By not objecting, trial counsel forfeited any issue regarding the admission of expert case-specific hearsay testimony, held inadmissible in People v. Sanchez (2016) 63 Cal.4th 665. Perez and other gang members conspired to rob and kill associates of the same drug cartel to which defendant’s gang belonged. Defendants executed the plan but left one victim alive, who led police to defendants. A jury convicted defendants of multiple first degree murders with special circumstances, and other offenses. On appeal defendants argued the prosecution expert’s gang testimony consisted of inadmissible case-specific hearsay. The prosecution argued the issue was forfeited by failure to object. Held: Affirmed. Crawford v. Washington (2004) 541 U.S. 36, held that admission of testimonial hearsay violates the confrontation clause unless the declarant is unavailable at trial and the defendant has had a prior opportunity to cross-examine the declarant. In People v. Sanchez (2016) 63 Cal.4th 665, the court held that if an expert provides case-specific hearsay to support his opinion, those statements are being admitted for their truth and are inadmissible. Although Sanchez was decided after the trial in this case, there already existed cases recognizing that any hearsay that provides the basis for expert opinion is necessarily offered for its truth. (E.g., Williams v. Illinois (2012) 567 U.S. 50 [five justices state that, for purposes of the confrontation clause, an expert’s testimony relating out-of-court statements as the basis for opinion is offered for its truth]; People v. Dungo (2012) 55 Cal.4th 608 [six justices concluded expert’s testimony relating out-of-court statements offered for its truth]). In determining whether trial counsel’s failure to object to testimony at trial forfeits an issue on appeal, the reviewing court considers the state of the law as it would have appeared to competent counsel at the time of trial. Here, existing cases would have alerted competent, knowledgeable counsel to the need to object to the expert’s case-specific, out-of-court statements on hearsay and Crawford grounds, so the issue was forfeited. The court did not consider whether defendants were ineffectively represented by counsel due to this forfeiture, as the issue was not raised.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E060438M.PDF