Trial court abused its discretion and violated defendant’s confrontation right by allowing the prosecution to relate case-specific testimonial hearsay through its cross-examination of a defense expert witness, but the error was harmless. A jury convicted Malik of assault with a deadly weapon and criminal threats. It also found that he used a deadly weapon and inflicted great bodily injury. On appeal he argued his confrontation rights were violated when the trial court allowed the prosecutor to relate case-specific testimonial hearsay from police reports to the jury during the cross-examination of a defense psychologist who testified that Malik suffered from PTSD. Held: Affirmed. In People v. Sanchez (2016) 63 Cal.4th 665, the court held: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay.” Where a prosecution witness seeks to relate testimonial hearsay, a confrontation violation results unless (1) the declarant is unavailable, and (2) the defense had a prior opportunity to cross-examine the declarant, or forfeited that right by wrongdoing. Here the prosecution related case-specific (i.e., whether defendant suffered from PTSD), testimonial (statements from police reports) hearsay through cross-examination of the defense expert. The Court of Appeal “found no authority standing for the proposition that the breadth of permissible cross-examination extends to the admission of case-specific testimonial hearsay in violation of a defendant’s right of confrontation.” The reasoning of Sanchez applies equally in these circumstances. The defense had no prior opportunity for cross-examination and did not forfeit that right by wrongdoing. Thus, admission of the hearsay violated defendant’s right of confrontation. However, the violation was harmless beyond a reasonable doubt because the jury’s findings did not turn on whether defendant had PTSD, but on whether the jury believed his version of events.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C080291.PDF