People v. Blessett

In the published portion of this opinion we conclude that defendant's confrontation clause violation contentions under Crawford v. Washington (2004) 541 U.S. 36 , 124 S.Ct. 1354 , [ 158 L.Ed.2d 177 ] ( Crawford ) and People v. Sanchez (2016) 63 Cal.4th 665 , 204 Cal.Rptr.3d 102 , 374 P.3d 320 ( Sanchez ) are forfeited because trial counsel failed to make a specific objection in the trial court concerning the confrontation clause violation

Officer Paul Fong, who arrived at the scene shortly after 2:00 a.m. was the first officer on the scene. Manivong relayed to Fong the license plate number of the pickup, and Fong broadcast that information immediately.

Later in the morning, Officer Konrad Von Schoech stopped a Kia in which defendant was a passenger. Von Schoech transported defendant to the police station. There, Detective Thomas Shrum intended to swab defendant's hands for gunshot residue. However, after his arrest, defendant asked to use the restroom. He was accompanied by Detective Shrum. As defendant was walking to the sink after urinating, Detective Shrum told defendant not to wash his hands. Defendant put his hands on the soap dispenser, looked at Shrum, soaped up his hands, and washed them anyway. Thereafter, Detective Shrum interviewed defendant briefly. During the interview, defendant claimed someone had stolen his truck.

In a phone conversation a day later with someone defendant identified as Grandma, he again said somebody had used his truck to commit a crime. When asked what kind of crime, defendant replied, "I think murder." He said he did not report his truck stolen because he had been drinking that night.

In a second call that day, defendant spoke with a male. The conversation begins after the male accepted the collect call from defendant.

According to Saario, the primary activities of the Meadowview Bloods are robbery, burglary, narcotic sales, weapons possession, and assaults with deadly weapons, which have led to murders. Saario testified about predicate offenses involving three Meadowview Blood gang members, occurring on one occasion. He testified that they beat a Crip gang member and when the Crip fled, one of the three Bloods attempted to follow the Crip into his house armed with a firearm. The Crip obtained a gun, came out and shot one of the three Bloods. One of the Bloods was convicted of active participation in a criminal street gang, specifically the Meadowview Bloods; another was convicted of active participation in a criminal street gang, specifically the Meadowview Bloods, and felony battery; and the third was convicted of residential burglary, assault with a with force likely to cause great bodily injury, and being a felon in possession of a firearm and ammunition. Certified court records of these convictions were admitted into evidence. None of these individuals were involved in defendant's trial.

Saario testified about a series of prior crimes and contacts defendant previously had with law enforcement that aided in his opinion about defendant's gang affiliation. This testimony is the primary subject of defendant's confrontation clause claim.

In November 1991, defendant was walking in South Sacramento when a vehicle occupied by several African-American males drove by. One of the individuals shot at defendant, striking him in the back. At the time, defendant was wearing a red 49ers jacket and a red 49ers hat. Defendant initially denied being a gang member, but then acknowledged that "sometimes people think that he is with the Meadowview Bloods." According to defendant's friend or cousin, defendant was shot by a member of the Oak Park Bloods because of a rivalry that existed between the Meadowview Bloods and the Oak Park Bloods.

On January 11, 1995, police contacted defendant in connection with a domestic violence call. Defendant was wearing burgundy pants and was described as a Meadowview Blood.

On September 2, 1995, defendant and Daniels, wearing ski masks, drove up to a male who was in a parking lot placing his daughter into his vehicle. Either defendant or Daniels pulled out a gun and demanded the victim's wallet and keys. The victim ran away, and defendant and Daniels drove off. Sheriff's deputies-responding to this incident-stopped the vehicle defendant was driving. In the vehicle, officers discovered a red ski mask under the driver's seat and another ski mask under the passenger seat. Officers also discovered a .41-caliber Smith and Wesson revolver on the passenger's side of the vehicle. Defendant and Daniels were identified in a showup.

In April 2002, defendant committed gang-related crimes with Lawrence Barnett, a Del Paso Heights Blood.

Saario also relied upon the recorded phone call defendant made from the jail to the woman in which defendant said there was a Crip in custody with

We agree with the People that defendant forfeited these claims. Contrary to defendant's contention, his failure to raise the Crawford issue before the trial court is not excused on the ground that such an objection would have been futile. We further conclude that defendant has not met his burden in establishing ineffective assistance of counsel because he has not established that the failure to object to background hearsay was unreasonable, and, with respect to both the background hearsay and the case-specific testimonial hearsay that is the focus of his confrontation clause claim, he has failed to establish prejudice under the test in Strickland v. Washington (1984) 466 U.S. 668 , 104 S.Ct. 2052 , [ 80 L.Ed.2d 674 ] ( Strickland ). In light of the dissent, we further conclude that, even if defendant had not forfeited his Crawford / Sanchez claims, any error in admitting the inadmissible testimony was harmless under Chapman v. California (1967) 386 U.S. 18 , 87 S.Ct. 824 , [ 17 L.Ed.2d 705 ] ( Chapman ).

A. Additional Background

Trial counsel filed two sets of written in limine motions on behalf of defendant. In one of the filings, counsel sought various in limine rulings not specific to the gang evidence (general in limine motions). One such motion in the general in limine motions requested the court to exclude evidence of prior

Similarly, defendant's bare reference to the confrontation clause in his general in limine motions, without reference to the gang expert testimony, is not enough here. A specific objection identifying a specific constitutional theory is required. (See People v. Williams (2010) 49 Cal.4th 405 , 435, 111 Cal.Rptr.3d 589 , 233 P.3d 1000 [a defendant ordinarily forfeits specific involuntariness theories regarding a defendant's statements to law enforcement that were not raised below]; People v. Ray (1996) 13 Cal.4th 313 , 339, 52 Cal.Rptr.2d 296 , 914 P.2d 846 [claim of delay in Mirandizing the defendant did not preserve for review a claim that an offer of benefit rendered the defendant's statement involuntary; "the parties had no incentive to fully litigate this theory below, and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings"].)

On appeal, defendant does not claim trial counsel's boilerplate objection sufficed to preserve his confrontation clause arguments; he acknowledges that that the claim was not raised in the trial court and that key cases we discuss post concerning the emerging law on testimonial hearsay were not cited by trial counsel. Instead, defendant contends that he has not forfeited his claim because any objection would have been futile under case law as it existed at the time. Defendant points out that the decisional law at the time provided that an expert witness may testify as to the material that forms the basis of his or her opinion, even if it would otherwise be inadmissible. ( Gardeley, supra , 14 Cal.4th at pp. 618-619, 59 Cal.Rptr.2d 356 , 927 P.2d 713 ; People v. Thomas (2005) 130 Cal.App.4th 1202 , 1209-1210, 30 Cal.Rptr.3d 582 ( Thomas ).) Defendant further notes that decisional law also held that because such testimony is not offered for the truth of the matter, but rather to explain the gang expert's testimony, it does not violate the confrontation clause. ( Thomas , at pp. 1209-1210, 30 Cal.Rptr.3d 582 .) According to defendant, any attempt to register a specific confrontation clause objection would have been futile and, as a consequence, the failure to do so should be excused.

Defendant argues that he should be excused from failing to object. He asserts that any objection would have been futile because Gardeley and Thomas were binding on the trial court. He relies essentially on two cases, Kitchens, supra , 46 Cal.2d at pages 262-263, 294 P.2d 17 , and a footnote in People v. Sandoval (2007) 41 Cal.4th 825 , 62 Cal.Rptr.3d 588 , 161 P.3d 1146 ( Sandoval ). Neither case helps defendant because neither case involves changes in the law that were foreseeable based on the state of the decisional law in existence at the time.

In Kitchens , the defendant contended on appeal that drug evidence was obtained during an illegal search, but his case was tried when illegally obtained evidence was admissible, and the search was not challenged in the trial court. ( Kitchens, supra , 46 Cal.2d at p. 262, 294 P.2d 17 .) Our high court held that, under the circumstances, the traditional rule prohibiting review on appeal of the admissibility of evidence where no objection was made in the trial court should not apply to appeals in cases tried before the California Supreme Court's decision excluding illegally obtained evidence. ( Ibid . ) The court reasoned: "A contrary holding would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal." ( Id . at p. 263, 294 P.2d 17 .) The court observed that, in view of its prior decisions, an objection would have been futile and the law does not require idle acts. ( Ibid . )

In Sandoval , the defendant contended on appeal that the upper term sentence imposed by the trial court violated her constitutional right to a jury trial as explained in Cunningham v. California (2007) 549 U.S. 270 , 127 S.Ct. 856 , [ 166 L.Ed.2d 856 ]. ( Sandoval, supra , 41 Cal.4th at p. 831, 62 Cal.Rptr.3d 588 , 161 P.3d 1146 .) In Cunningham , the high court held that California's determinate sentencing law (DSL) violated the defendant's right to a jury trial by assigning to the trial judge, rather than to the jury, the authority to find facts supporting imposition of upper term sentences. ( Cunningham , at pp. 274-275, 127 S.Ct. 856 .) Prior to Cunningham , in People v. Black (2005) 35 Cal.4th 1238 , 1244, 29 Cal.Rptr.3d 740 , 113 P.3d 534 ( Black I ), our high court had held that the DSL did not violate

In referencing the futility rule in its footnote, the Sandoval court cited People v. Welch (1993) 5 Cal.4th 228 , 19 Cal.Rptr.2d 520 , 851 P.2d 802 ( Welch ). ( Sandoval, supra , 41 Cal.4th at p. 837, fn. 4, 62 Cal.Rptr.3d 588 , 161 P.3d 1146 .) The defendant in Welch contested on appeal the reasonableness of probation conditions. ( Welch , at p. 230, 19 Cal.Rptr.2d 520 , 851 P.2d 802 .) An established line of Court of Appeal decisions had held a defendant was not required to object in the trial court to preserve such a contention on appeal. ( Id . at pp. 231-233, 19 Cal.Rptr.2d 520 , 851 P.2d 802 .) The Welch court abolished this rule, holding that an objection in the trial court to probation conditions is required, and disapproved of the contrary Court of Appeal decisions. ( Id . at pp. 234-235, 237, 19 Cal.Rptr.2d 520 , 851 P.2d 802 .) But the Welch court declined to apply the rule to the defendant. ( Id . at p. 237, 19 Cal.Rptr.2d 520 , 851 P.2d 802 .) The court noted that "[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." ( Ibid ., italics added.) The court reasoned that, by the same token, "[i]t would be unfair to effectively bar any review of defendant's claims where the rule requiring their preservation in the trial court was adopted in the context of her own appeal." ( Id . at p. 238, 19 Cal.Rptr.2d 520 , 851 P.2d 802 .)

Kitchens , Sandoval , and Welch have one thing in common that made application of the futility rule appropriate in those cases-the law regarding the specific objection at issue was settled prior to the change in the law, and

D. Ineffective Assistance of Counsel Claim Related to the Failure to Object on Specific Confrontation Clause Grounds

Defendant contends that counsel was ineffective for failing to adequately object on confrontation clause grounds to the prior crimes and police contact evidence about which the prosecution's gang expert testified as part of the basis of his opinion concerning defendant's Meadowview Bloods gang membership. Defendant also argues on appeal that the admission of the expert's testimony about the predicate felonies offered to prove that the Meadowview Bloods are a criminal street gang and defendant's phone conversations from the jail violated his confrontation clause rights, but does not specifically argue that trial counsel's failure to object to those parts of the expert's testimony amount to ineffective assistance of counsel. We shall, nevertheless, address those contentions to forestall future claims of ineffective assistance of trial and appellate counsel.

1. Ineffective Assistance of Counsel Principles

To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. ( Strickland, supra , 466 U.S. at pp. 688, 691-692, 104 S.Ct. 2052 ; People v. Ledesma (1987) 43 Cal.3d 171 , 216-217, 233 Cal.Rptr. 404 , 729 P.2d 839 ( Ledesma ); People v. Rogers (2016) 245 Cal.App.4th 1353 , 1367, 200 Cal.Rptr.3d 355 ( Rogers ).) " 'Surmounting Strickland 's high bar is never an easy task.' " ( Harrington v. Richter (2011) 562 U.S. 86 , 105, 131 S.Ct. 770 , [ 178 L.Ed.2d 624 , 642] ( Richter ), quoting Padilla v. Kentucky (2010) 559 U.S. 356 , 371, 130 S.Ct. 1473 , [ 176 L.Ed.2d 284 , 297].) The reason why Strickland 's bar is high is because "[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of

2. The Gang Expert's Testimony

We now turn to the expert's testimony to consider what portions of this testimony should not have been relayed to the jury, because the failure to object to that evidence bears on the first prong of the ineffective assistance of counsel test-whether trial counsel's performance was deficient. We first look at his testimony regarding the prior crimes and contacts defendant had with law enforcement used as part of the basis for the expert's opinion that defendant was a member of the Meadowview Bloods.

The prosecution's gang expert testified about the following events, which served as part of the basis for his opinion concerning defendant's gang membership: the November 1991 incident when defendant was shot in the back allegedly in relation to a rivalry between the Oak Park Bloods and the Meadowview Bloods; the December 1992 incident where defendant was arrested for a felony warrant and admitted possession of rock cocaine found at the location; the June 1993 incident when he was in a car with others where a firearm was found; an incident in October 1993 when, while running from the police, he displayed a firearm and was shot by the officer; the January 1995 police contact involving a domestic violence call; his commission of armed robbery in September 1995; and his commission of unspecified gang crimes in April 2002 with a Del Paso Heights Blood. These events each had gang overtones

Sanchez did "not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his [or her] expertise." ( Sanchez, supra , 63 Cal.4th at p. 685, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) As the Sanchez court observed, "an expert's background knowledge and experience is what distinguishes him [or her] from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth." ( Ibid . ) A gang expert may relate such background information regarding his or her knowledge and expertise, as well as premises generally accepted within his or her field, even though such testimony is offered for its truth. ( Ibid . ) Thus, a gang expert may testify concerning general background information relating to gang culture and the " history and general operations" of a specific gang. ( Id . at p. 698, 204 Cal.Rptr.3d 102 , 374 P.3d 320 , italics added.) Applying this rule to the facts in Sanchez , our high court noted that

a. Ineffective Assistance Prejudice-First Degree Murder ( §§ 187, 189 )

Given the admissible evidence heard by the jury, we conclude that defendant has not suffered Strickland prejudice. There is no reasonable probability defendant would have received a more favorable result on the murder charge had the gang expert been precluded from providing testimonial hearsay basis testimony about his prior contacts with the police.

As for motive, the jury properly had before it witness testimony that defendant invoked the name of the Meadowview Bloods criminal street gang after Sisoukchaleun and Manivong walked up making hand gestures and Thammavongsa and Sisoukchaleun uttered the term "cuz." After defendant invoked the name of Meadowview Bloods, Sisoukchaleun invoked the name of the LGC or Lao Gangster Crip, with which both Thammavongsa and Sisoukchaleun were affiliated. Thammavongsa acknowledged that such an

In addition to the very strong evidence of planning, motive, and manner of killing, there was also evidence evincing defendant's consciousness of guilt. When he was arrested later in the day, the pants with the distinctive red design he had worn earlier during the shooting were in a bag. Also found in the car in which defendant was riding were the license plates from his truck. After he finished urinating at a police facility restroom, he was told not to

In considering whether defendant suffered Strickland prejudice as to the gang enhancement, we shall exclude the testimonial hearsay, specifically the gang expert's case-specific testimony concerning defendant's prior crimes and contacts with law enforcement as indicators of defendant's involvement in the Meadowview Bloods criminal street gang. After excluding that evidence from the calculus, we consider what evidence is left to prove the section 186.22, subdivision (b)(1), enhancement.

As we have noted, Sisoukchaleun and Manivong both made hand gestures as they walked up to Sunland, and they can be seen doing so on the surveillance video. Thammavongsa and Sisoukchaleun both uttered the term " 'cuz.' " According to Thammavongsa, after he said, " 'Cuz, get some drink,' " defendant said, " 'Blood, Meadowview, Meadowview bloods' " or " 'Blood, Meadowviews, 69.' " According to Vue, the man who was involved in the confrontation with Sisoukchaleun said, " 'I am a Blood.' " Vue also testified that, after Thammavongsa said something about wanting to race, the man fitting defendant's description and whom she identified in a photographic lineup stated: " 'Yeah, I know what you mean. [¶] I like that, too, Blood, but you know, this is Blood all the way.' " According to Thammavongsa, Sisoukchaleun " 'got tired of hearing' " defendant say " 'Blood, Meadowview' " Sisoukchaleun invoked the name LGC or Lao Gangster Crip, with which both Thammavongsa and Sisoukchaleun were affiliated. Thammavongsa acknowledged that such an exchange would amount to "[f]ighting words" because Bloods and Crips do not get along. The gang expert testified that, in a hypothetical situation mirroring the facts of this case, the shooter's actions would benefit the Bloods. He indicated that by invoking the name of the Blood gang after Sisoukchaleun's group invoked the name of the Crips, defendant "put[ ] everyone on notice" that what they were doing was "disrespectful to [him] being a Blood gang member. ... [¶] There's two ways that it can go right there. The Crip can, 'Hey, man, sorry. You know, it all cool. Let's just hang out' or take offense to the challenge of him not respecting and

For the same reasons we discussed in our Strickland prejudice analysis regarding the murder conviction and gang and firearm enhancements, we

Over 20 years ago in People v. Gardeley (1996) 14 Cal.4th 605 , 620, 59 Cal.Rptr.2d 356 , 927 P.2d 713 ( Gardeley ), our Supreme Court "endorsed evidentiary rules allowing a gang expert to rely upon, and testify to, 'conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies,' " reasoning that "such expert testimony is not admitted for its truth ...." ( Sanchez, supra, 63 Cal.4th at p. 683, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) While Gardeley predated Crawford v. Washington (2004) 541 U.S. 36 , 124 S.Ct. 1354 , [ 158 L.Ed.2d 177 ] ( Crawford ) by eight years, cases decided after Crawford relied on Gardeley and applied similar reasoning in rejecting confrontation clause challenges. (See, e.g., People v. Hill (2011) 191 Cal.App.4th 1104 , 1127-1128, 120 Cal.Rptr.3d 251 ( Hill ); People v. Sisneros (2009) 174 Cal.App.4th 142 , 153-154, 94 Cal.Rptr.3d 98 ( Sisneros ); People v. Ramirez (2007) 153 Cal.App.4th 1422 , 1426-1427, 64 Cal.Rptr.3d 96 ( Ramirez ); People v. Cooper (2007) 148 Cal.App.4th 731 , 746-747, 56 Cal.Rptr.3d 6 ( Cooper ); People v. Fulcher (2006) 136 Cal.App.4th 41 , 57, 38 Cal.Rptr.3d 702 ( Fulcher ); People v. Thomas (2005) 130 Cal.App.4th 1202 , 1209-1210, 30 Cal.Rptr.3d 582 ( Thomas ).)

For example, in Thomas, 130 Cal.App.4th at page 1209, 30 Cal.Rptr.3d 582 , our colleagues in Division Two of the Fourth District Court of Appeal, relied on the "long established [rule] in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions," including hearsay, in rejecting a claim that the admission of hearsay evidence in the form of a gang expert's conversations with other gang members in which they identified defendant as a gang member ran afoul of Crawford . The court held that " Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are

As the majority notes, the general rule that a party objecting to evidence must make a timely and specific objection in the trial court is found in

In addressing the People's forfeiture argument, the court in Gallardo explained: "At the time defendant was sentenced, California law allowed a

More recently, however, our colleagues in Division Two of the Fourth District, reached the opposite conclusion. ( Perez, supra, 22 Cal.App.5th at p. ----, 231 Cal.Rptr.3d 316 [pp. 2-3].) In Perez , the court held that a defendant forfeited his contention that much of the gang expert's testimony in that case consisted of case-specific hearsay by failing to object to such testimony in the trial court, finding that "[e]ven though the case was tried before Sanchez was decided, previous cases had already indicated that an expert's testimony to hearsay was objectionable." ( Id. at p. ---- [p. 3].) The court noted that a majority of the justices in both Williams and Dungo "expressed the view that, at least for purposes of the confrontation clause, an expert's testimony to the hearsay on which his or her opinion is based is offered for its truth," and found that those cases "alerted competent and knowledgeable counsel to the need to object to such evidence on hearsay and Crawford grounds. They also meant that such objections would not have been futile." ( Id. at p. ---- [p. 59].) I do not find the court's reasoning in Perez persuasive.

As previously discussed, the common view expressed in the concurring and dissenting opinions in Williams and Dungo could not be taken as a holding by either court since it was not the basis of any judgment. (See Dungo, supra, 55 Cal.4th at pp. 627-629, 147 Cal.Rptr.3d 527 , 286 P.3d 442 (conc. opn. of Chin, J.); see also People v. Sandoval (2007) 41 Cal.4th 825 , 837, 62 Cal.Rptr.3d 588 , 161 P.3d 1146 [refusing to apply forfeiture rule to defendant's claim that imposition of upper term violated her right to jury trial where defendant failed to object in trial court even though counsel in other cases had anticipated the change in the law effected by Cunningham v. California (2006) 549 U.S. 270 , 127 S.Ct. 856 , [ 166 L.Ed.2d 856 ] and raised the issue in the trial court because binding precedent would have required trial court to overrule the objection].) Moreover, Perez inexplicably fails to mention, much less discuss Gardeley or the numerous post- Crawford court of appeal decisions that held that gang expert basis evidence is not offered for its truth to defeat confrontation clause challenges under Crawford , including its own decision in Thomas. As explained above, those cases were binding on the trial courts prior to our Supreme Court's decision in Sanchez.

I do not dispute that the better practice in this case may have been to raise a confrontation clause objection in the trial court, particularly with the benefit of hindsight. I disagree, however, with the majority that defendant forfeited

Having concluded that the gang expert's testimony concerning defendant's prior gang activity violated defendant's rights under the confrontation clause, I next consider whether defendant was prejudiced by the violation.

Defendant contends that the confrontation clause violation requires reversal of the entire judgment because the People "cannot establish beyond a reasonable doubt that the improperly admitted evidence did not affect the jury's evaluation of the defense argument that Sisoukchaleun and his companions were the aggressors and [defendant] only obtained the gun and then shot Sisoukchaleun in self-defense." I agree with respect to the murder conviction.

At trial, defendant did not dispute that he shot and killed Sisoukchaleun. Rather, the defense's theory was that defendant acted in self-defense, or at worst, imperfect self-defense. The defense argued that it was Sisoukchaleun, not defendant, who was the aggressor. According to the defense, Sisoukchaleun could not let a rival gang member's statements go, especially when the statements were made in the presence of his friends, at least one of whom was a fellow gang member. The defense claimed that defendant retrieved the gun after being confronted by Sisoukchaleun, and had he not done so, Sisoukchaleun and his friends would be on trial for defendant's murder. The defense urged that defendant shot Sisoukchaleun after Sisoukchaleun took a swing a him because he believed it was his only option.

The prosecutor's gang expert testified about gang-related activities in which defendant participated as part of the basis for his opinion that defendant was a Meadowview Bloods gang member. Those activities included pulling a loaded rifle on a police officer, committing an armed

In the unpublished portion of this opinion, we agree with defendant that the 10-year term for the gang enhancement must be struck. We further conclude that defendant's other claims of trial error are forfeited, without merit, or pertain to errors that were harmless or did not prejudice defendant. However, we shall remand for the trial court to consider whether to exercise its discretion to strike the section 12022.5 and 12022.53 firearm enhancements, and, in the event that the court declines to exercise that discretion, for the court to impose sentences on the section 12022.5, subdivision (a), and 12022.53, subdivision (b), firearm enhancements and then stay execution of those sentences pursuant to section 12022.53, subdivision (f). We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution's Case

The Shooting and Investigation

On the night of February 8, 2012, Weena Vue travelled to Sacramento from the Merced area with four girlfriends to hang out. They went to Casino Royale to eat. There they met the victim Christopher Sisoukchaleun (also known as Bud), Jack Thammavongsa, Sunny Manivong, Roger Bouriboune, Udom Ketphanh, and an individual named Lou. After leaving Casino Royale, the group drove in several cars to the Sunland Liquor store (Sunland), the location where the murder later occurred. Thammavongsa (Sisoukchaleun's cousin) drove Sisoukchaleun's car because Sisoukchaleun was drunk. The group arrived at Sunland at approximately 1:55 a.m.

Thammavongsa and Manivong both testified that no one in their group had any weapons that night. Vue never observed Sisoukchaleun or any of the other guys in their group with any weapons. Manivong

Alonso also participated in a search at a residence. In the backyard, police discovered a white F-150 pickup truck without license plates. The vehicle identification number of the truck corresponded to the license plates discovered earlier inside the Kia. In the truck, police found an empty prescription bottle bearing defendant's name and address.

Alonso participated in a search at defendant's apartment. Police discovered items bearing defendant's name. Additionally, police discovered a suitcase in the living room containing .380-caliber auto and nine-millimeter ammunition. Behind a television in the bedroom, police discovered a .40-caliber magazine and a black holster. Police also discovered a box of Remington .357-caliber ammunition containing 10 rounds and a box of Remington .38-caliber ammunition containing 33 rounds.

According to the forensic pathologist who conducted the autopsy on Sisoukchaleun, he sustained one gunshot wound"pretty much on the bridge of the nose, near the center of his face," and another on the left side of his torso. Sisoukchaleun died as a result of these gunshot wounds. The muzzle of the gun was approximately six inches away when it fired the shot that struck Sisoukchaleun in the face. The muzzle was approximately eight to ten inches away, possibly as little as six inches, when the bullet was fired that struck Sisoukchaleun in the torso. The bullet recovered from Sisoukchaleun's torso was a .38-caliber round. Sisoukchaleun's blood alcohol level was 0.28 percent.

Recorded Phone Calls from the Jail

Excerpts of recorded phone calls defendant made from the county jail were played for the jury. In a phone conversation later in the day after his arrest with someone he referred to as "Momma," defendant responded to a question about whether he committed the murder by repeating the claim that someone stole his truck. He said, "Somebody stole my damn truck man and they went and did a crime

"Defendant: Man, it's looking all bad for the home team blood .

"Male: Blood , come on now.

"Defendant: Yep. It's real bad.

"Male: I'm hella mad b-I'm hella mad at you blood . I'm hella mad but, uh.

"Defendant: [¶] ... [¶] ... I don't even know what to do, man. I don't even know what to do. Right now it's just hush mode and wait until they say something to me, you dig what I'm saying?

"Male: Well, that's what you do then, blood ....

"Defendant: [¶] ... [¶] ... I mean somebody stole my shit man. And I [¶] ... [¶] I was too drunk to even call the police. I was too drunk, nigga. I had drunk two fifths to myself man." (Italics added.)

The following day, defendant had a phone conversation with a woman, during which she informed him that she had heard on the news that there was video of the shooting. Defendant's response was: "Are you serious?" He asked if his picture was on the video and then said again somebody had stolen his truck. He said he was too drunk to report it to the police and then said, "Shit. That's my story and I'm sticking with it." In discussing people with whom he was housed at the jail, defendant said, "They had a Crip in here. Long as that nigga don't say nothing crazy to me. [¶] ... [¶] Yeah and they forget. They remember when a mother fucker shot me in my back. That's why I can't be associated with no Crip. Because they-they remember when they-I got shot in my back. [¶] ... [¶] ... But when they shot me in my back, I was a youngster but I went to jail too. [¶] ... [¶] Because I was in sort of a gang shooting."

Defendant did not claim that he shot Sisoukchaleun out of fear for his safety or in self-defense during any of the recorded phone conversations.

Gang Expert Testimony

Detective Justin Saario testified as an expert in African-American criminal street gangs. According to Saario, respect is the ultimate driving force in gang culture. However, respect to gang members is not the same as respect understood by members of society at large. In gang culture, respect is forced

Saario testified that Meadowview Bloods are a subset of the Bloods criminal street gang. They identify with the color red. Crip gangs, rivals to the Bloods, identify with the color blue. Crips use the term "cuz" in referring to one another, whereas Bloods use the term "Blood."

On June 2, 1993, police stopped a vehicle occupied by defendant and the driver, Oscar Daniels, a "Blood associate." In the vehicle, police discovered a .22-caliber semiautomatic handgun in the driver's door.

On October 26, 1993, a police officer observed defendant riding a bicycle. The officer attempted to stop defendant, but defendant dismounted from the bicycle and ran. As the police officer chased defendant, defendant pulled out a rifle which he had concealed in his pants, and the officer shot defendant. At the time, defendant was wearing a red bandana. According to Saario, at that time, gang members commonly identified themselves with red or blue bandanas depending upon their affiliation. Defendant was identified in the police system

On cross-examination, the defense asked Saario about the phone conversation defendant had with the male the previous day, during which the male initially referred to defendant as " 'cuz.' " Saario stated that, while it was unusual for a Blood to call another Blood "cuz," these rules were not "etched in stone." Saario also noted that, during the conversation, the male speaking to defendant referred to defendant as " 'Blood' " multiple times and defendant also referred to the male as " 'Blood.' "

Saario testified that it is common for gang members to obtain tattoos identifying themselves. Saario personally observed a tattoo on defendant's left arm that said "Meadowview," and testified that this also weighed into his opinion regarding defendant's gang affiliation.

Based on defendant's background, his prior contacts with law enforcement, his Meadowview tattoo, and his statements about the Bloods and Meadowview just prior to shooting Sisoukchaleun, Saario opined that defendant was a member of the Meadowview Bloods.

Saario further opined that, in a hypothetical situation mirroring the facts of this case, the shooter's actions would benefit the Bloods. Saario elaborated: "That benefits the Bloods, based on the fact that the individual, the Blood gang member when being-it goes to the whole respect and disrespect aspect of a Crip gang member calling out using Crip terminology, and the [B]lood gang member taking offense to that, and challenging the Crip by saying, 'No, this is Bloods.' That puts everybody on notice. Crip gang member and anybody else that is there, that by you doing that, that is disrespectful to me being a Blood gang member. And by me saying, No, it's Bloods. This is Meadowview. I'm announcing that I'm a Blood gang member. And what you're doing is disrespect. [¶] There's two ways that it can go right there. The Crip can, 'Hey, man, sorry. You know, it all cool. Let's just hang out' or take offense to the challenge of him not respecting and challenging him by saying 'It's Blood'

Saario testified that the hypothetical scenario was a typical gang escalation; "[w]e see it all of the time."

Defense Case

Defendant did not testify and the defense presented no witnesses. Trial counsel argued to the jury that defendant acted in self-defense or imperfect self-defense.

Verdict and Sentencing

The jury found defendant guilty of murder in the first degree ( §§ 187, subd. (a), 189 ) and possession of a firearm by a felon (§ 29800, subd. (a)(1) ). The jury also found all three firearm enhancements true (§§ 12022.5, subd. (a), 12022.53, subd. (b), 12022.53, subd. (d) ), as well as the gang enhancement (§ 186.22, subd. (b)(1) ).

The court sentenced defendant to a term of 85 years to life, calculated as follows: 25 years to life for murder in the first degree, doubled to 50 years to life for a prior strike conviction; a consecutive term of 25 years to life for the personal use of a firearm enhancement pursuant to section 12022.53, subdivision (d); and a consecutive term of 10 years on the gang enhancement (§ 186.22, subd. (b)(1)(C) ). The trial court stayed imposition of sentence on the section 12022.5, subdivision (a), and section 12022.53, subdivision (b),

In Sanchez , our high court considered "the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion," and held that "case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law." ( Sanchez, supra , 63 Cal.4th at p. 670, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." ( Id . at p. 676, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) The Sanchez court further held that some of the hearsay statements in that case were also testimonial and should have been excluded under Crawford . ( Sanchez , at pp. 670-671, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) Our high court "adopt[ed] the following rule: When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, 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." ( Sanchez , at p. 686, 204 Cal.Rptr.3d 102 , 374 P.3d 320 , fn. omitted.) In adopting these rules, the Sanchez court disapproved of its pre- Crawford decisions which held that the matters upon which an expert relied as the bases of the expert's opinion were not offered for their truth, and rejected the notion that a limiting instruction coupled with an Evidence Code section 352 balancing analysis was sufficient to allay hearsay and confrontation clause concerns. ( Sanchez , at p. 686, fn. 13, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) The Sanchez court specifically disapproved of People v. Gardeley (1996) 14 Cal.4th 605 , 618-619, 59 Cal.Rptr.2d 356 , 927 P.2d 713 ( Gardeley ) inasmuch as "it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." ( Sanchez , at p. 686, fn. 13, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .)

C. Forfeiture, Foreseeability, and Futility

We conclude that defendant forfeited the confrontation clause contention he belatedly makes on appeal by failing to make specific objections in the trial court. Requiring a timely, specific objection on confrontation clause grounds in the trial court would not have placed an unreasonable burden on defendant to anticipate an unforeseen change in the law. To the contrary, as we will discuss, the change in the law was foreseeable given the state of the decisional law prior to the introduction of the evidence at trial.

"[A]s a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on

The foreseeability rule was recently discussed by our high court in Rangel , supra , 62 Cal.4th 1192 , 200 Cal.Rptr.3d 265 , 367 P.3d 649 . There, the court addressed the question of whether a confrontation clause objection grounded on Crawford was forfeited. The defendant objected on appeal to the admissibility of statements under the adoptive admissions hearsay exception on confrontation clause grounds. (

Here, that standard was not satisfied and consequently, the failure to object is not excused. As we shall discuss, the grounds for objecting were far from "scant." Rather, the legal writing was on the wall and key changes in the law discussed in Sanchez were not unforeseeable . Thus, we conclude that the answer to the relevant question of whether requiring the objection would have placed an unreasonable burden on defendant to anticipate an unforeseen change in the law is no, it would not. Instead of relying on boilerplate motions with vague objections not specific to the case, trial counsel was required to make objections on specific grounds related to the foreseeable changes in confrontation clause law based on the decisional law in existence at the time.

We are not the first among the Courts of Appeal to reach this conclusion since our high court decided Sanchez . The foreseeability standard was recently applied to a Crawford / Sanchez claim similar to that in the instant case by our colleagues in Division Two, of the Fourth Appellate District in People v. Perez (2018) 22 Cal.App.5th 201 , 231 Cal.Rptr.3d 316 ( Perez ). Like us, that court held that the defendant forfeited any objection to a gang expert's testimony to case-specific hearsay, which is inadmissible under Sanchez , by failing to make the appropriate objection in the trial court. ( Perez , at *2-3, *6, citing

Addressing the confrontation clause question not presented in Gardeley , the Thomas court reasoned that Crawford did not undermine the established rule that gang experts can testify about the information and sources upon which they rely in forming their opinions. ( Thomas, supra , 130 Cal.App.4th at p. 1210, 30 Cal.Rptr.3d 582 .) This was so, according to the Thomas court, "because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents ; they are examined to assess the weight of the expert's opinion. Crawford itself states that the confrontation clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' " ( Thomas , at p. 1210, 30 Cal.Rptr.3d 582 , italics added.) Several cases subsequently cited Thoma s for this proposition in varying contexts. (See People v. Sisneros (2009) 174 Cal.App.4th 142 , 153-154, 94 Cal.Rptr.3d 98 [noting the holding from Thomas in the context of a gang expert testifying about witness intimidation by the gang and the expert's consideration of the fact that an accessory refused to take the oath and testify in front of the jury; the court observed that the accessory "never offered any statement, much less a testimonial statement," and rejected the confrontation clause claim on this basis]; People v. Ramirez (2007) 153 Cal.App.4th 1422 , 1427, 64 Cal.Rptr.3d 96 [rejecting defendant's confrontation clause claim concerning gang expert's testimony about predicate offenses based on Thomas ]; People v. Cooper (2007) 148 Cal.App.4th 731 , 746-747, 56 Cal.Rptr.3d 6 [applying Thomas to testimony of a mental health expert]; People v. Fulcher (2006) 136 Cal.App.4th 41 , 57, 38 Cal.Rptr.3d 702 [applying Thomas to testimony of a sexually violent predator expert].)

But the reasoning in Thomas was later roundly criticized in People v. Hill (2011) 191 Cal.App.4th 1104 , 1127-1137, 120 Cal.Rptr.3d 251 ( Hill ). The Hill court noted that, "[c]entral to the reasoning in

Defendant also cited People v. Mercado (2013) 216 Cal.App.4th 67 , 156 Cal.Rptr.3d 804 ( Mercado ) in his original briefing in support of his confrontation clause claim. Like Williams and Dungo , Mercado shows why Sanchez was foreseeable and an objection in the trial court was not futile. In Mercado , a pathologist based part of his expert opinion on a witness statement in a coroner's report. ( Mercado , at pp. 82-84, 156 Cal.Rptr.3d 804 .) Following Williams and Dungo , the Mercado court concluded that the statements did not violate the confrontation clause because they failed both the formality and primary purpose tests and thus did not qualify as testimonial. ( Mercado , at p. 90, 156 Cal.Rptr.3d 804 .) However, the Mercado court also noted that " '[A] five justice majority of the high court and at least six of the seven justices on the California Supreme Court appear to 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 and, thus, implicate confrontation rights if the statements are testimonial.' " ( Mercado , at p. 89, fn. 6, 156 Cal.Rptr.3d 804 .) Mercado was published two days before the in limine motions were argued in defendant's trial, and nine days before the gang expert's trial testimony.

Williams , Dungo , and Mercado all point to the inescapable conclusion that the confrontation clause analysis had changed

Thus, by the time of defendant's in limine motion and well before the gang expert here testified, it was reasonably foreseeable that our state's high court would hold: (1) statements upon which a gang expert relies in forming his or her opinion are offered for the truth of the matter, a viewpoint that is directly contrary to the Thomas court's observation that allowing the jury to hear such statements did not violate the confrontation clause because such statements are "not elicited for the truth of their contents" ( Thomas , supra , 130 Cal.App.4th at p. 1210, 30 Cal.Rptr.3d 582 ); (2) the admission of such statements violates the confrontation clause if the statements are testimonial; and (3) whether a statement is testimonial turns on (a) the formality or solemnity of the circumstances in which it was made, and (b) whether the primary purpose for the statement "pertains in some fashion to a criminal prosecution." ( Dungo, supra , 55 Cal.4th at p. 619, 147 Cal.Rptr.3d 527 , 286 P.3d 442 ; Mercado, supra , 216 Cal.App.4th at p. 90, 156 Cal.Rptr.3d 804 .) These criteria for determining whether a statement is testimonial did not exist when Thomas was decided. Because the hearsay statements upon which the gang expert here relied in rendering an opinion about defendant's gang affiliation may very well have had the requisite formality and criminal prosecution may have been the primary purpose of those statements, we cannot agree a Crawford -based objection on the grounds that the evidence was testimonial hearsay and violated the confrontation clause would have been futile. Trial counsel would not have borne an unreasonable burden by making the objection citing Crawford , Williams , Dungo and Mercado as appellate counsel did in the original briefing in this case before Sanchez was issued. To the contrary, as the court in Perez observed, these cases "alerted competent and knowledgeable counsel to the need to object to [expert basis testimony] on hearsay and Crawford grounds. [These cases] also meant that such objections would not have been futile." ( Perez, supra , 22 Cal.App.5th 201 , 231 Cal.Rptr.3d 316 [2018 Cal.App. Lexis at *16].)

Had defendant made the objection in the trial court, the prosecution would have been on notice of the need to establish the non-hearsay, non-testimonial nature of the statements upon which the gang expert relied if it could, or perhaps determine whether the expert could base his opinion solely on matters that were not hearsay and not testimonial. Indeed, faced with the objection defendant makes here on appeal along with citations to Crawford , Williams , Dungo , and Mercado , the prosecutor could have decided it prudent

But the situation presented here is different from Sandoval . First, unlike in Black I where the California Supreme Court previously had squarely addressed the constitutional objection at issue, our high court had not yet addressed the constitutionality of admitting gang expert basis testimony when faced with a confrontation clause objection. As we noted, Gardeley did not address the constitutional implications of expert opinion basis testimony.

Indeed, when there is a reasonably foreseeable change in the law, it can hardly be said that an objection based on decisional law from which the change will result is futile or that such an objection would be an idle act. Even if the trial court is bound to follow previous precedent, it may exercise its discretion differently when considering

The dissent rejects our analysis, reasoning that foreseeability of changes in the law is not the test for forfeiture and asserting that the Rangel court never mentions such a rule. (Dis. opn., post , at p. 212.) We respectfully disagree. As we have noted, the Rangel court referred to unforeseeability as a "standard," stating "the relevant question is whether requiring defense counsel to raise an objection ' " ' "would place an unreasonable burden on defendants to anticipate unforeseen changes in the law," ' " ' " and then concluding, "[b]ecause that standard is satisfied here, we conclude that defendant has not forfeited his Crawford claim." ( Rangel, supra , 62 Cal.4th at p. 1217, 200 Cal.Rptr.3d 265 , 367 P.3d 649 , italics added.)

The dissent relies upon People v. Gallardo (2017) 4 Cal.5th 120 , 226 Cal.Rptr.3d 379 , 407 P.3d 55 ( Gallardo ) in an effort to demonstrate that foreseeability of changes in the law is not the relevant test for forfeiture. But Gallardo suggests otherwise. In Gallardo , our high court disapproved of the rule in People v. McGee (2006) 38 Cal.4th 682 , 42 Cal.Rptr.3d 899 , 133 P.3d 1054 ( McGee ), allowing trial courts to review a defendant's record of conviction to determine whether a prior conviction qualifies as a serious felony offense for purposes of recidivist enhancements. ( Gallardo , at p. 124, 226 Cal.Rptr.3d 379 , 407 P.3d 55 .) The Gallardo court reasoned that Descamps v. United States (2013) 570 U.S. 254 , 133 S.Ct. 2276 , [ 186 L.Ed.2d 438 ] ( Descamps ), clarified that when added punishment is imposed based on findings of fact underlying the prior conviction, the Sixth Amendment requires that a jury, not the court, determine

The dissent states that our invocation of the forfeiture rule is premised on the requirement that a defendant create a record in support of an objection for use on appeal and suggests that the record here would have been the same if defendant had objected. (Dis. opn., post , at pp. 209, 211-12.) Again, we respectfully disagree. It is true that a defendant's failure to object can result in an undeveloped record. We also note again that one court has already rejected a defendant's confrontation clause objection because he failed to make the objection in the trial court, resulting in an undeveloped record as to the testimonial nature (solemnity and primary purpose) of the hearsay statements. ( Ochoa, supra , 7 Cal.App.5th at p. 584, 212 Cal.Rptr.3d 703 [noting that "[h]ad defendant lodged contemporaneous objections during trial, the People, as the proponent of the evidence, would have had the burden to show the challenged testimony did not relate testimonial hearsay"].) Nevertheless, underlying our decision are the other purposes of the forfeiture rule and Evidence Code section 353 : giving the trial court an opportunity to make an informed decision to avoid prejudice ( Davis, supra , 168 Cal.App.4th at p. 627, 86 Cal.Rptr.3d 55 ), and giving the proponent of the evidence the opportunity to cure the defect or take other steps designed to minimize the prospect of reversal. ( Pearson, supra, 56 Cal.4th at p. 438, 154 Cal.Rptr.3d 541 , 297 P.3d 793 ; Morris, supra , 53 Cal.3d at pp. 187-188, 279 Cal.Rptr. 720 , 807 P.2d 949 .)

We also disagree with the dissent's conclusion that the record would have been the same if defendant objected. (Dis. opn., post , at pp. 209, 211-12.) In our view, the record is enhanced by timely, specific objections to each piece of objectionable testimony, highlighting trial counsel's position that the evidence is inadmissible testimonial hearsay, even if the prosecution does not provide rebuttal. The dissent is also critical of our observation that the trial court might have exercised its discretion differently had specific objections been made to specific evidence, and Williams , Dungo , and Mercado been cited. (Dis. opn. post , at p. 211-12.) While the dissent dismisses our observation as speculation, we see this as the role of the trial court in the exercise of its discretion. As our high court has noted in a case cited by the dissent, the requirement to make a specific and timely objection "allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice." ( Morris , supra , 53 Cal.3d at pp. 187-188, 279 Cal.Rptr. 720 , 807 P.2d 949 , italics added; see also fn. 17, ante .)

Defendant and the dissent note that some courts have rejected the forfeiture argument made here on the grounds that

Defendant and the dissent also rely upon People v. Jeffrey G . (2017) 13 Cal.App.5th 501 , 221 Cal.Rptr.3d 88 , where the court rejected the People's forfeiture contention related to a Crawford confrontation clause claim concerning mental health experts who testified during a hearing on a petition for transfer from a state hospital to a conditional release program. ( Jeffrey G ., at pp. 503-504, 508, 221 Cal.Rptr.3d 88 .) Sanchez was issued a short time after the transfer hearing. ( Jeffrey G ., at p. 504, 221 Cal.Rptr.3d 88 .) In response to the People's argument that trial counsel should have anticipated the change Sanchez brought based on the "Supreme Court's docket" and "developments in the law ... from other jurisdictions," the Jeffrey G. court stated, "[w]e decline to require such prescience." ( Jeffrey G ., at p. 508, 221 Cal.Rptr.3d 88 , fn. omitted.) We respectfully disagree. First, the Jeffrey G . court made no reference to Dungo or the fact that six California Supreme Court justices had rejected the not-for-the-truth theory. Nor did the Jeffrey G . court note the court's observations in Hill and Mercado . Rangel was not discussed either, so the Jeffrey G. court never considered the "the relevant question" of whether requiring defense counsel to raise an objection would have placed an unreasonable burden on defendants to anticipate unforeseen changes in the law. ( Rangel, supra , 62 Cal.4th at 1217 , 200 Cal.Rptr.3d 265 , 367 P.3d 649 .)

In our view, Rangel and the other cases stating that failure to object is excused where requiring an objection would place an "unreasonable burden on defendants to anticipate unforeseen changes in the law" necessarily contemplates the inverse, requiring defendants to make timely and specific objections where the change in law is reasonably foreseeable. Such a requirement is not onerous and serves the purposes of requiring specific and timely objections we have discussed. When one considers Dungo , and Mercado , and the opinions in Williams and the authorities cited therein, the change Sanchez brought was foreseeable and making the objection did not present an unreasonable burden.

We conclude the failure to object is excused when the objection " ' "would place an unreasonable burden on defendants to anticipate unforeseen changes in the law." ' " ( Rangel, supra , 62 Cal.4th at p. 1217, 200 Cal.Rptr.3d 265 , 367 P.3d 649 , italics added; Edwards, supra , 57 Cal.4th at p. 705, 161 Cal.Rptr.3d 191 , 306 P.3d 1049 ; Perez, supra , 22 Cal.App.5th 201 , 231 Cal.Rptr.3d 316 [2018 Cal.App. Lexis at *6].) In determining whether the significance of a change in the decisional law excuses counsel's failure to object at trial, we consider the state of the decisional law as it would have appeared to competent and

To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " ( Richter, supra , 562 U.S. at p. 104, 131 S.Ct. 770 .) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. ( Strickland, supra , 466 U.S. at pp. 693-694, 104 S.Ct. 2052 ; Ledesma, supra , 43 Cal.3d at pp. 217-218, 233 Cal.Rptr. 404 , 729 P.2d 839 .) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." ( Strickland , at p. 694, 104 S.Ct. 2052 ; accord, Ledesma , at p. 218, 233 Cal.Rptr. 404 , 729 P.2d 839 .) " The likelihood of a different result must be substantial , not just conceivable." ( Richter , at p. 112, 131 S.Ct. 770 , italics added; Rogers, supra , 245 Cal.App.4th at p. 1367, 200 Cal.Rptr.3d 355 ; People v. Jacobs (2013) 220 Cal.App.4th 67 , 75, 162 Cal.Rptr.3d 739 ; In re M.P. (2013) 217 Cal.App.4th 441 , 457, fn. 10, 158 Cal.Rptr.3d 458 .) Strickland 's prejudice standard applies even when defense counsel's alleged error involves the failure to preserve the defendant's federal constitutional

Defendant, asserted in his original briefing that admission of the gang expert's testimony relaying the facts of the predicate offenses required to prove the gang enhancement violated his confrontation clause rights. The expert's testimony on the predicate offenses here included the gang membership of the people involved in those prior offenses. In his supplemental reply brief, defendant asserts that the facts necessary to prove a pattern of criminal gang activity pursuant to section 186.22 are case-specific facts within the meaning of Sanchez because they are facts used to prove the gang enhancement which is charged in the particular case. Citing Sanchez, supra , 63 Cal.4th at page 676, 204 Cal.Rptr.3d 102 , 374 P.3d 320 , defendant claims "[w]hen, as here, the prosecution has charged a gang enhancement, testimonial hearsay concerning the incidents and participants offered to prove the charged gang enhancement 'relat[e] to the particular events and participants alleged to have been involved in the case being tried.' " We disagree.

Sanchez did not address facts underlying predicate offenses; rather, the court's focus was on facts used by the gang

Having outlined the applicable confrontation clause principles and the body of evidence to which defendant now objects on Crawford / Sanchez grounds, we now address whether defendant has met his burden of showing trial counsel's performance was deficient, the first prong of the Strickland test for ineffective assistance of counsel. ( Strickland, supra , 466 U.S. at pp. 688, 691-692, 104 S.Ct. 2052 ; Ledesma, supra , 43 Cal.3d at p. 216, 233 Cal.Rptr. 404 , 729 P.2d 839 .) The deficient performance prong of the ineffective assistance of counsel test " 'is necessarily linked to the practice and expectations of the legal community: "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." ' [Citations.] 'In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.' " ( Hinton v. Alabama (2014) 571 U.S. 263 , 134 S.Ct. 1081 , [ 188 L.Ed.2d 1 , 8-9].)

Prevailing professional standards dictate that competent counsel are required to know the state of the law applicable to issues in their cases. (See Harris v. Thompson (7th Cir. 2012) 698 F.3d 609 , 644 [a " 'reasonably competent attorney patently is required to know the state of the applicable law' "].) And as this court long ago observed, counsel is expected to " 'discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.' " ( People v. McCary (1985) 166 Cal.App.3d 1 , 8, 212 Cal.Rptr. 114 .) While trial counsel cannot be faulted "when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change" ( People v. Turner (1990) 50 Cal.3d 668 , 703, 268 Cal.Rptr. 706 , 789 P.2d 887 ), well before defendant's trial, much of Sanchez was reasonably foreseeable.

We conclude that counsel's performance in failing to object to the introduction of defendant's prior crimes and contacts with law enforcement on the specific confrontation clause grounds defendant asserts on appeal fell below an objective standard of reasonableness under prevailing professional norms. ( Strickland, supra , 466 U.S. at p. 688, 104 S.Ct. 2052 ; Ledesma, supra , 43 Cal.3d at p. 216, 233 Cal.Rptr. 404 , 729 P.2d 839 .) Trial counsel did not cite Crawford , Williams , Dungo , or Mercado in writing prior to the in limine hearing or orally during the in limine hearing. Indeed, counsel never even mentioned Crawford , one of the most important confrontation clause cases ever decided by the United States Supreme Court. At no time did counsel argue that the gang expert's basis testimony was testimonial hearsay and therefore violated the confrontation clause. As we

4. Prejudice

The jury heard evidence from Vue, Thammavongsa, and Manivong concerning the circumstances leading up to the altercation, culminating in defendant shooting Sisoukchaleun. Their testimony was augmented by the surveillance video.

With regard to planning, the trial evidence demonstrated that defendant walked out from the recessed entry where had been standing to the sidewalk in front of the entry as Sisoukchaleun and Thammavongsa approached from one direction and Manivong and Ketphanh approached from the opposite direction. There on the sidewalk, defendant exchanged words with the group. When the truck pulled up, defendant turned and left the entryway, unimpeded, leaving Sisoukchaleun's group in the entryway.

Additionally, the expert testified that he personally observed defendant's "Meadowview" tattoo at trial. This was further evidence of defendant's gang affiliation, and this evidence was admissible under Sanchez . ( Sanchez, supra , 63 Cal.4th at p. 677, 204 Cal.Rptr.3d 102 , 374 P.3d 320 [a defendant's tattoo is a case-specific fact that may be established by a witness who saw the tattoo and the fact that the tattoo's design is a symbol that has been adopted by a criminal street gang is background information about which a gang expert may testify].)

The jury also heard defendant's jail phone conversations. In one conversation, he and the person with whom he spoke referred to each other as "blood" several times. As the gang expert explained, Blood gang members commonly refer to one another by the word, "blood." In another conversation, defendant talked about having previously been shot by a Crip " 'because it was sort of a gang shooting' " and that he was housed near a Crip in the jail, but he did not care " '[l]ong as that nigga don't say nothing crazy.' " What can be inferred from this evidence is that, unlike the Crip with whom defendant was housed in the jail, Sisoukchaleun had said something crazy to defendant by disrespecting defendant and his criminal street gang. The motive here was quite obviously gang related, even without the case-specific testimonial hearsay in the gang expert's testimony.

As for manner of killing, after defendant retrieved his firearm from the truck and re-engaged Sisoukchaleun, he followed Sisoukchaleun

The parties stipulated that defendant previously had been convicted of a felony. There is no dispute that defendant possessed a firearm. The video shows defendant going to the pickup truck to retrieve it. Witnesses testified that, in the midst of the altercation with Sisoukchaleun in the street, defendant pulled out a gun. Manivong heard a woman say, " 'He's got a gun.' " Defendant then shot Sisoukchaleun twice.

This evidence established a violation of section 29800, subdivision (a)(1). There is no reasonable probability that the jury would have found defendant not guilty on count two, possession of a firearm by a felon, if the objectionable testimonial hearsay evidence from the gang expert had been precluded.

c. Ineffective Assistance Prejudice-Firearm Enhancements (§§ 12022.53, subds. (b), (d), 12022.5, subd. (a) )

In the commission of murder, defendant personally and intentionally discharged a firearm causing Sisoukchaleun's death. Again, defendant did not dispute shooting Sisoukchaleun. He only maintained that he did so in self-defense or imperfect self-defense. Subdivision ( l ) of section 12022.53 provides that "[t]he enhancements specified in this section shall not apply to the lawful use or discharge of a firearm ... by any person in lawful self-defense, lawful defense of another, or lawful defense of property, as provided in Sections 197, 198, and 198.5." However, as can be readily seen, the jury appropriately rejected defendant's claims of self-defense and imperfect self-defense and would have done so without the inadmissible basis testimony given the evidence we recounted in our discussion of defendant's ineffective assistance of counsel claim related to his first degree murder conviction.

We conclude there is no reasonable probability that, but for of the objectionable gang expert testimony, the jury would have found the firearm allegations not true.

d. Ineffective Assistance Prejudice-Criminal Street Gang Enhancement (§ 186.22, subd. (b)(1) )

To prove the section 186.22, subdivision (b)(1), enhancement, the People were required to prove that the defendant committed the murder for the benefit of a criminal street gang, and that he had the specific intent to assist, further, or promote criminal conduct by gang members. (§ 186.22, subd. (b)(1); CALCRIM No. 1401 ;

There was additional evidence establishing defendant's gang membership. The use of the word "blood" during the recorded phone conversations and defendant's acknowledgment that he had been previously shot by a Crip in a gang-related shooting tended to establish that defendant was a Meadowview Blood. Additionally, defendant's Meadowview tattoo further proves his gang membership, another fact the gang expert considered in forming his opinion. Lastly, the gang expert opined that defendant was a Meadowview gang member based on the facts of the case.

Based on the foregoing, we conclude that there is no reasonable probability that defendant would have achieved a not true finding on the gang enhancement had counsel made the confrontation clause objection he asserts on appeal and successfully achieved the preclusion of the gang expert's testimony concerning defendant's prior crimes and contacts with law enforcement.

The dissent maintains that an alternative "interpretation" of the video exists that suggests Sisoukchaleun was the aggressor and that the defendant acted in self-defense. According to this interpretation, it is "possible that [defendant] simply returned to pick up his alcohol and Sisoukchaleun and his friends re-engaged defendant" (Dis. opn., post , at p. 219) as opposed to our view that defendant re-engaged the group after retrieving his gun from his truck. Without going back over the detail of the video again, suffice it to say that we simply disagree with the dissent's view of the sequence of events reflected therein. Moreover, in arriving at the interpretation where Sisoukchaleun was the aggressor, the dissent overlooks the fact that an unidentified individual walked out from the recessed entryway to where defendant was standing on the sidewalk and put his arm out to stop defendant from following Sisoukchaleun into the street. Defendant pointed his finger at that person's chest, appeared to argue with him, then stepped around him, and went into the street where the other evidence shows defendant ultimately aimed his gun between Sisoukchaleun's eyes and pulled the trigger. Also, in rejecting our Chapman conclusion, the dissent fails to address the statements defendant made to others where he never claimed self-defense or that he was in fear, and further fails to address the evidence of defendant's consciousness of guilt.

The error here did not contribute to the first degree murder verdict or the enhancement findings and thus the People have satisfied their burden of establishing that the error was harmless beyond a reasonable doubt.

After Thomas (and before our Supreme Court's recent decision in Sanchez ), every division of every district court of appeal to address the issue in a published decision concluded that gang expert basis evidence is not offered for its truth but only to evaluate the expert's opinion to defeat a confrontation clause challenges under Crawford . (See, e.g., Hill, supra , 191 Cal.App.4th at p. 1131, 120 Cal.Rptr.3d 251 ; Sisneros, supra , 174 Cal.App.4th at pp. 153-154, 94 Cal.Rptr.3d 98 ; Ramirez, supra, 153 Cal.App.4th at p. 1427, 64 Cal.Rptr.3d 96 ; Cooper, supra , 148 Cal.App.4th at p. 746-747, 56 Cal.Rptr.3d 6 ; Fulcher, supra , 136 Cal.App.4th at pp. 56-57, 38 Cal.Rptr.3d 702 .)

These cases were binding on the trial court at the time of defendant's trial in May 2013. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455, 20 Cal.Rptr. 321 , 369 P.2d 937 ["Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior

The majority concludes that defendant was required to raise his confrontation clause claim in the trial court because at the time of defendant's trial "the legal writing was on the wall and key changes in the law discussed in Sanchez were not unforeseeable" to competent and knowledgeable counsel based on the concurring and dissenting opinions in Williams and Dungo . (Maj. opn. ante, at p. 185, italics omitted.) The common view expressed in the concurring and dissenting opinions in those cases could not be taken as a holding by either court since it was not the basis of any judgment. (See Dungo , supra, 55 Cal.4th at pp. 627-629, 147 Cal.Rptr.3d 527 , 286 P.3d 442 (conc. opn. of Chin, J.) The majority does not contend otherwise. Rather, the majority relies on our Supreme Court's decision in People v. Rangel (2016) 62 Cal.4th 1192 , 200 Cal.Rptr.3d 265 , 367 P.3d 649 , ( Rangel ), for the "foreseeability rule" it endorses here, although Rangel never mentions such a rule. (Maj. opn. ante, at pp. 184-85.)

In Rangel , the defendant argued that the trial court's admission of certain statements as adoptive admissions violated his right to confrontation under Crawford , which was not decided until after the defendant's trial. ( Rangel, supra , 62 Cal.4th at p. 1213, 200 Cal.Rptr.3d 265 , 367 P.3d 649 .) The People asserted that the defendant forfeited his challenge by failing to object on this ground at trial. ( Id. at p. 1215, 200 Cal.Rptr.3d 265 , 367 P.3d 649 .) The court held that the defendant's "failure to object on confrontation clause grounds during his 1998 trial ' "was excusable, since governing law at the time ... afforded scant grounds for objection," ' " noting that at the time of the defendant's trial "governing law in California held that admission of a hearsay statement as an adoptive admission did not implicate the defendant's Sixth Amendment confrontation right." ( Ibid . ) The court further observed: " ' " '[W]e have excused a failure to object where to require defense counsel to raise an objection "would place an unreasonable

In Gallardo , the trial court increased the defendant's sentence for second degree robbery and transportation of marijuana based on its finding that her prior conviction for assault with a deadly weapon or with force likely to produce great bodily injury involved an assault with a deadly weapon and thus qualified as a serious felony under Penal Code section 667, subdivision (a). ( Gallardo, supra , 4 Cal.5th at p. 125, 407 P.3d 55 .) The trial court based its determination on the transcript of the preliminary hearing in the defendant's assault case. ( Id. at p. 125-126, 226 Cal.Rptr.3d 379 , 407 P.3d 55 .) The defendant argued that her increased sentence "rest[ed] on an exercise in judicial factfinding that violated her Sixth Amendment right to a jury trial" as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 , 490, 120 S.Ct. 2348 , [ 147 L.Ed.2d 435 , 455]. ( Gallardo, at pp. 123-124, 226 Cal.Rptr.3d 379 , 407 P.3d 55 .) The People asserted that the defendant forfeited her Sixth Amendment challenge by failing to raise it in the trial court. ( Id. at pp. 127-128, 226 Cal.Rptr.3d 379 , 407 P.3d 55 .) While our Supreme Court declined to resolve the issue because the People did not make their forfeiture argument in the Court of Appeal ( id. at p. 128, 226 Cal.Rptr.3d 379 , 407 P.3d 55 ), its analysis and observations are instructive.

At the time of the defendant's sentencing in Gallardo , the law was in flux. In People v. McGee (2006) 38 Cal.4th 682 , 42 Cal.Rptr.3d 899 , 133 P.3d 1054 ( McGee ), our Supreme Court "held that the Sixth Amendment permits courts to review the record of a defendant's prior conviction to determine whether the crime qualifies as a serious felony for purposes of the sentencing law." ( Gallardo, supra, 4 Cal.5th at p. 124.) Thereafter, in Descamps v. United States (2013) 570 U.S. 254 , 133 S.Ct. 2276 , [ 186 L.Ed.2d 438 ] ( Descamps ), the United States Supreme Court "ma[d]e clear that when the criminal law imposes added punishment based on findings about the facts underlying a defendant's prior conviction, '[t]he Sixth Amendment contemplates that

Unlike Gallardo, here there was not a majority opinion calling into question the governing law. Rather, there were concurring and dissenting opinions in Williams and Dungo, and the common view expressed in those opinions could not be taken as a holding by either court since it was not the basis of any judgment. (See Dungo, supra , 55 Cal.4th at pp. 627-629, 147 Cal.Rptr.3d 527 , 286 P.3d 442 (conc. opn. of Chin, J.).) If it is "at least questionable" whether a defendant should be made to bear the burden of anticipating a potential change in the law based on the reasoning of a majority opinion issued by the Unites States Supreme Court, there is no question that a defendant should not be made to bear the burden of anticipating potential changes in the law based on a view expressed in concurring and dissenting opinions that could not be taken as a holding. ( Gallardo, supra , 4 Cal.5th at p. 128, 226 Cal.Rptr.3d 379 , 407 P.3d 55 .)

Until very recently, no published decision of a California court of appeal had held that a defendant forfeited a claim by failing to raise it in the trial court based on the ground that a change in the law was reasonably foreseeable. To the contrary, in People v. Meraz , supra, 6 Cal.App.5th at page 1170, footnote 7, 212 Cal.Rptr.3d 81 , a case identical to this one in all relevant respects, our colleagues in Division Eight of the Second Appellate District refused to find that the defendants forfeited their claim that the trial court violated their rights to confrontation by allowing a gang expert to offer opinions based on out-of-court testimonial hearsay by failing to object in the trial court, finding that "[a]ny objection would likely have been futile because the trial court was bound to follow pre- Sanchez decisions holding expert 'basis' evidence does not violate the confrontation clause." Likewise, in People v. Jeffrey G., supra , 13 Cal.App.5th at pages 507-508, 221 Cal.Rptr.3d 88 , our colleagues in Division One of the First Appellate District refused to find that a defendant forfeited his claim that the prosecution's experts' testimony at a hearing on his petition for transfer from a state hospital to a conditional release program ran afoul of Sanchez by failing to object to the experts' testimony on that ground at the hearing. Sanchez was decided less than two weeks after the defendant's hearing in that case. ( Jeffrey G. , at p. 506, 221 Cal.Rptr.3d 88 .) The court found, "There is little doubt that objecting would have been futile. Because the

Evidence defendant engaged in gang activity in the past, particularly activity that involved the use of firearms, supported the prosecution's theory that the shooting was gang-motivated, which necessarily undercut the defense's theory that defendant was acting in self-defense. As the majority recognizes, such evidence "supported the prosecution's position that defendant was an active member of the Meadowview Bloods, that, when he shot Sisoukchaleun, he did so for the benefit of that particular criminal street gang, and that he had the specific intent to assist, further, or promote criminal conduct by gang members within the meaning of [Penal Code] section 186.22." (Maj. opn. ante, at p. 201.)

While there was substantial evidence in addition to defendant's prior gang activity that supported the prosecution's theory that the shooting was gang-motivated, such as defendant repeatedly calling out Meadowview Bloods, the record did not foreclose a finding that Sisoukchaleun was the aggressor, and that defendant was acting in self-defense when he shot him.

The evidence adduced at trial included the following: Sisoukchaleun and Manivong flashed gang signs as they approached the liquor store, and Sisoukchaleun and Thammavongsa used the word "cuz," which is associated with the Crips street gang. When defendant, who was standing just outside the liquor store, indicated that he was a member of the Meadowview Bloods,

The People assert that the jury's verdict finding defendant guilty of first degree murder shows that "the jury clearly rejected defense counsel's argument that appellant shot the victim in self-defense." As defendant points out, "The [People's] analysis clearly begs the question: has the state shown beyond a reasonable doubt, that the jury would have rejected the substantial evidence that the shooting was in self-defense in the absence of the highly prejudicial, improperly admitted case-specific testimonial hearsay about appellant's past gang activity?" Based on the record and the prejudicial nature of the evidence in question, I would find that the People have failed to establish beyond a reasonable doubt that the error did not contribute to the first degree murder verdict.

For the reasons set forth above, I would reverse the judgment for first degree murder and the findings on the gang and firearm enhancements.