Opinion
G049687
04-11-2017
THE PEOPLE, Plaintiff and Respondent, v. FREDDY GUERRERO, Defendant and Appellant.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10NF1477) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Freddy Guerrero of prohibited possession of a firearm and ammunition (former Pen. Code, §§ 12021, subd. (a)(1); 12316, subd. (b)(1)) because he had a prior felony conviction, and found true the penalty enhancement allegation that he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Guerrero admitted in a bifurcated proceeding that the prior conviction qualified as a serious felony (§ 667, subd. (a)(1)) and a sentencing strike (§§ 667, subds. (d), (e)(1); 1170.12, subd. (b), (d)(1)). The trial court sentenced Guerrero to an aggregate prison term of 15 years, consisting of six years as the upper term for felony firearm possession, four years for the gang enhancement on that offense, and five years for the prior strike; the court imposed a concurrent term for the ammunition possession and associated gang enhancement. Guerrero raises several contentions on appeal that boil down to a challenge to the sufficiency of the evidence to support the gang enhancement, including error in failing to exclude portions of a gang expert's testimony based on his objection under the Confrontation Clause. (U.S. Const., 5th & 14 Amends.)
In our original opinion, we observed that Guerrero's confrontation challenge to the gang expert's reliance on hearsay statements by Guerrero's fellow gang members failed under then-controlling case law, but the Supreme Court was reviewing the viability of that precedent in People v. Sanchez (2014) 223 Cal.App.4th 1, review granted May 14, 2014, S216681. In any event, we upheld the judgment based on the overwhelming evidence Guerrero harbored a gang-related purpose in his possession offenses. The Supreme Court granted Guerrero's petition for review, held the matter pending its decision in Sanchez, and now has transferred the case for our review under its opinion in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). As we explain, even absent the gang expert testimony Guerrero challenged on confrontation grounds, the evidence supporting the gang enhancement remains overwhelming. Consequently, error in failing to exclude the evidence was harmless, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
An Anaheim police officer watched the back of Guerrero's apartment while other investigators approached the front to conduct a parole search. Prior police contacts suggested Guerrero was a South Side Brown Demons (SSBD) gang member. He opened a sliding glass door and placed a backpack in the corner of the back balcony patio before answering the officers' knock at the front door. The officers retrieved the backpack from the balcony and found inside: a .25-caliber semiautomatic handgun wrapped in a brown bandana; a box containing nine live rounds of .25-caliber ammunition; several clear, empty baggies; an official police report relating to SSBD gang member Dominique Duran, and parole paperwork from the California Board of Prison Terms concerning Duran. The handgun's magazine contained five live rounds.
The investigators also searched Guerrero's bedroom and found numerous items of gang-related paraphernalia, including a pair of sunglasses on which the letters "ABDR" were etched, which a gang expert later explained stood for "Anaheim Brown Demons Rifa," a common SSBD sign or symbol asserting that the gang "ruled" or was "triumphant." They also found a belt buckle in a style common among gang members based on association with the gang's name or a geographical region, in this case an "A" for Anaheim.
Gang graffiti littered Guerrero's room on pieces of paper, letters, a photo album, and phone books. At trial, a gang expert deciphered the graffiti, including "SXS BD 13 A," in which "SXS" stood for "South Side," "BD" meant "Brown Demons," "13" referred to "M" as the 13th letter of the alphabet and stood for "Mexican Mafia," a powerful prison gang, and the "A" stood for "Anaheim." Other papers contained common gang details recorded in graffiti, including Guerrero's street name ("Oso"), references to the geographic region ("Southern California Anaheim," "Anaheim," and "Orange County"), and abbreviations for gang entities including the Anaheim Southside Mexican Mafia and the Brown Demons. The photo album restated geographical references, and included the numbers "77" and "23," which stood for "South Side Brown Demons" based on a standard telephone keypad, on which the user presses "7" for "S," "2" for "B," and "3" for "D." The photo album contained snapshots of individuals the police suspected were SSBD gang members or associates.
An investigator found in Guerrero's dresser drawer a wallet belonging to Ruben Orgaz, which had been stolen during an armed robbery committed four days earlier by SSBD gang members. Along with the wallet, the police located Orgaz's birth certificate, social security card, driver's license, other identification cards, a credit card, and Orgaz's missing cell phone. The search also turned up a pellet gun wrapped in a brown bandana.
The officers arrested Guerrero and as part of the booking process, examined his tattoos, which included an Anaheim Ducks logo tattooed on his right forearm; tattoos of the letters "B" and "D," one on each tricep, with a star under the "D"; the letter "S" tattooed both on his left middle finger and left ring finger; and his mother's name "Beatriz" tattooed over his heart.
When the police returned Orgaz's phone, Orgaz noticed a new screensaver displaying the numbers "714" for the Anaheim area code, a new homepage photograph, and other photographs he had not taken, including pictures of Guerrero and of a star shape with the words "Anaheim Orange County" on it. Orgaz also found new numbers in the contact list and text messages he had not sent. At trial, Guerrero's girlfriend admitted Guerrero had sent her messages from the phone and she used the phone to take photographs of Guerrero.
Forensic analysis showed Guerrero was the major contributor of DNA on the trigger of the .25-caliber gun. Consistent with a gang gun, DNA strands from multiple people were found on the gun's slide, magazine, and trigger. At trial, a gang expert explained that a gun belonging to a gang is held for safekeeping only by trusted gang members. The gang's active participants will know the location of the gun, and will be able to retrieve it when needed. The expert explained gangs value guns to intimidate the community in their neighborhood or geographic areas they claim as their domain, and they use guns to commit crimes against the general public, law enforcement officers, and rival gang members, as well as in self-defense. The expert also explained only a member in good standing in a gang is permitted to obtain a tattoo that includes the gang's name or its signs or symbols. A nonmember receiving or attempting to obtain such a tattoo would face gang retaliation.
The gang expert provided background information about SSBD, including demographics (about 40 members), claimed territory (multiple Anaheim locations), and the gang's preference for brown or blue as an identifying color. The expert also explained the gang's common symbols or signs included "SSBD," sometimes including a "V" for "Varrio" to designate the gang's claim to a neighborhood or "turf." SSBD members often added in graffiti the letter "R" for "Rifa" or "Rifamos," meaning "the best" or as a reigning claim to "my area," and added "LS" for "locos" or "locates," meaning "crazy" or "crazy ones," and the numbers "7723." The expert testified that SSBD engaged in a pattern of criminal gang activity and its primary activities included felony possession of firearms and vandalism.
The expert opined that Guerrero was an active SSBD gang member at the time of his alleged firearm and ammunition possession offenses. He noted law enforcement officers had contacted Guerrero several times with other SSBD members in SSBD's claimed territory, Guerrero wore SSBD gang tattoos, etched symbols of the gang on his sunglasses and owned other gang-typical clothing, including his belt buckle. His room and possessions were rife with the gang's graffiti, photographs of other gang members, and letters discussing gang matters. He also possessed: (1) both a firearm and pellet gun wrapped in brown bandanas, the gang's color, and (2) the parole paperwork and a police report concerning an influential fellow gang member. Additionally, he possessed and used Orgaz's phone, which had been stolen in a gang confrontation and included photographs since the robbery depicting SSBD symbols.
Presented with a hypothetical based on the facts of the case, the expert concluded the firearm and ammunition possession offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. The expert also concluded the crimes would promote or assist in criminal conduct by the gang.
Guerrero's sister, with whom he lived, testified their mother's initials were "BD" for Beatriz Duran. She explained Guerrero obtained a tattoo of the Anaheim Ducks logo because he attended their hockey games and not for any geographical association. She knew nothing of the South Side Brown Demons and was not aware of Guerrero's involvement in any gang. According to her testimony, guns were not allowed in their home, and she had never seen Guerrero with a gun.
II
DISCUSSION
A. Substantial Evidence Supports the Gang Enhancements
Guerrero challenges the sufficiency of the evidence to support the gang enhancements on his firearm and ammunition possession offenses. He contends the gang expert exceeded the bounds of a proper hypothetical in opining possession mirroring the facts of this case benefited a gang and, absent the expert's bare opinion, the evidence did not support the enhancements. We are not persuaded.
An appellant challenging the sufficiency of the evidence "bears an enormous burden." (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) It is the jury's exclusive province to weigh the evidence, assess the credibility of the witnesses, and resolve conflicts in the testimony. (Ibid.) The reviewing court must view the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the verdict (People v. Johnson (1980) 26 Cal.3d 557, 577; Jackson v. Virginia (1979) 443 U.S. 307, 318), not whether the appellate panel is persuaded the defendant is guilty beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Accordingly, we must presume in support of the judgment the existence of facts reasonably drawn by inference from the evidence. (Ibid.; see People v. Stanley (1995) 10 Cal.4th 764, 792 [same deferential standard of review applies to circumstantial evidence].) The fact that circumstances can be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Guerrero argues the expert strayed outside the bounds of a proper hypothetical by using a proper name, i.e., Dominique Duran, the name of the SSBD gang member on the police report and parole paperwork recovered in Guerrero's backpack. In effect, Guerrero challenges the transparency of the expert's opinion concerning a hypothetical gang member's possession of a gun for the benefit of his or her gang. Because the hypothetical included Duran's name, Guerrero reasons the hypothetical could refer to no one but Guerrero. Not so. The expert did not refer to Guerrero by name (see People v. Killebrew (2002) 103 Cal.App.4th 644), and by its strict terms, the expert's opinion did not — as Guerrero claims — invade the jury's province by declaring his guilt. (See also People v. Vang (2011) 52 Cal.4th 1038, 1048, fn. 4 [observing that "in some circumstances, expert testimony regarding the specific defendants might be proper"].)
More to the point, the Supreme Court has endorsed the use of hypotheticals over defense protests of transparency precisely because an expert's testimony must "'be rooted in facts shown by the evidence.' [Citations.]" (Vang, supra, 52 Cal.4th at p. 1045.) Accordingly, an expert's opinion based on hypothetical facts must "be based on what the evidence showed these defendants did, not what someone else might have done." (Id. at p. 1046, original italics.)
Guerrero attempts to distinguish Vang because the expert and the prosecutor there used no proper names, but Guerrero's thin distinction based only on relatively greater or lesser transparency fails. Our high court has squarely rejected as "clearly unwarranted" challenges to hypotheticals "thinly disguis[ing] the fact they were based on the evidence." (Vang, supra, 52 Cal.4th at pp. 1049-1050, fn. 5.) An expert opinion on an ultimate issue is not necessarily forbidden where it aids the jury on unfamiliar topics, but only when it is "unhelpful" because the jury does not need expert help in deciding the issue. (See, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3 [expert properly may testify concerning typical gang member motivations and intent, though this touches on ultimate issues of motive and intent].) Vang concluded "[i]t has long been settled that expert testimony regarding whether a crime was gang related is admissible" (Vang, at p. 1049, fn. 5), and we are bound by that conclusion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Of course, an expert's opinion "'is no better than the facts on which it is based.'" (People v. Gardeley (1996) 14 Cal.4th 605, 618, disapproved on another ground in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Guerrero asserts no jury reasonably could conclude on the facts here that he possessed the firearm or ammunition for his gang's benefit. Section 186.22, subdivision (b)(1), authorizes a sentencing enhancement for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." A gang expert's bare unsupported opinion is insufficient to find an offense gang related. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) "[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang." (People v. Martinez (2004) 116 Cal.App.4th 753, 762, original italics.)
Guerrero relies on In re Frank S. (2006) 141 Cal.App.4th 1192 for his claim "the evidence outside expert opinion was insufficient to support the gang enhancement." Frank S. is readily distinguishable. There, an officer detained a minor for failing to stop his bicycle at a red light. The minor was carrying a knife, a small bindle of methamphetamine, and a red bandana. The minor claimed he carried the knife for protection against a local gang, and later admitted he was affiliated with a rival gang. The prosecution's expert testified that carrying the knife benefited the minor's gang by providing them protection if confronted by a rival gang. (Id. at pp. 1195-1196.) The only evidence that the minor had any reason to expect to use the knife in a gang-related offense was his statement to the arresting officer that he had been jumped two days earlier and needed the knife for protection. (Id. at p. 1199.) The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. (Ibid.) The appellate court emphasized the evidence showed no more than the minor's affiliation with a gang, and membership alone does not establish the requisite specific intent. (Ibid.) The court therefore determined insufficient evidence supported the gang enhancement, explaining "nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife." (Ibid.)
In Frank S., the prosecution's gang expert failed to present evidence connecting the minor's possession of the knife to criminal conduct by members of his gang, such as evidence the minor's gang used knives to commit crimes. (See People v. Ramon (2009) 175 Cal.App.4th 843, 853 [noting link where defendant's offense coincides with gang's primary activities].) Notably, one of Guerrero's gang's primary activities was felonious firearm possession.
Nor did Frank S. involve a gang gun or the overwhelming gang evidence permeating Guerrero's possession offense here. Unlike in Frank S., the gang expert in this case explained the importance of guns to gangs to project force and intimidate the community and rivals, whether a specific offense is planned or not. The expert here also explained a gang gun is held only by trusted members, and is accessible by other members through that person as a conduit.
Guerrero's active participation in his gang stands in contrast to the minor's affiliate status in Frank S., strengthening the inference Guerrero held the gun with the intent to promote, further, or assist the criminal conduct of his fellow gang members. A reasonable jury could infer the multiplicity of DNA evidence on the gun helped mark it as a gang gun, and the brown bandana in which Guerrero kept it clearly tied it to his gang. While the minor in Frank S. also had a bandana, it bore no obvious relation to the knife the minor carried, nor was there any supporting concept or evidence of a knife as a group weapon entrusted to a key member. The minor's possession in Frank S. did not occur in gang territory, but Guerrero kept his gun in an area he saturated with gang indicia, including graffiti and gang paraphernalia. He did not segregate the gun in any manner suggesting personal use, but instead kept it with other gang-related items, including parole and police paperwork directly bearing on his gang. The evidence amply supported the enhancements. B. Defendant's Right to Confront Witnesses
Guerrero contends the trial court erred by rejecting his pretrial motion to exclude on confrontation grounds the gang expert's reliance on statements two of Guerrero's compatriots made in field contacts with police about their SSBD involvement. These contacts occurred in separate incidents in 2008, well before Guerrero was arrested on the present charges. Guerrero contends statements in which others allegedly admitted their affiliation with SSBD implicated him in this trial as an active participant in the gang based on his association with admitted SSBD gang members. Indeed, the gang expert relied on the statements for that very reason, as a basis for his conclusion Guerrero was an active SSBD gang member.
Guerrero argues his failure to object at trial when the expert referenced one or more of those statements does not forfeit his claim because it would have been futile to object, since the trial court denied his pretrial motion. At the time, the court ruled the Sixth Amendment was not implicated by "these statements that were made to the police by other individuals" because they "are not being used here for the truth of the matter asserted. They're here being used for a different purpose, as a basis for the [expert]'s opinion."
"The general rule is that 'when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal' [citation], although a sufficiently definite and express ruling on a motion in limine may also serve to preserve a claim. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 547.) Evidence Code section 353 prohibits reversal for erroneous admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion."
Here, even assuming Guerrero's pretrial motion preserved his confrontation claim despite his failure at trial to renew his objection, his argument is unavailing. As we noted in our original opinion, the issue of whether statements underlying an expert's opinion may implicate the confrontation clause was pending in the Supreme Court in People v. Sanchez, supra, S216681. We explained that in the meantime, we were bound by the high court's conclusion in Gardeley that statements testified to by a gang expert as the basis of an opinion do not constitute hearsay because they are not offered for their truth. (Gardeley, supra, 14 Cal.4th at p. 619; but see People v. Hill (2011) 191 Cal.App.4th 1104, 1127 [concluding such statements are necessarily offered for their truth, but finding Gardeley binding].) Statements not offered for their truth, i.e., nonhearsay, do not trigger a defendant's right of confrontation. (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 (Crawford).)
Sanchez overruled Gardeley to the extent it allowed an expert to relate "case-specific" hearsay statements to the jury under the guise of foundation for the expert's opinion. (Sanchez, 63 Cal.4th at p. 686, fn. 13.) "Case-specific" facts concern "the particular events and participants alleged to have been involved in the case being tried" (id. at p. 676), as opposed to an expert's "general knowledge in his field of expertise" (ibid.). In Sanchez, the prosecution's gang expert opined the defendant was an active member of a criminal street gang and based his opinion on various hearsay statements concerning the defendant's alleged gang ties recited in police reports, a Street Terrorism Enforcement and Prevention Act (STEP) notice, and a field identification (FI) card. (Id. at pp. 671-673.) In the course of the expert's testimony, he recounted each of the hearsay statements to the jury. (Ibid.)
Overruling Gardeley, the Sanchez court explained: "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." (Sanchez, supra, 63 Cal.4th at p. 686.) Consequently, Sanchez also held: "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." (Ibid., original italics.)
Here, the Attorney General concedes the two statements Guerrero sought in his pretrial motion to preclude the gang expert from relaying to the jury amounted to testimonial hearsay, but their admission was harmless. We agree Guerrero's bid for reversal fails for this reason. Specifically, the statements consisted of separate acknowledgments by Charlie Barajas and Alex Alvarado in separate police contacts in 2008 that each associated with the SSBD gang. Guerrero was present on both occasions. The prosecution's gang expert relayed the details of both contacts to the jury, including that the police arrested Barajas and Alvarado, respectively, during those contacts. The jury could not help but conclude the expert recounted Barajas's and Alvarado's admissions they were SSBD members as true statements because the expert relied on those admissions as part of the basis for his opinion Guerrero too was an SSBD gang member, since Barajas and Alvarado each permitted him to accompany them while engaged in criminal activity. Under Sanchez, the statements therefore were offered for their truth and constituted hearsay.
The Attorney General also concedes the statements were testimonial, like similar statements analyzed in Sanchez, because they were obtained and documented by officers while investigating criminal activity. As Sanchez explained, "When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.) True, the statements did not inculpate Guerrero directly. But a plurality opinion attempting to draw such a distinction in high court precedent (Williams v. Illinois (2012) 567 U.S. 50, 132 S.Ct. 2221, 2243 [plur. opn. of Alito, J.]) was expressly rejected by a majority of justices in that case (id. at pp. ___, 132 S.Ct. at p.. 2261-2263 [conc. opn. of Thomas, J.]; 132 S.Ct. at p.. 2273-2274 [dis. opn. of Kagan, J.]). Sanchez explained, "As those justices reasoned, the plurality's 'targeted individual' addendum has no basis in the language of the confrontation clause, its history, or post-Crawford jurisprudence." (Sanchez, supra, 63 Cal.4th at p. 695.)
Although Barajas's and Alvarado's statements constituted testimonial hearsay, admission of those statements through the gang expert's testimony in this case, and over Guerrero's pretrial objection, was harmless beyond a reasonable doubt. (See Sanchez, supra, 63 Cal.4th at p. 698 [beyond a reasonable doubt standard of error applies to violations of 6th Amend. confrontation right].) As discussed, the evidence supporting the gang enhancement for Guerrero's firearm and ammunition possession offenses was overwhelming. He wrapped the gun with a brown bandana, his gang's identifying color, and stored it and ammunition in a backpack containing parole paperwork and a police report concerning one of his gang's prominent members, Dominique Duran. The gang expert did not read any of the paperwork to the jury, but properly highlighted Duran's SSBD role, having personally arrested him several times. (See Sanchez, at p. 685 [experts may "rely on information within their personal knowledge"].) DNA from several individuals on the gun marked it as a gang gun rather than solely for Guerrero's use, and Guerrero stored the backpack containing the gun and ammunition in an area he saturated with paraphernalia inscribed with gang markings, including a planner, photo album, sunglasses, and a belt, photographs of individuals wearing gang colors, and documents containing gang graffiti. (See Sanchez, at p. 677 [gang expert properly may testify to the meaning of symbols used by gangs, beyond jurors' common experience].)
In his supplemental brief upon transfer from the Supreme Court, Guerrero seeks to expand his confrontation challenge far beyond his objection below. In addition to Barajas's and Alvarado's statements, he now claims the gang expert erroneously conveyed to the jury other testimonial hearsay, including that Guerrero's gang moniker was "Oso," that certain individuals who wrote letters to Guerrero or appeared in photographs in Guerrero's possession were gang members, and that the expert relied on a "gang intelligence book" comprised of information he and other officers collected on SSBD and its members. Guerrero now contends all this information was derived from testimonial hearsay, including police reports, "street checks," and other allegedly hearsay sources the expert did not prepare personally, but which he relied upon in forming his opinions that Guerrero was an active SSBD member and committed his possession offenses for SSBD's benefit.
Guerrero asserts these new confrontation challenges are now cognizable on appeal because "certain fundamental constitutional rights are not forfeited by failure to object." But there is no such exception under the confrontation clause. (See, e.g., Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313, fn. 3 ["The right to confrontation may, of course, be waived, including by failure to object to the offending evidence"].)
Guerrero also seeks to avoid forfeiture on grounds it would have been futile to object because the trial court overruled his pretrial objection to similar evidence (Barajas's and Alvarado's statements). He argues no objection is required when it "is based on a change in the law that the appellant could not reasonably have been expected to foresee." (Quoting Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1334.) Of course, the fact that Guerrero did object to some of the evidence on confrontation grounds undercuts his claim he could not have foreseen objecting on that basis, which supports forfeiture.
Moreover, the purpose of requiring a specific objection (Evid Code, § 353) is to "alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility." (People v. Williams (1988) 44 Cal.3d 883, 906, italics added.) Withholding an objection or expanding its scope on appeal is unfair to the trial court and opposing counsel precisely because neither is able to address the contention. In particular, a prosecutor faced with such an objection may choose to expand the gang evidence with "independent competent proof" of the challenged basis for the expert's opinions. (Sanchez, supra, 63 Cal.4th at p. 684 ["Alternatively, the evidence can be admitted through an appropriate witness"].) Additionally, a sustained objection may affect the weight of an expert's opinion in that he or she may not relate case-specific material that supports it, but that does not preclude the opinion altogether. As the Supreme Court explained in Sanchez, while "merely telling the jury the expert relied on . . . information that the expert only generally describes may do less to bolster the weight of the opinion" than conveying for its truth the underlying testimonial hearsay, "[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Id. at pp. 685-686, original italics.)
We therefore conclude Guerrero's attempt to raise new confrontation challenges on appeal is forfeited. Even assuming they are not forfeited, any error was harmless beyond a reasonable doubt. In particular, Guerrero fails to establish the alleged hearsay evidence he now complains about was testimonial in nature, as required for a valid confrontation claim. In any event, the additional evidence Guerrero now challenges supplemented the valid gang evidence that we have already explained overwhelmingly supported the gang enhancements. Guerrero's new claims on appeal therefore furnish no basis for reversal. C. Right to Cross-Examine the Expert
Guerrero argues the trial court infringed his right to cross-examine the gang expert on an asserted alternate meaning for the "SS" tattoo on his fingers, which the expert opined stood for "South Side" in short and, in full, Guerrero's South Side Brown Demons gang. On cross-examination, Guerrero asked the expert if the initials had a different meaning, referencing a police report of an interview with Guerrero when he was arrested. The prosecutor objected, and in a sidebar conference, explained Guerrero claimed in the interview that "SS" were the initials of a former girlfriend. The prosecutor objected to Guerrero's attempt to cross-examine the expert as a backhanded way of "getting into [Guerrero's] statement." The prosecutor also objected to Guerrero's alternate explanation in the police report as self-serving hearsay unworthy of credence.
Constrained by Gardeley, defense counsel did not attempt to gain admission of the statement for its truth, but to cross-examine the gang expert on whether he considered evidence of alternate meanings for Guerrero's "SS" tattoo. The trial court rejected the distinction, concluding "it would be used for the truth of the matter asserted that it really stands for a girlfriend [and] not for south side. [¶] So I think that would be — elicit[ing] hearsay. If counsel simply wants to ask hypothetically if it's possible that there could be an explanation — an alternate explanation for SS, he can ask it. And if he wants to ask do you know whether the defendant ever had a girlfriend by the name of, what's — whatever, then I think counsel can ask that too." The court observed, "[B]ut as I said, asking [about] the defendant's statement to the police . . . would I think elicit hearsay."
Under Gardeley, as discussed, statements informing an expert's opinion were not admitted for their truth, and therefore in contradiction to the trial court's ruling, could not constitute hearsay. There is thus inescapable tension in the trial court's rulings that placed before the jury as nonhearsay the inculpatory gang-affiliation statements of Guerrero's cohorts, but excluded as hearsay Guerrero's exculpatory police statement explaining the "SS" initials.
The trial court also erred in denying Guerrero the right to impeach the gang expert on grounds the expert selectively relied only on inculpatory hearsay statements in forming his opinions, and ignored contrary statements like Guerrero's explanation for his "SS" tattoo. As trial counsel explained, Guerrero was entitled to point out to the jury the expert's alleged bias. Like any other witness, an expert's credibility is at issue, and therefore the expert is subject to questioning that may disclose bias. (Evid. Code § 780, subd. (f).) A witness may be impeached with "any matter that has any tendency in reason to prove or disprove the truthfulness of [the witness's] testimony at the hearing" (Evid.Code, § 780), and for an expert, that includes the basis for his or her opinion (Evid. Code, § 721). Simply put, defense counsel was entitled to test the foundation underlying the expert's testimony. The trial court erred by insulating the gang expert from wholly proper cross-examination.
Although the trial court erred, the error was harmless under the circumstances here. As discussed, the evidence was overwhelming that Guerrero harbored a gang-related purpose in his possession offenses. Nothing indicated a purely personal reason for Guerrero to possess a loaded firearm wrapped up in his gang's identifying color and stashed directly with paperwork reflecting a gang purpose and among extensive gang paraphernalia. Had the gang expert been impeached, we cannot say there is any reasonable doubt the result would have been different. The error therefore was harmless under the most stringent standard. (Chapman v. California (1969) 386 U.S. 18.)
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.