People v. Sanchez (63 Cal. 4th 665, 2016)

Opinion

CORRIGAN, J.

In Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford), the United States Supreme Court held, with exceptions not relevant here, that the admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses. Here we consider the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion. In addition, we clarify the proper application of Evidence Code sections 801 and 802, relating to the scope of expert testimony.

We hold that the case-specific statements related by the prosecution expert concerning defendant’s gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford. The error was not harmless beyond a reasonable doubt. Accordingly, we reverse the jury findings on the street gang enhancements.

I. FACTS

On October 16, 2011, two uniformed Santa Ana police officers made eye contact with defendant Marcos Arturo Sanchez, who was standing nearby. He reached into an electrical box with one hand, then ran upstairs into an apartment while holding his other hand near his waistband. When told defendant did not five in the apartment, the officers entered and apprehended him. A boy who had been in the apartment testified the man arrested was a stranger who ran through the residence and into the bathroom. A loaded gun and a plastic baggie were found on a tarp several feet below the bathroom window. The items appeared to have been recently deposited. The downstairs neighbor, who owned the tarp, testified the items were not his and he had given no one permission to place them there. The baggie contained 14 bindles of heroin and four baggies of methamphetamine, all packaged for sale. Sanchez was charged with possession of a firearm by a felon, possession of drugs while armed with a loaded firearm, active participation in the “Delhi” street gang, and commission of a felony for the benefit of the Delhi gang. He was also alleged to have been convicted of a felony for which he had served a state prison sentence.

Santa Ana Police Detective David Stow testified for the prosecution as a gang expert. He had been a gang suppression officer for 17 of his 24 years on the force. His experience included investigating gang-related crime; interacting with gang members, as well as their relatives; and talking to other community members who may have information about gangs and their impact on the areas where they operate. As part of his duties, Stow read reports about gang investigations; reviewed court records relating to gang prosecutions; read jail letters; and became acquainted with gang symbols, colors, and art work. He had received over 100 hours of formal training in gang recognition and subcultures, offered by various law-enforcement agencies in Southern California and around the nation. He had been involved in over 500 gang-related investigations.

As part of the department’s efforts to control gang activity, officers issue what are known as “STEP notices” to individuals associating with known gang members. The purpose of the notice is to both provide and gather information. The notice informs the recipient that he is associating with a known gang; that the gang engages in criminal activity; and that, if the recipient commits certain crimes with gang members, he may face increased penalties for his conduct. The issuing officer records the date and time the notice is given, along with other identifying information like descriptions and tattoos, and the identification of the recipient’s associates. Officers also prepare small report forms called field identification or “FI” cards that record an officer’s contact with an individual. The form contains personal information, the date and time of contact, associates, nicknames, etc. Both STEP notices and FI cards may also record statements made at the time of the interaction.

Stow testified generally about gang culture, how one joins a gang, and about the Delhi gang in particular. Gangs have defined territories or turf that they control through intimidation. They commit crimes on their turf and protect it against rivals. Nonmembers who sell drugs in the gang’s territory and who do not pay a “tax” to the gang risk death or injury. The Delhi gang is named after a park in its territory and has over 50 members. Its primary activities include drug sales and illegal gun possession. Defendant was arrested in Delhi turf. Stow testified about convictions suffered by two Delhi members to establish that Delhi members engage in a pattern of criminal activity. (Pen. Code, § 186.22, subds. (e), (f).)

The questioning then turned to defendant. The prosecutor asked Stow if he was aware that defendant received a STEP notice on June 14, 2011. The prosecutor inquired, “Did the defendant indicate to the police officer in the STEP notice that the defendant for four years had kicked it with guys from Delhi?” and “did the defendant also indicate T got busted with two guys from Delhi?’ ” Stow responded, “Correct” to both. He explained that “kicking it” means “hanging out and associating” with gang members and that people often used the phrase to avoid openly admitting gang membership.

The prosecutor next asked about four other police contacts with defendant between 2007 and 2009. Stow gave the details of each, relating statements contained in police documents: (1) On August 11, 2007, defendant’s cousin, a known Delhi member, was shot while defendant stood next to him. Defendant told police then that he grew up “in the Delhi neighborhood.” (2) On December 30, 2007, defendant was with Mike Safinas when Safinas was shot from a passing car. Safinas, a documented Delhi member, identified the perpetrator as a rival gang member. (3) On December 4, 2009, an officer contacted defendant in the company of documented Delhi member John Gomez and completed an FI card. (4) Five days later, on December 9, 2009, defendant was arrested in a garage with Gomez and Delhi member Fabian Ramirez. Inside the garage, police found “a surveillance camera, Ziploc baggies, narcotics, and a firearm.”

In preparing for trial, Stow compiled a ‘“gang background” on defendant that included the STEP notice and defendant’s statements, his contacts with police while in the company of Delhi members, and the circumstances of the present case occurring in Delhi territory. Based on this information, Stow opined that defendant was a member of the Delhi gang. The prosecutor then asked a lengthy hypothetical in which he asked Stow to assume that (1) a Delhi gang member, ‘“who’s indicated to the police he kicks it with Delhi and has been contacted in a residence where narcotics and a firearm have been found in the past,” is contacted by police in Delhi territory on October 16, 2011; (2) that gang member ‘“grabbed something, and then grabs his waistband” as he runs up the stairs into an apartment; and (3) he runs into the bathroom and police later find a loaded firearm and drugs on a tarp outside the bathroom window. Assuming those facts, Stow gave his opinion that the conduct benefitted Delhi because the gang member was willing to risk incarceration by possessing a firearm and narcotics for sale in Delhi’s turf. Stow added that this conduct also created fear in the community, redounding to Delhi’s benefit.

On cross-examination, Stow admitted he had never met defendant. He was not present when defendant was given the STEP notice, or during any of defendant’s other police contacts. Stow’s knowledge of the two shootings, as well as the 2009 garage incident, was derived from police reports. His knowledge of the December 4, 2009, contact was based on the FI card. Stow clarified that an officer may fill out an FI card or issue a STEP notice to someone not engaged in any crime or suspicious behavior.

The jury convicted defendant as charged. The Court of Appeal reversed defendant’s conviction for active gang participation and otherwise affirmed. We granted defendant’s petition for review.

II. DISCUSSION

Defendant contends the expert’s description of defendant’s past contacts with police was offered for its truth and constituted testimonial hearsay. He urges its admission violated the federal confrontation clause because the declarants were not unavailable and he had not been given an earlier opportunity to cross-examine them. The Attorney General responds that the statements upon which the gang expert based his opinions were not admitted for their truth and, even if they had been, most of the statements were not testimonial.

We first address whether facts an expert relates as the basis for his opinion are properly considered to be admitted for their truth. The confrontation clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford, supra, 541 U.S. at p. 59, fn. 9.) If the Attorney General is correct that statements offered as the basis for an opinion are not admitted for their truth, the statements are not hearsay and our inquiry is at an end. If defendant is correct, the propriety of the statements’ admission in this case would turn on whether they constitute testimonial hearsay.

A. State Evidentiary Rules for Hearsay

Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content. Evidence Code section 1200, subdivision (a) formally 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.” A “statement” is “oral or written verbal expression” or the “nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” (Evid. Code, § 225.) Senate committee comments to Evidence Code section 1200 explain that a statement “offered for some purpose other than to prove the fact stated therein is not hearsay.” (Sen. Com. on Judiciary com., 29B pt. 4 West’s Ann. Evid. Code (2015 ed.) foil. § 1200, p. 3; see People v. Davis (2005) 36 Cal.4th 510, 535-536 [31 Cal.Rptr.3d 96, 115 P.3d 417].) Thus, a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true. Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b).) Nothing in our opinion today changes the basic understanding of the definition of hearsay.

Documents like letters, reports, and memoranda are often hearsay because they are prepared by a person outside the courtroom and are usually offered to prove the truth of the information they contain. Documents may also contain multiple levels of hearsay. An emergency room report, for example, may record the observations made by the writer, along with statements made by the patient. If offered for its truth, the report itself is a hearsay statement made by the person who wrote it. Statements of others, related by the report writer, are a second level of hearsay. Multiple hearsay may not be admitted unless there is an exception for each level. (People v. Riccardi (2012) 54 Cal.4th 758, 831 [144 Cal.Rptr.3d 84, 281 P.3d 1] (Riccardi).) For example, in the case of the emergency room document, the report itself may be a business record (Evid. Code, § 1270 et seq.), while the patient’s statement may qualify as a statement of the patient’s existing mental or physical state (Evid. Code, § 1250, subd. (a)).

B. State Evidentiary Rules for Expert Testimony

While lay witnesses are allowed to testify only about matters within their personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given 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. 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 experience, may usually be admitted to provide specialized context the jury will need to resolve an issue. When giving such testimony, the expert often relates relevant principles or generalized information rather than reciting specific statements made by others.

The jury is not required to accept an expert’s opinion. The final resolution of the facts at issue resides with the jury alone. The jury may conclude a fact necessary to support the opinion has not been adequately proven, even though there may be some evidence in the record tending to establish it. If an essential fact is not found proven, the jury may reject the opinion as lacking foundation. Even if all the necessary facts are found proven, the jury is free to reject the expert’s opinion about them as unsound, based on faulty reasoning or analysis, or based on information the jury finds unreliable. The jury may also reject an opinion because it finds the expert lacks credibility as a witness.

The hearsay rule has traditionally not barred an expert’s testimony regarding his general knowledge in his field of expertise. ‘“[T]he common law recognized that experts frequently acquired their knowledge from hearsay, and that ‘to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on . . . impossible standards.’ Thus, the common law accepted that an expert’s general knowledge often came from inadmissible evidence.” (Note, Federal Rule of Evidence 703: The Back Door and the Confrontation Clause, Ten Years Later (2011) 80 Fordham L.Rev. 959, 965, fn. omitted, quoting 1 Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2d ed. 1923) § 665; see Simons, Cal. Evidence Manual (2014) § 4:23, pp. 313-316.) Knowledge in a specialized area is what differentiates the expert from a lay witness, and makes his testimony uniquely valuable to the jury in explaining matters ‘“beyond the common experience of an ordinary juror.” (People v. McDowell (2012) 54 Cal.4th 395, 429 [143 Cal.Rptr.3d 215, 279 P.3d 547]; see Evid. Code, § 801, subd. (a).) As such, an expert’s testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds.

By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. 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 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. (People v. Coleman (1985) 38 Cal.3d 69, 92 [211 Cal.Rptr. 102, 695 P.2d 189] (Coleman).)

Going back to the common law, this distinction between generally accepted background information and the supplying of case-specific facts is honored by the use of hypothetical questions. ‘“Using this technique, other witnesses supplied admissible evidence of the facts, the attorney asked the expert witness to hypothetically assume the truth of those facts, and the expert testified to an opinion based on the assumed facts. . . .” (Imwinkelried, Die Gordian Knot of the Treatment of Secondhand Facts Under Federal Rule of Evidence 703 Governing the Admissibility of Expert Opinions: Another Conflict Between Logic and Law (2013) 3 U.Den. Crim. L.Rev. 1, 5, italics omitted; see Simons, Cal. Evidence Manual, supra, §4:32, pp. 326-327; 2 Wigmore, Evidence (Chadbourn ed. 1978) § 672, p. 933.) 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 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.

The following examples clarify these general principles and their distinctions.

(1) That 15 feet of skid marks were measured at an auto accident scene would be case-specific information. Those facts could be established, for example, through the testimony of a person who measured the marks. How automobile skid marks are left on pavement, and the fact that a given equation can be used to estimate speed based on those marks, would be background information an expert could provide. That the car leaving those marks had been traveling at 80 miles per hour when the brakes were applied would be the proper subject of an expert opinion.

(2) That hemorrhaging in the eyes was noted during the autopsy of a suspected homicide victim would be a case-specific fact. The fact might be established, among other ways, by the testimony of the autopsy surgeon or other witnesses who saw the hemorrhaging, or by authenticated photographs depicting it. What circumstances might cause such hemorrhaging would be background information an expert could provide. The conclusion to be drawn from the presence of the hemorrhaging would be the legitimate subject for expert opinion.

(3) That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang.

(4) That an adult party to a lawsuit suffered a serious head injury at age four would be a case-specific fact. The fact could be established, inter alia, by a witness who saw the injury sustained, by a doctor who treated it, or by diagnostic medical records. How such an injury might be caused, or its potential long-term effects, would be background information an expert might provide. That the party was still suffering from the effects of the injury and its manifestations would be the proper subject of the expert’s opinion.

At common law, the treatment of an expert’s testimony as to general background information and case-specific hearsay differed significantly. However, the line between the two has now become blurred. Both the common law and early California law recognized two exceptions to the general rule barring disclosure of, and reliance on, otherwise inadmissible case-specific hearsay. These exceptions covered testimony about property valuation and medical diagnoses. As to the former, “courts recognized that experts frequently derived their knowledge by both custom and necessity from sources that were technically hearsay—price lists, newspapers, information about comparable sales, or other secondary sources.” (Kaye et al., The New Wigmore: Expert Evidence (2d ed. 2011) § 4.5.1, p. 154; see In re Cliquot’s Champagne (1865) 70 U.S. 114, 141 [18 L.Ed. 116].) Likewise, physicians often relied on patients’ hearsay descriptions of their symptoms to form diagnoses. (See Barber v. Merriam (1865) 93 Mass. 322, 324-326; see also Kaye et al., supra, § 4.5.1, p. 155; People v. Wilson (1944) 25 Cal.2d 341, 348 [153 P.2d 720]; Betts v. Southern California Fruit Exchange (1904) 144 Cal. 402, 408 [77 P. 993]; People v. Shattuck (1895) 109 Cal. 673, 678-679 [42 P. 315]; Hammond L. Co. v. County of Los Angeles (1930) 104 Cal.App. 235, 248 [285 P. 896].)

The justification for these exceptions was threefold: “the routine use of the same kinds of hearsay by experts in their conduct outside the court; the experts’ experience, which included experience in evaluating the trustworthiness of such hearsay sources; and the desire to avoid needlessly complicating the process of proof . . . .” (Kaye et al., The New Wigmore: Expert Evidence, supra, § 4.5.1, p. 155; see 3 Wigmore, Evidence, supra, § 688, p. 4.)

The Legislature’s enactment of the Evidence Code in 1965 generalized these common law exceptions. 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.” Under this approach, the reliability of the evidence is a key inquiry in whether expert testimony may be admitted. The California Law Revision Commission comments accompanying the code noted that Evidence Code section 801, subdivision (b) “assures the reliability and trustworthiness of the information used by experts in forming their opinions.” (Cal. Law Revision Com. com., reprinted at 29B pt. 3A West’s Ann. Evid. Code (2009 ed.) foil. § 801, p. 26.)

Accordingly, in support of his opinion, an expert is entitled to explain to the jury the ‘“matter” upon which he relied, even if that matter would ordinarily be inadmissible. When that matter is hearsay, there is a question as to how much substantive detail may be given by the expert and how the jury may consider the evidence in evaluating the expert’s opinion. It has long been the rule that an expert may not “ ‘under the guise of reasons [for an opinion] bring before the jury incompetent hearsay evidence.’ ” (Coleman, supra, 38 Cal.3d at p. 92.) Courts 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 hearsay.” (People v. Montiel (1993) 5 Cal.4th 877, 919 [21 Cal.Rptr.2d 705, 855 P.2d 1277] (Montiel).) The Montiel court opined that “[m]ost often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.] [¶] Sometimes a limiting instruction may not be enough. In such cases, Evidence Code section 352 authorizes the court to exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]” (Ibid., citing Coleman, supra, 38 Cal.3d at pp. 91-93.) Thus, under this paradigm, there was no longer a need to carefully distinguish between an expert’s testimony regarding background information and case-specific facts. The inquiry instead turned on whether the jury could properly follow the court’s limiting instruction in light of the nature and amount of the out-of-court statements admitted. For the reasons discussed below, we conclude this paradigm is no longer tenable because an expert’s testimony regarding the basis for an opinion must be considered for its truth by the jury.

C. Crawford, Hearsay, and Expert Testimony

The admission of expert testimony is governed not only by state evidence law, but also by the Sixth Amendment’s confrontation clause, which provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” (U.S. Const., 6th Amend.) As the United States Supreme Court observed, “this bedrock procedural guarantee applies to both federal and state prosecutions.” (Crawford, supra, 541 U.S. at p. 42; see Pointer v. Texas (1965) 380 U.S. 400, 406 [13 L.Ed.2d 923, 85 S.Ct. 1065].) “ ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’ ” (Davis v. Alaska (1974) 415 U.S. 308, 315-316 [39 L.Ed.2d 347, 94 S.Ct. 1105].) “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” (Id. at p. 316.)

Under previous United States Supreme Court precedent, the admission of hearsay did not violate the right to confrontation if it bore “adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” (Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 100 S.Ct. 2531].) Crawford overturned the Roberts rule. Crawford clarified that a mere showing of hearsay reliability was insufficient to satisfy the confrontation clause. “To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. . . . [¶] The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one.” (Crawford, supra, 541 U.S. at pp. 61-62.) Under Crawford, if an exception was not recognized at the time of the Sixth Amendment’s adoption (see Crawford, at p. 56, fn. 6), admission of testimonial hearsay against a criminal defendant violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. (Id. at pp. 62, 68; see Giles v. California (2008) 554 U.S. 353, 357-373 [171 L.Ed.2d 488, 128 S.Ct. 2678].)

In light of our hearsay rules and Crawford, a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term.

We turn first to the general hearsay inquiry. As discussed, some courts have attempted to avoid hearsay issues by concluding that statements related by experts are not hearsay because they “go only to the basis of [the expert’s] opinion and should not be considered for their truth.” (Montiel, supra, 5 Cal.4th at p. 919; see Coleman, supra, 38 Cal.3d at p. 92.) If statements related by experts as bases for their opinions are not admitted for their truth, they are not hearsay. Neither the hearsay doctrine nor the confrontation clause is implicated when an out-of-court statement is not received to prove the truth of a fact it asserts. (See Crawford, supra, 541 U.S. at p. 59, fn. 9; Tennessee v. Street (1985) 471 U.S. 409, 413-414 [85 L.Ed.2d 425, 105 S.Ct. 2078].)

In the context of a confrontation challenge to the admission of certain expert ‘“basis” testimony, the high court addressed the not-for-the-truth rationale in Williams v. Illinois (2012) 567 U.S. 50 [183 L.Ed.2d 89, 132 S.Ct. 2221] (Williams). Williams was a rape prosecution in which the identity of the attacker was disputed. Semen samples were collected from the rape victim and sent to a Cellmark laboratory for DNA analysis. (Id. at p. 59 [132 S.Ct. at p. 2229].) Cellmark produced a DNA profile purporting to be an accurate profile of the unknown semen donor. Independent of the rape investigation, a sample of Williams’s DNA had been acquired and entered in the state’s database. That ‘“known” sample from Williams was tested and a profile produced. (Ibid.) At trial, a prosecution expert testified that she compared Williams’s known profile to the Cellmark profile and, in her opinion, they matched. Williams objected that the Cellmark results, related to the factfinder by the expert, constituted hearsay because they were out-of-court statements by the report writer and were offered to prove their truth: that the profile was, indeed, an accurate profile of the man who committed the rape for which Williams was being tried.

Considering the hearsay question, a four-member plurality of the Williams court concluded statements in the Cellmark report were not admitted for their truth, but only to allow the judge, sitting as factfinder, to evaluate the testimony of the expert who opined that the two profiles matched. (Williams, supra, 567 U.S. at pp. 78-81 [132 S.Ct. at pp. 2240-2241] (plur. opn. of Alito, J.).) The plurality acknowledged that the prosecution expert ‘“lacked personal knowledge that the profile produced by Cellmark was based on the vaginal swabs taken from the victim,” but reasoned the expert was testifying in the manner of a hypothetical question and any linkage between the sample from the victim to the DNA profile created by Cellmark ‘“was a mere premise of the prosecutor’s question, and [the expert] simply assumed that premise to be true when she gave her answer indicating that there was a match between the two DNA profiles. There is no reason to think that the trier of fact took [the expert’s] answer as substantive evidence to establish where the DNA profiles came from.” (Id. at p. 72 [132 S.Ct. at p. 2236].)

Five justices, the four-member dissent and Justice Thomas writing separately, specifically rejected this approach. In doing so, they called into question the continuing validity of relying on a not-for-the-truth analysis in the expert witness context. Justice Thomas observed that the expert relied upon, as substantive evidence, Cellmark’s representation that, in fact, the sample it tested was that taken from the victim: “[The prosecution expert] opined that petitioner’s DNA profile matched the male profile derived from [the victim’s] vaginal swabs. In reaching that conclusion, [the expert] relied on Cellmark’s out-of-court statements that the profile it reported was in fact derived from [the victim’s] swabs, rather than from some other source. Thus, the validity of [the expert’s] opinion ultimately turned on the truth of Cellmark’s statements. The plurality’s assertion that Cellmark’s statements were merely relayed to explain ‘the assumptions on which [the expert’s] opinion rest[ed],’ [citation], overlooks that the value of [the expert’s] testimony depended on the truth of those very assumptions.” (Williams, supra, 567 U.S. at p. 108 [132 S.Ct. at p. 2258] (conc. opn. of Thomas, J.), italics added.)

The dissent also identified another hearsay problem. In addition to asserting that there was a link between the victim’s sample and the Cellmark profile, the expert also asserted, as fact, that the Cellmark test was reliable: “Nothing in [the expert’s] testimony indicates that she was making an assumption or considering a hypothesis. To the contrary, [the expert] affirmed, without qualification, that the Cellmark report showed a ‘male DNA profile found in semen from the vaginal swabs of [the victim].’ [Citation.] Had she done otherwise, this case would be different. There was nothing wrong with [the expert’s] testifying that two DNA profiles—the one shown in the Cellmark report and the one derived from Williams’s blood—matched each other; that was a straightforward application of [her] expertise. Similarly, [the expert] could have added that if the Cellmark report resulted from scientifically sound testing of [the victim’s] vaginal swab, then it would link Williams to the assault. What [the expert] could not do was what she did: indicate that the Cellmark report was produced in this way by saying that [the victim’s] vaginal swab contained DNA matching Williams’s.” (Williams, supra, 567 U.S. at p. 129 [132 S.Ct. at p. 2270] (dis. opn. of Kagan, J.), fn. omitted.)

This reasoning points out the flaw in the not-for-the-truth limitation when applied to case-specific facts. 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” (Williams, supra, 567 U.S. at p. 108 [132 S.Ct. at p. 2258] (conc. opn. of Thomas, J.)) of the hearsay statement. If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking. In Williams, the expert’s opinion that the Cellmark profile matched the defendant’s known profile could not prove that Williams was the semen donor unless the Cellmark profile was, in truth, linked to the victim and was scientifically accurate. Relevant evidence is that which has a ‘“tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) If the hearsay statements about the linkage and accuracy of the Cellmark profile were not true, the fact that the two profiles matched would have been irrelevant. That is, the fact that they matched could not have had a tendency in reason to prove the disputed fact of the rapist’s identity.

The reasoning of a majority of justices in Williams calls into question the premise that expert testimony giving case-specific information does not relate hearsay. In the context of a sufficiency of the evidence claim in a gang case, People v. Gardeley (1996) 14 Cal.4th 605 [59 Cal.Rptr.2d 356, 927 P.2d 713] (Gardeley) pointed to established law that ‘“a witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into ‘independent proof’ of any fact.” (Id. at p. 619.) However, Gardeley 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.” (Id. at p. 620.) As generally described in Gardeley, some of that testimony would be based on the expert’s own knowledge and investigation, thus admissible as personal knowledge. Some might be generally accepted background information, admissible under the latitude afforded experts. But some might relate case-specific hearsay, and thus be inadmissible. Courts, both before and after Gardeley, have applied similar reasoning to allow gang expert testimony. Gardeley s reasoning that such expert testimony is not admitted for its truth has also been cited in rejecting confrontation challenges to such testimony. (See, e.g., People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154 [94 Cal.Rptr.3d 98], and cases cited therein; see also People v. Hill (2011) 191 Cal.App.4th 1104, 1129-1131 [120 Cal.Rptr.3d 251] [criticizing Gardeley but following it].)

We find persuasive the reasoning of a majority of justices in Williams. When an expert is not testifying in the form of a proper hypothetical question and no other evidence of the case-specific facts presented has or will be admitted, there is no denying that such facts are being considered by the expert, and offered to the jury, as true. Indeed, the jury here was given a standard instruction that it “must decide whether information on which the expert relied was true and accurate.” (CALCRIM No. 332 [Expert Witness Testimony].) Without independent competent proof of those case-specific facts, the jury simply had no basis from which to draw such a conclusion. The court also confusingly instructed the jury that the gang expert’s testimony concerning “the statements by the defendant, police reports, F.I. cards, STEP notices, and speaking to other officers or gang members” should not be considered “proof that the information contained in those statements was true.” Jurors cannot logically follow these conflicting instructions. They cannot decide whether the information relied on by the expert “was true and accurate” without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true. “To admit basis testimony for the nonhearsay purpose of jury evaluation of the experts is ... to ignore the reality that jury evaluation of the expert requires a direct assessment of the truth of the expert’s basis.” (Kaye et al., The New Wigmore: Expert Evidence, supra. § 4.7.2, pp. 179-180; see Williams, supra, 567 U.S. at pp. 125-128 [132 S.Ct. at pp. 2268-2269] (dis. opn. of Kagan, J.).)

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 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.

In the present case, when the gang expert testified to case-specific facts based upon out-of-court statements and asserted those facts were true because he relied upon their truth in forming his opinion, he was reciting hearsay. Ordinarily, an improper admission of hearsay would constitute statutory error under the Evidence Code. Under Crawford, however, if that hearsay was testimonial and Cranford’s exceptions did not apply, defendant should have been given the opportunity to cross-examine the declarant or the evidence should have been excluded. Improper admission of such prosecution evidence would also be an error of federal constitutional magnitude.

Our 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 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. Our conclusion restores the traditional distinction between an expert’s testimony regarding background information and case-specific facts.

The Attorney General relies on “practical considerations” to support a contrary conclusion. The argument misses the mark. The Attorney General urges that excluding the content of testimonial hearsay would greatly hamper experts from giving opinions about gangs. The argument sweeps too broadly. Gang experts, like all others, can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code. They can rely on information within their personal knowledge, and they can give an opinion based on a hypothetical including case-specific facts that are properly proven. They may also rely on nontestimonial hearsay properly admitted under a statutory hearsay exception. What they cannot do is present, as facts, the content of testimonial hearsay statements. “[T]he confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial.” (People v. Cage (2007) 40 Cal.4th 965, 984 [56 Cal.Rptr.3d 789, 155 P.3d 205] (Cage).) Thus, only when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment.

Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert’s testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the “matter” upon which his opinion rests. A jury may repose greater confidence in an expert who relies upon well-established scientific principles. It may accord less weight to the views of an expert who relies on a single article from an obscure journal or on a lone experiment whose results cannot be replicated. There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception.

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. It may be true that merely telling the jury the expert relied on additional kinds of information that the expert only generally describes may do less to bolster the weight of the opinion. The answer to this reality is twofold. First, the argument confirms that the proffered case-specific hearsay assertions are being offered for their truth. The expert is essentially telling the jury, “You should accept my opinion because it is reliable in light of these facts on which I rely.” Second, in a criminal prosecution, while Crawford and its progeny may complicate some heretofore accepted evidentiary rules, they do so under the compulsion of a constitutional mandate as established by binding Supreme Court precedent.

In sum, we adopt 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.

D. Testimonial Nature of the Statements in This Case

1. Legal Background

That holding brings us to the second prong of the analysis in this criminal case. If an out-of-court statement is hearsay because it is being offered for the truth of the facts it asserts, is that statement testimonial hearsay? Throughout its evolution of the Crawford doctrine, the high court has offered various formulations of what makes a statement testimonial but has yet to provide a definition of that term of art upon which a majority of justices agree. Crawford itself provided no definition other than that the term “testimonial” “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” (Crawford, supra, 541 U.S. at p. 68.) Crawford described the historical abuses leading to the adoption of the confrontation right, including the civil law practice of “requiring] justices of the peace to examine suspects and witnesses in felony cases and to certify the results to the court,” which “came to be used as evidence in some cases.” (Id. at p. 44.) Crawford clarified that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” (Id. at p. 50.)

Crawford was prosecuted for stabbing a man who allegedly tried to rape his wife. After Crawford’s arrest, both he and his wife were interviewed by police at the stationhouse. The wife did not testify but the court admitted her statements about the stabbing. Crawford concluded that “[sjtatements taken by police officers in the course of interrogations are . . . testimonial under even a narrow standard.” (Crawford, supra, 541 U.S. at p. 52.) Even if the interviews were not given under oath, if officers conducting them acted like the fact-collecting justices of the peace, the content of their reports was testimonial.

As the Crawford doctrine evolved, the court concluded that not all statements made in response to police questioning would constitute testimonial hearsay. In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224, 126 S.Ct. 2266] (Davis), the first of two companion cases (No. 05-5224), a woman called 911 seeking help because her boyfriend was in the process of beating her. The caller did not testify but her hearsay statements to the dispatcher were admitted in Davis’s subsequent trial. The court concluded that even though the statements were made to a police employee, and some were made in response to the dispatcher’s questions, the caller’s statements were not testimonial. In doing so, the high court articulated a test based on the “primary purpose” for which the statements are made. “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822, italics added.) The Davis court concluded the statements were not testimonial because “the circumstances of [the] interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency.” (Id. at p. 828.)

The Davis holding was set out in contrast to its companion case, Hammon v. Indiana (No. 05-5705) (Hammon). In Hammon, police were sent to a home following a report of domestic violence. They were met by Mrs. Hammon, who initially reported that there had been no problem. When interviewed outside her husband’s presence, she acknowledged he had attacked her. An officer had her “ ‘fill out and sign a battery affidavit’ ” describing the assault. (Davis, supra, 547 U.S. at p. 820.) Mrs. Hammon declined to testify at the subsequent bench trial but the interviewing officer related her statements and “authenticate[d]” her signed affidavit. (Ibid.) The high court concluded the statements were testimonial hearsay. “It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct” and “[t]here was no emergency in progress . . . .” (Id. at p. 829.) Although acknowledging the in-the-field interview was less formal than the station house questioning in Crawford, the court nevertheless reasoned “[i]t was formal enough” and “[s]uch statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.” (Id. at p. 830.)

Michigan v. Bryant (2011) 562 U.S. 344 [179 L.Ed.2d 93, 131 S.Ct. 1143] (Bryant) repeated the principle that a statement is testimonial if made “with a primary purpose of creating an out-of-court substitute for trial testimony.” (Id. at p. 358.) There, in response to a dispatch, officers came upon a badly injured shooting victim lying in a parking lot. The victim answered questions about the circumstances, location, and perpetrator of the shooting. The victim died and Bryant was charged with his murder. The parking lot statements were admitted and the high court ruled they were not testimonial. Bryant refined the “primary purpose” standard by emphasizing the test is objective and takes into account the perspective of both questioner and interviewee: “[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.” (Id. at p. 360.) In concluding the shooting victim’s statements to police were nontestimonial, Bryant observed that the officers’ questioning of the victim was objectively aimed at meeting an ongoing emergency. (Id. at pp. 374-376.) The victim’s responses indicated the shooter’s whereabouts were unknown and there was ‘“no reason to think that the shooter would not shoot again if he arrived on the scene.” (Id. at p. 377.) Finally, the court observed that the circumstances in which the statements were made were far from formal. The scene was chaotic; the victim was in distress; no signed statement was produced. (Ibid.; see People v. Blacksher (2011) 52 Cal.4th 769, 816-818 [130 Cal.Rptr.3d 191, 259 P.3d 370].)

A majority in Davis, Hammon, and Bryant adopted the distinguishing principle of primary purpose. Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial. It should be noted that Justice Thomas has consistently rejected the primary purpose test. He criticized the test as being “not only disconnected from history and unnecessary to prevent abuse” but also “yielding] no predictable results to police officers and prosecutors attempting to comply with the law.” (Davis, supra, 547 U.S. at p. 838 (conc. & dis. opn. of Thomas, J.).) He reasoned that determining the primary purpose of a statement “requires constructing a hierarchy of purpose that will rarely be present—and is not reliably discernible. It will inevitably be, quite simply, an exercise in fiction.” (Id. at p. 839.) Instead of the primary purpose test, Justice Thomas has consistently applied a test turning solely on whether the proffered statement was sufficiently formal to resemble the disapproved civil law procedure reflected, inter alia, in the “Marian statutes” that permitted use of an ex parte examination to establish facts. (See Crawford, supra, 541 U.S. at pp. 50-53.) In Davis, Justice Thomas described the degree of formality required as questioning resulting from a “formalized dialogue” or the taking of statements “sufficiently formal to resemble the Marian examinations” (Davis, at p. 840) but not “a mere conversation between a witness or suspect and a police officer” (id. at p. 838). (See Williams, supra, 567 U.S. at pp. 109-113 [132 S.Ct. at pp. 2259-2261] (conc. opn. of Thomas, J.); Bryant, supra, 562 U.S. at pp. 378-379 (conc. opn. of Thomas, J.).)

The high court stepped beyond the realm of police questioning and applied Crawford to scientific test results in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2d 314, 129 S.Ct. 2527] (Melendez-Diaz), and Bullcoming v. New Mexico (2011) 564 U.S. 647 [180 L.Ed.2d 610, 131 S.Ct. 2705] (Bullcoming). In Melendez-Diaz, crime lab analysts prepared documents certifying that a sample of material recovered from the defendant was tested and determined to contain an illegal drug. The certificates were sworn to before a notary public, as required by state law, and admitted at trial in lieu of the analyst’s testimony. (Melendez-Diaz, at p. 308.) The high court reasoned the certificates “are quite plainly affidavits” (id. at p. 310) and “are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination’ ” (id. at pp. 310-311). The court concluded: “[U]nder our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment.” (Id. at p. 311.)

In Bullcoming, an analyst tested the blood sample of an alleged drunk driver. In his lab report, the analyst attested he performed the test using normal protocol and signed the report. The report was admitted into evidence through a surrogate analyst “who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcom-ing’s blood sample.” (Bullcoming, supra, 564 U.S. at p. 651.) Bullcoming rejected the argument that an opportunity to cross-examine the surrogate analyst satisfied Crawford and Melendez-Diaz. Bullcoming noted that the testing analyst reported several facts relating to past events and human actions rather than machine-produced data. The analyst’s statements were “meet for cross-examination” (Bullcoming, at p. 660), yet the “surrogate testimony . . . could not convey what [the analyst] knew or observed about the events his certification concerned, i.e., the particular test and testing process [the analyst] employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part” (id. at pp. 661-662, fn. omitted). Bullcoming also rejected the claim that the lab report was nontesti-monial. Even though the report was not a formal affidavit, as in Melendez-Diaz, it was a sufficiently formal and official document “created solely for an ‘evidentiary purpose,’ . . . made in aid of a police investigation, [and so] ranks as testimonial.” (Id. at p. 664.)

The next case in the evolution of the doctrine was Williams. As an alternative to its not-for-the-truth hearsay analysis, the plurality modified the “primary purpose” testimonial test by reasoning the Cellmark report “was not prepared for the primary purpose of accusing a targeted individual.” (Williams, supra, 567 U.S. at p. 83 [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.), italics added.) The Williams plurality stated: “[T]he primary purpose of the Cellmark report, viewed objectively, was not to accuse petitioner or to create evidence for use at trial. When the [police] lab sent the sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time. Similarly, no one at Cellmark could have possibly known that the profile that it produced would turn out to inculpate petitioner—or for that matter, anyone else whose DNA profile was in a law enforcement database. Under these circumstances, there was no ‘prospect of fabrication’ and no incentive to produce anything other than a scientifically sound and reliable profile.” (Id. at pp. 115-116 [132 S.Ct. at pp. 2243-2244], italics added.)

Both Justice Thomas’s concurrence and the dissent criticized the plurality’s expansion of the primary purpose test. Justice Thomas objected that the plurality’s “reformulated” primary purpose test “lacks any grounding in constitutional text, in history, or in logic.” (Williams, supra, 567 U.S. at p. 114 [132 S.Ct. at p. 2262] (conc. opn. of Thomas, J.).) The four dissenters agreed there was “no basis in our precedents” for the new test. (Id. at p. 135 [132 S.Ct. at p. 2273] (dis. opn. of Kagan, J.).) Justice Thomas reasoned in part that “a declarant could become a ‘witnes[s]’ before the accused’s identity was known.” (Id. at p. 115 [132 S.Ct. at p. 2262] (conc. opn. of Thomas, J.).) Similarly, the dissent observed that “the typical problem with laboratory analyses—and the typical focus of cross-examination—has to do with careless or incompetent work, rather than with personal vendettas. And as to that predominant concern, it makes not a whit of difference whether, at the time of the laboratory test, the police already have a suspect.” (Id. at pp. 135-136 [132 S.Ct. at p. 2274] (dis. opn. of Kagan, J.), fn. omitted.) Both the concurrence and dissent also criticized the plurality’s conclusion that an emergency existed because the test was done “to catch a dangerous rapist who was still at large.” (Id. at p. 53 [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.).) The separate opinions noted the DNA testing was conducted several months after the rape. (See id. at p. 116 [132 S.Ct. at p. 2263] (conc, opn. of Thomas, J.); id. at pp. 136-137 [132 S.Ct. at p. 2274] (dis. opn. of Kagan, J.).) The dissent would have concluded the Cellmark report was testimonial under the reasoning of Melendez-Diaz and Bullcoming. (Id. at pp. 140-141 [132 S.Ct. at p. 2277] (dis. opn. of Kagan, J.).)

While Justice Thomas agreed with the plurality that the report was not testimonial, he did so on the narrow ground that the statement was not sufficiently formal. The report lacked “the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact,” and also did not “attest that its statements accurately reflect the DNA testing processes used or the results obtained.” (Williams, supra, 567 U.S. at p. 111 [132 S.Ct. at p. 2260] (conc. opn. of Thomas, J.).) He also reasoned “it was not the product of any sort of formalized dialogue resembling custodial interrogation.” (Ibid.)

Our court applied Williams in the companion cases of People v. Lopez (2012) 55 Cal.4th 569 [147 Cal.Rptr.3d 559, 286 P.3d 469] (Lopez) and People v. Dungo (2012) 55 Cal.4th 608 [147 Cal.Rptr.3d 527, 286 P.3d 442] (Dungo). Lopez involved a vehicular manslaughter prosecution. A criminalist, Willey, testified that a colleague from his lab, Pena, had analyzed a sample of the defendant’s blood and concluded the blood-alcohol level was 0.09 percent. Willey was familiar with the procedures Pena used and, “based on his own ‘separate abilities as a criminal analyst,’ he too concluded that the blood-alcohol conce