People v. Perez

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS PEREZ et al.,

Defendants and Appellants.

S248730

Fourth Appellate District, Division Two

E060438

San Bernardino County Superior Court

FV1901482

February 27, 2020

This opinion precedes companion case S249872,

also filed on February 27, 2020.

Justice Groban authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Cuéllar, and Kruger concurred.

PEOPLE v. PEREZ

S248730

Opinion of the Court by Groban, J.

People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) held that

an expert cannot relate case-specific hearsay to explain the basis

for his or her opinion unless the facts are independently proven

or fall within a hearsay exception. We concluded that if the

prosecution expert seeks to relate testimonial hearsay, the

confrontation clause is violated unless there is a showing of

unavailability and the defendant had a prior opportunity for

cross-examination or forfeited that right. We granted review in

this case to determine whether a defendant’s failure to object at

trial, before Sanchez was decided, forfeited a claim that a gang

expert’s testimony related case-specific hearsay in violation of

the confrontation clause. We now conclude that a defense

counsel’s failure to object under such circumstances does not

forfeit a claim based upon Sanchez. Accordingly, we reverse the

judgment of the Court of Appeal here, which reached the

opposite conclusion.

I. BACKGROUND

On June 23, 2009, a motorist driving on U.S. Highway 395

near Victorville encountered a man walking on the road and

bleeding from gunshot wounds to his face and abdomen. Police

arrived on the scene and followed a trail of blood to a pickup

truck parked a few blocks away. There, the police found two

other men, who had both died from gunshot wounds.

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The surviving victim told police that he had been

kidnapped a few days earlier in the city of South Gate, near Los

Angeles. He was visiting a house on Center Street when a group

of men held him at gunpoint and tied him up with zip ties. The

group forced the victim to call two other acquaintances and

summon them to the house. Upon their arrival, the group then

bound the other two as well. The group forced the three victims

to arrange for deliveries of money and drugs, which the group

then took. The group put the victims into vehicles and drove

them away from the house. The three victims were eventually

shot and left for dead near Victorville. The survivor identified a

person named “Lalo” as the shooter.

In police interviews, defendant Jose Luis Perez admitted

that he was present during the crimes up to just before the

shooting and that his participation consisted of duct-taping a

sock over the eyes of one of the victims and then putting him in

zip ties. Perez stated that he got into a vehicle when the group

left the house with the victims, but that the vehicle he was in

lost track of the other vehicles. Perez incriminated his

codefendants Edgar Ivan Chavez Navarro (“Chavez”) and Pablo

Sandoval, as well as Sabas Iniguez, Caesar Rodriguez, and

Eduardo Alvarado (nicknamed “Lalo”). Perez admitted he heard

the plan was to rob the victims and kill them but claimed that

he was not supposed to be present and that the others simply

showed up earlier than expected at the house on Center Street

while he was there. Perez claimed that Sandoval threatened to

kill him and his family if he talked.

Chavez, Perez, and Sandoval were all tried together, but

Perez had a separate jury. Iniguez testified against them

pursuant to plea bargain. He testified that a drug dealer named

“Max” owed a debt to other drug dealers (the victims here) for

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Opinion of the Court by Groban, J.

methamphetamine. Max was a cartel member and Sandoval

reported to him. Alvarado was also a cartel member and Chavez

reported to him. One of the victims who died was a cartel

member and reported to “Nacho,” i.e., the “big boss” in

Guadalajara. The surviving victim reported to that decedent

victim. Max planned to ambush his creditors and rob them of

drugs and money. Iniguez, Sandoval, Chavez, Perez, Alvarado,

Rodriguez, and three unknown persons all assisted in carrying

out the plan.

The prosecution’s gang expert Jeff Moran testified that the

Sinaloa drug cartel produces large amounts of

methamphetamine, cocaine, and marijuana and transports

them to the United States to sell. The cartel operates as a

franchise and is divided into territories, which are subdivided

into cells. Each cell connects to someone in the cartel, but each

cell works independently of the other cells. At the time of trial,

“El Chapo” Guzman was the head of the Sinaloa cartel. “Nacho”

was Ignacio Coronel, who was killed in 2010. At the time of the

offenses, Coronel worked in Guadalajara and was number three

in the Sinaloa drug cartel. In Moran’s opinion, Iniguez,

Sandoval, Chavez, Perez, Alvarado, and Rodriguez were all

members or associates of the Sinaloa drug cartel. He testified

that the group’s coordinated efforts are consistent with members

or associates of a criminal street gang acting in association or in

concert with each other. He testified that he formed his opinions

based upon his training, experiences, and information obtained

from this investigation. This included information obtained

from interviews he and other detectives conducted, Perez’s

statements to police, trial testimony, classes, Internet research,

reports, articles about the Guzman cartel, and regular

discussions with Drug Enforcement Administration agents

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about cartels. Defense counsel did not object to Moran’s

testimony on hearsay, confrontation clause, or Evidence Code

section 352 grounds. To establish the pattern of criminal gang

activity, the court took judicial notice that Alvarado, Iniguez,

and Rodriguez had been convicted of murder, attempted

murder, and kidnapping, based upon the same events charged

in the present case.1

On October 31 and November 1, 2013, the juries convicted

Chavez, Sandoval, and Perez each of two counts of first degree

special circumstance murder (Pen. Code, §§ 187, subd. (a),

190.2, subd. (a)),2 one count of attempted premeditated murder

(§§ 664, 187, subd. (a)), three counts of kidnapping for ransom (§

209, subd. (a)), three counts of kidnapping to commit robbery (§

209, subd. (b)(1)), and one count of street terrorism (§ 186.22,

subd. (a)). The jury found true gang (§ 186.22, subd. (b)) and

firearm (§ 12022.53, subds. (d) & (e)(1)) enhancements. The

trial court sentenced each defendant to five terms of life without

the possibility of parole.

Defendants appealed. In 2016, before the appeals were

resolved, we issued our opinion in Sanchez, supra, 63 Cal.4th

665. In supplemental briefing, Chavez argued in the Court of

Appeal that the gang expert’s testimony was hearsay and had

been presented to the jury in violation of the confrontation

clause. Chavez claimed that the gang expert testified to case-

1

Alvarado and Rodriguez were tried separately and were

convicted of similar offenses as the defendants in this matter.

Perez was originally tried jointly with Iniguez on the same

charges here but with different juries. Iniguez’s jury convicted

him on all counts, but Perez’s hung on all counts.

2

All further unspecified statutory references refer to the

Penal Code.

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Opinion of the Court by Groban, J.

specific hearsay in the following ways: (1) Iniguez admitting he

was a cartel member; (2) Sandoval’s activities showed that he

was a cartel member; (3) sources told Moran that Sandoval was

the one who had direct contact with Max, who was calling the

shots; (4) based on his “involvement and participation in this

investigation,” Moran believed Chavez was a cartel associate

who worked directly for Lalo; (5) Moran’s investigation,

including Perez’s admission to law enforcement, led Moran to

believe Perez was a low-level associate who wanted to work for

Sandoval and his involvement in this case was an audition; and

(6) sources told Moran and other investigators that the crimes

in this case were part of a cartel-ordered hit.

The Court of Appeal held that Chavez’s failure to object to

case-specific hearsay in expert testimony at trial forfeited any

Sanchez claim on appeal. The Court of Appeal found that

“[e]ven though this case was tried before Sanchez was decided,

previous cases had already indicated that an expert’s testimony

to hearsay was objectionable. If anything, Sanchez narrowed

the scope of a meritorious objection by limiting it to case-specific

hearsay.” Therefore, “such objections would not have been

futile.”

Defendants petitioned for review. We granted the

petitions and transferred the matter for the Court of Appeal to

reconsider the cause in light of recent amendments to the

firearm enhancement statutes. (See § 12022.53, subd. (h),

added by Stats. 2017, ch. 682, § 1.) On our own motion, we also

directed the Reporter of Decisions not to publish the opinion.

Upon the case’s return, as relevant here, the Court of Appeal

again held that Chavez’s counsel’s failure to object in the trial

court forfeited any objection to expert testimony to case-specific

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hearsay under Sanchez. (People v. Perez (2018) 22 Cal.App.5th

201, 212.)

Defendants Chavez and Perez petitioned for review. We

granted Chavez’s petition to consider the limited issue of

whether defendant’s failure to object at trial, before Sanchez

was decided, forfeited his claim that a gang expert’s testimony

related case-specific hearsay in violation of his Sixth

Amendment right to confrontation. We denied Perez’s petition.

II. DISCUSSION

Chavez argues that, even though he did not raise a

confrontation clause objection to the gang expert’s testimony at

the time of trial, he did not forfeit the claim because Sanchez

had not yet been decided and such an objection would therefore

have been futile. We agree.

Ordinarily, “the failure to object to the admission of expert

testimony or hearsay at trial forfeits an appellate claim that

such evidence was improperly admitted.” (People v. Stevens

(2015) 62 Cal.4th 325, 333; accord, Evid. Code, § 353, subd. (a).)

“ ‘The reason for the [objection] requirement is manifest: a

specifically grounded objection to a defined body of evidence

serves to prevent error. It allows the trial judge to consider

excluding the evidence or limiting its admission to avoid

possible prejudice. It also allows the proponent of the evidence

to lay additional foundation, modify the offer of proof, or take

other steps designed to minimize the prospect of reversal.’ ”

(People v. Partida (2005) 37 Cal.4th 428, 434.) Even when not

required under our forfeiture doctrine, an objection can still

serve these important purposes and can be crucial to developing

the law.

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Nevertheless, “[a]s this court has explained, ‘[r]eviewing

courts have traditionally excused parties for failing to raise an

issue at trial where an objection would have been futile or wholly

unsupported by substantive law then in existence.’ ” (People v.

Brooks (2017) 3 Cal.5th 1, 92, quoting People v. Welch (1993) 5

Cal.4th 228, 237.) Indeed, “ ‘ “[w]e have excused a failure to

object where to require defense counsel to raise an objection

‘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.’ ” ’ ” (People v. Edwards (2013) 57 Cal.4th 658, 705

(Edwards).) “In determining whether the significance of a

change in the law excuses counsel’s failure to object at trial, we

consider the ‘state of the law as it would have appeared to

competent and knowledgeable counsel at the time of the trial.’ ”

(People v. Black (2007) 41 Cal.4th 799, 811 (Black), quoting

People v. De Santiago (1969) 71 Cal.2d 18, 23.) “The

circumstance that some attorneys may have had the foresight to

raise th[e] issue does not mean that competent and

knowledgeable counsel reasonably could have been expected to

have anticipated the high court’s decision . . . .” (Black, at p.

812.)

At the time of Chavez’s trial, People v. Gardeley (1996) 14

Cal.4th 605 and People v. Montiel (1993) 5 Cal.4th 877, 919

(Montiel) were controlling authority on expert testimony.

Gardeley permitted a qualified expert witness to testify on direct

examination to any sufficiently reliable hearsay sources used in

formulation of the expert’s opinion. (See Gardeley, at p. 618.)

Consequently, “[c]ourts created a two-pronged approach to

balancing ‘an expert’s need to consider extrajudicial matters,

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and a jury’s need for information sufficient to evaluate an expert

opinion’ so as not to ‘conflict with an accused’s interest in

avoiding substantive use of unreliable hearsay.’ ” (Sanchez,

supra, 63 Cal.4th at p. 679, quoting Montiel, at p. 919.) “Most

often, hearsay problems [were] cured by an instruction that

matters admitted through an expert go only to [the] basis of the

opinion and should not be considered for their truth. [Citation.]

[¶] Sometimes a limiting instruction [was] not . . . enough. In

such cases, Evidence Code section 352 authorize[d] the court to

exclude from an expert’s testimony any hearsay matter whose

irrelevance, unreliability, or potential for prejudice outweighs

its proper probative value.” (Montiel, at p. 919.)

After Chavez’s trial, Sanchez found that “this paradigm is

no longer tenable because an expert’s testimony regarding the

basis for an opinion must be considered for its truth by the jury.”

(Sanchez, supra, 63 Cal.4th at p. 679.) Sanchez explained that

“[w]hen 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. It cannot logically be maintained that the statements

are not being admitted for their truth.” (Id. at p. 686.) “If an

expert testifies to case-specific out-of-court statements to

explain the bases for his [or her] opinion, those statements are

necessarily considered by the jury for their truth, thus rendering

them hearsay. Like any other hearsay evidence, it must be

properly admitted through an applicable hearsay exception.

Alternatively, the evidence can be admitted through an

appropriate witness and the expert may assume its truth in a

properly worded hypothetical question in the traditional

manner.” (Id. at p. 684, fn. omitted.) Sanchez clarified that an

“expert may still rely on hearsay in forming an opinion, and may

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tell the jury in general terms that he did so” (id. at p. 685), that

is, the expert may “relate generally” the “kind and source of the

‘matter’ upon which his opinion rests” (id. at p. 686).

Sanchez consequently disapproved Gardeley “to the extent

it suggested an expert may properly testify regarding case-

specific out-of-court statements without satisfying hearsay

rules.” (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Sanchez

also disapproved “prior decisions concluding that an expert’s

basis testimony is not offered for its truth, or that a limiting

instruction, coupled with a trial court’s evaluation of the

potential prejudicial impact of the evidence under Evidence

Code section 352, sufficiently addresses hearsay and

confrontation concerns.” (Ibid.) Specifically, Sanchez

disapproved People v. Bell (2007) 40 Cal.4th 582, 608; Montiel,

supra, 5 Cal.4th at pp. 918–919; People v. Ainsworth (1988) 45

Cal.3d 984, 1012; People v. Milner (1988) 45 Cal.3d 227, 238–

240; and People v. Coleman (1985) 38 Cal.3d 69, 91–93.

Sanchez thus expressly changed the law previously

established by Gardeley and Montiel. “ ‘ “[W]e have excused a

failure to object where to require defense counsel to raise an

objection ‘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.’ ” ’ ” (Edwards, supra, 57 Cal.4th at p. 705.) We

therefore hold that the failure of Chavez’s counsel to object at

trial before Sanchez was decided did not forfeit a claim on appeal

based upon Sanchez. The great weight of authority below is

consistent with this ruling. (See, e.g., People v. Flint (2018) 22

Cal.App.5th 983, 996–997; People v. Hall (2018) 23 Cal.App.5th

576, 602, fn. 10; Conservatorship of K.W. (2017) 13 Cal.App.5th

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1274, 1283; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507–

508; People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7.)

This ruling is also consistent with our numerous decisions

holding that a defendant need not predict subsequent

substantive changes in law in order to preserve objections. (See

People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5 [failure to object

to the admissibility of prior inconsistent statements did not

forfeit claim because a number of appellate cases had upheld the

admissibility of such statements in the face of similar

challenges]; In re Gladys R. (1970) 1 Cal.3d 855, 861 [failure to

object to trial court’s reading of social services report prior to the

jurisdictional hearing in a juvenile court proceeding did not

forfeit issue because a subsequent appellate decision interpreted

the controlling statutes “in a manner contrary to the apparently

prevalent contemporaneous interpretation”].)

The Attorney General, however, argues that three

confrontation clause cases decided before Chavez’s trial,

Williams v. Illinois (2012) 567 U.S. 50 (Williams), People v.

Dungo (2012) 55 Cal.4th 608 (Dungo), and People v. Lopez (2012)

55 Cal.4th 569 (Lopez), provided grounds for objection, and

therefore objection at trial would not have been futile.

By its terms, the confrontation clause provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him.” (U.S. Const.,

6th Amend.) In 2004, the high court “adopted a fundamentally

new interpretation of the confrontation right” (Williams, supra,

567 U.S. at p. 64) and held that “[w]here testimonial evidence is

at issue,” the confrontation clause “demands what the common

law required: unavailability and a prior opportunity for

cross-examination.” (Crawford v. Washington (2004) 541 U.S.

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36, 68.) Relevant here, statements that are not offered for their

truth do not implicate the confrontation clause. (Id. at p. 59,

fn. 9; accord, People v. Blacksher (2011) 52 Cal.4th 769, 808, fn.

23.) While Gardeley was decided before Crawford, every Court

of Appeal to address the issue in a published decision after

Crawford, but before Sanchez, continued to rely on Gardeley to

reject a confrontation clause challenge. Each of these decisions

found, contrary to our subsequent decision in Sanchez, that

expert basis evidence was not offered for its truth. (See People

v. Hill (2011) 191 Cal.App.4th 1104, 1127–1128 (Hill); People v.

Sisneros (2009) 174 Cal.App.4th 142, 153–154; People v. Cooper

(2007) 148 Cal.App.4th 731, 746–747; People v. Fulcher (2006)

136 Cal.App.4th 41, 57; People v. Thomas (2005) 130

Cal.App.4th 1202, 1209–1210.)

Subsequently, in Williams, the high court held in a four-

one-four decision that a lab technician’s testimony regarding

work performed by another lab was not admitted to prove the

truth of the matter and, alternatively, the underlying outside

lab report, which was not admitted into evidence, was not

testimonial. (Williams, supra, 567 U.S. at pp. 57–58, 62, 69–86

(plur. opn. of Alito, J.).) However, while the plurality opinion

found that the testimony did not violate the confrontation

clause, Williams “called into question the continuing validity of

relying on a not-for-the-truth analysis in the expert witness

context,” because between the concurrence and the dissent

“[f]ive justices . . . specifically rejected this approach.” (Sanchez,

supra, 63 Cal.4th at p. 682.) Justice Thomas concurred

narrowly in the judgment on the ground the outside lab report

was not testimonial, but he “share[d] the dissent’s view of the

plurality’s flawed analysis.” (Williams, supra, 567 U.S. at p. 104

(conc. opn. of Thomas, J.); see id. at pp. 109–118.) Notably, he

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found that the challenged testimony was admitted for its truth.

(Id. at pp. 104–109.) Justice Kagan, joined by three other

justices in dissent, found both that the statements were

testimonial and that the challenged testimony was admitted for

its truth. (Id. at pp. 125–132 (dis. opn. of Kagan, J.).)

Our court then applied Williams in the companion cases

of Dungo and Lopez. Dungo held the confrontation clause was

not violated when an expert testified about objective facts

concerning the condition of the victim’s body as recorded in an

autopsy report and autopsy photos. (Dungo, supra, 55 Cal.4th

at pp. 612–615, 621.) Neither the autopsy report, which a

nontestifying pathologist had prepared, nor the photographs

were admitted into evidence. (Id. at p. 612.) Justice Kennard,

in the majority opinion, reasoned that the evidence was not

testimonial, but she did not discuss whether the expert’s basis

testimony was offered for its truth. (Id. at p. 621.) Justice

Werdegar, in a concurring opinion that three other justices

joined, also opined that physical observations from the autopsy

report were not testimonial. (Id. at p. 627 (conc. opn. of

Werdegar, J.).) In the process, she commented that those

“observations were introduced for their truth.” (Id. at p. 627.)

In dissent, Justice Corrigan, joined by Justice Liu, concluded

that the expert’s “description of [the victim’s] body, drawn from

the hearsay contained in [the] autopsy report, violated

defendant’s right to confront and cross-examine [the autopsy

doctor].” (Id. at p. 647 (dis. opn. of Corrigan, J.).) Justice

Corrigan noted that “[f]ive justices explicitly repudiated th[e]

analysis” in the Williams plurality that “[the outside lab] report

was not hearsay at all because its contents were not admitted

for their truth.” (Id. at p. 635.)

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Lopez held that a lab report with defendant’s blood alcohol

concentration results did not violate the confrontation clause.

(Lopez, supra, 55 Cal.4th at pp. 582–585.) The analyst who

prepared the report did not testify, but a colleague testified

about it and the report was admitted into evidence. (Id. at

pp. 573–574.) Justice Kennard for the majority reasoned that

while a notation in the report linking defendant’s name to a

particular blood sample “was admitted for its truth,” the

notation was not testimonial. (Id. at p. 584.) Justice Kennard

observed that in Williams, “[l]ike Justice Thomas in his

concurrence, the dissent rejected the Williams plurality’s

conclusion that [the expert’s] testimony about the report was not

admitted for the truth of the matters asserted in the report.”

(Id. at p. 580.) In dissent, Justice Liu found that “the records at

issue here, including the analyst’s notations linking defendant

to the lab record in question, are testimonial. [Citation.]

Because the statements were introduced through a surrogate

with no personal knowledge of those facts, they were offered in

violation of the confrontation clause.” (Id. at pp. 602–603 (dis.

opn. of Liu, J.).)

Based upon these decisions, the Attorney General

contends that counsel had grounds to object to Gardeley before

we decided Sanchez because a majority of the justices on our

court and the high court had reasoned that, at least in certain

circumstances, testimony concerning the factual basis of an

expert’s opinion was considered for its truth. The Attorney

General argues that even before we issued Sanchez, Courts of

Appeal found that if our court or the high court “were called

upon to resolve this issue, it seems likely” that cases finding

“out-of-court statements offered as expert basis evidence are not

offered for their truth for confrontation purposes will be

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significantly undermined.” (People v. Valadez (2013) 220

Cal.App.4th 16, 32 (Valadez); accord, People v. Landau (2016)

246 Cal.App.4th 850, 869; People v. Miller (2014) 231

Cal.App.4th 1301, 1311–1312; People v. Mercado (2013) 216

Cal.App.4th 67, 89 & fn. 6; Hill, supra, 191 Cal.App.4th at

p. 1132, fn. 18.)

Nevertheless, we did not expressly hold until Sanchez that

“[w]hen 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.” (Sanchez, supra, 63 Cal.4th at p. 686.) And Sanchez

marked a “paradigm” shift in that a limiting instruction was no

longer an effective method of avoiding hearsay problems in an

expert’s basis testimony. (Id. at p. 679.) Indeed, no justice

expressly disapproved Gardeley in either Dungo or Lopez,

despite it being a staple of our decisional law. (See In re Ruedas

(2018) 23 Cal.App.5th 777, 801, fn. 9 [“Gardeley alone was cited

in over 2,000 appellate decisions between the time it was

decided in 1996 and the time Sanchez was decided in 2016”].)

We then continued to cite Gardeley with approval after Dungo

and Lopez. (See People v. Prunty (2015) 62 Cal.4th 59, 89 (conc.

& dis. opn. of Cantil-Sakauye, C. J.) [“A witness testifying in the

form of an opinion may state on direct examination the basis for

his or her opinion”]; People v. Jones (2013) 57 Cal.4th 899, 951

[“expert testimony can be based on a wide variety of information

so long as it is reliable”].) Furthermore, at the time of Chavez’s

trial, Edwards was our most recent decision regarding expert

testimony relating case-specific hearsay. (See Edwards, supra,

57 Cal.4th at pp. 706–707.) Edwards, like Dungo and Lopez, did

not overrule Gardeley, and the Edwards majority stressed that

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it was not persuaded by the Dungo dissent. (Id. at p. 707, fn.

13.)

“The decisions of this court are binding upon and must be

followed by all the state courts of California.” (Auto Equity

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Until

we overruled Gardeley, a lower court applying precedent would

have, under that case, overruled a case-specific hearsay

objection to expert basis testimony. Indeed, our colleagues in

the Courts of Appeal repeatedly and expressly stated that they

were bound to follow Gardeley in the years leading up to

Sanchez. (See, e.g., Hill, supra, 191 Cal.App.4th at p. 1131 [“our

position in the judicial hierarchy precludes [rejecting Gardeley];

we must follow Gardeley and the other California Supreme

Court cases in the same line of authority”]; accord, In re Thomas

(2018) 30 Cal.App.5th 774, 763; People v. Leon (2016) 243

Cal.App.4th 1003, 1016; Valadez, supra, 220 Cal.App.4th at

p. 32, fn. 13.) Such a request in a trial court would therefore

have been futile. (See, e.g., People v. Sandoval (2007) 41 Cal.4th

825, 837, fn. 4 [request for a jury trial on aggravating

circumstances “clearly would have been futile” when

then-existing law required the trial court to deny the request

and “was binding on the lower courts until it was overruled by

the high court”]; People v. Gallardo (2017) 4 Cal.5th 120, 128 [in

dicta questioning “whether defendant should be made to bear

the burden of anticipating potential changes in the law based on

the reasoning of a United States Supreme Court opinion

addressed to the proper interpretation of a federal statute not at

issue here”].)

The Attorney General suggests forfeiture can occur

whenever the argument is not “legally foreclosed,” or the law is

“unsettled,” in an “odd state of flux,” or when the high court has

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not “squarely held as much in a majority opinion,” or when it is

just a “ ‘restoration’ [citation] of a legal principle that over the

years had become ‘blurred.’ ” The Attorney General cites cases

that said this court might be prepared to overrule Gardeley in

the future. (See, e.g., Valadez, supra, 220 Cal.App.4th at p. 32.)

The Attorney General cites cases from other states to show

where the law was trending. The Attorney General argues that

counsel was required to object because the grounds for objection

were “not foreclosed by existing law.”

This, however, is beyond what we have required and too

amorphous a standard to place on trial counsel. “The

circumstance that some attorneys may have had the foresight to

raise this issue does not mean that competent and

knowledgeable counsel reasonably could have been expected to

have anticipated the high court’s decision . . . .” (Black, supra,

41 Cal.4th at p. 812.) Asking attorneys at the trial level to

predict that our court might in the future overrule its prior

precedent — or risk forfeiting constitutional claims of their

clients — simply requires too much. (See People v. Champion

(1995) 9 Cal.4th 879, 908, fn. 6 [“Because the question whether

defendants have preserved their right to raise this issue on

appeal is close and difficult, we assume [they] have preserved

their right, and proceed to the merits”].) It likewise burdens

trial courts with ruling on objections they have little power to

sustain unless and until contrary authority is overruled. If

objection would be futile under current precedent, counsel is not

obligated to object on pain of forfeiture simply because a future

change in the law might be foreseeable. Here, Gardeley was still

binding on lower courts at the time of Chavez’s trial and

therefore, a trial court applying this precedent would have

overruled the objection.

16

PEOPLE v. PEREZ

Opinion of the Court by Groban, J.

In an alternative argument, the Attorney General

contends that even before Sanchez, litigants could “seek to

exclude testimony by an expert that would have impermissibly

related case-specific hearsay to juries, relying both on the

hearsay rule and on section 352 of the Evidence Code.” It is

undoubtedly true that Chavez could have objected under

Evidence Code section 352 based on “whether the jury could

properly follow the court’s limiting instruction in light of the

nature and amount of the out-of-court statements admitted.”

(Sanchez, supra, 63 Cal.4th at p. 679.) However, an objection

under Evidence Code section 352 is completely different from a

Sanchez objection that the expert has “relate[d] as true case-

specific facts asserted in hearsay statements.” (Sanchez, at p.

686.) Thus, the specific objection Sanchez contemplated would

have been futile under Gardeley and its progeny unless a

defendant could additionally show that the statements the

expert related were excessive, inflammatory, or confusing,

regardless of whether they were case-specific. (See, e.g., People

v. Coleman (1985) 38 Cal.3d 69, 93 [court abused its discretion

by allowing “extensive questioning of the expert witnesses”

regarding letters written by the victim].) Our decision in

Sanchez therefore meant that, for the first time, it was no longer

futile to object to case-specific expert basis testimony that was

not excessive, inflammatory, or confusing.

For the reasons stated above, we conclude that the Court

of Appeal improperly found that Chavez forfeited his claim on

appeal based upon Sanchez by failing to object at a trial

occurring before Sanchez was decided. The Court of Appeal here

reached the same conclusion as People v. Blessett (2018) 22

Cal.App.5th 903, 925–941. We disapprove Blessett to the extent

that it is inconsistent with this decision.

17

PEOPLE v. PEREZ

Opinion of the Court by Groban, J.

III. DISPOSITION

The judgment of the Court of Appeal is reversed, and the

cause remanded for further proceedings consistent with this

opinion.

GROBAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

18

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Perez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 22 Cal.App.5th 201

Rehearing Granted

__________________________________________________________________________________

Opinion No. S248730

Date Filed: February 27, 2020

__________________________________________________________________________________

Court: Superior

County: San Bernardino

Judge: John M. Tomberlin

__________________________________________________________________________________

Counsel:

Raymond Mark DiGuiseppe, under appointment by the Supreme Court, for Defendant and Appellant Jose

Luis Perez.

Rebecca P. Jones, under appointment by the Supreme Court, for Defendant and Appellant Edgar Ivan

Chavez Navarro.

Randall Bookout, under appointment by the Supreme Court, and Henry Russell Halpern for Defendant and

Appellant Pablo Sandoval.

Kamala D. Harris and Xavier Becerra, Attorneys General, Edward DuMont, State Solicitor General, Gerald

A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael R.

Johnsen and Joshua Patashnik, Deputy State Solicitors General, Scott C. Taylor and Kristen Kinnaird

Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Rebecca P. Jones

3549 Camino del Rio S., Suite D

San Diego, CA 92108

(619) 269-7872

Joshua Patashnik

Deputy Solicitor General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 510-3896