PEOPLE v. SANCHEZAppellant’s Opening Brief on the MeritsCal.September 22, 2014 | SUPREME CO URT Supreme Court No. $216681 FIL SEP 22 2014 Frank A. McGuire Clerk IN THE SUPREME COURT Deputy OF THE STATE OF CALIFORNIA THE PEOPLE OF THE ) 4th Criminal No. STATE OF CALIFORNIA, ) G047666 ) . Plaintiff and Respondent, ) V. ) Orange County ) Superior Court Case No. MARCOS ARTURO SANCHEZ, _) 11CF2839 Defendant and Appellant. ) APPELLANT’S OPENING BRIEF ON THE MERITS On Appeal from the Judgmentofthe Superior Court of the State of California, Orange County Hon. Steven D. Bromberg, Judge John L. Dodd, Esq. #126729 John L. Dodd & Associates 17621 Irvine Blvd., Ste. 200 Tustin, CA 92780 Tel. (714) 731-5572 Fax (714) 731-0833 idodd@appellate-law.com Attorney for Appellant, Marcos Arturo Sanchez Under Appointmentofthe California Supreme Court re Supreme Court No. S216681 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE ) 4th Criminal No. STATE OF CALIFORNIA, ) G047666 ) Plaintiff and Respondent, ) V. ) Orange County ) Superior Court Case No. MARCOS ARTURO SANCHEZ, ) 11CF2839 Defendant and Appellant. ) APPELLANT?’S OPENING BRIEF ON THE MERITS On Appeal from the Judgment of the Superior Court of the State of California, Orange County Hon. Steven D. Bromberg, Judge John L. Dodd, Esq. #126729 John L. Dodd & Associates 17621 Irvine Blvd., Ste. 200 Tustin, CA 92780 Tel. (714) 731-5572 Fax (714) 731-0833 jdodd@appellate-law.com Attorney for Appellant, Marcos Arturo Sanchez Under Appointmentof the California Supreme Court TOPICAL INDEX Table of Authorities ili INTRODUCTION 1 STATEMENT OF THE CASE 1 STATEMENT OF FACTS | 3 DISCUSSION 10 I. Evidence from the STEP Notice, Police Reports, and FI. 10 Card, Upon Which the “Gang Expert” Subsequently Relied, WasHearsay and “Testimonial” Within the Meaning of Crawford v. Washington (2004) 541 U.S. 36, Such thatIts Presentation to the Jury Violated Sanchez’ Rights to Confrontation and Cross-Examination Guaranteed by the Sixth and Fourteenth Amendmentsto the United States Constitution. l. Factual and Procedural Background 11 2. GeneralLaw | 17 A. The Confrontation Clause 17 B. Gardeley and Subsequent Court of Appeal 21 Decisions Court of Appeal’s Ruling Here | 24 The U.S. Supreme Court Impliedly Has Overruled 25 Gardeley to the Extent Gardeley Held Otherwise- Inadmissible Hearsay May Be Admitted as Expert Basis Evidence “Not Admitted For Its Truth.” Under Williamsv. Illinois Hearsay Relayed by an Expert at Trial Is Offered For its Truth For Purposesofthe Confrontation Clause. i Il. To the Extent Gardeley Held Inadmissible Hearsay May Be Admitted as Expert Basis Evidence “Not Admitted ForIts Truth,” Gardeley Should Be Overruled as That Is an Unworkable Legal Fiction. The Statements Contained in the STEP Notice, Police Reports, and F.I. Card Were Testimonial under Crawford, Implicating the Confrontation Clause. I. 2. Court of Appeal’s Ruling The Prosecution Failed to Meet Its Burden of Showing by a Preponderanceofthe Evidence the Statements Contained in the STEP Notice, F.I. Card and Reports Were Not Testimonial. Police Officers’ Recordings in a Police Report Are Testimonial Under Melendez-Diaz and Bullcoming. The STEP Notice, Police Reports, and F.I. Card Were Prepared by Police Officers Under Circumstances that Would Lead an Objective Witness to Believe the Statements Contained Therein Would Be Available For Use at Trial and Thus Were Testimonial. The Officers Who Reported Sanchez’ Alleged Statements Became Witnesses Against Sanchez. Thus, the Authors ofAny Reports Containing Statements Allegedly Made By Sanchez Should Have Been Subject to Confrontation. The Statement Allegedly Made bySalinasto the Reporting Officer Was Made Under Circumstances that Would Lead an Objective Witness to Believe the Statements Would Be Available For Useat Trial and Thus Was Testimonial. ii 29 49 50 51 56 61 lll. Alternatively, This Court Should Clarify Gardeley Does 64 Not Apply In This Type of Case Because It Does Not Permit an Expert to Parrot Hearsay Statements in the Guise of Basis Evidence. IV. Admission of This Evidence Was Prejudicial. 69 CONCLUSION . 71 Certification of Word Count Proof of Service iii TABLE OF AUTHORITIES United States Supreme Court Cases Bullcoming v. New Mexico (2011) __ U.S. ___ [131 S.Ct. 2705, 180 L.Ed.2d 610]. ........... 19, 20 Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297]. 2.0.0... ee. 18 Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. 2.1.0... eee, 69 Crawford v. Washington (2004) 541 U.S. 36 [124 S.CT. 1354, 158 L.Ed.2d 177] ..... 46... passim Davis v. Alaska (1974) 415 U.S. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347]. 2.2... eee 17 Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 560]. ........ 54, 62, 64 Delaware v. Van Arsdall (1986).475 U.S. 673 [106 S.Ct. 1431, 89 L.Ed.2d 674]. 2.0.22... 69 Dutton v,. Evans (1970) 400 U.S. 74 [91 S.Ct. 210, 27 L.Ed.2d 213]. ..........-0.. 53, 59 Marks-v. United States (1977) 430 U.S. 188 [97 S.Ct. 990, 51 L.Ed.2d. 260]. .....0.0 0 cece eee 27 Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [129 S.Ct. 2527, 174 L.Ed.2d 314]. ..... 51, 53, 54, 56 Ohio v. Roberts (1980) 448 U.S. 56 . [100 S.Ct. 2531, 65 L-Ed.2d 597]. 2... eee, 18 Palmer v. Hoffman (1943) 318 U.S. 109 [63 S.Ct. 477, 87 L. Ed. 645]. 0... eee 54 iv Pointer v. Texas (1965) 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923]. ...........0.0.. 17 Tennesseev. Street (1985) 471 U.S. 409 [105 S.Ct. 2078, 85 L.Ed.2d 425]. ............04. 21 White v. Illinois (1992) 502 U.S. 346 [112 S.Ct. 736, 116 L.Ed.2d 848]. .... 0. cece 35 Williams v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221, 183 L.Ed.2d 89]. ... 25, 26, 28, 40, 55 OtherFederal Cases King v. Palmer (D.C. Cir. 1991) 292 U.S. App.D.C.362 [950 F.2d 771]. 2... ee eee ee 53, 54, 58, 60 United States v. Alcan Aluminum Corp.(2d Cir. 2003) BIS F.3d 179. 2 occceees 69 United States v. Arnold (6th Cir. 2007) 486 F.3d 177. ..... 18-20, 59 United States v. Brown (11th Cir. 2006) 441 F.3d 1330. ........°17 United States v. Charles (11th Cir. 2013) 722:F.3d 1319. . 54, 62, 64 United States v. Jackson (Sth Cir. 2011) 636 F.3d 687. ......... 69 United States v. Johnson (4th Cir. 2009) 587 F.3d 625....... 53, 59 United States v. Lombardozzi (2d Cir. 2007) 491 F.3d 61. ...... 27 United States v. Mejia (2d Cir. 2008) 545 F.3d 179. 18, 51, 53, 54, 56 United States v. Williams (9th Cir. 2006) 435 F.3d 1148. ....... 18 California Supreme Court Cases Gomez v. Superior Court (2005) 35 Cal.4th 1125. ............. 54 Vv People v. Avila (2006) 38 Cal.4th 491. 0...oes 17 People v. Cage (2007) 40 Cal.4th 965. 2.0... cece eee 21 People v. Dungo (2012) 55 Cal.4th 608. ............ 0. eee eee 35 People v. Gardeley (1996) 14 Cal.4th 605........ 25, 26, 28, 40, 55 People v. Geier (2007) 41 Cal.4th 555. 1.2... eee eee. 29, 69 People v. Lopez (2012) 55 Cal.4th 569. 2.0... 0. eee eee eee .. 32 People v. Rodriguez (2012) 55 Cal.4th 1125. . 0... .........0005. 2 People v. Rutterschmidt (2012) 55 Cal.4th 650. ..........-. 33, 69 People v. Watson (1956) 46 Cal.2d 818. ...........505.eee 70 California Appellate Cases In re Marriage ofBryant (2001) 91 Cal.App.4th 789. .......... 32 People v. Archuleta (2011) 202 Cal.App.4th 493, rev. granted March 28, 2012, $199979, remanded May22, 2013. .......... wee ewes 11 Peoplev. Archuleta (2014) 225 Cal.App.4th 527, rev. granted June 11, 2014, S218640 . ........... 12 People v. Cooper (2007) 148 Cal.App.4th 731. ............0.. 23 People v. Hill (2011) 191 Cal.-App.4th 1104. ..... 30, 37, 40, 47, 63 People v. Sanchez (2014) 223 Cal.App.4th 1. . 10, 24, 48, 50, 63, 64, 68, 70 People v. Thomas (2005) 130 Cal.App.4th 1202. .............. 23 People v. Valadez (2013) 220 Cal.App.4th 16 .............05. 34 vi Rufo v. Simpson (2001) 86 Cal.App.4th 573. 22.0.0... 6. ee eee 47 California Statutes Evidence Code section 1220. .........ce 66 Penal Code section 186.22, subdivision (b)(1). ..............6. 1 Other State Authority People v. Goldstein (2005) 6 N.Y.3d 119 [810 N.Y.S.2d 100, 843 N.E.2d 727]. 2.2... 35, 36, 47 Secondary Authority CALCRIM 332. 2.0... ceceeee e eens 47 Kry, Confrontation at a Crossroads: Crawford’s Seven-Year Itch (2011) 6 Charleston L.Rev. 49. ..............0.. 4] Mnookin, Expert Evidence and the Confrontation Clause After Crawford v. Washington (2007) 15 J.L. & Pol’y 791. 40 Vil INTRODUCTION This Court should rule police reports in the form of STEP notices and Field Interview (“F.I.”) cards relied upon by prosecution “sang experts”are (1) presentedto the trier of fact for their truth and (2) are testimonial, thereby triggering a criminal defendant’s right to cross-examine and confront witnesses guaranteed by the Sixth Amendment. Because Sanchez wasdenied that opportunity, this Court should reverse the “gang enhancement” imposed here. STATEMENT OF THE CASE On January 19, 2012, the Orange County District Attorney filed an information alleging Sanchez had committed the offenses of possessionofa firearm, although he wasa felon,in violation of Penal Code! section 12021, subdivision (a)(1) (count one); possession of controlled substances and a firearm in violation of Health and Safety Code section 11370.1, subdivision (a) (count two); and street terrorism in violation of section 186.22, subdivision (a) (count three). The information also alleged Sanchez had committed counts one and two for the benefit of a street gang (Pen. Code, § 186.22, subd. All further statutory references are to the Penal Code unless otherwisestated. (b)(1)), and he had suffered a prior felony conviction within the meaning of section 667.5, subdivision (b). (C.T. 126-127.) | Jury trial began September 24, 2012, (C.T. 25), concluding October 1, 2012, the jury finding Sanchez guilty on all counts and finding the gang allegation true. (C.T. 43, 227-229, 3R.T. 566-568.) On November 16, 2012, Sanchez admitted the section 667.5, subdivision (b), prior. (3R.T. 579-580.) The court sentenced appellant to a total term of seven years as follows: the middle term of three years for count two, plus three years for the section 186.22, subdivision (b)(1) allegation plus one year for the section 667.5, subdivision (b) prior; the middle term of two years for count one, with the middle term of three years for the section 186.22, subdivision (b)(1) allegation stricken. The term for count three was stayed pursuantto section 654. (C.T. 45-47, 263; 3R.T. 584-586.) On November 16, 2012, appellant filed a timely notice of appeal. (C.T. 262.) On January 21, 2014, the Court of Appealfiled its published opinion, reversing the conviction on the substantive gang offense pursuant to People v. Rodriguez (2012) 55 Cal.4th 1125, but otherwise affirming the conviction. This Court granted review May15, 2014. STATEMENT OF FACTS On October 16, 2011, Santa Anapolice officer Adrian Capacete was driving in his patrol with Officer Vergara in the alley by the apartmentbuilding at 1817 South Cedar. (2R.T. 176, 178- 180.) They saw appellant Sanchezsitting on a stairwell, making eye contact with him. (2R.T. 182, 184-185.) Sanchez wore “baggy clothing,” “a white shirt and blue kind of workout type pants or shorts,....” (2R.T. 183.) They stopped the car and beganto get out to walk over to him, at which point “Sanchez immediately reached into an electrical box with his left hand and ran upthestairs as he was holding his waistband with his right hand.” (2R.T. 185.) He had made a grabbing motionto the electrical box, but they did not see what, if anything, he grabbed. (2R.T. 187.) The officers chased him upstairs, running into apartment D. (2R.T. 188-189.) A woman onthestairwell told the officers Sanchez did not live there. (2R.T. 190.) Jesus Romero,ten years old, was in the apartment’s living room watching tv and saw Sanchezruninto the bathroom. (2R.T. 122-123.) Sanchez came back outinto the hall, and the police arrived. (2R.T. 124.) While still outside the door, Officer Veraga told Sanchez, who was aboutfive or 10 feet inside in a hallway, to get on the ground. (2R.T. 192.) Jesus’s mother, Maria, cameout of her room and saw appellant by the door, Officer Vergara holding his gun on him. (2R.T. 139-141.) She asked Vergara who the man wasas she did not know Sanchez, never having seen him before. (2R.T. 141, 193.) A search of appellant and the apartment revealed no gunsor drugs. (2R.T. 193-194.) However, after speaking with Jesus, Capacete went into the bathroom, looked out its open window and saw “about six to eight feet below the bathroom waslike a blue tarp that was covered with dried up leaves and bushes, and on top ofthat wasa black gun and a plastic baggie.” (2R.T. 194-195.) Officer Slayton, also on patrol in the area, arrived to assist, retrieving a loaded hand gun and baggie off the tarp. (2R.T. 239, 244, 250.) Inside the plastic baggie were 14 plastic bindles and four smaller ziploc baggies. (2R.T. 199.) Capacete believed the bindles to contain heroin and the baggies to contain methamphetamine, which was confirmedbya field test, and he further opined they were packagedfor sale. (2R.T. 200, 202, 206.) Subsequentlabtests confirmed the bindles contained heroin,the plastic baggies methamphetamine. (2R.T. 108-109.) Baudencio Castillo lived in apartment C, below D. QR.T. 156.) He denied possessing a gun or drugs that day, as well as giving anyone permission to place anything ontop ofthe tarp behind his patio. (2R.T. 158.7) He had seen Sanchez around the neighborhood but did not know him. (2R.T. 166.) Detective Donald Stow of the Santa Ana Police Department testified as a “gang expert,” explaining the purpose of a STEP notice is to gatherandlist information concerning an individual “that we’re contacting and haveidentified as a gang member,”as well as to put the person on notice that the “group they are hanging out withis, in fact, a criminal street gang,” as well as to inform them “that that group that they’re hanging out with that’s a gang engages ina pattern of criminal activity... .” (2R.T. 295-296.) 2 Thetranscript actually records his answeras “yes” to the question “Well, on that day did you put a gun or any type of drugs on top of your tarp?” (2R.T. 158.) However, that appears a transcription error since no comment was madeconcerning his answer, and presumably the case would have been overshortly thereafterif it was. 5 Stow testified that, among other crimes,selling drugs constitutes “putting in work”on behalf of the gang, which helps “someone maintain their status and be active in the gang.” (2R.T. 309-311.) He testified members of other gangs are not permitted to come into a gang’s territory and commit crimesorsell drugs. However, sometimes non-gang membersare “allowed permission to maybe deal narcotics .. . but they have to payatax....” (2R.T. . 316.) Gangstry and control narcotics sales within their territory, requiring the seller to get permission and share the profits with the gang. (2R.T. 317.) Delhi is a criminal street gang, dating back to the 1960's, which claimsasits territory the area around the 1800 block of South Cedar Street in Santa Ana. (2R.T. 320.) In October 2011 Delhi had over 50 members. (2R.T. 324.) Its primarycriminal activities were “weapons and narcotics violations,” meaning sales. (2R.T. 326-327.) Other Delhi gang members had been convicted of narcotics offenses in 2010. (3R.T. 374-376.) On June 14, 2011, Sanchez was given a STEP notice by the Santa Ana Police Department, informing him Delhi wasa street gang engaging in a pattern of criminal activity. That notice recorded that appellant had indicatedto the officer he “for four years had kicked it with guys from Delhi” and he “got busted with two guys from Delhi.” (3R.T. 378.) “Kicking it” means “hanging out and associating with the gang members.” (3R.T. 378-379.) On December30, 2007, Sanchez was with Delhi member Mike Salinas, riding bicycles on West Edinger in Santa Ana, when a car drove by, and someoneshot Salinas. Salinas identified the shooter as someonefrom the Alley Boys gang. (3R.T. 379-380.) Additionally, on August 22, 2007, appellant was standing nextto his cousin, Jesus Rodriguez, when Rodriguez, who hung out with Delhi members, was shot. (3R.T. 381.) Sanchez had admitted growing up in a Delhi neighborhood. (3R.T. 381.) He was with Delhi member John Gomez on December4, 2009, and again on December9, 2009, at which time another Delhi member, Fabian Ramirez, also was present. (3R.T. 382.) On that second occasion, police located “a surveillance camera, ziploc baggies, narcotics, and a firearm,” in the garage where these individuals were located. (3R.T. 382.) Stow opined Sanchez was an active participant in the Delhi gang on October 16, 2011. (3R.T. 383-384.) He opinedthat, in a hypothetical situation similar to the facts of this case, the conduct would benefit the Delhi gang because “he’s willing to risk going to jail in being in possession ofthe firearm and being in possession of narcotics for sale in the alley in the turf,” and the individuals witnessing this maybein fear of the gang. (3R.T. 393.) In all his years of experience dealing with Santa Ana gangs, Stow had not met Sanchez. (3R.T. 404-405.) He had no personal knowledgeofthe statements Sanchez assertedly made which had been recorded on the STEP notices and the F.I. cards. (3R.T. 408, 412, 415-416.) The parties stipulated Sanchez was a felon and knew the nature and character of methamphetamine and heroin as controlled substances. (3R.T. 422.) Defense Case Vicki Ramirez is Sanchez’ cousin by marriage. (3R.T. 425.) Shortly before his arrest, she was about 20 feet away and saw him talking on the telephone. (3R.T. 425.) She had watched him for about 20 minutes, during which time no one had come up to him, and she had not seen him with any drugs. (3R.T. 430.) She had not seen the incident in which he ran up the stairs because she had walked over to a nearby producetruck, but she had seen thepolice bringing him down. (3R.T. 430-431, 434.) Sanchez was employedat the time of his arrest. (3R.T. 435, 443.) Vidal Cuevas also knew Sanchez, since he was the former husband of Cuevas’ niece. Helives in Apartment A of that same building. (3R.T. 431, 439.) Appellant had been visiting him andhis niece that day, for about three hours, as he often did. (3R.T. 439-441, 442.) He did not see appellant possess a gun or drugs. (3R.T. 442- 443.) // H DISCUSSION I, Evidence from the STEP Notice, Police Reports, and F.I. Card, Upon Whichthe “Gang Expert” Subsequently Relied, Was Hearsay and “Testimonial” Within the Meaningof Crawford v. Washington (2004) 541 U.S.36, Such that Its Presentation to the Jury Violated Sanchez’ Rights to Confrontation and Cross-Examination Guaranteedby the Sixth and Fourteenth Amendments to the United States Constitution. Counsel objected to evidence of STEP notices and F.I. cards being presentedto the jury as a basis for the “gang expert’s” opinion on the basis of hearsay,right to confrontation and cross-examination and Evidence Codesection 352. (C.T. 176-177; 1R.T. 37.) Thetrial court overruled these objections, permitting the evidence to go before the jury. (3R.T. 358-359.) The Court ofAppeal disagreed with Sanchez’ argumentthis violated his Sixth Amendmentright to -. confrontation under Crawford,first noting: “The United States Supreme Court has not said whether the Sixth Amendment confrontation clause is violated when a gang expert baseshis or her opinion on statements by witnesses whoare not presentat trial and _ who the defendanthas not had the opportunity to cross-examine.” (People v. Sanchez (2014) 223 Cal.App.4th 1, 17.) Sanchez contends it does. 10 1. Factual and Procedural Background. Sanchez’ motion in limine sought to exclude “testimony by Det. Stow,or any other officer, that defendant hadto register as a gang member, that defendant admitted to kicking back with Delhi gang members,and that on a previousarrest that defendant was arrested with Delhi gang members becausethat testimonyis hearsay, violates defendants constitutional rights under the 5" and 6" - amendments,and its probative value is not outweighed byits prejudicial effect under Evidence Code section 352.” (C.T. 176-177.) Anotherin limine request soughtto “[e]xclude testimony by Det. Stow, or any otherofficer, of information read from six police reports, gang registration forms, Step notices or any other documents that. Defendant wasarrested with a couple of other gang members in * possession ofnarcotics for sale and possession of a firearm, in that such testimonyis hearsay, is notreliable, lacks foundation, violates defendants constitutional rights under the 5" and 6" amendments, and its probative value is not [sic] outweighed by its prejudicial effect _ under Evidence Codesection 352, see P. Archuletta’ (2011) 202 3 People v. Archuleta (2011) 202 Cal.App.4th 493, review granted 11 Cal.App.4th 493.” (C.T. 177.) Thefirst request, number 10, pertained to F.I. information; number 11 to the STEP notices. Duringthe in limine motion hearing, counsel repeated introduction of this evidence violated appellant’s rights under the Fifth and Sixth amendments, as well as being excludable pursuant to Evidence Codesection 352 (1R.T. 27), objecting particularly to the introduction of the statements on the STEP notice form because Detective Stow was not the person who had interviewed appellant. (IR.T. 28-29.) Counsel objected to admission of the gang registration form as “hearsay andit violates my client’s right to confront the officer who _ took that statement” (1R.T. 30), arguing the document was “an out- of-court statementoffered to come inas truth that he committed these crimesor said these things. And my client has no right to confront that,” adding, “Because the officer is not here to testify. He’s not here to be cross-examined.” (1R.T. 31.) The prosecution agreed the | statement was hearsay, but “it falls under the exceptionsto the March 28, 2012, S199979, remanded May 22, 2013, S199979. On remand, the Court of Appeal decided People v. Archuleta (2014) 225 Cal.App.4th 527, review granted June 11, 2014, 8218640. 12 | hearsay rule, which is that the gang expert can rely upon hearsay as the basis of his opinion, and it is not Crawford.” (1R.T. 32.) Defense counsel relied on Archuleta, pointing out the jury should not be permitted “to take that as independentproofmyclient did those things,” prompting the prosecution to argue for a limiting instruction. (IR.T. 33.) Thetrial court ruled the expert could testify as to the fact of the gangregistration, but deferred ruling as to whether the contents of the registration could be the subject of the expert’s testimony, pending review of case law. (1R.T. 36.) As for the STEP notice, the court noted the form claims appellant told Santa Ana Police Officer Abel Oropeza, “For four years I kicked it with guys from Delhi. I got busted with a gun with two guys from Delhi. I had the gun for protection.” (1R.T. 30.) Counsel objected that the STEP notices and otherpolice reports contained unreliable hearsay, and “[t]here’s no foundation for that hearsay, and it violates my client’s sixth amendmentright to confront.” (IR.T. 37.) The court noted the objections were “actually identical” to both the registration and STEP notices, deferring the 13 balance of the ruling. (1R.T. 37.) The next day the court notedit “already ruled that the registration and the STEP notice can comein, but deferred its ruling as to the contents.” (2R.T. 63.) Counsel reiterated his objection was based on “hearsay and confrontation.” (Ibid.) The court and counsel discussed Archuleta, specifically the confrontation, hearsay, and 352 issues. The court concludedit could not “make a 352 analysis as to the whole of the case until I hear evidence.” (2R.T. 64-66.) Since Detective Stow would be one ofthe last witnesses, it would consider the issuelater in the trial. (2R.T. 67.) After Stow’s initial testimony, the matter was raised again, the court clarifying Stow “did notactually prepare the gang registration on this particular defendant.” (2R.T. 330.) The court directed counsel’s attention to the 352 discussion in Archuleta in which “{t]he court was not concerned with it because the evidence in the whole as to the gang issue was significant enough, and what wasbehindit didn’t seem to makea difference.” (2R.T. 331-333.) The next day the court notedits tentative 352 ruling was “to not permit the further testimony behind the gangregistration and the 14 STEPnotice.” (3R.T. 337.) The prosecution offered to sanitize one of the statements, removing the reference to a gun, as well as another of the statements. (3R.T. 339.) Although the prosecution represented defense counsel was in agreement, counsel said he was not. (3R.T. 339-340.) Counsel argued further “sanitization” was required, although he agreed to the change concerning the one STEPnotice, dated June 14, 2011. (GR.T. 342, 344.) Asfor the other STEP notice, counsel objected, “We don’t know whotheofficer is or who wrote this STEP notice orthis particular F.I. contact.” (3R.T. 344-345.) There were “multiple levels of hearsay” concerning the shooter being an “Alley Boys” member, without foundation, and it was “unduly prejudicial.” The person whoallegedly wasthe target of the shooting, Mike Salinas, was the person who identified the shooter as an “Alley Boys” member. (3R.T. 345.) Counsel also noted the incident occurred in 2007, four years prior to the incident at issue here. (3R.T. 347.) Defense counsel argued the other incident, in which Sanchez had been standing next to his cousin who hadbeenshot,also occurred in 2007 and contained “multiple levels of hearsay,” to which 15 the court responded: “STEP notices generally are, that’s ... ,” prompting counselto argue, “And that’s what makes them so prejudicial.” (3R.T. 348.) Counsel added the information “was not supposed to comein forthe truth becauseit’s all hearsay.” (3R.T. 348.) He contended “the jury kind of forgets that none of this stuff is offered for the truth. Noneofthis stuff is offered for the truth. None of this stuff is provedoris truthful... . People start thinking thatthis stuff is true or they should believeit as truth, and I think that’s the danger, 352 danger.” (3R.T. 349.) Counsel did not object to a third F.I. card in which appellant was recounted as being with a Delhi memberas that had been “sanitized.” (3R.T. 351.) Counsel did object to the content of a police report, E; noting Sanchez said, “He would back them upifAlly Boysis their rival,” as lacking foundation, with somebody saying he saidit, andthenit being written down. (3R.T. 352-353.) The court then noted current case law permitted admission ofthis type of evidence,ruling it would be admitted, except 4E, in which someone else, Gomez,had said appellant would back them up. (3R.T. 358- 359.) The reference to a shooting would be “sanitized” to omit 16 reference to a shooting in the stomach. (3R.T. 360.) 2. General Law A. The Confrontation Clause The Sixth Amendmentto the United States Constitution provides,in part, “in all criminal prosecutions, the accusedshall enjoy the right... to be confronted with the witnesses against him.” Thisrightis “a fundamental right essential to a fair trial in a criminal proceeding.” (Pointer v. Texas (1965) 380 U.S. 400, 404 [85 S.Ct. 1065, 13 L.Ed.2d 923].) It applies to the States under the Fourteenth Amendment(ibid.), and it must be enforced against the States according to “the same standards”that protect it against federal encroachment. (/d. at p. 406) “
