Gang experts testimony did not run afoul of People v. Sanchez (2016) 63 Cal.4th 665 because it was either general non-case-specific background, based on the experts personal knowledge, or non-testimonial. Vega-Robles appealed his murder convictions and gang enhancements challenging, among other things, the gang experts’ testimony on hearsay and confrontation grounds. The Court of Appeal rejected the argument. The Supreme Court granted review and ultimately transferred the case back to the Court of Appeal for reconsideration in light of Sanchez. Held: Affirmed, in part. Sanchez held that the hearsay rule bars an expert from relating “case-specific facts about which the expert has no independent knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676.) “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.”(Ibid.) Here, the testimony concerning the history and founding of the FAIM gang is non-case-specific background information Sanchez held was admissible even though the source of that information is hearsay. (See id. at p. 685.) By contrast, the experts’ testimony about gang membership, gang activities, and the defendant’s involvement in trafficking methamphetamine with the gang was “case-specific.” However, the expert had personal knowledge of those facts, and Sanchez does not bar an expert from testifying about case-specific facts which are within his personal knowledge. (Id. at p. 676.) Furthermore, Vega-Robles is unable to establish a Confrontation Clause violation because there is no indication that any of the hearsay on which the expert’s opinion was based was testimonial. But even assuming the hearsay was testimonial, its admission was harmless beyond a reasonable doubt because other participants/witnesses to the crimes testified and established the case-specific facts at issue.
Trial court’s jury instructions concerning expert witness testimony were erroneous but harmless. The jury was instructed with CALCRIM Nos. 332 and 360, which, in pertinent part, provide: “You must decide whether information on which the expert relies was true and accurate . . . It is up to you to decide whether an assumed fact has been proved . . . You may consider [the statements from others that the expert relied upon] only to evaluate the expert’s opinion. Do not consider those statements as proof that the information contained in the statements is true . . . You may consider those statements only to evaluate the expert’s opinion.” The Court of Appeal agreed that the instructions were erroneous in light of Sanchez. Sanchez explained, “Jurors cannot logically follow these conflicting instructions. They cannot decide whether the information relied on by the expert ‘was true and accurate’ without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true. ‘To admit basis testimony for the nonhearsay purpose of jury evaluation of the experts is . . . to ignore the reality that jury evaluation of the expert requires a direct assessment of the truth of the expert’s basis.'” However, any instructional error was harmless beyond a reasonable doubt provided the non-expert testimony that independently established the case-specific facts in the case.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A137121A.PDF