expert opinion basis evidence

for its truth: “Since Hill, a majority of justices on both the United States Supreme Court

45 and our high court have indicated expert basis evidence is offered for its truth and subject

to the confrontation clause.” (People v. Valadez, supra, at p. 31.) “If the currently

constituted courts were called upon to resolve this issue, it seems likely the holdings in

Thomas, Hill, and other cases extending Gardeley to find out-of-court statements offered

as expert basis evidence are not offered for their truth for confrontation purposes will be

significantly undermined.” (Id. at p. 32 & fn 13.) We agree.

In our view, the consensus expressed in Williams and Dungo for treating expert

opinion basis evidence as offered for its truth means that the long-standing California

rule, that experts may recite the contents of otherwise inadmissible hearsay on direct

examination under the guide of supporting their opinions, affirmed in Gardeley, supra,

14 Cal.4th at pages 618 and 619 and followed in Thomas, Cooper, Ramirez, Sisneros,

and Hill, among other cases, has been qualified as follows: When, on direct examination,

an expert witness against a criminally accused “treats as factual” the contents of an out-

of-court testimonial statement and “relates as true” its contents to the trier of fact (Dungo,

supra, 55 Cal.4th at p. 635, fn. 3 (dis. opn. of Corrigan, J.)), the declarant is unavailable

to testify, and the defendant had no prior opportunity for cross-examination, the

admission of the testimonial statement as expert opinion basis evidence will violate the

defendant’s Sixth Amendment right to confront and cross-examine the declarant.

We believe this rule represents a “single standard” for determining when

testimonial out-of-court statements are offered for their truth through expert testimony

and violate the confrontation clause “which, when applied, will necessarily produce

46 results with which a majority” of the justices in Williams and Dungo would agree. (U.S.

v. Alcan Aluminum Corp. (2d Cir. 2003) 315 F.3d 179, 189 [a single legal standard

constituting the narrowest ground for a decision is the “law of the land”]; Lopez, supra,

55 Cal.4th at pp. 591-593 (dis. opn. of Liu, J.) [the “law of the land” may be discerned by

identifying a single legal standard with which a majority of the United States Supreme

Court justices would agree].)

Similarly, in the federal courts, prosecutors are not allowed to use experts as mere

“conduits” to “parrot” or “transmit” testimonial hearsay to the jury; instead, the experts

must apply their expertise and independent judgment to the testimonial hearsay without

transmitting its contents to the jury. (E.g., United States v. Gomez (9th Cir. 2013) 725

F.3d 1121, 1129-1131.) The “broad contours” of the federal court doctrine are as

follows: “An expert witness’s reliance on evidence that Crawford would bar if offered

directly only becomes a problem where the witness is used as little more than a conduit or

transmitter for testimonial hearsay, rather than as a true expert whose considered opinion

sheds light on some specialized factual situation. Allowing a witness simply to parrot

‘out-of-court testimonial statements of cooperating witnesses and confidential informants

directly to the jury in the guise of expert opinion’ would provide an end run around

Crawford. [Citation.] For this reason, an expert’s use of testimonial hearsay is a matter

of degree. The question is whether the expert is, in essence, giving an independent

judgment or merely acting as a transmitter for testimonial hearsay. As long as he is

applying his training and experience to the sources before him and reaching an

47 independent judgment, there will typically be no Crawford problem. The expert’s

opinion will be an original product that can be tested through cross-examination.” (Id. at

p. 1129, quoting United States v. Johnson (4th Cir. 2009) 587 F.3d 625, 635-636

(Johnson); United States v. Pablo (10th Cir. 2012) 696 F.3d 1280. 1286-1293 [there are

no “clearly established bright line parameters” for determining when expert testimony

violates Crawford].)

In Johnson, supra, 587 F.3d 625, the court found no confrontation clause violation

because “the experts never made direct reference to the content of [testimonial]

interviews or even stated with any particularity what they learned from those interviews.

Instead, each expert presented his independent judgment and specialized understanding to

the jury,” based on the expert’s many years of experience and investigations. (Id. at pp.

635-636.) But in United States v. Mejia (2d Cir. 2008) 545 F.3d 179 (Mejia), the expert

testified that a gang “taxed” nongang members who wanted to deal drugs in bars

controlled by the gang, and the expert explained he had been told this important fact “by

a gang member” during a custodial interview. (Id. at p. 188.) Mejia concluded that the

expert’s testimony violated Crawford, and noted that, “the question under Crawford is

whether the expert ‘applied his expertise to those statements but did not directly convey

the substance of the statements to the jury . . . .’” (Id. at pp. 198-199, quoting United

States v. Lombardozzi (2d Cir. 2007) 491 F.3d 61, 73; see also United States v. Dukagjini

(2d Cir. 2002) 326 F.3d 45, 59.)

48 We believe the federal rule represents the proper standard. Experts may rely on

testimonial hearsay in formulating their opinions (Gardeley, supra, 14 Cal.4th at p. 618),

but they may not repeat or parrot the contents of testimonial hearsay to the jury on direct

examination under the guise of explaining the basis of their opinions, unless the declarant

is available or the defendant has had a prior opportunity for cross-examination

(Crawford, supra, 541 U.S. at p. 59; Evid. Code, § 802).

The People argue we are bound by Gardeley’s holding that expert opinion basis

evidence is not offered for its truth, even when the expert relates the contents of

testimonial hearsay on direct examination against a criminal defendant. (Auto Equity

Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455 [“Under the doctrine of stare

decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of

courts exercising superior jurisdiction.”].) We disagree. Cases are not authority for

propositions not considered. (People v. Friedeck (2010) 183 Cal.App.4th 892, 899.)

Gardeley was decided before Crawford and did not address whether testimonial hearsay

is offered for its truth and violates the confrontation clause when an expert recites its

contents on direct examination against a criminally accused. And as discussed, a

majority of the justices in Williams and Dungo agreed that such surrogate use of

testimonial hearsay for its truth violates the confrontation clause.

This court’s 2005 decision in Thomas and decisions in accord with Thomas must

be qualified in the same manner as Gardeley. (Thomas, supra, 130 Cal.App.4th at pp.

1209-1210 [testimonial out-of-court statements offered as expert opinion basis evidence

49 in criminal trials are never offered for their truth and, as such, do not violate the

confrontation clause]; Cooper, supra, 148 Cal.App.4th at pp. 746-747 [same]; Ramirez,

supra, 153 Cal.App.4th at pp. 1426-1427 [same]; Sisneros, supra, 174 Cal.App.4th at pp.

153-154 [same].) Courts may no longer assume that all out-of-court statements are not

offered for their truth when they are offered as expert opinion basis evidence, and that it

is therefore unnecessary to determine whether out-of-court statements are testimonial

when offered as expert opinion basis evidence. An expert witness against a criminally

accused must not be allowed to testify to the contents of testimonial hearsay on direct

examination, unless the declarant is available or the defendant had a prior opportunity for

cross-examination.7

The People further argue that prohibiting experts from relating the contents of

testimonial hearsay on direct examination in criminal trials will lead to “endless”

Evidence Code section 402 hearings to determine the admissibility of expert opinion

basis evidence. To be sure, when a criminal defendant challenges the admissibility of

expert opinion basis evidence on the ground it is testimonial hearsay, the burden is on the

7 Thomas, Cooper, and Ramirez did not address whether the testifying gang experts relayed the contents of any testimonial hearsay to the jury in explaining the basis of their opinions, given that the hearsay basis evidence was not offered for its truth and therefore did not violate the confrontation clause even if it was testimonial. (Thomas, supra, 130 Cal.App.4th at pp. 1209-1210; Cooper, supra, 148 Cal.App.4th at p. 747; Ramirez, supra, 153 Cal.App.4th at p. 1427.) Sisneros plainly did not involve any testimonial hearsay. There, the gang expert relied on a witness’s conduct in refusing to testify against the defendant to support his opinion that the Mexican Mafia engaged in witness intimidation. (Sisneros, supra, 174 Cal.App.4th at pp. 149, 153.) The court noted that the witness “never testified” and “never offered any statement, much less a testimonial statement.” (Id. at p. 153.)

50 People, as the proponent of the evidence, to show by a preponderance of the evidence

that the hearsay is not testimonial. (United States v. Jackson (5th Cir. 2011) 636 F.3d

687, 695; State v. Koslowski (2009) 166 Wn.2d 409, 417, fn. 3 [209 P.3d 479, 483, fn.

3].) If no objection is made, the evidence is generally admissible. (Waters v. State

(2008) 2008 Tex.App. Lexis 5160 [at p. *9].)

But not all or perhaps even most expert opinion basis evidence will be testimonial.

Gang experts, for example, typically rely on a plethora of information and out-of court

statements in formulating their opinions, many of which are not testimonial. (People v.

Valadez, supra, 220 Cal.App.4th at pp. 35-36 [general background information on gangs

that gang expert obtained through casual, consensual encounters with gang members,

from other officers, and in written materials, was not testimonial]; Hill, supra, 191

Cal.App.4th at pp. 1135-1136 [statements obtained in consensual conversations with

gang members, both in and out of custody, but not with an eye toward prosecuting any

particular defendant, were not testimonial]; People v. Sanchez (2014) 223 Cal.App.4th 1

[at pp. **33-34] [gang member’s statement identifying person who shot him in 2007 not

testimonial in the defendant’s trial on other charges, because the declarant could not have

anticipated that his statement would be used against the defendant for a crime that

occurred after the statement was made].)8

8 Williams, Lopez, Dungo, and Rutterschmidt further illustrate that not all expert opinion basis evidence will be testimonial. These cases involved a distinct type of out- of-court statement used as expert opinion basis evidence: statements recorded laboratory or forensic reports with varying degrees of solemnity or formality and, at least arguably, for primary purposes other than criminal prosecution. (Williams, supra, 132 S.Ct. at p. [footnote continued on next page]

51 Additionally, courts have long had “considerable discretion” to control the form of

expert questioning in order to prevent experts from placing incompetent hearsay evidence

before the jury. (Gardeley, supra, 14 Cal.4th at p. 619.) Courts also have discretion,

under Evidence Code section 352, “‘to weigh the probative value of inadmissible

evidence relied upon by an expert witness . . . against the risk that the jury might

improperly consider it as independent proof of the facts recited therein.’” (Ibid., quoting

People v. Coleman (1985) 38 Cal.3d 69, 91, disapproved on another ground in People v.

Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) Preventing prosecution experts in criminal

trials from reciting the contents of testimonial hearsay on direct examination should be no

more difficult than controlling the form of expert questioning or limiting expert testimony

under Evidence Code section 352, as courts have traditionally done in criminal and civil

cases. (People v. Coleman, supra, at p. 91; Grimshaw v. Ford Motor Co. (1981) 119

Cal.App.3d 757, 788-789 [Fourth Dist., Div. Two].)

[footnote continued from previous page] 2243 (plur. opn. of J. Alito) [Cellmark report showing DNA profile of semen donor not testimonial because it was not made for the primary purpose of implicating a targeted individual in a crime]; id. at p. 2255 (conc. opn. of Thomas, J.) [Cellmark report lacked requisite formality and solemnity to be testimonial]; Lopez, supra, 55 Cal.4th at p. 582 [laboratory report showing alcohol content in the defendant’s blood sample not made with sufficient solemnity or formality to be testimonial]; Dungo, supra, 55 Cal.4th at p. 621 [objective facts about condition of victim’s body, related by expert to jury based on out-of-court statements in autopsy report and accompanying photographs, insufficiently formal and solemn to be testimonial and criminal investigation was not the primary purpose of recording the facts]; see also Rutterschmidt, supra, 55 Cal.4th at p. 661 [declining to determine whether toxicology report showing presence of drugs in victim’s blood sample was testimonial because any error in allowing the expert to rely upon or refer to the report was harmless beyond a reasonable doubt]; People v. Barba (2013) 215 Cal.App.4th 712, 731-743 [collecting and discussing forensic evidence cases].)

52 As we next explain, Perez’s out-of-court statement that defendant directed the

November 2008 robbery was testimonial, and Deputy Conley related its contents to the

jury for their truth in explaining the basis of his opinion that defendant was an active

gang participant at the time of his December 5, 2008, arrest. Perez’s statement was of no

value to support Deputy Conley’s opinion unless the jury accepted it for its truth, and the

jury was instructed to consider the statement for its truth. (CALCRIM No. 332.) Nor

was there any showing that Perez was unavailable to testify or that defendant had a prior

opportunity to cross-examine him. (Crawford, supra, 541 U.S. at p. 59.) Thus, Deputy

Conley’s testimony on this point violated defendant’s Sixth Amendment right to confront

and cross-examine Perez.

2. Perez’s Statement Was Testimonial

Crawford observed that the confrontation clause applies to “‘witnesses’ against the

accused—in other words, those who ‘bear testimony.’” (Crawford, supra, 541 U.S. at p.

51.) “‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for

the purpose of establishing or proving some fact.’ [Citation.]” (Ibid.) Though Crawford

did not spell out a comprehensive definition of what constitutes a testimonial statement

(id. at p. 68, fn. omitted [“We leave for another day any effort to spell out a

comprehensive definition of ‘testimonial’”]), the high court explained that “some

statements qualify [as testimonial] under any definition” (id. at p. 52).

Statements that qualify as testimonial under any definition fall into a “core class”

of testimonial statements for which the confrontation clause was “especially” concerned

53 (id. at pp. 51-53), and include, “at a minimum,” prior testimony and “police

interrogations” (id. at pp. 51-53, 68; People v. D’Arcy (2010) 48 Cal.4th 257, 290).9

Crawford concluded that a recorded statement by the defendant’s wife, knowingly given

in response to structured police questioning during a police interrogation and directly

implicating her husband in a crime, qualified as testimonial “under any conceivable

definition.” (Crawford, supra, at pp. 38, 52, 54, fn. 4.)

The high court later clarified that not all statements given in response to police

questioning are testimonial: “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.” (Davis, supra, 547 U.S. at p.

822, fn. omitted; Michigan v. Bryant (2011) ___ U.S. ___ [131 S.Ct. 1143, 1156-1157

(Bryant) [clarifying Davis in context of statements given by a mortally wounded victim

to officers responding to the scene]; People v. Blacksher (2011) 52 Cal.4th 769, 811-816

9 More specifically, “core class” testimonial statements include “‘ex parte in- court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ . . . ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions’ [citation] [and] ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . .’” (Crawford, supra, 541 U.S. at pp. 51-52.)

54 [interpreting Bryant as counseling courts to consider six factors in determining primary

purpose of statement given to police in ongoing emergency].)

In People v. Cage (2007) 40 Cal.4th 965, the California Supreme Court distilled

several “basic principles” from Davis and concluded that “the proper focus” in

determining whether a statement is testimonial “is not on the mere reasonable chance that

an out-of-court statement might later be used in a criminal trial.” (People v. Cage, supra,

at p. 984, fn. 14.) Rather, the confrontation clause is concerned with statements which,

“viewed objectively, are [taken and given] for the primary purpose of establishing or

proving facts for possible use in a criminal trial” (ibid.), “under circumstances that

imparted, to some degree, the formality and solemnity characteristic of testimony” (id. at

p. 984, fn. omitted).10 The inquiry “is on the primary purpose of both [the] officer and

declarant.” (People v. Blacksher, supra, 52 Cal.4th at pp. 813-814.)

10 Cage derived six “basic principles” from Davis: “First . . . the 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. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (People v. Cage, supra, 40 Cal.4th at p. 984, fns. omitted.)

55 Like the custodial interrogation statement by the defendant’s wife in Crawford,

directly implicating her husband in a crime, Perez’s out-of-court statement that defendant

directed Perez and other ESV gang members to commit the November 2008 robbery of a

Victorville drug dealer was testimonial “under any conceivable definition.” (Crawford,

supra, 541 U.S. at pp. 51-52, 54, fn. 4.) Indeed, the statement was testimonial even under

the more narrow and controversial definition proposed by the four-justice plurality in

Williams: its primary purpose was to accuse a targeted individual, namely, the

defendant, of a crime. (Williams, supra, 132 S.Ct. at p. 2243 (plur. opn. of Alito, J.).)

In explaining the basis of his opinion that defendant was an active participant in

the ESV on or about December 5, 2008, Deputy Conley testified on direct examination

that Perez made the statement “to investigators,” and that Perez and Jorge Espinosa, also

gang members, were arrested and charged for the robbery and murder of Joseph Delonie,

another gang member, who was shot and killed during the robbery. The record supports

a reasonable inference that Perez made the statement during a custodial interrogation, and

that the statement was elicited and given for the primary purpose of recording past facts

for possible use in a criminal trial. (People v. Cage, supra, 40 Cal.4th at p. 984.) There

is no indication that the statement was made under circumstances involving an ongoing

emergency or public safety threat, or even that it was made or given for any purpose

other than implicating defendant in a crime.11

11 The People argue the record does not “clearly indicate” that Perez’s statement “to investigators” was made during a custodial interrogation, but this is an unnecessary condition to defendant’s confrontation claim. The People had the burden of showing by a [footnote continued on next page]

56 3. The Error Was Harmless Beyond a Reasonable Doubt

Reversal of defendant’s convictions is required unless the People have shown

beyond a reasonable doubt that the prosecution’s use of Perez’s testimonial hearsay

statement for its truth, as basis evidence to support Deputy Conley’s opinion that

defendant was a high-ranking gang member on or about December 5, 2008, did not

contribute to the verdicts. (Chapman v. California (1967) 386 U.S. 18, 24;

Rutterschmidt, supra, 55 Cal.4th at p. 661.) The inquiry “is not whether, in a trial that

occurred without the error, a guilty verdict would surely have been rendered, but whether

the guilty verdict actually rendered in this trial was surely unattributable to the error.”

(Sullivan v. Louisiana (1993) 508 U.S. 275, 279; People v. Flood (1998) 18 Cal.4th 470,

515.) Here, the verdicts on the possession and active gang participation charges were

surely unattributable to Perez’s testimonial hearsay statement.

[footnote continued from previous page] preponderance of the evidence that the statement was not testimonial (United States v. Jackson, supra, 636 F.3d at p. 695), and they did not meet this burden. We observe that if defendant had been on trial for the November 2008 robbery of the drug dealer and the provocative act murder of Delonie, the admission of Perez’s out- of-court statement as substantive evidence of its truth in the prosecution’s case-in-chief would have constituted clear Aranda/Bruton error. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.) Aranda and Bruton “stand for the proposition that a ‘nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant’s right of confrontation and cross-examination, even if a limiting instruction is given.’ [Citation.]” (People v. Jennings, supra, 50 Cal.4th at p. 652; Williams, supra, 132 S.Ct. at p. 2256 (conc. opn. of Thomas, J.).) This underscores the powerfully incriminating and generally unreliable nature of Perez’s out-of-court statement implicating defendant as having directed the November 2008 robbery.

57 Defendant admitted he was in possession of methamphetamine at the time of his

arrest. He testified that the small bag of methamphetamine found in his coin pocket was

for his personal use, and he possessed that methamphetamine before Ramirez came to his

house. He also admitted he accepted another bag of methamphetamine from Ramirez in

his garage shortly before his arrest. Given these admissions, Perez’s testimonial hearsay

statement that defendant directed the November 2008 gang-related robbery could not

have affected the verdict on the possession charge.

Regarding the active gang participation charge, the jury was instructed pursuant to

CALCRIM No. 1400 that active gang participation has three elements: (1) active

participation in a criminal street gang in a sense that is more than nominal or passive; (2)

with knowledge that members of the gang engage or have engaged in a pattern of

criminal gang activity; and (3) willful promotion, furtherance of, or assistance in any

felonious criminal conduct by a member of the gang. (§ 186.22, subd. (a); People v.

Johnson (2013) 57 Cal.4th 250, 259.)

The first element—active participation—is shown if the defendant had more than

nominal or passive involvement with the gang at or near the time he is charged with the

offense of active gang participation. (People v. Castenada (2000) 23 Cal.4th 743, 747

(Castenada) [“The usual and ordinary meaning of ‘actively’ is ‘being in a state of action;

not passive or quiescent’”]; People v. Garcia (2007) 153 Cal.App.4th 1499, 1509 [“It is

not enough that a defendant have actively participated in a criminal street gang at any

58 point in time . . . . A defendant’s active participation must be shown at or reasonably near

the time of the crime.”].)12

Castenada indicates that active involvement in a gang may be shown by the same

evidence that supports the third element of the offense, that is, by the defendant’s willful

promotion, furtherance of, or assistance in any felonious criminal conduct by a member

of the gang. The court said: “By linking criminal liability to a defendant’s criminal

conduct in furtherance of a street gang, section 186.22[, subdivision] (a) reaches only

those street gang participants whose gang involvement is, by definition, ‘more than

nominal or passive.’” (Castenada, supra, 23 Cal.4th at p. 752.)13

12 “A person who is not a member of a gang, but who actively participates in the gang, can be guilty of violating section 186.22[, subdivision] (a). (§ 186.22, subd. (i).)” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) On the other hand, gang membership alone is insufficient to satisfy the active participation element of the offense. (People v. Garcia, supra, 153 Cal.App.4th at p. 1509; Gardeley, supra, 14 Cal.4th at p. 623.) Nor is it necessary to show the defendant held a leadership position in the gang or devoted all or a substantial amount of his time to the gang to prove the active participation element. (Castenada, supra, 23 Cal.4th at pp. 745, 749-752 [rejecting due process/vagueness challenge to active participation element of § 186.22, subd. (a)].)

13 The defendant in Castenada was convicted of active gang participation based on a robbery and an attempted robbery he committed with other gang members. (Castenada, supra, 23 Cal.4th at pp. 745-746.) For months before he committed these crimes, the defendant was seen in the company of known gang members and bragged to police officers about his gang association. He conceded his commission of the robbery and attempted robbery with other gang members promoted, furthered, or assisted felonious criminal conduct by gang members. (Id. at pp. 752-753; § 186.22, subd. (a) [third element].) Based on all of these facts, the court found that sufficient evidence supported the active participation element of the offense. (Castenada, supra, at p. 753; see also People v. Martinez (2008) 158 Cal.App.4th 1324, 1331 [defendant’s gang tattoos and admission of gang membership at the time he committed a robbery with another gang member sufficient to support active gang participation element].)

59 Without question, Perez’s testimonial hearsay statement that defendant directed

the November 2008 robbery of a Victorville drug dealer by several ESV gang members

was a powerful piece of evidence that strongly indicated defendant was an active

participant in the ESV gang in November 2008 and only weeks later, on December 5,

2008, when he met with Ramirez in his garage. But the prosecution did not seek to prove

the active gang participation charge based on the November 2008 robbery; it sought to

prove the charge based on defendant’s acceptance of a bag of methamphetamine from

Ramirez on December 5, and his willful promotion of felonious criminal conduct,

namely, methamphetamine possession, by Ramirez, whom defendant knew was a gang

member.14

But regardless of the prosecution’s theory of the case, or trial strategy, was the

verdict on the active gang participation charge “surely unattributable” to Perez’s

statement? (Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) On this record, we are

convinced beyond a reasonable doubt that the jury would have found defendant guilty of

the active gang participation charge if it hadn’t heard Perez’s statement.

14 CALCRIM No 1400 instructed the jury that the People had to prove defendant “willfully assisted, furthered, or promoted felonious criminal conduct” by members of the ESV gang by (a) directly and actively committing a felony offense or (b) aiding and abetting a felony offense. “Felonious criminal conduct” was defined as “possession of a [c]ontrolled [s]ubstance,” and the jury was also instructed that “someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose, and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”

60 During deliberations the jury sent a note to the court asking: “Are we basing the

active gang participation . . . only on the crime committed on Dec[ember] 5, 2008[?]” In

response the court instructed the jury: “Active participation could be any felonious

conduct on or about Dec[ember] 5, 2008.” Jurors are presumed to understand and follow

the court’s instructions (People v. Hovarter (2008) 44 Cal.4th 983, 1005), and nothing in

the record indicates the jurors did not follow this instruction. Presumably then, the jurors

disregarded defendant’s involvement in the November 2008 robbery in considering the

active gang participation charge.

Furthermore, uncontroverted evidence proved the active gang participation charge

independently of Perez’s statement. According to Deputy Conley, Ramirez was an ESV

gang member, and defendant did not deny knowing Ramirez was an ESV gang member

when he testified in his own defense. Defendant admitted he willingly accepted a bag of

methamphetamine from Ramirez and saw that Ramirez had a larger and several smaller

bags of methamphetamine with him. Ramirez testified he was selling the drug; he

divided a larger bag of the drug into smaller bags in the presence of defendant; and he

gave defendant some “crumbs” of the drug. The jury also heard that Ramirez pled guilty

to methamphetamine possession and active gang participation based on the December 5

incident in defendant’s garage. And finally, defendant testified that he was aware of the

ESV’s criminal activities: he was one of the founding members of the ESV, younger

ESV gang members sought his advice because he had “experience” and looked up to him

61 with “a great deal of respect” because he “followed the rules” and did not “snitch” on

people.

Thus, defendant’s testimony unequivocally showed that when he accepted a bag of

methamphetamine from Ramirez, he willfully promoted, furthered, or assisted Ramirez,

whom he knew to be an ESV gang member, in committing felonious criminal conduct,

namely, methamphetamine possession, with knowledge that ESV gang members had

engaged in a pattern of criminal gang activity. (§ 186.22, subd. (a).) The active

participation element was satisfied by defendant’s willing acceptance of

methamphetamine from Ramirez. And as discussed, the jury was instructed not to

consider and presumably did not consider any felonies committed before December 5 in

considering the active gang participation charge—including defendant’s direction of the

November 2008 robbery by ESV gang members.

III. DEFENDANT’S OTHER CLAIMS OF ERROR

A. The “Felonious Criminal Conduct” Was Not Required to be Gang Related

Defendant next claims insufficient evidence supports his active gang participation

conviction because there is no evidence he promoted, furthered, or assisted a member of

the gang in committing a gang-related felony or gang-related felonious criminal conduct.

This argument is moot because, in December 2010, after the parties filed their original

briefs on appeal, the California Supreme Court ruled that there is no requirement that the

62 “felonious criminal conduct” described in section 186.22, subdivision (a) must be “gang

related.” (People v. Albillar (2010) 51 Cal.4th 47, 59.)15

The high court explained that the plain language of section 186.22, subdivision (a)

“targets felonious criminal conduct, not felonious gang-related conduct,” and there is no

“unwritten requirement” that the felonious criminal conduct that the defendant promoted,

furthered or assisted must be gang related. (People v. Albillar, supra, 51 Cal.4th at pp.

51, 55.) This literal interpretation of the statute will not yield absurd results because

“there is nothing absurd in targeting the scourge of gang members committing any crimes

together and not merely those that are gang related. Gang members tend to protect and

avenge their associates. Crimes committed by gang members, whether or not they are

gang related or committed for the benefit of the gang, thus pose dangers to the public and

difficulties for law enforcement not generally present when a crime is committed by

someone with no gang affiliation. . . .” (Id. at p. 55.)

B. The Trial Court’s Two Minor Ex Parte Communications to the Jury Were Harmless

Beyond a Reasonable Doubt

The jury sent two notes to the court shortly after it began deliberating. One asked

for a readback of defense counsel’s closing argument, and the other stated: “Need a

15 Section 186.22, subdivision (a) states: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . .” (Italics added.)

63 reading of the 602 what was it filled out for Fred Archuleta.” The court called the

counsel into the courtroom and advised them it had received the two notes.

Regarding the first note, the court said it had already sent the jury a return note

stating that arguments of counsel were not evidence and would not be reread. Regarding

the “602” note, the court advised counsel that the pertinent testimony had already been

reread. Defense counsel objected to the court’s refusal to order a readback of his closing

argument, but he did not object to the court’s “ex parte” order to have the 602 evidence

reread. Defendant claims the court’s ex parte communications to the jury in response to

both notes violated section 1138,16 and also constituted a prejudicial violation of his right

to counsel. We find no prejudicial error.

1. The “602” Note and Readback

We first observe that defendant has forfeited his claims regarding the court’s ex

parte communication or ordered readback in response to the jury’s 602 note, because he

did not object to that communication or move for a mistrial based on it after he was

informed it had occurred. (People v. Ross (2007) 155 Cal.App.4th 1033, 1048 [“A

defendant may forfeit an objection to the court’s response to a jury inquiry through

counsel’s consent, or invitation or tacit approval of, that response.”].)

16 Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”

64 In any event, the court’s ex parte communication concerning the 602 note was

harmless beyond a reasonable doubt; reversal, therefore, is not required. (People v.

Jennings (1991) 53 Cal.3d 334, 383-384 [court’s unauthorized ex parte communication

with jury does not result in reversal if the improper contact was harmless beyond a

reasonable doubt]; People v. Delgado (1993) 5 Cal.4th 312, 330.)

As explained in People v. Wright (1990) 52 Cal.3d 367, 402 and 403: “It is well

settled that the trial court should not entertain, let alone initiate, communications with

individual jurors except in open court, with prior notification to counsel. [Citation.]

‘This rule is based on the precept that a defendant should be afforded an adequate

opportunity to evaluate the propriety of a proposed judicial response in order to pose an

objection or suggest a different reply more favorable to the defendant’s case.

[Citations.]’ [Citation.]

“. . . ‘[t]here is scarcely a lengthy trial in which one or more jurors do not have

occasion to speak to the trial judge about something, whether it relates to a matter of

personal comfort or to some aspect of the trial. The . . . conclusion that an unrecorded ex

parte communication between trial judge and juror can never be harmless error ignores

these day-to-day realities of courtroom life and undermines society’s interest in the

administration of criminal justice.’ [Citation.] Although such communications violate a

defendant’s right to be present, and represented by counsel, at all critical stages of his

trial, and thus constitute federal constitutional error, reversal is not required where the

error can be demonstrated harmless beyond a reasonable doubt. [Citations.]”

65 Though the record does not indicate exactly what evidence was reread or provided

to the jury in response to the 602 note, the readback took all of two minutes, from 3:58

p.m. to 4:00 p.m. on May 28. We are satisfied that this two-minute readback could only

have consisted of one thing: two pages of defendant’s direct testimony concerning a 602

filing. The contents of that portion of defendant’s testimony can be briefly summarized.

When asked whether he recalled objecting to a notation on the 2008 classification

sheet indicating his moniker was “Payaso,” defendant said he “filed a 602 on this Payaso

and Joker thing” when he was in state prison. He explained that “a 602” is “an appeal

process” that inmates use if they feel unjustly accused of something in state prison.

Around 1998, defendant discovered that another inmate had provided confidential

information that Payaso, or defendant, was a Mexican Mafia associate. Defendant said

he was known as “Joker,” but had never been known as Payaso, so he “filed a 602” to

correct or contest the allegation that he was known as Payaso, and “beat” the allegation.

No 602 document was identified during trial or admitted into evidence.

Though we agree that the court should have deferred ordering the readback until

after it conferred with counsel (People v. Jennings, supra, 53 Cal.3d at p. 384; § 1138),

we find the error harmless beyond a reasonable doubt for three reasons. First, there is no

indication that the readback contained any misstatement of the law. (Cf. People v.

Delgado, supra, 5 Cal.4th at p. 331; People v. Jennings, supra, at pp. 384-385.)

Second, the court promptly advised counsel of the readback at 4:23 p.m., less than

25 minutes after the 3:58 p.m. to 4:00 p.m. readback occurred. The court recessed at 4:27

66 p.m., and the jury continued deliberating through the entire next day, May 29, and

reached its verdicts on the following court day, June 1, after deliberating from 8:30 a.m.

to 10:00 a.m. Defense counsel had plenty of time to inquire of the court concerning the

602 readback, and ask that the court correct, supplement, or otherwise modify the

readback before jury deliberations concluded, if he felt the readback was somehow in

error.

Third, defendant fails to articulate what might have happened had his counsel been

advised of the readback in advance. (People v. Delgado, supra, 5 Cal.4th at p. 331.)

During the remainder of its deliberations, the jury had no questions concerning its 602

note or the readback in response to it. Nor did the jury ask any other questions

concerning the 602 filing.

“[I]t is questionable ‘whether a defendant should be permitted to sit back, await a

jury verdict, and then assert error based on the court’s improper communication with the

jury’ [citation], at least when the improper communication was relatively minor.”

(People v. Jennings, supra, 53 Cal.3d at p. 384.) The 602 readback and the court’s ex

parte order concerning it was minor in the context of the entire trial, and for the reasons

explained was harmless beyond a reasonable doubt.

2. The Request to Read Back Defense Counsel’s Argument

In response to the jury’s note requesting a readback of defense counsel’s closing

argument, the court returned the jury’s note after writing on it: “Sorry, the arguments of

counsel are not evidence and will not be provided to you.” Defendant claims this ex

67 parte communication also violated section 1138 and his right to counsel. Here, too, we

find no prejudicial error.

The court’s statement that “arguments of counsel are not [in] evidence” was a

correct statement of the law (Evid. Code, § 140), and the court did not tell the jury to

disregard the arguments of either side (see People v. Gurule (2002) 28 Cal.4th 557, 649

[a criminal defendant has a state and federal constitutional right to present closing

argument to the jury]).

Further, the instructions told the jury that the opening statements, questions, and

closing arguments of counsel were not evidence, and to base their decisions solely on the

evidence. (CALCRIM No. 222.) In view of these factors and the record as a whole, the

court’s failure to confer with counsel before responding to the note was harmless beyond

a reasonable doubt. (People v. Wright, supra, 52 Cal.3d at pp. 402-403.)

C. The Trial Court Did Not Abuse Its Discretion in Refusing the Jury’s Request for a

Rereading of Defense Counsel’s Closing Argument

Defendant claims the court did not understand that it had discretion to order the

readback of defense counsel’s argument, and in any event abused its discretion in

refusing to order the readback. We disagree. The court both understood that it had

discretion to order the readback, and properly refused to exercise it.

After the court told counsel it had refused the jury’s request for a readback of

defense counsel’s closing argument, defense counsel objected and the court invited

counsel to direct the court’s attention to some authority that it had discretion to order the

68 readback. The following morning, at least one full day before the jury concluded its

deliberations, defense counsel directed the court’s attention to People v. Gordon (1990)

50 Cal.3d 1223 (Gordon).

Gordon and subsequent cases have made it clear that while section 1138 requires

the trial court to reread evidence and instructions upon the jury’s request, the statute does

not extend to arguments of counsel. (Gordon, supra, 50 Cal.3d at pp. 1259-1260; People

v. Pride (1992) 3 Cal.4th 195, 266; People v. Gurule, supra, 28 Cal.4th at p. 649.) Still, a

court has inherent authority and discretion to reread arguments of counsel upon request.

(Gordon, supra, at p. 1260; People v. Sims (1993) 5 Cal.4th 405, 453.)

Defense counsel pointed out that, while the trial court in Gordon also declined to

reread defense counsel’s argument, that court also told the jury it did not “‘mean to . . .

imply’” that the arguments of either side should be disregarded, but it was not appropriate

for the court to “‘emphasize one argument.’” (Gordon, supra, 50 Cal.3d at p. 1259.)

Defense counsel next asked the court to tell the jury it should not disregard the arguments

of either side, if the court was not inclined to order defense counsel’s argument reread.

Following this discussion, the court did not order the readback and did not

admonish the jury not to disregard either side’s argument. Without addressing why it

was not ordering the readback, the court explained it was unnecessary to tell the jury not

to disregard the arguments, because the instructions told the jury “what to do” with the

arguments and the court never told the jury to disregard the arguments. This was a

proper exercise of the trial court’s discretion.

69 The trial court in Gordon did not abuse its discretion in refusing to read back the

defense counsel’s argument, because it would have risked diverting the jury’s attention

from the evidence and the instructions. (Gordon, supra, 50 Cal.3d at p. 1260.) To be

sure, a rereading of one argument but not the other generally risks placing undue

emphasis on the reread argument at the expense of the evidence, the instructions, and the

other side’s argument.

In addition, and as the trial court pointed out, the instructions told the jury that the

opening statements, questions, and closing arguments of counsel were not evidence, and

to base their decisions solely on the evidence. (CALCRIM No. 222.) Nor did the trial

court tell the jury to disregard the arguments. (See People v. Gurule, supra, 28 Cal.4th at

p. 649 [a criminal defendant has “a state and federal constitutional right to present closing

argument to the jury”].) There was therefore no need to tell the jury not to disregard the

arguments.

Further, a court’s refusal to reread an argument, if erroneous, is not prejudicial

unless it is reasonably probable the jury would have reached a different result had the

argument been reread. (People v. Sims, supra, 5 Cal.4th at p. 453; People v. Watson

(1956) 46 Cal.2d 818, 836.) That is not the case here. Defense counsel’s argument was

not so complex that its repetition was necessary for defendant to receive the full benefit

70 of the adversarial process. (People v. Sims, supra, at p. 453.) Also, the disputed issues

addressed in the argument were fully covered in the instructions. (Ibid.)17

IV. DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

KING

J.

I concur:

MILLER

J.

17 The key points of defense counsel’s argument were the following: On count 1, counsel urged the jury to conclude that defendant did not possess the bag of methamphetamine that Ramirez gave him, because he never exercised control over it, though he knew it contained methamphetamine. He also argued that the methamphetamine found on defendant was not a usable quantity, an essential element of the possession charge. Regarding count 2, counsel reminded the jury that during opening statement he told them defendant “was a member” of ESV when it was known as the “VVR,” and defendant “told the truth” about the gang’s history. He argued defendant was not a “shot caller” for the gang, though he mentored the gang’s younger members about prison life and had no control over what the gang members did. In short, counsel argued defendant was not an “active participant” in the gang and had not been since he was a teenager. Counsel also argued that defendant did not assist, promote, further, or facilitate any felonious conduct on the part of Ramirez or any other gang members. Ramirez was already in possession of the methamphetamine when he arrived at defendant’s house, and there was no evidence the two men were planning a robbery or any other crime. They never even had a chance to talk about the stolen car Ramirez was driving. Lastly, counsel argued defendant had no incentive to possess methamphetamine or actively participate in a gang because he was a three striker. Also, there was nothing defendant could do about the jail’s classification of him as a gang member or the CDCR’s validation of him as a Mexican Mafia associate. Defendant contested the CDCR’s validation through the 602 he filed. The prosecution’s case was built on circumstantial evidence, and it was more reasonable to conclude defendant was innocent rather than guilty. RICHLI, J.

I concur in the judgment.

I also concur that, even assuming the admission of Fernando Perez’s out-of-court

statement violated the confrontation clause, the error was harmless beyond a reasonable

doubt. (Maj. opn. part II.C.3, pp. 57-62.) Accordingly, I see no need to address the

relatively difficult and unsettled questions of whether Perez’s statement was (1)

testimonial (especially as it was evidently made during the investigation of a crime other

than the one charged in this case) (Maj. opn. part II.C.2, pp. 53-57) or (2) offered for its

truth (Maj. opn. part II.C.1, pp. 44-53), and I express no opinion on these points.

RICHLI

Acting P. J.

1