Gang expert testimony that included statements made by nontestifying gang members during custodial interrogation violated the confrontation clause. Edwards and a group of friends from East Palo Alto drove to a house party in San Jose. An argument broke out and members of Edwards’ group shot and killed one of the partygoers. Three weeks before, there was a similar shooting in Sunnyvale. Edwards was tried for various gang-related crimes based on the shootings. During the trial, Detective Soares opined that Edwards was part of a gang, the Taliban, and that both the San Jose and Sunnyvale shootings benefitted that gang. The jury convicted Edwards of second degree murder and shooting at an inhabited dwelling, but hung on two other counts and did not return findings on any of the gang allegations. Edwards made numerous arguments on appeal, including that Soares’ testimony violated his right to confrontation. Held: Affirmed. After reviewing relevant case law, the Court of Appeal concluded that testimony on the basis of an expert’s opinion is offered for its truth and subject to confrontation clause analysis (disagreeing with People v. Hill (2011) 191 Cal.App.4th 1104, 1128-1137 and other decisions). Here, parts of Soares’ testimony relayed conversations he had with nontestifying Taliban gang members during a police interrogation. This was testimonial hearsay and its admission violated the confrontation clause. The error, however, was harmless beyond a reasonable doubt. The fact the jury deadlocked on all the gang allegations and hung on two of the substantive offenses shows they did not improperly rely on Soares’ basis-testimony and were not biased against Edwards as a result of it. The court noted, “If the jury had returned true findings on one or all of the gang allegations, our analysis would be different.”

Trial court erred by excluding a defense expert’s testimony that would have impeached the reliability of the prosecution’s gang expert’s methods. During an Evidence Code section 402 hearing, Dr. Deborah Davis testified that the prosecution’s gang expert’s conclusions were inconsistent with the scientific method. She also testified about the unreliability of a gang expert’s subjective determination that a person is a gang member based on personal experience. The trial court excluded the testimony under Evidence Code section 352, finding that it was “extremely confusing,” lacked probative value, and would consume an inordinate amount of time. On appeal, Edwards challenged the trial court’s exclusion of Dr. Davis’ testimony. The Court of Appeal concluded that the trial court erroneously excluded the proffered testimony under section 352. Dr. Davis was Edwards’ sole witness and the testimony would not have consumed an inordinate amount of time because it was adduced in a single afternoon at the 402 hearing. By contrast, the prosecution called 48 witnesses over 16 days of trial. Furthermore, Dr. Davis’ testimony was probative because it called into question the reliability of the prosecution’s gang expert’s conclusions. The court reasoned that a defendant must be allowed to impeach a prosecution gang expert’s testimony “with qualified expert opinions setting forth scientifically valid reasons to show why that testimony may be unreliable.” However, the error was harmless under Watson. The jury deadlocked on the gang allegations and Dr. Davis’ testimony was not directly relevant to any of the substantive offenses. Additionally, Dr. Davis’ testimony was not so crucial to Edwards’ case that its exclusion violated his federal constitutional right to confrontation.