Defendant failed to show that gang expert’s opinion testimony violated the confrontation clause. A jury convicted Ochoa of a number of offenses, including threatening public officials, and found true gang enhancements. He appealed, arguing that portions of the gang expert’s opinion testimony were based on hearsay that violated the confrontation clause, specifically the expert’s reliance on reports that the individuals who committed the requisite predicate acts were gang members. The Court of Appeal affirmed. The Supreme Court granted review and ultimately transferred the case back to the Court of Appeal for reconsideration in light of People v. Sanchez (2016) 63 Cal.4th 665. Held: Affirmed. Sanchez held that “When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth.” However, the hearsay the expert relied on must also be “testimonial” to implicate the confrontation clause. (Crawford v. Washington (2004) 541 U.S. 36, 51-52.) “Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (Sanchez, supra, 63 Cal.4th 665, 689.) In the present case there is nothing in the record regarding the circumstances under which the hearsay statements were made. If Ochoa had objected on confrontation grounds, the prosecutor would have had the burden to prove the hearsay statements were nontestimonial. However, because there was no objection, the record is undeveloped and Ochoa’s confrontation claim must fail. But even assuming confrontation error, it was harmless beyond a reasonable doubt. Ochoa’s own convictions in the present case, coupled with the nonhearsay evidence of his gang membership, were sufficient to establish the requisite predicate acts under section 186.22, subdivision (e). Additionally, any violations of state hearsay law were also harmless.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A137763A.PDF