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Name: People v. Archuleta
Case #: E049095
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 12/29/2011
Subsequent History: Revw. granted 3/28/12 (S199979)

The trial court’s admission of testimonial hearsay as basis evidence for an expert opinion does not violate a defendant’s Sixth Amendment right to confront witnesses, but should be evaluated under Evidence Code section 352. A jury found appellant guilty of possessing methamphetamine and active gang participation. Three Strike priors were found true. Appellant was sentenced to 40 years to life. Appellant claimed his confrontation rights were violated when the court allowed, over objection, testimonial hearsay that appellant had directed a gang-related robbery, as basis evidence for a gang expert. The Court of Appeal found the hearsay was testimonial, but did not violate appellant’s confrontation rights because it was admitted solely “as basis evidence to support an expert opinion” and not for the truth of the matter asserted. The court acknowledged it is often difficult if not impossible for a jury to disregard the truth of such hearsay evidence, but stated it was bound by California Supreme Court precedent (including People v. Gardeley (1996) 14 Cal.4th 605) which found a legal distinction between use of hearsay as substantive evidence versus basis evidence for an expert opinion. Given this precedent, admission of the evidence did not violate either the hearsay rule or the Confrontation Clause. Nonetheless, the court found that such evidence is testimonial and of suspect reliability. Therefore, it should be evaluated under Evidence Code section 352, and limited or excluded to the extent required to prevent undue prejudice. A section 352 objection was not made in this case, so the trial court did not abuse its discretion by admitting the evidence. In any event, appellant was not prejudiced by admission of the hearsay because the record as a whole reflected that he was a high-ranking active gang member at the time of the crime.