In re Sebastian B. CA5

DISCUSSION

The minor argues that the People’s gang expert relied on hearsay evidence and that this reliance violated the confrontation clause of the Sixth Amendment.4 This argument is based on Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford), in which the United States Supreme Court held that admission of “testimonial” hearsay violates the confrontation clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him or her. The court did not provide a definitive statement of the meaning of “testimonial” hearsay, but one definition it mentioned with approval was: “‘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.’” (Id. at p. 52.) The People contend that this issue has been forfeited because the minor did not object to the gang expert’s testimony on these grounds in the juvenile court. We agree with the minor, however, that objection was unnecessary because it would have been futile. In People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas), which the juvenile court was bound to follow, the Court of Appeal held…