Nos. S250670 / S250218 In The Supreme Court Of The State .

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Supreme Court of CaliforniaSupreme Court of CaliforniaJorge E. Navarrete, Clerk and Executive Officer of the CourtJorge E. Navarrete, Clerk and Executive Officer of the CourtElectronically RECEIVED on 3/24/2021 at 1:55:16 PMElectronically FILED on 3/24/2021 by Robert Toy, Deputy ClerkNos. S250670 / S250218In the Supreme Court of the State of CaliforniaTHE PEOPLE OF THE STATE OF CALIFORNIA,Plaintiff and Respondent,v.EDGAR ISIDRO GARCIA,Defendant and Appellant.THE PEOPLE OF THE STATE OF CALIFORNIA,Plaintiff and Respondent,v.JOSE LUIS VALENCIA,Defendant and Appellant.Fifth Appellate District, Case Nos. F073515 / F072943Kern County Superior Court, Case Nos. LF010246A / LF010246BThe Honorable Gary T. Friedman, JudgeANSWER TO AMICUS CURIAE BRIEFMATTHEW RODRIQUEZ (SBN 95976)Acting Attorney General of CaliforniaLANCE E. WINTERS (SBN 162357)Chief Assistant Attorney GeneralMICHAEL P. FARRELL (SBN 183566)Senior Assistant Attorney GeneralDANIEL B. BERNSTEIN (SBN 204257)Supervising Deputy Attorney GeneralRACHELLE A. NEWCOMB (SBN 173495)Deputy Attorney GeneralDARREN K. INDERMILL (SBN 252122)Supervising Deputy Attorney General1300 I Street, Suite 125P.O. Box 944255Sacramento, CA 94244-2550Telephone: (916) 210-7689Fax: (916) for Plaintiff and RespondentMarch 24, 2021

TABLE OF CONTENTSPageIntroduction .5Argument.6I.The predicate-offense evidence in this case isbackground information, not case-specific evidence,under Sanchez .6II.Concerns regarding the reliability of the bases of experttestimony are adequately addressed by means otherthan the hearsay rule .9III. OSPD’s analogy to syllogisms does not apply to allexpert testimony . 12IV. The Court’s ruling in this case will not affect any racialdisparities in gang enforcement . 14Conclusion . 18Certificate of Compliance . 192

TABLE OF AUTHORITIESPageCASESBatson v. Kentucky(1986) 476 U.S. 79 . 15People v. Bermudez(2020) 45 Cal.App.5th 358 .8People v. Garcia(July 10, 2018, F073515) .7People v. Sanchez(2016) 63 Cal.4th 665 . passimPeople v. Valencia(July 10, 2018, F072943) .7People v. Veamatahau(2020) 9 Cal.5th 16 . passimPeople v. Wheeler(1978) 22 Cal.3d 258 . 15Sargon Enterprises, Inc. v. University of SouthernCalifornia(2012) 55 Cal.4th 747 . 10STATUTESEvidence Code§ 352 . 11§ 801 . 10§ 802 . 10Penal Code§ 186.22 subd. (f) .83

TABLE OF AUTHORITIES(continued)PageOTHER AUTHORITIESCalifornia Code of Regulations, Title 11§ 750 et seq. . 16§ 752.2 . 16§ 752.4 . 16§ 752.4 subd. (a)(1) . 17§ 752.4 subd. (a)(6) . 17§ 752.4 subd. (a)(7)(A) . 17Deductive and Inductive Arguments, InternetEncyclopedia of Philosophy . 13, 14Edward J. Imwinkelried, The “Bases” of ExpertTestimony: The Syllogistic Structure of ScientificTestimony (1988) 67 N.C. L.Rev. 1. 12Edward J. Imwinkelried, The EducationalSignificance of the Syllogistic Structure of ExpertTestimony (1993) 87 N.w.U. L.Rev. 1148 . 12, 13Edward J. Imwinkelried, The Gordian Knot of theTreatment of Secondhand Facts Under FederalRule of Evidence 703 Governing the Admissibilityof Expert Opinions: Another Conflict BetweenLogic and Law (2013) 3 U.Den.Crim. L.Rev. 1 . 12Ronald J. Allen & Joseph S. Miller, The CommonLaw Theory of Experts: Deference or Education?(1993) 87 Nw.U. L.Rev. 1131. 13U.S. Department of Justice Bureau of JusticeStatistics Special Report (August 2007) BlackVictims of Violent Crime, /bjs study black victims of violent crime 2007.pdf . 154

INTRODUCTIONAppellants, Edgar Isidro Garcia and Jose Luis Valencia,were convicted of substantive gang offenses and suffered truefindings on multiple gang enhancements. The People haveargued in the Opening Brief on the Merits and Reply Brief on theMerits that the predicate-offense evidence used to prove the gangallegations constituted background information, not case-specificevidence, under People v. Sanchez (2016) 63 Cal.4th 665 becausethe evidence did not involve the defendants or any otherparticipant in the charged crimes. Therefore, the expert properlyrelated the content of hearsay statements about the predicateoffenses. In their Answer Briefs on the Merits, appellants haveurged a categorical rule that all facts pertaining to predicateoffenses are case specific under Sanchez.The Office of the State Public Defender (OSPD) filed anamicus curiae brief in support of appellants. OSPD argues thatfactual claims about predicate offenses do not constitute generalbackground information under Sanchez, supra, 63 Cal.4th 665because they do not fall under the “‘general backgroundinformation’ exception to the hearsay rule” (OSPD 16). OSPDalso argues that if the facts underlying predicate offenses are notcategorically deemed case specific, it would sustain or exacerbateexisting racial bias and subjectivity in gang cases. OSPD’sproposed rule is inconsistent with the standard articulated inSanchez and would not remedy any existing racial disparities ingang cases.5

ARGUMENTI.THE PREDICATE-OFFENSE EVIDENCE IN THIS CASE ISBACKGROUND INFORMATION, NOT CASE-SPECIFIC EVIDENCE,UNDER SANCHEZOSPD argues broadly that factual claims about predicateoffenses do not fall within the general background informationexception to the hearsay rule. (OSPD 13-25.) In doing so, OSPDfails to adhere to the definition of “case-specific facts” set forth inSanchez and misconstrues the nature of predicate-offenseevidence.In Sanchez, this Court (1) defined “case-specific facts” as“those relating to the particular events and participants allegedto have been involved in the case being tried” (Sanchez, supra, 63Cal.4th at p. 676), which an expert may not relate to the juryabsent personal knowledge, while also (2) reaffirming that anexpert may still relate “background information and knowledgein the area of his expertise” (id. at p. 685), even if technicallyhearsay. Under this Court’s narrow definition of “case-specificfacts,” whether a hearsay statement is case specific depends onthe content of the statement itself, not how either the expert orthe prosecution uses the statement.OSPD acknowledges that it does not adhere to the definitionof “case-specific facts” articulated in Sanchez, arguing that thatdefinition “should not bind the Court” here. (OSPD 22.) Bindingor not, this Court’s reasoning in Sanchez is persuasive and shouldnot be jettisoned in favor of the broader understanding of “casespecific facts” that OSPD advocates. Like Valencia and the Courtof Appeal, OSPD fashions its view of what is case specific basedon whether it is “part of [the expert’s] expertise” (OSPD 17) or6

“how the expert uses the hearsay in his or her analysis” (OSPD25). 1 But, as the People have argued (OBM 34-36; RBM 16-18),whether a fact is case specific or background information dependson the information conveyed by the expert, not how the expertlearned of or uses the information. (People v. Veamatahau (2020)9 Cal.5th 16, 30.) Nothing about the “context” of Sanchez (OSPD21) changes this conclusion.OSPD echoes appellants’ overly broad view that all factsabout specific events or individuals, like predicate-offenseevidence, are categorically case specific. (See OSPD 13-25;VABM 22-28; GABM 20-23.) But, if Sanchez had so intended, itwould have defined “case-specific facts” broadly and simply as“those relating to particular events and individuals,” and therewould have been no need to add the qualifying phrase “alleged tohave been involved in the case being tried” (Sanchez, supra, 63Cal.4th at p. 676). (See RBM 14-15.) Indeed, this Court wouldlikely have referred to that body of evidence as simply “specificfacts” or “specific information,” not “case-specific facts.” By thesame token, if Sanchez had intended for the case-specificdetermination to be based on how the expert learned of or usedthe information conveyed, it presumably would have said so.This Court should decline appellants’ and OSPD’s invitation to(See OSPD 17-18, 24-25; VABM 22-23, 26-27; People v.Garcia (July 10, 2018, F073515) [nonpub. opn.] pp. 17-18 (Garciaopn.); People v. Valencia (July 10, 2018, F072943) [nonpub. opn.]p. 22 (Valencia opn.).)17

excise the latter half of the definition of “case-specific facts,” andto abandon the underlying reasoning and terminology, laid out inSanchez.OSPD’s view of what constitutes “background information”is also unduly restrictive. OSPD agrees that the generalprinciples of an expert’s field constitute background information.(OSPD 17.) There can hardly be a principle more foundationalfor an expert on a criminal street gang than that the gangactually exists. Predicate offenses that do not involve thedefendant or any other participants in the charged crime servethe sole purpose of establishing that the criminal street gangexists as required by Penal Code section 186.22, subdivision (f).Expert testimony regarding such predicate offenses constitutesinformation about the “gang’s history and general operations”(Sanchez, supra, 63 Cal.4th at p. 698), “historical facts of thegang’s conduct and activities” (People v. Bermudez (2020) 45Cal.App.5th 358, 376, review and depublication request deniedMay 13, 2020, S261268), and a view into “a chapter in the gang’sbiography” (ibid.). (See RBM 9.) Moreover, Sanchez suggeststhat background information in an expert’s field of expertisegenerally encompasses “information acquired through theirtraining and experience,” which may include specific facts inaddition to generalized information. (Sanchez, supra, 63 Cal.4that p. 675; see RBM 15-16.) This type of background informationincludes instances of prior conduct by gang members. (See RBM15-16.) Rather than “turn[] the holding of Sanchez on its head”(OSPD 21), the People’s view of predicate-offense evidence as8

background information is faithful to both the holding andreasoning of Sanchez.OSPD claims that Veamatahau supports its position thatpredicate-offense evidence is not background information (OSPD18-19), but in fact Veamatahau supports the People’s position.In holding that the expert’s testimony about a controlledsubstance database was not case specific, this Court made afavorable comparison to several cases holding that predicateoffense evidence constitutes background information.(Veamatahau, supra, 9 Cal.5th at pp. 27-28; see RBM 12; OBM29 [listing cases].) Like appellants, OSPD fails to acknowledge ordiscuss that important aspect of the Veamatahau opinion.II.CONCERNS REGARDING THE RELIABILITY OF THE BASES OFEXPERT TESTIMONY ARE ADEQUATELY ADDRESSED BYMEANS OTHER THAN THE HEARSAY RULEOSPD raises concerns regarding the reliability of the recordsused by experts and the inadequacy of the trial court’sgatekeeping function to address them. (See OSPD 16-17, 24, 2733.) Those claims are misplaced, and they are similar to thoserejected by this Court in Veamatahau.OSPD argues that facts regarding predicate offenses are notpart of a gang expert’s “expertise” and are thus not sufficientlyreliable for purposes of the hearsay rule. (OSPD 16-17.) But anexpert necessarily relies on his or her special knowledge, skill,experience, training, and education to select a source to consult,digest the information from that source, and form an opinionabout the reliability of the source based on the expert’sexperience in the field. (Veamatahau, supra, 9 Cal.5th at p. 29.)9

There is no reason a gang expert should not be permitted to usetraining and experience to determine the reliability of sourcesrelied upon, regardless whether the source’s content involvesgeneral principles or particular facts relating to the gang. AsOSPD admits, a gang expert’s training and experience provides“insight into what sources are reliable bases of expertise.” (OSPD16.) And presumably, a gang expert’s expertise would necessarilyinclude facts establishing the existence of a criminal street gangitself as well as facts concerning the gang’s history. (See RBM17.)Veamatahau explained that the trial court’s gatekeepingfunction sufficiently protects against the admission of unreliableinformation relied upon and related by experts. (Veamatahau,supra, 9 Cal.5th at pp. 32-34; cf. OSPD 24, 31-34.) A trial court’s“‘gatekeeping’ responsibility” (Sargon Enterprises, Inc. v.University of Southern California (2012) 55 Cal.4th 747, 769)under Evidence Code sections 801 and 802 “fully empower[s]” thetrial court to “‘vet the reliability of the sources’ underpinning [theexpert’s] testimony,” regardless of whether the testimonysupplies background information or case-specific facts.(Veamatahau, supra, 9 Cal.5th at p. 32; id. at pp. 33-35 [“if anexpert is merely parroting hearsay information withoutunderstanding the information or otherwise providingexplanation to ‘assist the trier of fact,’ the so-called expert can beprohibited from testifying altogether,” citing Evid. Code, § 801,subd. (a)].) The reliability of the information can be exploredeither through cross-examination or defense witness testimony.10

(Id. at p. 33 [“If the expert professes to know little about thesource material or cannot explain why it is a credible fount onwhich to rest the proffered testimony, that would be a basis forthe party opponent to discredit the testimony (via crossexamination or by offering its own expert) or for the trial court toexclude it”].) Evidence Code section 352 also provides anadditional tool for trial courts to curtail expert testimony. Themechanism for testing the reliability of an expert’s testimonywould not be “absent” (id. at p. 35) without the categorical ruleurged by OSPD and appellants. 2In rejecting the defendant’s reliability concerns,Veamatahau simultaneously rejected the argument, similar toOSPD’s (OSPD 32-34), that considering such testimony to bebackground information would “‘essentially vouch for thereliability of a source.’” (Veamatahau, supra, 9 Cal.5th at p. 32.)An expert’s implicit determination concerning the reliability ofthe sources relied upon is a normal function of an expert’sexpertise and does not constitute improper vouching. Thus,under Veamatahau, the gatekeeping function is sufficient toaddress OSPD’s reliability and vouching concerns.As in Veamatahau, there was no objection in this caseconcerning the reliability of the bases for the expert’s testimony.(See Veamatahau, supra, 9 Cal.5th at pp. 32-33.)211

III. OSPD’S ANALOGY TO SYLLOGISMS DOES NOT APPLY TO ALLEXPERT TESTIMONYDespite OSPD’s acknowledgment that expert testimony maynot always be presented in a deductive, syllogistic structure(OSPD 19, fn. 4), OSPD essentially imposes this paradigm uponall expert testimony when applying hearsay rules (OSPD 19-21,23). 3 OSPD notes that both Sanchez and Veamatahau cited lawreview articles comparing expert testimony to syllogisms. (OSPD19.) While these law review articles undoubtedly have someutility in understanding the presentation of expert testimony,they do not require all expert testimony be presented insyllogistic fashion.The cited law review articles were specifically written withscientific testimony in mind, which naturally lends itself tosyllogistic structure. (Edward J. Imwinkelried, The GordianKnot of the Treatment of Secondhand Facts Under Federal Rule ofEvidence 703 Governing the Admissibility of Expert Opinions:Another Conflict Between Logic and Law (2013) 3 U.Den.Crim.L.Rev. 1; Edward J. Imwinkelried, The “Bases” of ExpertTestimony: The Syllogistic Structure of Scientific Testimony(1988) 67 N.C. L.Rev. 1 (hereafter Syllogistic Structure). But notall expert testimony is of a scientific nature, so the syllogisticAs OSPD explains, a syllogism is a logical structure thatentails combining a major premise and a minor premise to reacha conclusion, such as “because all men are mortal and Socrates isman, Socrates must be mortal.” (OSPD 19, fn. 3.)312

structure will not necessarily apply to “the entire range of experttestimony” like it does to the subset of expert knowledge that is“generated by the distinctive scientific process.” (Ronald J. Allen& Joseph S. Miller, The Common Law Theory of Experts:Deference or Education? (1993) 87 Nw.U. L.Rev. 1131, 11381139.) Even if the syllogistic structure may apply to all deductiveexpert testimony (see Edward J. Imwinkelried, The EducationalSignificance of the Syllogistic Structure of Expert Testimony(1993) 87 N.w.U. L.Rev. 1148, 1149-1150 [responding to thecriticisms of Allen and Miller]), it does not necessarily apply toexpert testimony that is by nature inductive. 4 Although scientificexpert testimony may be “ordinarily presented in a deductive,syllogistic format” (Syllogistic Structure, supra, 67 N.C. L.Rev. atp. 2), expert testimony and its reasoning may be inductive, asOSPD admits is more likely the case with gang expert testimony.(See OSPD 19, fn. 4.)Gang expert testimony is not easily comparable to scientifictestimony or deductive reasoning because it is not based on the“[D]eductive arguments usually turn crucially upondefinitions and rules of mathematics and formal logic,” whichcompletely guarantee that a conclusion is true. (Deductive andInductive Arguments, Internet Encyclopedia of Philosophy [as of Mar. 18, 2021].) On theother hand, “inductive arguments draw conclusions by appeal toevidence, or authority, or causal relationships” and can beaffected by new evidence. (Ibid. [using argument that a personcommitted a crime, based on evidence, as example of inductiveargument].)413

scientific method or universal, foundational principles. Rather,gang experts gather disparate and evolving evidence from avariety of sources, including personal investigations, a review oflocal intelligence, and conversations with gang members, lawenforcement officers, and others, forming opinions based on thatevidence. It is appropriate to base a criminal conviction oninductively strong expert testimony, rather than requiringdeductive

STATE OF CALIFORNIA Supreme Court of California PROOF OF SERVICE STATE OF CALIFORNIA Supreme Court of California Case Name: PEOPLE v. VALENCIA Case Number: S250218 Lower Court Case Number: F072943 1. At the time of service I was at least 18 years of age and not a party to this legal action. 2.

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