Defendant’s failure to object at trial, before People v. Sanchez (2016) 63 Cal.4th 665 was decided, did not forfeit a claim that a gang expert’s testimony related case-specific hearsay in violation of the confrontation clause. Perez, Chavez, and Sandoval were charged with gang-related murders and other offenses. A gang expert testified for the prosecution and defense counsel did not object. Defendants were convicted and appealed. While defendants’ appeals were pending, the California Supreme Court issued its opinion in Sanchez. Relying on Sanchez, Chavez filed a supplemental brief arguing that the gang expert’s testimony related case-specific hearsay in violation of his Sixth Amendment right to confrontation. The Court of Appeal held that Chavez’s failure to object at trial forfeited any Sanchez claim on appeal. The Supreme Court granted Chavez’s petition for review. Held: Reversed and remanded for further proceedings. The failure to object has been excused where the requirement would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal. At the time of trial, People v. Gardeley (1996) 14 Cal.4th 605 was controlling authority and allowed an expert to testify on direct examination to any sufficiently reliable hearsay sources used in formulation of the expert’s opinion. Sanchez disapproved Gardeley (and related opinions) to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules and expressly changed the law. Prior to Sanchez, a trial court would have overruled a hearsay/confrontation clause objection to a gang expert’s testimony and such an objection would have been futile. Based on this, Chavez’s failure to object before Sanchez was decided did not forfeit a claim on appeal based on Sanchez. The court disagreed with the Attorney General’s argument that an objection would not have been futile because case law before Sanchez had undermined Gardeley’s reasoning. [Editor’s Note: The court disapproved People v. Blessett (2018) 22 Cal.App.5th 903, 925-941, to the extent that it is inconsistent with the opinion in this case.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/S248730.PDF