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Name: In re Thomas
Case #: E069454
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 12/27/2018

In state habeas proceedings, the three-factor test in In re Johnson (1970) 3 Cal.3d 404 governs retroactivity rather than the standard set forth in Teague v. Lane (1989) 489 U.S. 288, which governs federal habeas proceedings. In 2003, Thomas was convicted of receiving a stolen vehicle and participation in a criminal street gang. A gang expert’s testimony included testimonial, case-specific out-of-court statements. On appeal, Thomas argued the expert’s testimony violated his confrontation rights under Crawford v. Washington (2004) 541 U.S. 36. The Court of Appeal affirmed under People v. Gardeley (1996) 14 Cal.4th 605, which approved the use of such testimony. People v. Sanchez (2016) 63 Cal.4th 663 overruled Gardeley, holding that such testimony violates the confrontation clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Thomas filed a state habeas petition urging application of Sanchez to his case. Held: Petition denied. By overruling Gardeley, Sanchez created a new rule. In determining the retroactive applicability of a new rule, California courts evaluate (1) the purpose of the rule, (2) the extent to which law enforcement relied on the old rule, and (3) the effect on the administration of justice of a retroactive application of the new rule. (In re Johnson, supra, 3 Cal.3d at p. 410.) Teague, which accords retroactive application if the new rule is substantive or a “watershed” rule of criminal procedure, applies only in federal habeas proceedings. Though Sanchez relates to the integrity of the fact-finding process, which weighs in favor of retroactivity, it is not retroactive in state collateral proceedings because law enforcement relied heavily on the old rule and applying the new rule to final cases would be too disruptive and costly. The court disagreed with the reasoning in In re Ruedas (2018) 23 Cal.App.5th 777, which applied the Teague standard and concluded the new Sanchez rule should not apply retroactively because it simply established an evidentiary framework for analyzing the admissibility of expert basis evidence.

The full opinion is available on the court’s website here: