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Name: People v. Archuleta
Case #: E049095
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/11/2014
Subsequent History: Review granted 6/11/2014: S218640

Where an expert’s testimony is merely a conduit for testimonial hearsay to the jury, and it is not shown that the declarant is unavailable or that appellant had a fair opportunity to cross-examine him, a defendant’s constitutional right to confrontation under the Sixth Amendment is violated. A jury convicted appellant of possession of methamphetamine and active gang participation. Law enforcement officers received information that a homicide suspect could be found at appellant’s residence. At the residence, they found appellant and Ramirez in the garage, each holding suspected methamphetamine. (They did not find the homicide suspect.) At trial, the prosecution’s gang expert, a sheriff’s deputy, testified that appellant was a high-ranking member of and active participant in the East Side Victoria (ESV) criminal street gang. He based his opinion in part on the testimonial hearsay statement of another gang member, Perez. The court considered whether the expert’s testimony violated appellant’s Sixth Amendment right to confrontation and concluded that federal cases provide the proper standard. Experts may rely on testimonial hearsay in forming their opinions but may not simply parrot the content of such hearsay to the jury on direct examination unless the declarant is unavailable or the defendant had a prior opportunity for cross-examination. The question is whether the expert is giving an independent judgment or merely acting as a transmitter of testimonial hearsay. The court found that admission of Perez’s out-of-court statement that appellant directed an uncharged robbery of a drug dealer by ESV gang members, as the basis for the expert’s opinion, violated appellant’s Sixth Amendment rights. The statement essentially was offered for its truth and it was not shown that Perez was unavailable or that appellant had a prior opportunity to cross-examine him. However, the error was deemed harmless because the verdicts on the possession and gang participation charges were unattributable to the statement.