found that mr savalas convictions should have been reversed based on the admission of testimonial hearsay through the prosecution's gang expert the majority disagreed with that position for two reasons the majority found that mr saval ahead forfeited his th amendment claim and nd that the testimony from the gang expert was not in fact hearsay it was admissible both of the majorities findings are based on and on reasonable construction of the record the forfeiture finding overlooks several material facts in the record st it overlooks that in the eliminate emotions not only did counsel object to the admission of the prosecution's hearsay the experts here say here's a testimony but in fact there was a full discussion of the law in california of the circumstances under which an expert may recite hearsay the controlling precedent in that case at that time was the california supreme court case of gardley i can't recall if the prosecutor cited it but the judge himself presley stated that under the law as he understood it the expert is entitle to rely on hearsay and recite it to the jury and the judge also advised counsel that he would consider the objection continuing and then the objection would preserve the issue on appeal absent changed circumstances there were none none the less at trial again when the gang expert stated that he had been told that mr zavala was the leader of this case the shell gardens gang council again interpose confrontation clause objection consul the court overruled the objection under california law under these circumstances as the dissent points out further objection is futile and in the state of california futile objections are unnecessary the majority disregarded the doctrine of futility entirely and it also disregarded these specific facts showing that its claim of forfeiture was on reasonable i would add finally in federal court whether or not a state law state forfeiture rule is an adequate independent ground that's a federal question not a state law question and on this record it's very clear as the dissent found further objection given the state of the law and the trial court's recognition of that state law was futile and so this  issue was properly before the court here and i'll say it let's say we agree with you on that point in terms of futility but what i note you have to address crawford i mean you've got on the state side which says one thing crawford says another and we're examining this based upon crawford right that's correct and and a lot i see the tension between the jury being told to determine whether what the gang experts said that you claim is hearsay is correct and yet you have the language of crawford how do we how do we reconcile that well i think the dissent and sanchez says those are inconsistent statements there's already a risk it will let me go to the williams case because they they sort of addresses so williams of illinois you know there is no holding per se it's  dissenters and justice thomas concurring on different grounds so of course the dissent says if an expert is reciting a proposition such as you know that the swab sample came from mr smith  that that's for the truth of the matter asserted the concurrence agrees with that that portion of the dissents position and what's interesting is what the plurality says plurality says in this case it's not made it for its truth but the plurality warns expressly now if this were a jury trial which of course mr savalas was that would be a different question because in a jury trial it's essential that there's carefully worded jury instructions to ensure the jury doesn't mistakenly consider the out of court statements for their truth and this case that's what they were asked to do right they were asked the instruction set consider it for its truth i'm sorry how do we reconcile that i mean you've got on the one hand you have crawford that says that what would ordinarily be considered hearsay but not limited to the truth of the matter is ok and yet you have a jury instruction that tells the jurors that they are to determine whether those statements same statements are true how do we reconcile know your honor i'm i'm not sure how you're characteriz in the trial here the jurors were told to consider whether those same statements were true so that's my question is how do we reconcile i think your honor we reconcile it the way the california supreme court did in people v sanchez in the dissent it which is in this case there's no question you know there's obviously there's an argument on the u s supreme court whether and under what circumstances an expert might recites out of court statements and nonetheless avoid a th amendment violation but all nine justices on the u s supreme court i think based on my recounting of the plurality opinion agree if you instruct the jury that you're supposed to consider whether the out of court statements are true as well as saying they're not for their truth it is just not reasonable to infer that the jury didn't consider them for their truth in which case we have a th amendment because from your perspective that would then mean that crawford doesn't help the state right because in fact the statements were introduced for their truth that's right i think sanchez is right i think the dissents and interestingly you know the majority acknowledges this instruction but it doesn't attempt to explain it and it doesn't the majority opinion doesn't actually acknowledge the instruction says consider it whether they're true the majority says well this is confusing perhaps and it might have been better not to issue it but i would just point out as as this court said in taylor v maddox and in other cases actually it's not good enough that the court simply notes something happened the court has to address it and in this case it is your honor points out there's an inconsistency between not for the truth and this instruction in the majority doesn't even purport to explain how that can be reconciled is not that there is a controlling united states supreme court precedent which the lower court has failed to follow or misapplied what what this case turns on is that the court has failed to properly construe the facts in the record and as a result with this court does is review the matter novo and so the controlling case is no this court is totally free to rely on th circuit precedent such as  understand your position to be that we wouldn't be if you will making new constitutional law we would take crawford on its face which says that when statements are introduced not for the truth of the matter  that the consulate confrontation clause but here in this case arguably these were introduced for the truth of the matter because that's what the jury was asked to do i gather you're asking us to just say look at the back of this case as a one off where clearly something wasn't introduced on a basis that it would be protected under crawford exactly exactly you know if i might sort of the last few seconds thank you it please the court john deiced for respondent i hope all of the judges have received rule twenty eight j letter that i sent a few weeks ago i cited a case with a few th circuit authorities that specifically say the united states supreme court has not clearly established that the admission of out of court statements relied upon by an expert violate the confrontation clause i think that sentence disposes of the claim on the merits and i would emphasize that there is really no proper claim of instructional error before this court appellant relies upon instructional error to a substantial extent but no claim of an instructional error was presented to the california supreme court or in the initial hey vs corpus petition because dented to the district court where they object or the jacksons made at the trial level about the instruction judge there were substantial objections and the court of appeal discussed those objections said great length fourteen pages and the court of appeal found that there was forfeiture in large court of appeal also found that a few items had been properly objected to the court of appeal said it's essential in the context of crawford claims testimonial hearsay to have a contemporaneous objection so the trial court can know exactly what we're talking about sometimes testimonial hearsay is hard to determine field id cards interviews of witnesses is a testimonial is it formal the trial judge needs to know exactly what's being reviewed here that's all in your opponent suggested that the defense had raised the issue  in a motion in limine a and camera and that to continue to bring up the objection would have been futile what's your response to well i understand that but in at least three cases the trial judge overruled the objection but the court of appeal found that the objection had been properly made and so if the court of appeal said well we see that in three cases there was a proper objection so obviously it wasn't futile and the trial judge was not hostile threatening sanctions against anyone who test who had any warrior who objected during trial that trial judge heard the objections and the court of appeal recognized ok that's a valid objection and so we are going to consider that limited proffer of testimonial hearsay but the others were too general they were made too early in trial but there were about two or three objections that the court of appeal did say we recognize it was made and so we'll consider it on the merits and so i have to i can't rely on forfeiture entirely because the court of appeal expressly ruled on the merits and i think the crucial issue is there really is no controlling us supreme court authority when you look at when you research in this area and you see the comments the williams case is there controlling  ty from the williams case judges all across the country and even justice kagan have made it clear that the williams case does not dictate that a gang expert cannot rely on out of court statements of others and i do think that it's incorrect to say that the instructions here were radically conflicting when sergeant livingston testified the trial court twice said jervis you line statements are true or not your honor i don't really think so because basically the final instructions said all right you heard from sergeant what you heard from expert witnesses who expressed opinions you have to consider the validity of those opinions you have to consider the truth of the underlying facts and if an opinion hasn't been proved properly you may not consider it but i think in this case sergeant livingston had ample evidence direct evidence of the two key points of his opinion his opinion to opinions were at that the defendants were gang members and that the crime was committed for the benefit of the gang and there was  direct evidence to support both of those opinions and so the jurors were basically told hypothetically if an expert came in and testified purely on the basis of hearsay he said i heard the defendant was a gang member i didn't know it personally but i heard it i read it in police reports i read about many incidents in police reports i got secondhand information from all sorts of sources therefore it sounds like the defendant was a gang member it is your position then that because you're operating under that even were we to find that the jury instructions would be understood by a reasonable juror to require them to determine the truth of the matter of some of these underlying statements made by the officer that nonetheless there would be no relief for the defendant because we are operating under and you've got no supreme court law that directly tells us what to do differently correct that's certainly my position but frankly judge i don't even think i need add and the reason is when you think about sergeant livingston opinion the defendants were gang members while codefendant hensley said that appellant and rodriguez were members if not leaders of the shallow gardens gang direct testimony of their membership sergeant livingston had been a gang officer for many years in the community he had conducted task force investigations spoken with two hundred and fifty gang members including ten shallow gardens members he knew this small town of campbell he knew who the gang leaders were he had had personal interaction with appellant on two or three occasions gang disturbances he and other officers went out to defend appellant was in gang clothing hassling the officers being contrave confrontational sergeant livingston was personally told by a known gang member yeah savalas again member of shallow garden listen to let's assume all that is true and so no harm no foul i definitely am saying that and i still don't think the instruction was all that confusing i think it can be reconciled it wasn't two sentences one after the other you cannot consider the hearsay statements but you must consider determine the truth of all evidence i think that in the context the jurors could say ok we've got to review the evidence we have to determine if sergeant livingston said that he saw the defendant with other gang members we have to determine whether or not that's true we i would be or say under any circumstances right that that's right and so we review everything and maybe a few of the hearsay statements not all of them were clearly testimonial some might have been hearsay but field id cards he heard that appellant ordered somebody to jump a new gang member into the gang is that testimonial hearsay hard to know it wasn't fleshed out it doesn't really sound like it but the testimonial hearsay if there was any was very marginal and the direct evidence of both gang membership and the purpose of the robbery committed for the benefit of the gang and i would say there was virtually no doubt that appellant was one of the robbers and the commission of the robbery for the benefit of the gang several gang members got together to discuss the robbery they planned it they got  getaway car from a neighboring gang they scouted out the victim's house they had a lookout posted on the corner many many aspects of this robbery made it gang related and so i do argue that there l just a few points the standard to prejudice here is not what would have changed the opinion of the gang expert but the jury it's brecht whether it affected them and this case brought under de to we don't need a controlling supreme court precedent we just learned that most of that's correct your opponent says there was no substantial and injurious effect on the verdict quote your response to that my my response is that as the dissent pointed out the bucket loads of testimonial hearsay were prejudicial this circuit has recognized inadmissible gang evidence improperly admitted is highly prejudicial and i think as we pointed out in the brief the evidence that counsel cites is so compelling was extremely questionable unrebutted expert testimony that the photo i d s were flawed both in their the last person to see mr saval his coworker from three months earlier said he had a ponytail but otherwise he had regular hair there was a lot of reason to doubt and as far as the gang allegation there was no substantial evidence to support it at all without the hearsay because the hearsay is in order to prove a gang allegation you have to show it minimum to qualifying predicate offenses by gang members the only way we know the fences the offenses were cited by the gang expert were committed by members of the gang was testimonial hearsay that these guys who did it were gang members in addition there was nothing connecting mr zavala to that gang absent the testimonial  there was a tattoo but the gang expert admitted well the tattoo refers to gangs generically not this gang and if mr saval it was a member of some other gang or a generic gang that doesn't work he has to committed for this game