Filed 5/24/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re ALBERT LUGO RUEDAS

 on Habeas Corpus.

 G054523

 (Super. Ct. No. 08CF2288)

 O P I N I O N 

Original proceeding on a petition for a writ of habeas corpus after a 

judgment from the Superior Court of Orange County, James Edward Rogan, Judge. 

Petition denied.

Elizabeth Garfinkle, under appointment by the Court of Appeal, for 

Petitioner. 

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and 

Warren J. Williams, Deputy Attorneys General, for Respondent.
2

The jurisprudence of retroactivity is a labyrinthine edifice of both critical 

importance and daunting complexity. It is located at one of those intersections of 

freedom, justice, and pragmatism that are all too common in the criminal law, and make 

its practice a humbling experience. In this case, we are asked to offer our best judgment 

about whether the rule announced in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez)

is prospective or retroactive. We do so with a caution bordering on apprehension, but we 

arrive at a firm conclusion the rule is prospective only. 

Petitioner Albert Lugo Ruedas was charged with various gang-related 

crimes and enhancements, including the special circumstances allegation he committed 

murder to further the activities of a criminal street gang. To prove the gang charges, the 

prosecution called an expert witness who based his opinions on a variety of extrajudicial 

sources, including testimonial hearsay. When defense counsel objected to the expert’s 

reliance on this evidence, the trial court overruled the objection and instructed the jury 

not to consider the evidence for its substantive truth, but only as a basis for the expert’s 

opinions. Ultimately, the jury convicted petitioner as charged, and the trial court 

sentenced him to life in prison without parole. We affirmed the judgment on appeal, and 

it became final in 2015. 

The following year, the California Supreme Court decided the Sanchez

case. Sanchez held that to properly evaluate an expert witness’ opinions, the jury 

generally must consider the evidence he relies on for the truth of the matter asserted 

therein, and therefore that evidence is subject to exclusion under the hearsay rule and the 

Confrontation Clause of the Sixth Amendment to the United States Constitution. In this 

proceeding, petitioner asks us to apply Sanchez retroactively to his case and find the gang 

expert’s reliance on testimonial hearsay violated his confrontation rights. But we hold 

Sanchez does not apply retroactively to cases like petitioner’s that were already final by 

the time Sanchez was decided. Therefore, petitioner cannot avail himself of that decision,

and we deny his petition for a writ of habeas corpus. 
3

FACTS AND PROCEDURAL HISTORY

A detailed statement of the facts is set forth in our prior opinion in People 

v. Ruedas (Nov. 14, 2014, G048545) [nonpub. opn.], which we incorporate by reference.1 

In summary, Daniel Lopez was attacked and fatally shot by two men as he was walking 

in Santa Ana late one evening in 2008. Five days later, the gun used in the shooting was 

found in petitioner’s possession, and when interviewed by the police, petitioner admitted 

he shot Lopez during an attempted robbery. 

 During his interrogation, petitioner also answered questions about his gang 

status. He said he “used to bang” with the Anaheim Boys gang, aka Boys from the Hood 

but had stopped hanging out with them about three years earlier, when he turned 18. He 

said he had to pay a “tax” of $10,000 to get out of the gang and suggested he “jacked”

Lopez because he wanted to get money for the tax. 

Petitioner’s trial commenced in 2013. Testifying as an expert witness, 

Anaheim gang investigator Jonathan Yepes told the jury that gang members commit 

crimes to spread fear and gain respect. And when they commit a crime such as robbery, 

it not only benefits them personally, it also helps their gang because it brings in money 

and sends a message the gang is not to be trifled with. According to Yepes, robbery was

one of the primary activities of Boys from the Hood when this case arose in 2008. He 

said petitioner first got involved with that gang in 2004, and he was a full-fledged 

member when he shot Lopez four years later. Yepes also believed petitioner’s 

companion during the shooting was a member of Boys from the Hood. 

Yepes based his opinions on a variety of sources. He said he relied on 

information he acquired from personally investigating Boys from the Hood’s criminal 

activities and talking to its various members. In addition, he considered information he 

acquired by reading books about gangs, speaking with other police officers, and attending 

 

1

We also judicially notice the appellate record in that case. (Evid. Code, § 452, subd. (d).)
4

meetings of the California Gang Investigators Association. Yepes testified these are 

standard ways gang investigators acquire knowledge about gang activity and ongoing 

trends within the gang culture. 

Yepes also relied on certified court documents showing Boys from the 

Hood members other than petitioner have engaged in gang-related criminal conduct in the 

past. This evidence was used to support his opinion that Boys from the Hood constituted 

a criminal street gang under California law. He said Boys from the Hood had the dubious 

distinction of being one of only three gangs served with a civil injunction in Anaheim. 

In forming his opinions about the case, Yepes relied on other sources of 

information, as well. These included police reports from this case and others, field 

interview cards that were prepared by officers during street encounters with suspected 

gang members, and S.T.E.P. notices, which are designed to inform individuals of the 

consequences of associating with members of a criminal street gang.2Yepes not only 

identified these materials during his testimony, he divulged a considerable amount of 

information contained therein. The record is somewhat unclear as to what specific 

information he derived from which particular materials, but Yepes described several 

incidents during which petitioner was stopped by the police in 2004 and 2005, a few 

years before the shooting. 

Yepes explained that during one of those incidents, petitioner was in a park 

with a group of Boys from the Hood members. Upon seeing the police, the group tried to 

flee, but they were detained. Another time, petitioner was given a S.T.E.P. notice for 

congregating with Boys from the Hood members. And on yet another occasion, the 

police found spray paint cans and items covered with gang writing in petitioner’s car

 

2

S.T.E.P. is an acronym for the California Street Terrorism Enforcement and Prevention Act set 

forth in Penal Code section 186.20 et seq. Unless noted otherwise, all further statutory references are to the Penal 

Code.
5

during a traffic stop. That stop was unrelated to a separate incident during which 

petitioner was detained in Fullerton and found to have a gun in his car. 

In addition to these police contacts, Yepes testified that when the police 

executed a search warrant at the residence of Boys from the Hood member Julio Ortiz in 

2005, they found several photos showing petitioner making gang signs with members of 

that gang. They also discovered a letter that was written from petitioner to Ortiz. Among 

other things, the letter states, “We stand as a family” and “Can’t stop, won’t stop 

Anaheim Boys.” Although Yepes did not personally seize this letter during the search, he 

reviewed it as part of his preparation for testifying in this case. Yepes also relied on a 

series of notes that were prepared by the prosecutor. On cross-examination, Yepes 

admitted the notes were like a “script” that contained information about petitioner and his 

fellow gang members. 

Yepes also based his opinions on the fact petitioner has a gang moniker, 

“Gizmo,” and he has the word “Anaheim” tattooed across his back. Yepes interpreted the 

tattoo as a sign petitioner was a loyal member of Boys from the Hood. He said he also 

got that impression from reading the statements petitioner made when he was interviewed 

by the police in this case. 

Explaining his thought process, Yepes stated that no one particular source

of information he reviewed was dispositive of his opinions about the case. Rather, he 

considered all of the above-mentioned information in coming to the conclusion Boys 

from the Hood was a criminal street gang and that petitioner was a member of the gang 

when he murdered Lopez. 

Throughout Yepes’ testimony, defense counsel repeatedly objected on 

hearsay grounds. He was concerned that in discussing the various bases for his opinions, 

Yepes was disclosing prejudicial information the jury would be inclined to consider for 

its substantive truth. The trial court overruled defense counsel’s objections, but in 

recognition of this concern, it advised the jury the basis evidence for Yepes’ opinions was 
6

“not being offered for the truth of the matter asserted[.]” “The court is receiving it for the 

limited purpose of how it relates to [Yepes’] ultimate opinion[s] . . ., so you are to 

consider it only for that purpose.” 

In the end, the jury convicted petitioner of first degree murder and active 

participation in a criminal street gang. (§§ 187, subd. (a), 186.22, subd. (a).) It also 

found true special circumstance allegations the murder was gang related and committed 

during the course of an attempted robbery. (§§ 190.2, subds. (a)(17) & (a)(22).) In 

addition, the jury found true enhancement allegations petitioner committed the murder to 

benefit his gang and by means of intentionally discharging a firearm. (§§ 186.22, subd. 

(b), 12022.53, subd. (d).) The trial court sentenced him to prison for life without parole 

for the murder, plus 25 years to life on the firearm enhancement, and stayed sentence on 

the remaining terms. 

On appeal, petitioner did not challenge the admissibility of Yepes’ 

testimony in any respect. He did argue insufficient evidence, instructional error, 

prosecutorial misconduct, ineffective assistance of counsel, and evidentiary error in the 

admission of his confession, but we rejected those claims and affirmed the judgment in 

its entirety. (People v. Ruedas, supra, G048545 at pp. 2-17.) The California Supreme 

Court denied review, and since petitioner did not file a petition for a writ of certiorari in 

the United States Supreme Court, the judgment against him became final 90 days later, 

on April 28, 2015. (Clay v. United States (2003) 537 U.S. 522, 527; People v. Vieira

(2005) 35 Cal.4th 264, 306.) 

DISCUSSION

In 2016, the California Supreme Court decided Sanchez. Sanchez involved 

the same situation presented in this case: an expert witness relying on hearsay evidence in 

forming his opinions about the defendant’s gang status. In a departure from established 

precedent, Sanchez held that while an expert witness may base his opinions on hearsay 

evidence, he cannot divulge the contents of that evidence to the jury unless it fits within 
7

an exception to the hearsay rule. And if the hearsay is testimonial, it must also satisfy the 

Sixth Amendment’s Confrontation Clause. Here, the parties agree that gang expert 

Yepes conveyed testimonial hearsay to the jury in violation of petitioner’s confrontation 

rights, as interpreted in Sanchez. The question is whether Sanchez applies retroactively

in this collateral proceeding. For the reasons explained below, we conclude it does not. 

Constitutional Framework

Sanchez’s retroactivity cannot be examined without analyzing the doctrinal 

underpinnings and historical context of that decision. At its core, Sanchez is a case about 

the scope and reach of the Sixth Amendment’s Confrontation Clause. Long considered 

an essential component of due process (Pointer v. Texas (1965) 380 U.S. 400, 404), the 

clause provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him[.]” (U.S. Const., 6th Amend.) 

The confrontation clause not only affords defendants the right to personally 

examine adverse witnesses, it also “‘(1) insures that the witness will give his statements 

under oath — thus impressing him with the seriousness of the matter and guarding 

against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit 

to cross-examination, the “greatest legal engine ever invented for the discovery of truth”; 

[and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of 

the witness in making his statement, thus aiding the jury in assessing his credibility.’ 

[Citation.] [¶] The combined effect of these elements of confrontation . . . serves the 

purposes of the Confrontation Clause by ensuring that evidence admitted against an 

accused is reliable and subject to the rigorous adversarial testing that is the norm of 

Anglo–American criminal proceedings. [Citations.]” (Maryland v. Craig (1990) 497 

U.S. 836, 845-846.) 

The common law rule barring the admission of hearsay evidence – out of 

court statements used to prove the truth of the matter asserted therein – is likewise 

designed to enhance the reliability of trial evidence. (See United States v. Winters (6th 
8

Cir. 1994) 33 F.3d 720, 723 [citing the reliability of evidence and the opportunity for 

cross-examination as the twin goals of the hearsay rule]; McCormick on Evidence (2d ed. 

1972) § 250 at pp. 598–99 [the hearsay rule is intended to guard against “imperfections of 

perception, memory, and narration”].) To that end, the rule generally precludes the jury 

from considering extrajudicial statements that are relayed through a witness other than 

the declarant. (Evid. Code, § 1200, subd. (b).) Like all evidentiary rules, this prohibition 

aims to ensure “both fairness and reliability in the ascertainment of guilt and innocence.” 

(Chambers v. Mississippi (1973) 410 U.S. 284, 302.)

In Ohio v. Roberts (1980) 448 U.S. 56 (Roberts), the United States held the 

admission of hearsay evidence does not violate the Sixth Amendment if it bears 

“adequate ‘indicia of reliability.’” (Id. at p. 66.) Finding a close relationship between the 

hearsay rule and the confrontation clause, the Roberts court ruled, “Reliability can be 

inferred without more in a case where the evidence falls within a firmly rooted hearsay 

exception. In other cases, the evidence must be excluded, at least absent a showing of 

particularized guarantees of trustworthiness.” (Ibid., fn. omitted.) 

But a quarter-century later, Roberts’ indicia-of-reliability test was scrapped 

in favor of a different standard in Crawford v. Washington (2004) 541 U.S. 36 

(Crawford). After tracing the historical development of the Sixth Amendment, Crawford

rejected the idea that application of the confrontation clause should turn primarily on the 

rules governing the admissibility of evidence. (Id. at pp. 50-51.) While recognizing that 

the ultimate goal of both the hearsay rule and the confrontation clause is to ensure the 

reliability of trial evidence, the court determined that when the state seeks to introduce a 

hearsay statement testimonial in nature, i.e., made under circumstances indicating it 

would later be used at trial, it must show the declarant is unavailable and the defendant 

had a prior opportunity for cross-examination. (Id. at pp. 61, 68.) Because this test 

pertains only to testimonial statements, it means nontestimonial statements are not subject 

to exclusion under the confrontation clause, even if they are unreliable. (Davis v. 
9

Washington (2006) 547 U.S. 813, 821; United States v. Larson (9th Cir. 2007) 495 F.3d 

1094, 1099, fn. 4.) Nevertheless, Crawford determined this test was consistent with the 

framers’ intent and preferable to Roberts’ reliability standard, which it described as 

“malleable,” “amorphous,” and “unpredictable.” (Crawford, supra, 541 U.S. at pp. 60, 

63.) 

After Crawford, the hearsay rule ceased to be the primary guiding principle 

in determining whether out-of-court statements are admissible under the Sixth 

Amendment. Nonetheless, the hearsay rule and the confrontation clause still have one 

thing in common: Neither is implicated unless the extrajudicial statement at issue is 

admitted for its substantive truth. (Evid. Code, § 1200, subd. (a); Crawford, supra, 541 

U.S. at p. 59, fn. 9.) That is a key point to keep in mind when it comes to understanding 

how courts have analyzed hearsay evidence in the context of expert witness testimony, an 

issue to which we now turn. 

Expert Basis Evidence

At common law, expert witnesses were only allowed to testify about 

matters they had personally observed or facts proven at the trial in which they were 

testifying. (Volek, Federal Rule of Evidence 703: The Back Door and the Confrontation 

Clause, Ten Years Later, 80 Fordham L.Rev. (2011) 959, 962.) With limited exceptions, 

they were not permitted to base their opinions on extrajudicial sources that were not 

subject to cross-examination. (Id. at pp. 965-967.) Over time, however, the strict 

common law rule eventually gave way to a more flexible approach, as reflected in the 

California rules of evidence. Those rules allow experts to rely on any such matter –

including hearsay evidence – that is reasonably relied upon by experts in their field. 

(Evid. Code, § 801.) And they permit the expert to disclose the contents of those

materials to the jury, regardless of whether they would be admissible in their own right. 

(Evid. Code, § 802.) 
10

The benefit of this practice is that it provides the jury with information 

from which it can ascertain the reliability of the expert’s opinions. “If the jury does not 

know the underlying facts or bases for an expert’s conclusions, it is difficult to see how 

the jury could rationally asses the plausibility of the expert’s judgment.” (J. Mnookin, 

Expert Evidence and the Confrontation Clause after Crawford v. Washington, 15 Journal 

of Law and Policy (2008) 791, 802.) On the other hand, when an expert is allowed to 

relate information to the jury that is not subject to cross-examination, it opens the door to 

prejudicial hearsay that would not otherwise be admissible at the trial. “[S]o long as 

experts may rely on inadmissible factual matters as the bases for their conclusion, there is

an inevitable tension between jury education and adherence to the rest of the rules of 

evidence.” (Id. at p. 803.) 

 To prevent expert witnesses from becoming mere conduits for the 

introduction of prejudicial hearsay, courts established various safeguards. The preferred 

approach in California was to instruct the jury that “matters admitted through an expert 

go only to the basis of his opinion and should not be considered for their truth. 

[Citation.]” (People v. Montiel (1993) 5 Cal.4th 877, 919 (Montiel).) In Montiel, the

California Supreme Court recognized there may be instances where a limiting instruction

of this nature would be insufficient to overcome the prejudice occasioned by the 

introduction of expert basis evidence. (Ibid. [noting “Evidence Code section 352 

authorizes the court to exclude from an expert’s testimony any hearsay matter whose 

irrelevance, unreliability, or potential for prejudice outweighs its proper probative 

value.”].) But the court stated a limiting instruction would suffice in most cases (ibid.), 

and that became the prevailing view in California. Indeed, in People v. Gardeley (1996) 

14 Cal.4th 605, 618-619 (Gardeley), the California Supreme Court expressly approved 

the use of hearsay evidence to support a gang expert’s opinions on the theory the 

evidence was not admitted for its substantive truth. (Id. at pp. 612, 618-620; see also 

Sanchez, supra, 63 Cal.4th at p. 683, discussing Gardeley.)
11

In theory, this approach avoided problems with the hearsay rule and the 

confrontation clause because those precepts only apply to out-of-court statements that are 

used to prove the truth of the matter asserted therein. Eventually, however, courts began 

to question whether, for purposes of the Sixth Amendment, there was actually a 

meaningful “‘distinction between a statement offered for its truth and a statement offered 

to shed light on an expert’s opinion[.]”’ (People v. Hill (2011) 191 Cal.App.4th 1104, 

1130, quoting People v. Goldstein (N.Y. 2005) 843 N.E.2d 727, 732-733.)

In 2012, the United States Supreme Court grappled with this question in 

Williams v. Illinois (2012) 567 U.S. 50 (Williams). Williams involved a sex crime that 

was solved with DNA evidence. During a bench trial, the prosecution called an expert 

forensic specialist who testified a DNA profile derived from semen found inside the 

victim matched a DNA profile that was generated from a sample of the defendant’s 

blood. (Id. at p. 56.) That testimony was used to establish the defendant was the source 

of the semen, but because the DNA profile derived from the semen was produced by an 

outside lab, Cellmark, the expert did not have any personal knowledge about how it was 

made. (Id. at pp. 61-62.) Consequently, she had to rely on Cellmark’s report – which 

was not admitted into evidence – in forming her opinions about the case. (Id. at p. 62.) 

The question before the high court was whether this procedure violated the defendant’s 

right to confront the people who contributed to the making of the report. 

 Justice Alito, joined by Chief Justice Roberts, Justice Kennedy and Justice 

Breyer, believed the expert’s reliance on the Cellmark report was constitutionally 

permissible because she only used the report as a foundation for her opinions, not for its 

substantive truth. In the view of these four justices, “Out-of-court statements that are 

related by the expert solely for the purpose of explaining the assumptions on which that 

opinion rests are not offered for their truth and thus fall outside the scope of the 

Confrontation Clause.” (Williams, supra, 567 U.S. at p. 58.)
12

However, a majority of the justices – consisting of the four dissenters and a 

concurring-in-part vote from Justice Thomas – rejected this notion. (Williams, supra, 

567 U.S. at pp. 103-141.) In their view, when an expert witness relies on an extrajudicial 

statement as the basis for his or her opinions, “the statement’s utility is then dependent on 

its truth. If the statement is true, then the conclusion based on it is probably true; if not, 

not. So to determine the validity of the witness’s conclusion, the factfinder must assess 

the truth of the out-of-court statement on which it relies.” (Id. at p. 126, Kagan, J., with 

whom Justice Scalia, Justice Ginsburg and Justice Sotomayor joined, dissenting; see also 

Justice Thomas’ concurring opinion at p. 106, in which he concluded, “There is no 

meaningful distinction between disclosing an out-of-court statement so that the factfinder 

may evaluate the expert’s opinion and disclosing that statement for its truth.”].) 

Although Williams ultimately upheld the defendant’s conviction on the basis the 

Cellmark report was nontestimonial,

3

the opinion adumbrated the demise of the notadmitted-for-its-truth paradigm that had so long governed the admissibility of expert 

basis evidence in California. 

As did the California Supreme Court’s decision in People v. Dungo (2012) 

55 Cal.4th 608 (Dungo), which was decided shortly after Williams. As in Williams, 

Dungo was ultimately decided on the ground the expert basis evidence in question (an 

autopsy report) was not testimonial. (Id. at pp. 616-621.) However, all six justices who 

opined on the issue agreed substantive truth was essential to the evidence’s admissibility, 

and therefore had it been testimonial, it “would have been inadmissible under Crawford.” 

(Id. at p. 627 [conc. opn. of Werdegar, J., joined by Cantil-Sakauye, C. J., Baxter, J. and 

Chin, J.]; see also id. at p. 635, fn. 3 [dis. opn. of Corrigan, J., joined by Lui, J.].)4 

 

3

Justice Thomas joined Justices Alito, Roberts, Kennedy and Breyer on that point. (Williams, 

supra, 567 U.S. at pp. 110-118.)

4

Justice Kennard, who authored the majority opinion in Dungo, did not weigh in on this issue.
13

Following Williams and Dungo, the law was in an odd state of flux. Those 

decisions signaled “a five justice majority of the high court and at least six of the seven 

justices on the California Supreme Court . . . agree that, for purposes of the confrontation 

clause, out-of-court statements admitted as basis evidence during expert testimony are 

admitted for their truth if treated as factual by the expert . . . .’ [Citation.]” (People v. 

Mercado (2013) 216 Cal.App.4th 67, 89, fn. 6.) However, neither the United States 

Supreme Court nor the California Supreme Court had squarely held as much in a majority 

opinion. That changed in 2016, when our state’s highest court handed down its ruling in 

Sanchez. 

The Sanchez Decision

The Sanchez case arose in Orange County. As petitioner does here, the 

defendant in that case challenged the testimony of an expert witness that was used to 

prove his crimes were gang related. The case turned on whether the expert’s recitation of 

hearsay evidence in the form of police reports, a S.T.E.P. notice and a field interview 

card was permissible. The defendant argued this practice violated his Sixth Amendment 

right to confront the people who prepared those documents. However, we construed 

Gardeley, supra, 14 Cal.4th 605 as binding authority to the contrary. Based on 

Gardeley’s rationale that expert basis evidence is not admitted for its truth, we ruled its 

admission did not implicate the defendant’s confrontation rights. (People v. Sanchez

(2014) 223 Cal.App.4th 1, revd. in part and affirmed in part in Sanchez, supra, 63 Cal.4th 

665.)5 

On further review, the California Supreme Court rejected Gardeley. 

Finding “the reasoning of a majority of the justices in Williams” to be “persuasive,”6the 

 

5

We were not the only court to rule in this fashion. In the post-Crawford era, several other courts 

rejected confrontation claims based on the reasoning of Gardeley. (See, e.g., People v. Steppe (2013) 213 

Cal.App.4th 1116, 1127; People v. Hill, supra, 191 Cal.App.4th at p. 1131; People v. Sisneros (2009) 174 

Cal.App.4th 142, 153-154; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) 

6

By “a majority of the justices in Williams,” our Supreme Court was referring to the four dissenting 

justices and Justice Thomas. (See Sanchez, supra, 63 Cal.4th at pp. 681-684.) 
14

court adopted the following rule: “When any expert relates to the jury case-specific outof-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 

pp. 684, 686.) Consequently, “hearsay and confrontation problems [can no longer] be 

avoided by giving a limiting instruction that such [evidence] should not be considered for 

its truth.” (Id. at p. 684.) In so holding, the Supreme Court disapproved of Gardeley, 

Montiel and other cases that had ruled otherwise. (Id. at p. 686, fn. 13.) 

Sanchez “restore[d] the traditional distinction between an expert’s 

testimony regarding background information and case-specific facts.” (Sanchez, supra, 

63 Cal.4th at p. 685.) As was the case at common law, Sanchez determined experts may 

relate hearsay that is accepted in their area of expertise or supported by their own 

experience, but they generally may not relate hearsay that pertains to the events at issue 

in the case at hand – very much what the common law rule had been. (Id. at pp. 675-676, 

685.) In the latter situation, involving case-specific facts, the proponent of the evidence 

must show it fits within an exception to the hearsay rule. (Id. at p. 676.) And if the 

evidence is testimonial in nature, then per Crawford, “there is a confrontation clause 

violation unless (1) there is a showing of unavailability and (2) the defendant had a prior 

opportunity for cross-examination, or forfeited that right by wrongdoing.” (Id. at p. 686.) 

There was no question the expert basis evidence in Sanchez was casespecific given its specificity on the gang enhancement allegations. The real dispute 

centered on whether that evidence was “testimonial” for purposes of the confrontation 

clause. While recognizing that the precise contours of that term are still being fleshed out 

by the courts, Sanchez determined evidence generally will be considered testimonial if it 

was obtained for the purpose of preserving facts for trial. (Sanchez, supra, 63 Cal.4th at 

pp. 687-694.) Applying that test, the Sanchez court determined the police reports and 

S.T.E.P. notice at issue in that case were testimonial because they were formally prepared

for later use at trial. (Id. at pp. 694-697.) The court was unable to tell whether the field 
15

interview card at issue there was testimonial given the confusing nature of the evidence 

surrounding its origin. (Id. at p. 697.) However, it stated, “If the card was produced in 

the course of an ongoing criminal investigation, it would be more akin to a police report, 

rendering it testimonial.” (Ibid.)

Irrespective of that issue, Sanchez determined the gang expert’s recitation 

of information contained in the police reports and S.T.E.P. notice violated the defendant’s 

Sixth Amendment right to confront his accusers. (Sanchez, supra, 63 Cal.4th at pp. 694-

697.) And because that information was the primary evidence in support of the gang 

enhancement allegations, the court could not say its admission was harmless beyond a 

reasonable doubt. (Sanchez, supra, 63 Cal.4th at p. 699.) Therefore, it reversed the 

jury’s true findings on those allegations. (Id. at p. 700.) 

In the course of its analysis, the Sanchez court also addressed the broader 

implications of its holding regarding expert basis evidence. While acknowledging it

would generally bar experts from disclosing “case-specific facts asserted in hearsay 

statements,” the court clarified that an “expert may still rely on hearsay in forming an 

opinion, and may tell the jury in general terms that he did so.” (Sanchez, supra, 63 

Cal.4th at pp. 685-686.) Sanchez understood that in the latter scenario, the jury would 

have less information with which to assess the reliability of the expert’s opinions, but the 

court determined that circumstance was a necessary consequence of protecting the 

defendant’s constitutional right to confront his accusers. (Id. at p. 686.) 

Retroactivity Analysis

The Attorney General, attorney for respondent, concedes a Sanchez

violation occurred in this case. To his credit, he admits that gang expert Yepes recited to 

the jury case-specific testimonial hearsay from police documents in forming his opinions 

about petitioner’s gang status, and because the sources of that hearsay were not shown to 

be unavailable, the trial court’s instruction regarding the limited use of that evidence was 

insufficient to protect petitioner’s Sixth Amendment rights. However, the Attorney 
16

General contends that under the state and federal rules governing the retroactive 

application of new judicial opinions, Sanchez is not applicable in this collateral 

proceeding. We agree. 

1. Federal Standard for Retroactivity of Judicial Opinions

(a) Overview of federal law and petitioner’s position

The current guidelines for determining retroactivity under federal law were 

developed by the United States Supreme Court in Teague v. Lane (1989) 489 U.S. 288

(Teague). Under Teague, judicial decisions that create a new rule of law are generally 

not given retroactive effect to cases on collateral review that were already final when the

rule was announced. (Id. at pp. 303-310.) While Teague recognized two exceptions to 

this rule, it made clear those exceptions are narrow because the government has a strong 

interest in ensuring judgments become and remain final. In that regard, the court 

emphasized that without finality “the criminal law is deprived of much of its deterrent 

effect” and the state is continually forced “to marshal resources in order to keep in prison 

defendants whose trials and appeals conformed to then-existing constitutional standards.” 

(Id. at pp. 309-310.) 

The first Teague exception applies if the new rule is substantive in nature, 

meaning “it places ‘certain kinds of primary, private individual conduct beyond the 

power of the criminal law-making authority to proscribe[.]’ [Citation.]” (Teague, supra, 

489 U.S. at p. 311.) The second exception comes into play when the new rule establishes 

a “watershed” rule of procedure that implicates the fundamental fairness and accuracy of 

criminal trials. (Id. at pp. 311-313; accord, Montgomery v. Louisiana (2016) __ U.S. __, 

__, 136 S.Ct. 718, 728; Schriro v. Summerlin (2004) 542 U.S. 348, 351.) 

Petitioner admits the rule established in Sanchez pertaining to expert basis 

evidence is procedural and thus outside the scope of Teague’s first exception. While 

arguing Teague applies here, petitioner also acknowledges Teague’s second exception for 

watershed rules is rarely satisfied. Indeed, the United States Supreme Court has observed 
17

that any rule qualifying for retroactive application under Teague’s second exception 

would have to be so central to an accurate determination of guilt or innocence “‘it is 

unlikely any [such rule] “ha[s] yet to emerge.”’ [Citation.]” (Schriro v. Summerlin, 

supra, 542 U.S. at p. 352; Teague, supra, 489 U.S. at p. 313; Beard v. Banks (2004) 542 

U.S. 406, 417.) That is a significant hurdle for petitioner to overcome.

(b) Does Sanchez constitute a new rule of criminal procedure?

Before analyzing the applicability of Teague’s second exception in this 

case, there is a threshold question we must address: We must determine whether the rule 

announced in Sanchez is actually “new.” Rules that are not new generally apply to cases 

on collateral review whereas rules that are new must meet one of the two exceptions set 

forth in Teague. (Whorton v. Bockting (2007) 549 U.S. 406, 416.) Because those 

exceptions are so limited, the question of whether a rule is new is often dispositive of the 

retroactivity issue. 

It is not as easy as it might seem to ascertain when a case announces a new 

rule for purposes of retroactivity. (Teague, supra, 489 U.S. at p. 301.) Teague explained 

that a case does so if its result was “not dictated by precedent existing at the time the 

defendant’s conviction became final. [Citation.]” (Ibid.) A case is not dictated by 

existing precedent if its outcome was “susceptible to debate among reasonable minds.” 

(Butler v. McKellar (1990) 494 U.S. 407, 415.) Therefore, “unless reasonable jurists 

hearing petitioner’s claim at the time his conviction became final ‘would have felt 

compelled by existing precedent’” to apply the rule in question, the rule will be 

considered new and presumed not to apply on collateral review. (Graham v. Collins

(1993) 506 U.S. 461, 468, italics added, quoting Saffle v. Parks (1990) 494 U.S. 484, 

488.) This standard preserves the principle of finality by “‘validat[ing] reasonable, goodfaith interpretations of existing precedents made by state courts’ . . . even if those goodfaith interpretations ‘are shown to be contrary to later decisions.’” (Ibid.)
18

As petitioner correctly notes, by the time his case became final in 2015, 

Crawford, Williams and Dungo were already in the books. Thus, if those cases dictated 

the rule announced in Sanchez – that expert basis evidence is generally admitted for the 

truth of the matter asserted therein, and therefore subject to the hearsay rule and 

confrontation clause – then the rule was not new for retroactivity purposes, and petitioner 

would be entitled to have it applied in this proceeding. Petitioner argues Crawford and 

its progeny did dictate the Sanchez rule, even though the California Supreme Court had 

previously endorsed a contrary rule in Montiel and Gardeley. The way he sees it, 

Sanchez merely “distinguished” and “reconciled” those prior decisions with Crawford

and its progeny, and therefore Sanchez did not establish a rule of law that was actually 

new. That is not our interpretation of the historical record.

Sanchez did not just tweak the law, as petitioner suggests. “In vigorously 

rejecting the not-admitted-for-its-truth rationale, the Supreme Court . . . dealt a death 

blow to the notion that juries can make any sense of the distinction traditionally espoused 

in cases such as Gardeley.” (People v. Stamps (2016) 3 Cal.App.5th 988, 994-995, fn. 

omitted.) Indeed, Sanchez marked a “paradigm shift” in the proper use of expert basis 

evidence by abandoning the idea “that a limiting instruction intended to restrict jurors’ 

consideration of such evidence to the purpose of serving as the basis for the expert’s 

opinion” was a permissible method of avoiding hearsay problems. (Id. at p. 995.) 

Any question as to whether this shift marked a major change in California 

jurisprudence was laid to rest when Sanchez expressly disapproved of the 

Montiel/Gardeley line of cases that had employed the old, not-admitted-for-its-truth 

rationale in dealing with expert basis evidence. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 

13.) This alone is strong evidence Sanchez created a new rule for retroactivity purposes. 

(See Whorton v. Bockting, supra, 549 U.S. at p. 416 [by overruling Roberts, Crawford

signaled it was breaking with past precedent and announcing a new rule of law].) 
19

In arguing Crawford and its progeny dictated Sanchez’s result, petitioner 

overestimates the effect those cases had on the Sanchez decision. They may have laid the 

groundwork for Sanchez, but Crawford did not deal with the issue of expert basis 

evidence; rather, it focused more broadly on the constitutional standard governing the 

admissibility of hearsay evidence. Williams did involve expert basis evidence. However, 

as explained above, the justices in that case were sharply divided on the question of 

whether such evidence is admitted for its substantive truth, which was the core issue in 

Sanchez. The fact five of the justices (the four dissenters and one concurring justice) 

answered that question in the affirmative does not mean their view became the prevailing 

law of the land. To the contrary, because the case was ultimately decided on other 

grounds, their view has no precedential value in the traditional sense of the term. (See 

Seminole Tribe v. Florida (1996) 517 U.S. 44, 67 [the precedential scope of a United 

States Supreme Court decision extends only to the result in that case and those portions 

of the decision that are necessary to that result]; Bailey v. United States (D. Alaska 1962) 

201 F.Supp. 604, 605 [“dissenting opinions, however logical they appear to be, are not 

the law of the case”].) 

A careful reading of Sanchez indicates the California Supreme Court was 

fully aware of this when it decided that case. While the court found the reasoning of the 

five justice majority in Williams to be “persuasive” (Sanchez, supra, 63 Cal.4th at p. 

684), it never suggested their reasoning dictated the outcome in Sanchez. Instead, the 

court took it upon itself to analyze the issue of expert basis evidence and formulate its 

own decision on that issue. In so doing, the court fulfilled its constitutional obligation to 

independently rule on questions that come before it. (See People v. Lopez (2012) 55 

Cal.4th 569, 593-594 (dis. opn. of Liu, J.) [“As a court tasked with applying an evolving 

line of jurisprudence, our role is not simply to determine what outcome will likely garner 

five votes on the high court. Our job is to render the best interpretation of the law in light 

of the legal texts and authorities binding on us.”].) And even though Sanchez’s ultimate 
20

decision on that issue realigned California with the traditional common law rule 

regarding expert basis evidence, most jurists would probably consider the Sanchez

decision quite novel, considering how the law in that area had evolved over the years. 

(People v. Stamps, supra, 3 Cal.App.5th at p. 995.) At the very least, the outcome in 

Sanchez was sufficiently uncertain as to foreclose the label of foregone conclusion. 

In arguing otherwise, petitioner relies on People v. Perez (2018) 22 

Cal.App.5th 201 (Perez). The Perez court considered whether the defendant had 

forfeited his right to invoke the Sanchez decision on appeal by failing to object at trial to 

a gang expert’s testimony that consisted of case-specific hearsay. Because Perez’s trial 

preceded Sanchez, the forfeiture issue turned on whether Sanchez constituted an 

unforeseeable change in the law so as to excuse defense counsel’s failure to object. 

Given that Crawford, Williams and Dungo had already been decided by the time the 

defendant’s trial took place, Perez determined it would not have been “futile” for defense 

counsel to object because those cases “indicated” an expert witness’ reliance on hearsay 

was objectionable. (Id. at pp. 212, 201.) Therefore, the forfeiture rule applied, and the 

defendant was barred from challenging the expert’s testimony on appeal. (Id. at p. 212.) 

But to say Crawford and its progeny foreshadowed the result in Sanchez for 

purposes of defeating the futility exception to the waiver requirement is not the same as 

saying those decisions dictated the result in Sanchez for purposes of determining whether

it announced a new rule of law under Teague. While those decisions clearly provided the 

impetus for our supreme court to revisit the rules regarding the permissible basis for 

expert testimony, they did not compel the court’s ultimate decision to reconfigure the 

analytical framework respecting such testimony. And, in fact, as several courts have 

recognized, objecting to expert basis evidence before Sanchez was decided would have 

been a pointless exercise because California Supreme Court precedent (i.e., Montiel and 

Gardeley) had firmly established such evidence does not implicate the hearsay rule. 

(See, e.g., People v. Flint (2018) 22 Cal.App.5th 983, __, fn. 12; People v. Jeffrey G.
21

(2017) 13 Cal.App.5th 501, 511; People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7, 

rev. granted Mar. 22, 2017, S239442.) Thus, to the extent Perez is applicable to the issue 

before us we respectfully decline to adopt its reasoning. 

In any event, there is simply no denying the Sanchez decision has required 

every prosecutor, defense attorney and judge in this state to rethink their approach to 

expert basis evidence. Notwithstanding Crawford and its progeny, we hold a decent 

respect for the language and Teague’s definition of the word “new” requires the 

conclusion Sanchez announced a new rule of law under the federal rubric for assessing 

the retroactivity of judicial decisions.7

(c) Does Sanchez come within the watershed exception?

That brings us to the question whether the Sanchez rule constitutes a 

watershed rule of criminal procedure so as to fit within the second exception to the 

presumption against retroactivity set forth in Teague. Our analysis of that issue is 

informed by Whorton v. Bockting, supra, 549 U.S. 406, in which the United States 

Supreme Court held its decision in Crawford does not apply retroactively to cases that 

were already final at the time Crawford was decided. In so holding, Bockting explained, 

“In order to qualify as watershed, a new rule must meet two requirements. First, the rule 

must be necessary to prevent ‘an “‘impermissibly large risk’”’ of an inaccurate 

conviction. [Citations.] Second, the rule must ‘alter our understanding of the bedrock 

procedural elements essential to the fairness of the proceeding.’ [Citation.]” (Id. at p. 

418.)

To illustrate just how difficult it is for a case to obtain watershed status, 

Bockting used Gideon v. Wainwright (1963) 372 U.S. 335 (Gideon), the landmark 

decision granting indigent defendants the right to court-appointed counsel, as the 

 

7

Because Sanchez made new law by bringing expert basis evidence within the scope of the hearsay 

rule and the confrontation clause petitioner’s failure to challenge Yepes’ testimony on direct appeal is not a 

procedural bar to his doing so in this habeas proceeding. (In re King (1970) 3 Cal.3d 226, 229, fn. 2.) 
22

touchstone for its analysis. (Whorton v. Bockting, supra, 549 U.S. at p. 419.) Finding 

“[t]he Crawford rule is in no way comparable to the Gideon rule” (ibid.), Bockting noted 

Crawford may enhance the accuracy of factfinding in some cases by subjecting 

testimonial hearsay to a more rigorous standard of admissibility than previously existed 

under Roberts. (Ibid.) But with respect to hearsay statements that are nontestimonial, 

Crawford actually “permits their admission even if they lack indicia of reliability.” (Id. 

at p. 420.) Given that Crawford cuts both ways on the issue of reliability, Bockting found 

it was “unclear” whether Crawford’s implementation would seriously diminish the 

likelihood of a wrongful conviction in future cases. (Ibid.) Therefore, it concluded 

Crawford did not meet the first requirement for a watershed rule. (Ibid.) 

Bockting also found Crawford lacking in terms of its constitutional 

magnitude. While recognizing the Sixth Amendment right of confrontation is a 

fundamental component of due process, Bockting clarified it is not enough that the rule in 

question pertains to a core constitutional right. Instead, the rule “must itself constitute a 

previously unrecognized bedrock procedural element that is essential to the fairness of a 

proceeding.” (Whorton v. Bockting, supra, 549 U.S. at p. 421, italics added.) Again, 

using Gideon as a benchmark, Bockting determined Crawford came up short in this 

regard because, “while certainly important,” Crawford “lacks the ‘primacy’ and 

‘centrality’ of the Gideon rule,” which “effected a profound and ‘“‘sweeping’”’ change to 

the criminal justice system. (Ibid.) Thus, Bockting held Crawford “does not fall within 

the Teague exception for watershed rules.” (Ibid.; see also In re Moore (2005) 133 

Cal.App.4th 68 [ruling similarly].) 

Given this guidance, we cannot see how the Sanchez decision could qualify 

as a watershed rule. After all, Sanchez is but an extension of Crawford; it merely 

considered the degree to which Crawford applies in the context of expert testimony. 

(Sanchez, supra, 63 Cal.4th at p. 670.) And as it turned out, Sanchez actually limited the 

scope of Crawford in that context. Whereas Crawford applies broadly to all testimonial 
23

hearsay, Sanchez’s reach extends only to testimonial hearsay that is case-specific to the 

matter at hand. Thus, overall, Sanchez is – for purposes of a Teague analysis – less likely 

than Crawford to increase the accuracy of the factfinding process. 

That’s not to say the Sanchez rule is not significant. To the contrary, its 

importance is obvious. As we have noted, it requires rethinking a large body of evidence 

precedent in our state. But compared to the landmark ruling in Gideon, which 

fundamentally altered the playing field in criminal proceedings, Sanchez is far less likely 

to have an impact on the fairness and accuracy of criminal trials. We thus conclude 

Sanchez did not establish a watershed rule of criminal procedure under Teague. And 

because, as petitioner concedes, Sanchez does not meet Teague’s exception for 

substantive rules, it does not qualify for retroactive application under federal law. 

2. Retroactivity under California Law

But our finding that Sanchez is ineligible for retroactive application under 

Teague is not dispositive of petitioner’s claim. California is free to adopt its own 

standard and rules regarding the retroactivity of new judicial opinions. (In re Gomez 

(2009) 45 Cal.4th 650, 655, fn. 3.) This freedom stems from the recognition that states 

are “independent sovereigns with plenary authority to make and enforce their own laws 

as long as they do not infringe on federal constitutional guarantees.” (Danforth v. 

Minnesota (2008) 552 U.S. 264, 280.)

(a) New rule analysis

As under federal law, the threshold question in determining the retroactivity 

of a judicial decision under state law is whether the decision established a new rule. “If it 

does, the new rule may or may not be retroactive, as we discuss below; but if it does not, 

‘no question of retroactivity arises’ because there is no material change in the law. 

[Citations.]” (People v. Guerra (1984) 37 Cal.3d 385, 399.) A decision of the California 

Supreme Court establishes a new rule of law if it expressly overrules a precedent of that 

court or disapproves a practice it had impliedly sanctioned in an earlier case. (Id. at p. 
24

401; In re Lucero (2011) 200 Cal.App.4th 38, 45.) While Sanchez did not overrule 

Gardeley in so many words, it did “disapprove” of that decision “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.) By 

renouncing this practice, Sanchez created a new rule for purposes of state retroactivity 

analysis. We must now deal with whether that rule must be retroactively applied under 

state law.

(b) State standard for retroactivity

Although states are free to establish their own rules for determining the 

retroactivity of judicial opinions, California courts have generally hewed to the federal 

standard. (See, e.g., In re Gomez, supra, 45 Cal.4th 650; In re Moore, supra, 133 

Cal.App.4th at pp. 74-77.) We have already explained why Sanchez does not qualify for 

retroactive application under the current federal standard articulated in Teague. 

However, prior to Teague, the federal standard was more forgiving, so in this case, 

petitioner invokes the old federal standard as a separate analytical basis for his 

retroactivity claim. Although that standard is outdated for purposes of federal law, the 

Attorney General admits it still has potential application in deciding the retroactivity of 

California Supreme Court decisions. (See, e.g., In re Lucero, supra, 200 Cal.App.4th at 

p. 45 [applying the old federal standard to determine whether the rule created in People v. 

Chun (2009) 45 Cal.4th 1172 should be given retroactive effect].) Therefore, out of an 

abundance of caution, we will engage in an analysis of the Sanchez decision under that 

standard. 

Applying that standard, the retroactivity analysis is informed by three 

factors: 1) The purpose of the new rule, 2) the reliance placed on the old rule, and 3) the 

effect retroactive application would have on the administration of justice. (Stovall v. 

Denno (1967) 388 U.S. 293, 297; Linkletter v. Walker (1965) 381 U.S. 618, 629.) 

However, the first factor is of primary importance and will generally be deemed 
25

controlling if the purpose of the new rule plainly favors retroactive or prospective 

application. (In re Johnson (1970) 3 Cal.3d 404, 410.) In this context, the purpose of a 

new rule is determined by examining its relationship to the reliability and integrity of the 

fact-finding process at trial. (Id. at pp. 411, 416.) “[T]he more directly the [rule] serves 

to preclude the conviction of innocent persons, the more likely it is that the rule we be 

afforded retrospective application.” (Id. at p. 413.) 

In assessing its likely impact on criminal trials, it is important to remember 

Sanchez did not create a substantive rule of law or a watershed rule of criminal 

procedure. It simply established an evidentiary framework for analyzing the 

admissibility of expert basis evidence. As we have explained, the chief takeaway from 

Sanchez is that expert witnesses may no longer recite case-specific testimonial hearsay to 

the jury in explaining the foundation for their opinions, absent a showing of 

unavailability and a prior opportunity for cross-examination. That means a prosecutor

will have two choices when those criteria are not met. The first option will be to call the 

hearsay declarant as a witness to supply the evidentiary foundation for the expert’s 

opinions. In that situation, the reliability of the fact-finding process will be enhanced 

because the declarant will be available for cross-examination.

Alternatively, the prosecutor can simply instruct his expert witness to 

describe the hearsay information he relied on in general terms without divulging its 

contents to the jury. (See Sanchez, supra, 63 Cal.4th at pp. 685-686.) Doing so would 

prevent jurors from being exposed to inadmissible and potentially prejudicial hearsay, but 

it would also deprive them of information with which to assess the expert’s opinions. (Id. 

at p. 686.) So, in some cases, complying with Sanchez could be seen as decreasing the 

reliability of the jury’s verdict.8

 

8

While this is counter-intuitive, the criminal law includes many rules – such as the exclusionary 

rule and California’s Evidence Code section 352 – which result in jury’s getting a fairer but less complete set of 

facts.
26

In that sense, Sanchez is similar to Crawford in that there is no guarantee it 

will seriously diminish the likelihood of an inaccurate conviction. Neither decision is so 

fundamental to the reliability of the fact-finding process that it is necessary to ensure the 

acquittal of innocent persons. And because Sanchez only pertains to a particular subset 

of testimony – that derived from expert witnesses – its impact on the accuracy of criminal 

trials is likely to be less far-reaching than Crawford. Because Sanchez is not central to 

the integrity of the truth-determining process, the purpose factor does not favor giving it 

retroactive effect. 

Nor do the remaining factors – the extent of reliance on the old rule and the 

administrative effect of retroactivity. Prior to Sanchez, prosecutors in California had 

relied on the Montiel/Gardeley line of cases for over two decades. That reliance was 

justified by the fact Montiel and Gardeley were controlling Supreme Court precedent on 

the issue of expert basis evidence. (Sanchez, supra, 63 Cal.4th at pp. 679, 683.) And not 

only was past reliance on that precedent reasonable, it was also widespread in cases like 

the one at hand.9 It cannot be gainsaid that it would be exceedingly disruptive and costly 

to retry the many thousands of cases that were adjudicated under the old framework. 

Considering the purpose of the Sanchez rule, the extent to which prosecutors justifiably 

relied on the old rule, and the tremendous administrative burden associated with a 

contrary ruling, we do not believe Sanchez qualifies for retroactive application under the 

California standard, i.e., the old federal standard. 

In arguing otherwise, petitioner draws our attention to two per curiam 

decisions of the United States Supreme Court that were adjudicated under the old federal 

standard, Roberts v. Russell (1968) 392 U.S. 293 (Roberts) and Berger v. California

(1969) 393 U.S. 314 (Berger). At issue in Roberts was the retroactivity of Bruton v. 

United States (1968) 391 U.S. 123, which found a confrontation clause violation in the 

 

9

According to Westlaw’s computerized database, 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.
27

admission of a nontestifying defendant’s confession that implicated his codefendant. 

Roberts determined that because the admission of such confessions create “a serious risk 

that the issue of guilt or innocence may not have been reliably determined,” Bruton must 

be given retroactive effect. (Roberts, supra, 392 U.S. at p. 295.) 

Likewise in Berger, the court gave retroactive effect to Barber v. Page

(1968) 390 U.S. 719, which ruled the confrontation clause prohibits the introduction of a

witness’ preliminary hearing testimony unless the prosecution has made a good faith 

effort to secure the witness’ presence at trial. Berger reasoned retroactive application of 

Barber was warranted because it corrected an error that significantly impaired “the 

‘integrity of the fact-finding process.’ [Citations.]” (Berger, supra, 393 U.S. at p. 315; 

see also In re Montgomery (1970) 2 Cal.3d 863 [ruling similarly].) 

The key distinguishing feature of Roberts and Berger is that they addressed 

the retroactivity of rules that were designed to remedy the situation that existed when the 

defendant did not have any opportunity to cross-examine the subject witness at trial. 

(Roberts, supra, 392 U.S. at p. 293 [complete inability to cross-examine codefendant]; 

Berger, supra, 393 U.S. at p. 314 [complete inability to cross-examine victim].) That is 

not our case. Petitioner here was permitted to cross-examine gang expert Yepes at his 

trial. By exposing the shortcomings of Yepes’ testimony, he provided the jury with 

valuable information with which to assess the reliability of his opinions. 

Petitioner is correct that his ability to cross-examine Yepes was not wholly 

unfettered. Because Yepes lacked personal knowledge of the hearsay evidence on which 

he relied, he was in no position to answer questions about that evidence. If that evidence 

consisted of opinions from other people that Yepes simply parroted to the jury, petitioner 

would have greater cause to complain. However, Yepes did not act as a mere conduit for 

the opinion of others. Instead, he used the hearsay evidence to form his own opinions 

about the case. In so doing, Yepes created an “‘original product’” of substantive 

evidence that could be “‘tested through cross-examination.’ [Citation.]” (United States 
28

v. Summers (4th Cir. 2011) 666 F.3d 192, 202.) This provided petitioner with a 

meaningful opportunity for cross-examination. (Ibid.; State v. Stanfield (Idaho 2015) 

347 P.3d 175, 186-187, fn. 6 [collecting cases that have drawn a distinction between an 

expert witness using hearsay evidence to arrive at an independent opinion and an expert

witness using hearsay evidence simply to convey the opinion of others].) Because the 

defendants in Roberts and Berger did not have such an opportunity, let alone any chance 

to cross-examine the subject witnesses at trial, we find those cases inapt.10

In light of all the pertinent considerations, we conclude Sanchez is not 

retroactive to cases on collateral review. Therefore, petitioner cannot avail himself of 

that decision in this proceeding. 

DISPOSITION

The petition for a writ of habeas corpus is denied.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

 

10

Petitioner also relies on People v. Guerra, supra, 37 Cal.3d 385, which gave retroactive effect to a 

rule barring the use of testimony from persons who have been hypnotized to restore their memory. However, that 

decision arose in the context of a direct appeal, which is more favorable to a finding of retroactivity. Attuned to this 

fact, the Supreme Court specifically declined to consider whether the hypnosis rule “applies on collateral attack to 

cases now final.” (Id. at p. 413, fn. 24.)