You do not forfeit an objection you didn’t have

How do you preserve an objection you never made or had? You hope the California Supreme Court changes the law after your trial and before your appeal is decided.

The Supreme Court recently decided two cases about the effect of its landmark decision in People v. Sanchez, 63 Cal. 4th 665 (2016). [See "State Supreme Court 'clarifies' expert witnesses and hearsay," Daily Journal (March 3, 2020)]. People v. Perez, the lead case, did not address the specifics of Sanchez doctrine, but a larger question about when evidentiary objections are not forfeited, even when not made.

Defendant Chavez was convicted, along with Perez and others, with gang enhancements based on the testimony of a police gang expert. The expert based his opinions on, among other things, co-defendants' admissions and activities, and unnamed "sources" who told him "that the crimes in this case were part of a cartel-ordered hit." Defense counsel did not object to this testimony on hearsay, confrontation clause, or Evidence Code Section 352 grounds.

While the case was on appeal, the California Supreme Court decided Sanchez. Also a gang case, Sanchez ruled that an expert witness can no longer "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." 63 Cal. 4th at 686 (emphasis added).

In supplemental briefing on appeal, Chavez argued that Sanchez meant that the gang expert's testimony was inadmissible. The Court of Appeal held that Chavez's failure to object at trial forfeited any Sanchez claim on appeal. "Even though this case was tried before Sanchez was decided, previous cases had already indicated that an expert's testimony to hearsay was objectionable," so "such objections would not have been futile."

The California Supreme Court, affirming the "paradigm"-shifting nature of its Sanchez decision, disagreed.

The court acknowledged that "[o]rdinarily, 'the failure to object to the admission of expert testimony or hearsay at trial forfeits an appellate claim that such evidence was improperly admitted.'" This rule does not apply, however, where the objection would have been futile, or "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."

This was just such an exceptional case. At the time of Chavez's trial, People v. Gardeley, 14 Cal. 4th 605 (1996), and People v. Montiel, 5 Cal. 4th 877 (1993), "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. ... 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."

As Perez pointed out, Sanchez expressly 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, 63 Cal. 4th at 679 (emphasis in original). "When 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 686.

"Sanchez thus expressly changed the law previously established by Gardeley and Montiel," so Chavez was entitled raise the issue on appeal. "[A] defendant need not predict subsequent substantive changes in law in order to preserve objections."

The attorney general argued an objection would not have been futile, because Sanchez was fully presaged by three confrontation clause cases on which Sanchez relied that were decided before Chavez's trial. Williams v. Illinois, 567 U.S. 50 (2012), People v. Dungo, 55 Cal. 4th 608 (2012), and People v. Lopez, 55 Cal. 4th 569 (2012). Further, some appellate decisions had suggested that the California Supreme Court "might be prepared to overrule Gardeley in the future." The attorney general argued that 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 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 latter is just what Sanchez said it was doing: "At common law, the treatment of an expert's testimony as to general background information and case-specific hearsay differed significantly. However, the line between the two has now become blurred." Sanchez at 678.

The Supreme Court acknowledged that Sanchez built on those precedents, but "[n]evertheless, 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.' 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. Indeed, no justice expressly disapproved Gardeley in either Dungo or Lopez, despite it being a staple of our decisional law." Gardeley had been cited over 2000 times and was binding on trial courts under the venerable Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962). "Until we overruled Gardeley, a lower court applying precedent would have, under that case, overruled a case-specific hearsay objection to expert basis testimony."

Thus, Perez found the reading of tea leaves required by the attorney general's position to be "beyond what we have required and too amorphous a standard to place on trial counsel. ... 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."

Mary J. Blige sang "I cannot lose a love I never had." Under Perez, you do not forfeit an objection you didn't have. As long as you are lucky enough that the governing Supreme Court precedent is overturned while your case is on appeal. 

Don Willenburg is chair of the appellate practice group at Gordon Rees Scully Mansukhani, LLP.