People v. Valencia ( 2021 )


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  •       IN THE SUPREME COURT OF
    CALIFORNIA
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    JOSE LUIS VALENCIA,
    Defendant and Appellant.
    S250218
    Fifth Appellate District
    F072943
    Kern County Superior Court
    LF010246B
    ________________________________________________________
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    EDGAR ISIDRO GARCIA,
    Defendant and Appellant.
    S250670
    Fifth Appellate District
    F073515
    Kern County Superior Court
    LF010246A
    July 1, 2021
    Justice Corrigan authored the opinion of the Court, in which
    Chief Justice Cantil-Sakauye and Justices Liu, Cuéllar,
    Kruger, Groban, and Jenkins concurred.
    PEOPLE v. VALENCIA*
    S250218
    Opinion of the Court by Corrigan, J.
    This case involves allegations of active gang participation
    (Pen. Code, § 186.22, subd. (a)) and gang enhancements (Pen.
    Code, § 186.22, subd. (b)) attached to other offenses. The
    charges require proof that a gang’s members have engaged in “a
    pattern of criminal gang activity” (Pen. Code, § 186.22, subd.
    (f)), defined, in part, as the commission of two or more
    enumerated offenses (Pen. Code, § 186.22, subd. (e)). We hold
    that the commission of such crimes, also known as predicate
    offenses, must be proven by independently admissible evidence.
    Under the authority of People v. Sanchez (2016) 
    63 Cal.4th 665
    (Sanchez), such proof may not be established solely by the
    testimony of an expert who has no personal knowledge of facts
    otherwise necessary to satisfy the prosecution’s burden. The
    judgment of the Court of Appeal, reaching the same conclusion,
    is affirmed.
    I. BACKGROUND
    Early on the morning of August 24, 2014, Jose B. and
    Alejandro P. sat on the tailgate of a truck at a carwash in the
    City of Arvin. Multiple shots were fired. One round struck Jose
    in the leg and others hit the truck tires. Coincidentally, an
    officer on patrol near the carwash happened to see a pickup
    driving slowly with its lights off, then saw seven to 10 muzzle
    *
    Consolidated with People v. Garcia (S250670).
    1
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    flashes coming from the front passenger window. Shining a
    light on the pickup, the officer saw defendant Jose Luis Valencia
    behind the wheel and defendant Edgar Isidro Garcia in the
    passenger seat. An hour-long vehicle chase ensued, during
    which Garcia threw something from the truck’s window. The
    cylinder of a revolver was later recovered in that vicinity.
    Defendants were ultimately arrested, and gunshot residue was
    found on the front passenger door of the pickup.
    Both defendants were charged with two counts of
    attempted murder, assault with a firearm, and active street
    gang participation. 1 Garcia was also charged with shooting
    from a vehicle.2 Valencia was charged with evading an officer
    and knowingly allowing a passenger to shoot from the truck. 3
    Gang and firearm enhancements were attached to the various
    charges.4
    Arvin Police Officer Ryan Calderon testified as a gang
    expert. A nine-year department veteran, he had specialized in
    gang enforcement for five and a half years and had personally
    investigated about 200 crimes involving the Arvina 13 gang.
    Calderon testified about the gang, describing its monikers,
    graffiti, tattoos, colors, and territory, which included the
    1
    Penal Code sections 187, subdivision (a), 189, subdivision
    (a), 664, subdivision (a), 245, subdivision (a)(2), 186.22,
    subdivision (a).
    2
    Penal Code section 26100, subdivision (c).
    3
    Vehicle Code section 2800.2, subdivision (a); Penal Code
    section 26100, subdivision (b).
    4
    Penal Code sections 186.22, subdivision (b)(1), 12022.5,
    subdivision (a), 12022.53, subdivisions (c), (d), (e)(1), 12022.55,
    12022.7, subdivision (a).
    2
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    carwash. Arvina 13’s primary felonious activities include
    shootings, assaults, burglaries, and drug sales.
    In Officer Calderon’s opinion, Valencia and Garcia were
    Arvina 13 gang members, based on their tattoos and police
    contacts. In response to a hypothetical question, Calderon
    testified that defendants’ conduct benefitted Arvina 13 by
    creating community fear and gang notoriety. Calderon also
    related the facts of three predicate offenses committed by Arvina
    13 gang members: a 2008 assault by Jose Arredondo, a 2010
    assault by Adam Arellano, and a 2013 attempted robbery and
    assault by Orion Jimenez. Calderon’s only knowledge of these
    offenses came from conversations with other officers and a
    review of police reports. Certified copies of court documents
    related to the convictions in each case were admitted into
    evidence, including the pleadings and court minute orders.
    Defendants’ first trial ended when the jury hung on almost
    all charges.5 A second jury convicted defendants of the
    remaining allegations. Both men were sentenced to extended
    prison terms.6 The Court of Appeal held that some of the
    expert’s testimony about the predicate offenses constituted
    inadmissible hearsay. It reversed the active gang participation
    5
    The jury convicted Valencia of evading an officer but
    deadlocked on the remaining charges as to both defendants.
    6
    The court sentenced Garcia to two terms of 15 years to life
    on the two attempted murder counts, plus 25 years to life for
    firearm discharge causing great bodily injury, and 20 years for
    firearm discharge, consecutive, staying the remaining counts.
    Valencia received two life terms for attempted murder and the
    same terms of 25 years to life and 20 years for firearm discharge
    by a principal in a gang offense, with the remaining charges
    stayed.
    3
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    and enhancement allegations, as well as Valencia’s firearm
    enhancements attached to those allegations, and otherwise
    affirmed the judgments. (People v. Valencia (July 10, 2018,
    F072943) [nonpub. opn.]; People v. Garcia (July 10, 2018,
    F073515) [nonpub. opn.].)7 We granted the Attorney General’s
    petitions for review and consolidated these two cases for
    decision.8
    II. DISCUSSION
    The Attorney General argues the gang expert’s recitation
    of hearsay describing the circumstances of the three predicate
    offenses constituted background information about which the
    expert could properly testify. To resolve this issue, we examine
    the statutory scheme covering gang allegations, our decisions in
    Sanchez and People v. Veamatahau (2020) 
    9 Cal.5th 16
    (Veamatahau), and Court of Appeal decisions that have
    previously addressed the question.
    7
    The Court of Appeal remanded both matters to the trial
    court for retrial on the reversed allegations or, if the People elect
    not to retry them, for resentencing. The trial court was ordered
    to exercise its discretion whether to strike Garcia’s firearm
    enhancements under newly enacted Senate Bill No. 620 (2017–
    2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1–2), and Valencia was
    to be allowed to make a record of factors relevant at a future
    youth offender parole hearing (Pen. Code, §§ 3051, 4801, subd
    (c); see People v. Franklin (2016) 
    63 Cal.4th 261
    , 283–284).
    8
    We initially granted the People’s petitions for review in
    these cases and held them for People v. Perez (2020) 
    9 Cal.5th 1
    (Perez), which concluded a defendant’s failure to object did not
    forfeit a Sanchez claim in a case predating that decision. (See
    
    id.
     at pp. 7–14.) After the Perez decision, we consolidated these
    matters and sought briefing on the current predicate offense
    issue.
    4
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    A. The STEP Act
    In 1988, the Legislature enacted the California Street
    Terrorism Enforcement and Prevention Act (STEP Act or Act;
    Pen. Code, § 186.20 et seq.) to eradicate “criminal activity by
    street gangs.” (People v. Loeun (1997) 
    17 Cal.4th 1
    , 4 (Loeun).)
    Underlying the STEP Act was the Legislature’s finding that
    “California is in a state of crisis which has been caused by
    violent street gangs whose members threaten, terrorize, and
    commit a multitude of crimes against the peaceful citizens of
    their neighborhoods.” (Pen. Code, § 186.21, 2d par.) The
    Legislature sought to balance the “constitutionally protected
    rights of freedom of expression and association” (id., 1st par.)
    with the need to protect all Californians from the burden of fear,
    intimidation and physical harm caused by gang violence, which
    it found presents “a clear and present danger to public order and
    safety” (id., 1st par.). The Act was specifically structured to
    protect both free association and public safety. (See People v.
    Rodriguez (2012) 
    55 Cal.4th 1125
    , 1133–1135 (lead opn. of
    Corrigan, J.) (Rodriguez).)
    As relevant here, the STEP Act created a substantive
    offense of active participation “in any criminal street gang” (Pen.
    Code, § 186.22, subd. (a)), and a sentencing enhancement for a
    felony committed “for the benefit of, at the direction of, or in
    association with any criminal street gang” (Pen. Code, § 186.22,
    subd. (b)(1)). (See Rodriguez, supra, 55 Cal.4th at p. 1130 (lead
    opn. of Corrigan, J.); see also id. at p. 1130, fn. 5 (lead opn. of
    Corrigan, J.).) The Act defines such a gang as “any ongoing
    organization, association, or group of three or more persons,
    whether formal or informal, having as one of its primary
    activities the commission of one or more [enumerated offenses],
    having a common name or common identifying sign or symbol,
    5
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    and whose members individually or collectively engage in, or
    have engaged in, a pattern of criminal gang activity.” (Pen.
    Code, § 186.22, subd. (f).) A “ ‘pattern of criminal gang activity’ ”
    is separately defined as “the commission of, attempted
    commission of, conspiracy to commit, or solicitation of, sustained
    juvenile petition for, or conviction of two or more [enumerated]
    offenses, provided at least one of these offenses occurred after
    the effective date of this [Act] and the last of those offenses
    occurred within three years after a prior offense, and the
    offenses were committed on separate occasions, or by two or
    more persons . . . .” (Pen. Code, § 186.22, subd. (e).)9 The
    offenses comprising a pattern of criminal gang activity are
    referred to as predicate offenses. (See Loeun, 
    supra,
     17 Cal.4th
    at p. 4.) We use the term “commission” in this opinion to include
    the broader statutory inclusion of the “attempted commission of,
    conspiracy to commit, or solicitation of, sustained juvenile
    petition for, or conviction” of a predicate offense. (Pen. Code,
    § 186.22, subd. (e).)
    Penal Code section 186.22, subdivision (e) does not state
    that a predicate offense must be committed by a gang member.
    However, that requirement derives from the definition of a
    “ ‘criminal street gang,’ ” which includes proof that the gang’s
    “members individually or collectively engage in, or have engaged
    9
    The original STEP Act was an urgency measure that went
    into effect on September 26, 1988. (Stats. 1988, ch. 1242, § 3;
    see People v. Gardeley (1996) 
    14 Cal.4th 605
    , 626 (Gardeley),
    disapproved on another ground in Sanchez, supra, 63 Cal.4th at
    p. 686, fn. 13.) Citations here are to the Act which became
    effective on January 1, 1993. (Stats. 1989, ch. 930, § 5.1.) Those
    provisions, by their terms, are repealed as of January 1, 2022,
    to be replaced by an identical provision on that date. (See Stats.
    2016, ch. 887, § 1; Stats. 2017, ch. 561, § 179.)
    6
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    in, a pattern of criminal gang activity.” (Pen. Code, § 186.22,
    subd. (f), italics added.) It follows, then, that the proof of a
    predicate offense must establish that a member of a defendant’s
    alleged gang was involved in its commission. 10 Taken together
    the statutory scheme requires proof that gang members
    committed at least two predicate offenses within the statutory
    timeframe. Such proof will generally require evidence of who
    committed the crime and when they did so, as well as evidence
    of their gang membership and the nature of the crimes. How
    those particular facts are proven lies at the heart of this case.
    B. Sanchez and Veamatahau
    In Sanchez, the defendant was arrested and found to
    possess a gun and drugs packaged for sale. (Sanchez, supra, 63
    Cal.4th at p. 671.) He was convicted of drug and firearm
    offenses with attached gang enhancements (Pen. Code, § 186.22,
    subd. (b)(1)) and the substantive offense of active gang
    participation (Pen. Code, § 186.22, subd. (a)). (Sanchez, at pp.
    671, fn. 1, 673.) On appeal, he argued that the gang expert was
    erroneously permitted to testify about five prior contacts
    Sanchez had with police. The expert had no personal knowledge
    10
    The requirement that a gang member be involved in a
    predicate offense is to be distinguished from new allegations
    that the charged defendant actively participated in a gang (Pen.
    Code, § 186.22, subd. (a)) or committed a gang enhancement
    (Pen. Code, § 186.22, subd. (b)). A defendant need not be a gang
    member for those charged allegations to be proven, so long as all
    statutory elements are satisfied. (See Rodriguez, supra, 55
    Cal.4th at p. 1130 (lead opn. of Corrigan, J.); People v. Valdez
    (2012) 
    55 Cal.4th 82
    , 132; Pen. Code, § 186.22, subd. (i).)
    However, before a conviction can be relied on in the future as
    evidence of a predicate offense, there must be evidence that the
    perpetrator was a gang member.
    7
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    of these contacts but read about them in police reports and other
    sources. (Id. at p. 673.) The expert was permitted to testify as
    to the particulars of the police contacts, as described in those
    documents, to explain the basis of his opinion that Sanchez was
    a gang member and committed the charged offenses for the
    gang’s benefit. (See id. at p. 683; Gardeley, 
    supra,
     14 Cal.4th at
    pp. 618–620.) If offered for the truth of their content, statements
    repeated from those sources would constitute hearsay. The jury
    was told, however, that the testimony was not admitted for its
    truth but only to explain the basis for the expert’s opinion.
    (Sanchez, at p. 684.)
    In Crawford v. Washington (2004) 
    541 U.S. 36
     (Crawford),
    the United States Supreme Court held that the confrontation
    clause of the federal Constitution generally bars the admission
    of what it termed “testimonial” hearsay when offered by the
    prosecution against a criminal defendant without a showing of
    witness “unavailability and a prior opportunity for cross-
    examination.” (Crawford, at p. 68.) It clarified, however, that
    out-of-court statements not offered for the truth of their content
    are not hearsay and do not impinge upon the confrontation
    right. (Id. at pp. 59–60, fn. 9.) Sanchez addressed “whether
    facts an expert relates as the basis for his opinion are properly
    considered to be admitted for their truth.” (Sanchez, supra, 63
    Cal.4th at p. 674.) Sanchez arose at the intersection of the
    hearsay rule, the holdings in Crawford and its progeny, and the
    evidentiary rules applicable to expert testimony.
    8
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    Hearsay is an out-of-court statement offered to prove the
    truth of its content.11 Ordinarily, hearsay is inadmissible unless
    it falls under a recognized exception. (Evid. Code, § 1200, subd.
    (b).) In addition, lay witnesses may only testify about matters
    within their personal knowledge. (Evid. Code, § 702, subd.
    (a).)12 In the case of experts, both of these general rules are
    applied with greater latitude. “A person is qualified to testify as
    an expert if he has special knowledge, skill, experience, training,
    or education sufficient to qualify him as an expert on the subject
    to which his testimony relates.” (Evid. Code, § 720, subd. (a).)
    “An expert may express an opinion on ‘a subject that is
    sufficiently beyond common experience that the opinion of an
    expert would assist the trier of fact.’ (Evid. Code, § 801, subd.
    (a).)   In addition to matters within their own personal
    knowledge, experts may relate information acquired through
    their training and experience, even though that information
    may have been derived from conversations with others, lectures,
    study of learned treatises, etc.” (Sanchez, supra, 63 Cal.4th at
    p. 675.) “[A]n expert’s testimony concerning his general
    knowledge, even if technically hearsay, has not been subject to
    exclusion on hearsay grounds.” (Id. at p. 676.)
    11
    The statute defines hearsay as “evidence of a statement
    that was made other than by a witness while testifying at the
    hearing and that is offered to prove the truth of the matter
    stated.” (Evid. Code, § 1200, subd. (a).)
    12
    “ ‘Personal knowledge’ means a present recollection of an
    impression derived from the exercise of the witness’ own
    senses.” (Cal. Law Revision Com. com., 29B pt. 2A West’s Ann.
    Evid. Code (2019 ed.) foll. § 702, p. 416.) “ ‘Perceive’ means to
    acquire knowledge through one’s senses.” (Evid. Code, § 170.)
    9
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    Sanchez contrasted general knowledge about facts
    accepted in the expert’s field with “case-specific facts about
    which the expert has no independent knowledge.” (Sanchez,
    supra, 63 Cal.4th at p. 676.) “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; see
    further discussion of what constitutes “case-specific facts” in pts.
    C & D, post.) “Generally, parties try to establish the facts on
    which their theory of the case depends by calling witnesses with
    personal knowledge of those case-specific facts. An expert may
    then testify about more generalized information, even if derived
    from hearsay, to help jurors understand the significance of those
    case-specific facts. An expert is also allowed to give an opinion
    about what those facts may mean. The expert is generally not
    permitted, however, to supply case-specific facts about which he
    has no personal knowledge.”13 (Sanchez, at p. 676.)
    Exploration of an expert’s opinion based on case-specific
    facts outside the expert’s personal knowledge can still be
    accomplished through the use of hypothetical questions: “An
    examiner may ask an expert to assume a certain set of case-
    specific facts for which there is independent competent evidence,
    then ask the expert what conclusions the expert would draw
    13
    Education and training often involve statements and
    writings conveyed by teachers and other experts. In addition,
    however, expert witnesses may acquire knowledge through their
    own experimentation, observations and personal experience.
    (See Evid. Code, § 720, subds. (a), (b); Simons, Cal. Evidence
    Manual (2021) § 4:1, pp. 318–321.) Like any other witness,
    experts can relate what they have personally observed and that
    testimony would not be hearsay. It can, of course be challenged
    by the opponent, but its admission would not implicate Sanchez
    or the broader hearsay rule.
    10
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    from those assumed facts. If no competent evidence of a case-
    specific fact has been, or will be, admitted, the expert cannot be
    asked to assume it. The expert is permitted to give his opinion
    because the significance of certain facts may not be clear to a lay
    juror lacking the expert’s specialized knowledge and
    experience.” (Id. at pp. 676–677.)
    Although “[a]t common law, the treatment of an expert’s
    testimony as to general background information and case-
    specific hearsay differed significantly” (Sanchez, supra, 63
    Cal.4th at p. 678), that treatment evolved after enactment of the
    Evidence Code in 1965: “Evidence Code section 801, subdivision
    (b) provides that an expert may render an opinion ‘[b]ased on
    matter (including his special knowledge, skill, experience,
    training, and education) perceived by or personally known to the
    witness or made known to him at or before the hearing, whether
    or not admissible, that is of a type that reasonably may be relied
    upon by an expert in forming an opinion upon the subject to
    which his testimony relates, unless an expert is precluded by law
    from using such matter as a basis for his opinion.’ (Italics
    added.) Similarly, Evidence Code section 802 allows an expert
    to ‘state on direct examination the reasons for his opinion and
    the matter (including, in the case of an expert, his special
    knowledge, skill, experience, training, and education) upon
    which it is based, unless he is precluded by law from using such
    reasons or matter as a basis for his opinion.’ ” (Sanchez, at p.
    678.) Where an expert relied upon out-of-court statements to
    explain the bases of an opinion, “[c]ourts [had] created a two-
    pronged approach to balancing ‘an expert’s need to consider
    extrajudicial matters, and a jury’s need for information
    sufficient to evaluate an expert opinion’ so as not to ‘conflict with
    an accused’s interest in avoiding substantive use of unreliable
    11
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    hearsay.’ ” (Id. at p. 679, quoting People v. Montiel (1993) 
    5 Cal.4th 877
    , 919.) The jury would be given a limiting instruction
    that “matters admitted through an expert go only to the basis of
    his opinion and should not be considered for their truth.”
    (Montiel, at p. 919.) The trial court retained discretion to
    exclude the evidence under Evidence Code section 352 if it
    concluded the probative value was substantially outweighed by
    the probability that the jury would ignore the limiting
    instruction and “improperly consider it as independent proof of
    the facts recited therein.” (People v. Coleman (1985) 
    38 Cal.3d 69
    , 91.)
    Sanchez disapproved the Montiel procedure. (Sanchez,
    supra, 63 Cal.4th at p. 686, fn. 13.) “When an expert relies on
    hearsay to provide case-specific facts, considers the statements
    as true, and relates them to the jury as a reliable basis for the
    expert’s opinion, it cannot logically be asserted that the hearsay
    content is not offered for its truth. In such a case, ‘the validity
    of [the expert’s] opinion ultimately turn[s] on the truth’
    [citation] of the hearsay statement.” (Sanchez, at pp. 682–683.)
    Sanchez observed that juries are instructed to decide “ ‘whether
    information on which the expert relied was true and accurate’ ”
    (id. at p. 684, quoting CALCRIM No. 332), and “[w]ithout
    independent competent proof of those case-specific facts, the
    jury simply ha[s] no basis from which to draw such a
    conclusion.” (Sanchez, at p. 684.) “Once we recognize that the
    jury must consider expert basis testimony for its truth in order
    to evaluate the expert’s opinion, hearsay and confrontation
    problems cannot be avoided by giving a limiting instruction that
    such testimony should not be considered for its truth. If an
    expert testifies to case-specific out-of-court statements to
    explain the bases for his opinion, those statements are
    12
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    necessarily considered by the jury for their truth, thus rendering
    them hearsay. Like any other hearsay evidence, it must be
    properly admitted through an applicable hearsay exception.
    Alternatively, the evidence can be admitted through an
    appropriate witness and the expert may assume its truth in a
    properly worded hypothetical question in the traditional
    manner.” (Id. at p. 684, fn. omitted.)
    Sanchez concluded the gang expert related case-specific
    facts.14 “[His] case-specific testimony as to defendant’s police
    contacts was relied on to prove defendant’s intent to benefit the
    Delhi gang when committing the underlying crimes to which the
    gang enhancement was attached. [He also] recounted facts
    contained in the police reports and STEP notice to establish
    defendant’s Delhi membership. While gang membership is not
    an element of the gang enhancement [citation], evidence of
    defendant’s membership and commission of crimes in Delhi’s
    territory bolstered the prosecution’s theory that he acted with
    intent to benefit his gang, an element it was required to prove.”
    (Sanchez, supra, 63 Cal.4th at pp. 698–699; see id. at p. 685.)
    In Veamatahau, the defendant was charged with
    possessing contraband pills. The question at trial was whether
    14
    An out-of-court statement about case-specific facts may or
    may not involve “testimonial hearsay,” depending on who made
    the statements, under what circumstances, and for what
    purpose. (Cf. Ohio v. Clark (2015) 
    576 U.S. 237
    , 243–251; Davis
    v. Washington (2006) 
    547 U.S. 813
    , 821–832; Crawford, 
    supra,
    541 U.S. at pp. 51–59; People v. Cage (2007) 
    40 Cal.4th 965
    , 984;
    Simons, Cal. Evidence Manual (2020) § 2:115.) One import of
    the Sanchez holding, however, is that out-of-court statements
    offered to prove case-specific facts are hearsay regardless of any
    testimonial character. (See Sanchez, supra, 63 Cal.4th at pp.
    684–686.)
    13
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    the recovered pills contained the controlled substance
    alprazolam. An expert compared markings he saw on the pills
    “against   a     database      containing     descriptions     of
    pharmaceuticals.” (Veamatahau, supra, 9 Cal.5th at p. 22.)
    Asked about the identification process, the expert testified that
    the approach he employed was generally accepted in the
    scientific community. He elaborated on cross-examination that
    “when ‘there’s a controlled substance in the tablet, the FDA
    [(Food and Drug Administration)] requires companies to have a
    distinct imprint on those tablets to differentiate it from any
    other tablets. The FDA regulates that. [¶] And if there’s a tablet
    that has — in this case GG32 — or 249 [as an imprint] — you
    can look that up. And it’s going to tell you that it contains
    alprazolam, 2 milligrams. And that’s — we trust that, all those
    regulations being in place, to say that there’s alprazolam in
    those tablets.’ ” (Id. at p. 23.) Based on this database search,
    the expert opined the pills contained alprazolam. (Ibid.)
    Veamatahau concluded that the expert’s testimony about what
    he read from the database was background information. “[The
    expert’s] statement concerning what the database ‘tell[s] you’
    related general background information relied upon in the
    criminalist’s field. The facts disclosed by the database, and
    conveyed by [the expert], are ‘about what [any generic] pills
    containing certain chemicals look like.’            [Citation.] The
    database revealed nothing about ‘the particular events . . . in the
    case being tried,’ i.e., the particular pills that Sergeant Simmont
    seized from defendant. [Citation.] Any information about the
    specific pills seized from defendant came from [the expert’s]
    personal observation (that they contained the logos ‘GG32 — or
    249’) and his ultimate opinion (that they contained alprazolam),
    not from the database. In short, information from the database
    14
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    is not case specific but is the kind of background information
    experts have traditionally been able to rely on and relate to the
    jury.” (Id. at p. 27.)
    Veamatahau clarifies that the distinction between
    background information and case-specific facts can depend, in
    part, on what the evidence, considered independently, is offered
    to prove. The expert’s testimony about the contents of the
    database, and expert reliance on it, was offered to prove that all
    pills with a given imprint contain alprazolam. That testimony,
    though hearsay, related background information. His opinion
    was offered to prove that the defendant’s pills, those at issue in
    the current prosecution, contained alprazolam. The markings
    on the defendant’s pills were case-specific facts. The expert was
    permitted to testify about them because his own observation of
    the markings provided personal knowledge. The jury was
    entitled to consider the expert-provided background
    information, even though hearsay, along with his personal
    observations and opinion to determine whether the pills the
    defendant possessed contained the controlled substance. (See
    discussion, post.)
    C. Distinguishing Background Information from Case-
    specific Facts
    In gang cases, drawing the line of demarcation between
    background and case-specific information can present
    challenges, as reflected by the different conclusions drawn by
    the Courts of Appeal regarding predicate offenses. Several cases
    have held that predicate offense evidence is merely background
    similar to other kinds of information about gangs, like their
    territory, symbols, and operations, that are generally accepted
    as true by experts in the field. (See People v. Bermudez (2020)
    
    45 Cal.App.5th 358
    , 363; People v. Blessett (2018) 
    22 Cal.App.5th 15
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    903, 944–945, disapproved on another ground in Perez, supra, 9
    Cal.5th at p. 14; People v. Vega-Robles (2017) 
    9 Cal.App.5th 382
    ,
    410–411; People v. Meraz (2016) 
    6 Cal.App.5th 1162
    , 1174–
    1175.) Those cases pointed to language in Sanchez that
    describes case-specific facts as those “relating to the particular
    events and participants alleged to have been involved in the case
    being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) They went
    on to conclude that testimony about predicate offenses merely
    conveyed “historical facts” about the gang’s conduct and
    activities, as opposed to specific facts relating to the events and
    participants involved in the case being tried. (Blessett, at p.
    944.) Bermudez opined that “so long as the predicate offenses
    do not involve defendant or individuals involved in the
    defendant’s case[,] [s]uch predicate offenses are chapters in a
    gang’s biography . . . not case-specific information.” (Bermudez,
    at. p. 363.)
    To determine whether predicate offenses are case-specific
    or background facts, we must look beyond an isolated phrase in
    Sanchez and instead probe the underlying rationale permitting
    experts to rely on and relate certain hearsay. As Sanchez
    observed, “expert witnesses are given greater latitude” to testify
    regarding background information beyond matters within their
    personal knowledge because their testimony may “provide
    specialized context the jury will need to resolve an issue.”
    (Sanchez, supra, 63 Cal.4th at p. 675.) Thus, experts are given
    latitude over lay witnesses only to the extent they are conveying
    acquired expertise in their field. Sanchez explained that “[o]ur
    decision does not call into question the propriety of an expert’s
    testimony concerning background information regarding his
    knowledge and expertise and premises generally accepted in his
    field. Indeed, an expert’s background knowledge and experience
    16
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    is what distinguishes him 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.
    Thus, our decision does not affect the traditional latitude
    granted to experts to describe background information and
    knowledge in the area of his expertise, even when based on
    hearsay. Our conclusion restores the traditional distinction
    between an expert’s testimony regarding background
    information and case-specific facts.” (Id. at p. 685, italics
    added.)
    Sanchez and Veamatahau make clear that experts are
    given greater latitude to testify about matter beyond their
    personal knowledge because they are allowed to give an opinion
    on subjects “sufficiently beyond common experience that the
    opinion of an expert would assist the trier of fact” (Evid. Code,
    § 801, subd. (a)), so long as the opinion is based on matter “that
    is of a type that reasonably may be relied upon by an expert in
    forming an opinion upon the subject” (Evid. Code, § 801, subd.
    (b)). “This latitude is a matter of practicality. A physician is not
    required to personally replicate all medical experiments dating
    back to the time of Galen in order to relate generally accepted
    medical knowledge that will assist the jury in deciding the case
    at hand. An expert’s testimony as to information generally
    accepted in the expert’s area, or supported by his own [personal]
    experience, may usually be admitted to provide specialized
    context the jury will need to resolve an issue.” (Sanchez, supra,
    63 Cal.4th at p. 675.) Hallmarks of background facts are that
    they are generally accepted by experts in their field of expertise,
    and that they will usually be applicable to all similar cases.
    Permitting experts to relate background hearsay information is
    analytically based on the safeguard of reliability. A level of
    17
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    reliability is provided when an expert lays foundation as to facts
    grounded in his or her expertise and generally accepted in that
    field. In Veamatahau, for example, the hearsay database
    information was accepted by experts in the field as accurately
    stating that pills of a certain appearance contain alprazolam.
    (See Veamatahau, supra, 9 Cal.5th at p. 32.)
    Conversely, if experts give testimony that goes beyond
    their own experience or beyond principles generally accepted in
    their field, the justifications for allowing greater evidentiary
    latitude cease to apply. One commentator has noted that the
    pre-Sanchez “not in for the truth” approach blurred the line
    between general background knowledge and case-specific fact.
    The previous approach “opened the door to abuse; namely,
    expert witnesses being used as conduits to transmit
    inadmissible hearsay that does not otherwise fall under a
    statutory exception as assertions of fact to the jury. With such
    a liberal approach to admissibility, there is a risk that damaging
    inadmissible evidence, which would be unable to make its way
    to the jury through the proper channels, could be smuggled to
    the jury through the expert; or worse, parties may offer expert
    testimony simply to place such damaging evidence before the
    fact-finder disguised as expert basis testimony. The Sanchez
    rule curbs this potential for abuse with its bright-line rule
    prohibiting an expert from relating all case-specific hearsay
    statements forming the basis of the expert’s opinion, unless such
    hearsay statements fall under an applicable hearsay exception
    or are properly admitted independent of the expert’s testimony.”
    (Hamilton, The End of Smuggling Hearsay: How People v.
    Sanchez Redefined the Scope of Expert Basis Testimony in
    California and Beyond (2018) 21 Chap. L.Rev. 509, 511, fns.
    omitted.) In other words, case-specific facts are not purged of
    18
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    their hearsay character just because an expert, rather than a
    lay witness, is asked to repeat them in court.
    The challenge, then, in Sanchez and Veamatahau was to
    accommodate the longstanding rule allowing experts to testify
    about “information generally accepted in the expert’s area” or
    matters “in his field of expertise” (Sanchez, supra, 63 Cal.4th at
    pp. 675, 676), yet restore the rule that experts may not simply
    “regurgitate information from another source” (Veamatahau,
    supra, 9 Cal.5th at p. 34). Sanchez and Veamatahau used the
    terms “general background information” and “case-specific
    facts” to distinguish, in the context of expert testimony, between
    hearsay that may be admitted because it is generally accepted
    by experts in the field, and facts that cannot be proven by
    hearsay because that reliability justification is absent.15 These
    latter case-specific facts must be proven through the testimony
    of a witness with personal knowledge or by other admissible
    evidence. (See generally Sanchez, supra, 63 Cal.4th at p. 677.)
    The proper role of expert testimony is to help the jury
    understand the significance of case-specific facts proven by
    competent evidence, not to place before the jury otherwise
    unsubstantiated assertions of fact. On the other hand, any
    15
    In this sense, the phrase “general background
    information” from Sanchez (Sanchez, supra, 63 Cal.4th at p.
    678) is tethered to the concept of information derived from
    hearsay but generally considered accurate in a field of expertise.
    As discussed ante (see p. 10, fn. 13), an expert’s personal
    knowledge, on the other hand, may provide context relevant to
    assist jurors in understanding the facts of a given case (Evid.
    Code, § 801, subd. (a)), but it does not involve the recitation of
    hearsay. As used in Sanchez the term “general background
    information” refers to expert knowledge derived from hearsay
    that is generally accepted as accurate by experts in the field.
    19
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    witness, whether lay or expert, may testify to facts within their
    personal knowledge, so long as those facts are relevant. The
    reliability of those facts is furnished not by general agreement
    among experts in their field, but by the witness’s personal
    knowledge, for which there must be foundation. In addition, the
    accuracy of that testimony can be tested by cross-examination
    exploring the circumstances under which the witness’s
    knowledge was acquired and whether it is being accurately
    remembered and recounted. A lay witness need not know the
    significance of the facts or how that significance might be
    explained by an expert, but the witness must have the required
    personal knowledge.
    This conclusion mirrors the facts and analysis from
    Veamatahau. There, hearsay information from the database
    was properly admitted as background because it was generally
    accepted in the field that the FDA markings were reliable
    indications of the drug’s presence and also that the database
    itself accurately connected the FDA marks with the presence of
    that drug. (Evid. Code, § 801, subd. (b).)16 Based on those
    hearsay background facts and his own personal observations
    about the markings he saw, the expert formed an opinion to
    which he testified, and on which the jury was entitled to rely, if
    16
    The initial burden is on the proponent to lay a foundation
    of general acceptance. (Cf. Sargon Enterprises, Inc. v. University
    of Southern California (2012) 
    55 Cal.4th 747
    , 769–773.) The
    opposing party is, of course, entitled to challenge the foundation
    by cross-examination or the introduction of contrary evidence.
    The challenge may be brought in limine, renewed through a
    motion to strike, or attacked as unreliable in argument to the
    jury.
    20
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    they found it to be credible. (See Veamatahau, supra, 9 Cal.5th
    at pp. 26–35.)
    D. Predicate Offenses Are Case-specific and Must Be
    Proven by Competent Evidence
    The Attorney General argues that facts used to prove
    predicate offenses are merely background information properly
    supplied by expert testimony. This argument fails because of
    the nature of the facts themselves, the absence of foundation
    that they are generally accepted as reliable in a field of
    expertise, and the allegations they are being offered to prove.
    As Sanchez observed, general testimony about a gang’s
    behavior, history, territory, and general operations is usually
    admissible. (See Sanchez, supra, 63 Cal.4th at p. 698.) The
    same is true of the gang’s name, symbols, and colors. All this
    background information can be admitted through an expert’s
    testimony, even if hearsay, if there is evidence that it is
    considered reliable and accurate by experts on the gang.
    Such information stands in contrast to information
    regarding the commission of a particular offense on a specific
    occasion. Experts with no personal knowledge of case-specific
    facts, or who do not rely on other admissible evidence
    establishing those facts, are simply “regurgitat[ing] information
    from another source.” (Veamatahau, supra, 9 Cal.5th at p. 34.)
    This is the practice rejected in Veamatahau and warned against
    in Sanchez. “What an expert cannot do is relate as true case-
    specific facts asserted in hearsay statements, unless they are
    independently proven by competent evidence or are covered by
    a hearsay exception.” (Sanchez, supra, 63 Cal.4th at p. 686; see
    Veamatahau, at pp. 33–34.) Without independent admissible
    evidence of the particulars of the predicate offenses, the expert’s
    hearsay testimony cannot be used to supply them. In the
    21
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    absence of any additional foundation, the facts of an individual
    case are not the kind of general information on which experts
    can be said to agree.
    The Attorney General relies on the Sanchez description of
    case-specific facts as those relating to “the particular events and
    participants alleged to have been involved in the case being
    tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) We acknowledge
    that the statutorily required predicate offenses do not fit neatly
    into the description Sanchez provided. At least some of these
    offenses will most often have occurred before “the case being
    tried” (ibid.) and will have been committed by others who were
    not involved in the new charges at issue. But Sanchez was
    addressing case-specific facts as they arose in the particular
    matter at hand; it did not address the question we face here. For
    reasons already explained, we conclude that facts concerning
    particular events and participants alleged to have been involved
    in predicate offenses, too, constitute case-specific facts that must
    be proved by independently admissible evidence.
    It should be recalled that the STEP Act sought a balance
    between free association and protecting against the “clear and
    present danger” posed by this defined kind of organized criminal
    activity. (Pen. Code, § 186.21.) The statutory requirement that
    predicate offenses be separately proven serves to maintain that
    balance. Our interpretation here, requiring that this proof rest
    on competent evidence, also furthers that legislative intent. In
    this respect, the proof of predicate offenses is similar to other
    kinds of case-specific facts that may have occurred before the
    commission of the charged offenses. These kinds of facts include
    evidence of motive, prior offense evidence admissible under
    Evidence Code section 1101, subdivision (b), and prior
    convictions suffered by the defendant on trial. It has long been
    22
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    recognized that these kinds of facts alleged in the current trial
    must be proven by competent evidence.
    In sum, the particular facts offered to prove predicate
    offenses as required by the STEP Act are not the sort of
    background hearsay information about which an expert may
    testify. Competent evidence of those particulars is required.17
    A gang expert may still render an opinion regarding the gang
    membership of the perpetrator of a predicate offense in response
    to a proper hypothetical question based on premises established
    by competent evidence. (See Sanchez, supra, 63 Cal.4th at pp.
    676–677.)
    E. The Error Was Prejudicial
    Here, Officer Calderon testified regarding the facts of
    three predicate offenses of which he had no personal knowledge.
    No independent proof of those facts was tendered by any witness
    having personal knowledge. The People do not claim that any
    hearsay exception would support their admission. We need not
    address what exceptions might apply or what foundations would
    be required to invoke them. On this record, Calderon’s
    recitation of hearsay was inadmissible.
    As to the standard for evaluating prejudice, Sanchez
    observed that “improper admission of hearsay may constitute
    state law statutory error” (Sanchez, supra, 63 Cal.4th at p. 698),
    which would ordinarily be assessed under People v. Watson
    17
    We disapprove the following cases, which reached a
    contrary conclusion: People v. Bermudez, supra, 45 Cal.App.5th
    at page 363; People v. Meraz (2018) 
    30 Cal.App.5th 768
    , 781–
    782; People v. Blessett, supra, 22 Cal.App.5th at pages 944–945;
    People v. Vega-Robles, supra, 9 Cal.App.5th at pages 410–411;
    People v. Meraz, supra, 6 Cal.App.5th at pages 1174–1175.
    23
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    (1956) 
    46 Cal.2d 818
    . That test inquires whether “it is
    reasonably probable that a result more favorable to the
    appealing party would have been reached in the absence of the
    error.” (Id. at p. 836.) However, if the improperly admitted
    hearsay is also testimonial within the meaning of the high
    court’s confrontation clause jurisprudence (see, e.g., Crawford,
    
    supra,
     541 U.S. at pp. 68–69), the error is assessed under the
    federal constitutional standard of Chapman v. California (1967)
    
    386 U.S. 18
    , 24, which requires any error to be harmless beyond
    a reasonable doubt. (See Sanchez, at p. 698.) The Attorney
    General concedes that, on this record, the Chapman standard
    applies here. As Sanchez notes, some of the contents of police
    reports may be testimonial hearsay. (See Sanchez, at pp. 694–
    695.)
    The People argue any error was harmless beyond a
    reasonable doubt because the gang membership of those
    committing the predicate offenses was “supplied by admissible
    expert testimony.” The People primarily point to the sequence
    of Officer Calderon’s testimony, where he first described Arvina
    13’s primary activities before giving detailed factual recitations
    of the three predicate offenses. They argue Calderon could have
    properly opined that the predicate offenses were committed by
    gang members to benefit Arvina 13.
    This argument is flawed. The People concede that, in
    giving his opinion, Calderon related to the jury facts he gleaned
    from inadmissible hearsay sources, including police reports,
    about which he had no personal knowledge. 18 Calderon
    18
    Moreover, the Attorney General concedes that numerous
    hearsay statements from police reports and field identification
    24
    PEOPLE v. VALENCIA
    Opinion of the Court by Corrigan, J.
    considered this information as true and related it to the jury as
    a reliable basis for his opinion. The jury was permitted to
    improperly rely on that hearsay to conclude the predicate
    offenses had been proven and that Valencia and Garcia acted
    with intent to benefit the gang when they committed the crimes
    with which they were charged. Based on the extent of the
    evidence and the elements it was offered to prove, we cannot
    conclude that the error was harmless under the Chapman
    standard.19
    III. DISPOSITION
    The judgment of the Court of Appeal is affirmed.
    CORRIGAN, J.
    We Concur:
    CANTIL-SAKAUYE, C. J.
    LIU, J.
    CUÉLLAR, J.
    KRUGER, J.
    GROBAN, J.
    JENKINS, J.
    cards were also improperly conveyed to bolster Calderon’s
    opinion with respect to defendants’ own gang membership.
    19
    The People did not argue here or in the Court of Appeal
    that the circumstances of the charged offenses could constitute
    the necessary proof of predicate offenses. (See People v. Zermeno
    (1999) 
    21 Cal.4th 927
    , 930–933; Loeun, 
    supra,
     17 Cal.4th at pp.
    9–13.) We did not grant review to address such an assertion and
    express no view on that question.
    25
    See next page for addresses and telephone numbers for counsel who
    argued in Supreme Court.
    Name of Opinion People v. Valencia and People v. Garcia
    __________________________________________________________________
    Procedural Posture (see XX below)
    Original Appeal
    Original Proceeding
    Review Granted (published)
    Review Granted (unpublished) XX NP opns. filed 7/10/18 – 5th Dist.
    Rehearing Granted
    __________________________________________________________________
    Opinion No. S250218 and S250670
    Date Filed: July 1, 2021
    __________________________________________________________________
    Court: Superior
    County: Kern
    Judge: Gary T. Friedman
    __________________________________________________________________
    Counsel:
    Elizabeth J. Smutz, under appointment by the Supreme Court,
    Michael B. McPartland, under appointment by the Court of Appeal,
    for Defendant and Appellant Edgar Isidro Garcia.
    Hilda Scheib, under appointment by the Supreme Court, for Defendant
    and Appellant Jose Luis Valencia.
    Mary K. McComb, State Public Defender, Hassan Gorguinpour,
    Deputy State Public Defender, for Office of the State Public Defender
    as Amicus Curiae on behalf of Defendants and Appellants.
    Kamala D. Harris and Xavier Becerra, Attorneys General, Matthew
    Rodriquez, Acting Attorney General, Gerald A. Engler and Lance E.
    Winters, Chief Assistant Attorneys General, Michael P. Farrell,
    Assistant Attorney General, Eric L. Christoffersen, Kathleen A.
    McKenna, Rebecca Whitfield, Daniel B. Bernstein, Rachelle A.
    Newcomb and Darren K. Indermill, Deputy Attorneys General, for
    Plaintiff and Respondent in No. S250670.
    Xavier Becerra, Attorney General, Matthew Rodriquez, Acting
    Attorney General, Gerald A. Engler and Lance E. Winters, Chief
    Assistant Attorneys General, Michael P. Farrell, Assistant Attorney
    General, Louis M. Vasquez, Daniel B. Bernstein, Rachelle A.
    Newcomb, Amanda D. Cary, Lewis A. Martinez and Darren K.
    Indermill, Deputy Attorneys General, for Plaintiff and Respondent in
    No. S250218.
    Counsel who argued in Supreme Court (not intended for
    publication with opinion):
    Darren K. Indermill
    Deputy Attorney General
    1300 I St.
    Sacramento, CA 95814
    (916) 210-7689
    Hilda Scheib
    P.O. Box 29098
    San Francisco, CA 94129
    (415) 750-9397
    Elizabeth J. Smutz
    Central California Appellate Program
    2150 River Plaza Dr., Suite 300
    Sacramento, CA 95833
    (916) 441-3792
    Hassan Gorguinpour
    Deputy State Public Defender
    770 L St., Suite 1000
    Sacramento, CA 95814-3362
    (916) 322-2676