Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Lisa Foster, Judge, Super. Ct. No. SCD198501
HALLER, J.
Victor Esparza appeals from a judgment convicting him of two counts of making criminal threats (Pen. Code, § 422), with true findings on gang enhancement allegations. (§ 186.22, subd. (b)(1).) He contends the judgment should be reversed because: (1) the trial court erred in denying his motion to suppress evidence; (2) adoptive admissions evidence should not have been admitted; and (3) improper gang expert opinion testimony was admitted. We reject his contentions of reversible error and affirm the judgment.
Subsequent statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On April 15, 2006, Christopher Morris, a parole agent for the Department of Corrections, received two threatening voicemail messages on his cell phone from a phone with a blocked phone number. The voicemail messages stated:
"How ya doin'? This is Devil, OTNC home boy. 'Member me? I'm the one calling the shots now, bro. Now check this out. Ya'll been fucking up. Getting tired of it, I don't know what to do. Either kill you mother fuckers or just fuck y'all up. Y'all watch out. I'm gonna come get you Mr. Morris. You ain't shit and your homeboys ain't shit and ya'll with badges ain't shit. This is Devil, OBS Big Devil, OTNC, thirteen ese.
"How ya doin'? Check this shit out. (unin…) y'all mother fuckers wanna discriminate, stereotype, and label us, and use it against us. Well, you fucking around, I'm gonna start taking one by one out. You understand? You either get back, or you get the fuck shot back."
From an examination of phone records, the police were able to ascertain a cell phone number from which the calls to Agent Morris had been made, but not the phone subscriber because the caller used a "pay-as-you-go" service. Examining the content of the voicemail messages, the authorities determined the reference to "OTNC" was to the Old Town National City gang; the reference to "OBS" was to Olden Boys, a faction of the OTNC gang; and the reference to "Devil" was to the caller's gang moniker. Police investigation identified Esparza as the only OTNC gang member who used the moniker "Devil." Agent Morris had been Esparza's parole agent from 2003 to 2005, and Agent Morris had given Esparza his cell phone number.
On April 21, 2006, the police arrested Esparza in front of his residence. The police obtained authorization to search the residence first from Esparza's consent, and then after he withdrew his consent, from a search warrant. During the search of his residence, the police observed graffiti saying "OTNC" and "Devil," and a cell phone laying on a bed. The cell phone on the bed was identified as the phone used by the caller to leave the threatening voice mail messages. Additionally, the police found a piece of paper upon which was written the word "Puerco" (meaning "pig" in Spanish), Agent Morris's cell phone number, and the scratched-out words "Mr. and Mrs. Morris and family, all parole officers." The police also found ammunition, a methamphetamine pipe, and marijuana.
Esparza was interviewed by the police after waiving his Miranda rights. When asked for his cell phone number, Esparza gave the number of the phone from which the threatening voicemail messages had been generated. He stated he did not know why he made the phone calls to Agent Morris, but that he was tired of being harassed by the police and tired of the "typical police attitude."
Miranda v. Arizona (1966) 384 U.S. 436.
Testifying on his own behalf, Esparza acknowledged that he had been in the OTNC gang and used the moniker Devil, and that there was graffiti inside his residence saying "Devil" and "OTNC." However, he stated he stopped his involvement with the OTNC gang in 2002 or 2003 and three other OTNC gang members used the moniker Devil. He acknowledged that the ammunition at his residence belonged to him, but claimed the cell phone was left there by someone else. He claimed that he told Agent Morris he did not know anything about the calls, and that during the police interview the police kept insinuating he made the calls but he did not say anything to them.
The jury convicted Esparza of two counts of making criminal threats and two counts of deterring an officer from performing his duties, with true findings on accompanying gang enhancement allegations; prohibited possession of ammunition; possession of drug paraphernalia; and possession of marijuana.
DISCUSSION
I. Denial of Motion to Suppress
Background
Prior to trial, Esparza moved to suppress the evidence obtained after the police arrested him in front of his residence. He contended the evidence should be suppressed because the police did not have probable cause to arrest him, and that this illegality tainted a subsequent consent to search and the search warrant.
At the time of his arrest, Esparza was no longer on parole.
At the motion to suppress hearing, Officer Colin Evans described the police investigation of the threatening voicemail messages. To identify the caller based on the gang references in the messages, Officer Evans searched computer databases listing documented gang members and spoke with the National City police department. This investigation revealed that Esparza was an OTNC gang member who used the moniker Devil, that Esparza was a member of the OBS faction, and that no other documented OTNC gang member used this moniker. Agent Morris informed Officer Evans that he had been Esparza's parole agent until May 2005.
Agent Morris told Officer Evans that he believed Esparza lived with his girlfriend (Anna Elias) on East 26th Street. On April 20, 2006, while conducting surveillance, the police saw Esparza enter Elias's residence. The police then obtained a search warrant for Elias's residence permitting them to search for evidence pertaining to the threatening voicemails.
On the morning of April 21, 2006, the police served the search warrant at Elias's home. Elias told the police that Esparza was staying in a white, two-story house in the 2000 block of D Avenue in National City. Based on this information, the police went to 2026 D Avenue. The police knocked on the door. Esparza answered the door, and Officer Evans asked if he was "Victor." Esparza said yes. Officer Evans asked him to step outside to talk to him. Esparza complied. Officer Evans then arrested Esparza for the criminal threats offense. Officer Evans placed him in handcuffs and asked him to sit on the front steps.
Once Esparza was arrested, Officer Evans asked him if he had a room at the residence and if the police could look around; Esparza answered both questions affirmatively. During their initial search, the police saw a cell phone laying on a bed and a large amount of gang-type graffiti on the walls, including the words "OTNC" and "Devil." Shortly after the police entered the residence, Esparza asked whether they needed a warrant. Interpreting this as a withdrawal of the consent to search, the police stopped their activity and exited the house. As they were leaving the house, Officer Evans called the number from which the threatening calls had been made, and a phone in the house started to ring.
The police kept Esparza detained on the front porch while Officer Evans prepared an affidavit to obtain a search warrant for the D Avenue residence. The search warrant affidavit described the identification of the D Avenue residence by Esparza's girlfriend, and matters observed by the police during the initial search of the D Avenue residence. A couple of hours later Officer Evans secured the search warrant, and the police reentered the residence. In the bedroom, the police seized the cell phone on the bed, ammunition, marijuana, and a glass pipe used for smoking methamphetamine.
The trial court denied Esparza's motion to suppress. The court reasoned there was probable cause to arrest Esparza based on the evidence that he was the only person known as "Devil" from OTNC and that he had a connection with Agent Morris.
Analysis
On appeal, Esparza argues there was no probable cause to arrest him; the illegal arrest tainted his consent to search his residence; and the illegal entry into his home in turn tainted the search warrant.
The Fourth Amendment of the federal Constitution protects people from unreasonable searches and seizures. (People v. Thompson (2006) 38 Cal.4th 811, 817 (Thompson).) A warrantless arrest in a public place does not violate the Fourth Amendment as long as the police have probable cause to effectuate the arrest. (United States v. Santana (1976) 427 U.S. 38, 42.) Warrantless arrests inside a home are presumptively unreasonable and must be justified by exigent circumstances. (Thompson, supra, 38 Cal.4th at pp. 817-818.) Likewise, absent exigent circumstances, the police may not generally enter or search a home without a search warrant. (People v. Bennett (1998) 17 Cal.4th 373, 384; People v. Boragno (1991) 232 Cal.App.3d 378, 386.)
However, the courts have found that under some circumstances the police may properly arrest a defendant at his or her residence without a warrant; for example, if the defendant voluntarily steps outside the home under noncoercive circumstances. (See, e.g., People v. Tillery (1979) 99 Cal.App.3d 975, 977, 979-980 [defendant voluntarily complied with officer's request to step outside home; warrantless arrest permissible]; accord People v. Jackson (1986) 187 Cal.App.3d 499, 505, disapproved on other grounds in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145; People v. Green (1983) 146 Cal.App.3d 369, 377.) Further, the police may search the defendant's residence without a search warrant if the defendant voluntarily consents to the search. (People v. Robles (2000) 23 Cal.4th 789, 795; People v. James (1977) 19 Cal.3d 99, 106-107 [after being arrested and handcuffed in front of his home, defendant voluntarily consented to search of home]; People v. Monterroso (2004) 34 Cal.4th 743, 758.) However, if the consent is induced by an illegal arrest, the illegality vitiates the consent and may require suppression of seized evidence unless attenuating circumstances dissipate the taint. (People v. Leib (1976) 16 Cal.3d 869, 877; see People v. Boyer (2006) 38 Cal.4th 412, 448.)
Esparza does not dispute that if there was probable cause to arrest him, it was permissible for the police to make the warrantless arrest on the front porch, and it was permissible for the police to thereafter enter his home without a warrant pursuant to his consent. Accordingly, we evaluate whether there was probable cause to arrest him at the point the police arrived at his residence.
Probable cause exists "when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime." (People v. Price (1991) 1 Cal.4th 324, 410.) Probable cause is a fluid concept that turns on an assessment of probabilities in a particular factual context. (Thompson, supra, 38 Cal.4th at p. 818.) The facts need not show guilt beyond a reasonable doubt. (In re Trinidad V. (1989) 212 Cal.App.3d 1077, 1080) " ' "[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment." ' " (Thompson, supra, 38 Cal.4th at p. 820.) Probable cause requires a reasonable ground for belief of guilt, and that belief must be particularized with respect to the person to be seized. (Id. at p. 818.) On appeal, we accept the trial court's express or implied factual findings if supported by substantial evidence and independently review whether the challenged search or seizure conforms to constitutional standards of reasonableness. (People v. Hughes (2002) 27 Cal.4th 287, 327.)
The record shows a reasonable ground for the police to believe that Esparza was the person who made the criminal threats. The police investigation identified Esparza as a member of the OBS faction of the OTNC gang who used the moniker "Devil"; revealed that he was the only documented OTNC gang member who used this moniker; and revealed that Agent Morris had been Esparza's parole agent. The caller who left the threatening message identified himself as Devil from OBS/OTNC, and by stating "[re]member me?" indicated that he had previous contact with Agent Morris. These facts were sufficient to cause a person of ordinary prudence to have a strong suspicion that Esparza was the caller.
Esparza's challenge to the search based on lack of probable cause to arrest is unavailing. Accordingly, he has not shown the trial court erred in denying the suppression motion.
II. Adoptive Admissions
The prosecution presented evidence that when Esparza was interviewed by the authorities about the phone calls after waiving his Miranda rights, Esparza did not deny that he had left the threatening voicemail messages. Esparza contends the trial court erred in admitting this evidence and instructing the jury on adoptive admissions. Because his counsel failed to object to the evidence, he asserts he was deprived of effective representation. He argues that admission of the adoptive admissions evidence violated his right to remain silent under the Fifth Amendment.
Background
After Esparza was arrested and waived his Miranda rights, the police questioned him about the voicemail messages on Morris's phone. At trial, Officer Evans delineated the various statements made by Esparza during the police interview. Officer Evans testified that during the course of the questioning, Esparza stated he did not know why he made the phone calls but he was tired of being harassed by the police and of the typical police attitude; he referred to himself as the "shot caller" in the voicemail message because Agent Morris had called him this and he did not like the title; and he would love to "kill . . . or fuck . . . up" the authorities as he stated in the message but he knew he could not do so. When a detective quoted the portion of the voicemail message stating "get back, or you get shot the fuck back," Esparza finished the latter portion of the statement in unison with the detective and smiled. Esparza acknowledged that he had used the moniker Devil and that he had written graffiti stating "OTNC" and "Devil" on the mirror at his residence; however, he claimed he had stopped using the moniker two years earlier when he was released from prison. After Officer Evans presented this testimony regarding Esparza's statements, the prosecutor asked: "At any time during that interview, did the defendant deny making the calls to Agent Morris?" Officer Evans responded, "No."
According to Officer Evans, at one point during the police interview Esparza stated that "why he had done it was between him and Mr. Morris and he wasn't going to talk to [the police] about it." Accordingly, the police summoned Agent Morris to speak with Esparza. Agent Morris testified that he asked Esparza why he had done this because he (Agent Morris) did not deserve it. Esparza agreed that Agent Morris did not deserve it and stated that he (Esparza) was "just being an asshole." After this testimony, the prosecutor asked if Esparza told Agent Morris that he was not the person who made the calls. Agent Morris responded, "No. He did not deny making the call at all whatsoever."
The trial court instructed the jury on the principle of adoptive admissions, telling the jury that if it found "someone made a statement outside of court that accused the defendant of the crime and the defendant did not deny it . . . [¶] . . . [¶] [it] may conclude that the defendant admitted the statement was true." (See Judicial Counsel of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 357.) In closing argument, the prosecutor asserted that Esparza admitted to the police and to Agent Morris that he left the threatening voicemail messages when he discussed the messages with them. Further, the prosecutor argued that Esparza's failure to deny making the calls when he was asked about them constituted adoptive admissions.
Defense counsel did not object to the evidence, instruction, or argument on adoptive admissions.
Analysis
The failure to object to the admission of evidence constitutes a forfeiture of the issue on appeal, unless the defendant can show counsel's omission constituted ineffective representation. (People v. Freeman (1994) 8 Cal.4th 450, 490-491.) To prevail on a claim of ineffective assistance of counsel the defendant must establish that defense counsel's performance fell below an objective standard of reasonableness, and there is a reasonable probability the defendant would have obtained a more favorable result absent counsel's shortcomings. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
An adoptive admission of guilt may be presented as evidence when " 'a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment of the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply . . . .' 'For the adoptive admission exception to apply, . . . a direct accusation in so many words is not essential. . . .' " (People v. Riel (2000) 22 Cal.4th 1153, 1189, italics added.)
In Doyle v. Ohio (1976) 426 U.S. 610, 611, 619 (Doyle), the United States Supreme Court held that the prosecution may not use a Mirandized defendant's postarrest silence to impeach the defendant when he presents his version of the events for the first time at trial. The Doyle rule is premised on the recognition that it is fundamentally unfair to " 'permit the prosecution during the trial to call attention to [the defendant's] silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. . . .' " (Id. at p. 619.) In addition to barring use of a Mirandized defendant's silence to impeach the defendant's trial testimony, the California Supreme Court has extended the Doyle rule to preclude use of a Mirandized defendant's silence as evidence of guilt during the prosecution's case-in-chief. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118 ["No less unfair is using that silence against a defendant by means of the prosecutor's examination of an interrogating detective even before the defendant has had the opportunity to take the stand"]; accord, People v. Lopez (2005) 129 Cal.App.4th 1508, 1525.)
However, if a defendant waives his right to remain silent and agrees to speak to the police, he has not invoked his right to silence. In Anderson v. Charles (1980) 447 U.S. 404, the United States Supreme Court held that when a Mirandized defendant voluntarily elects to speak to the police, at trial the prosecution can properly question the defendant about his failure to provide the police with factual information that he disclosed for the first time at trial. (Id. at pp. 405-406, 408-409.) The Anderson court explained: "Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent." (Anderson, supra, 447 U.S. at p. 408.)
The Anderson rule permitting impeachment based on a defendant's failure to reveal information during a voluntary police interview applies here to permit the adoptive admissions evidence. Esparza was not induced to remain silent, and then his silence used against him at trial. Nor do the circumstances indicate that Esparza was relying on his Miranda rights to refuse to answer some questions. (Compare People v. Coffman and Marlow, supra, 34 Cal.4th at p. 119 [recognizing that Mirandized defendant's partial silence during voluntary interview may be inadmissible "to the extent that the defendant relied on a Miranda warning in refusing to answer specific questions"]; People v. Lopez, supra, 129 Cal.App.4th at pp. 1525-1527 [after Mirandized defendant answered some questions, defendant's failure to deny crime could not be used as adoptive admission when defendant said " ' "Fuck you. I want to talk to my lawyer" ' " in response to officer's question about the crime].) Rather, according to the prosecution's witnesses, Esparza waived his right to remain silent, voluntarily discussed the phone calls with the authorities, and during this discussion never denied that he made the phone calls. Because Esparza did not expressly or impliedly invoke his right to remain silent during the police interview, there was no constitutional barrier to the prosecution's presentation of adoptive admissions evidence arising from his responses during the interview.
Esparza cites People v. Jennings (2003) 112 Cal.App.4th 459 to support his argument that admission of the adoptive admissions evidence violated his right to remain silent. Jennings involved a codefendant who made accusatory statements about the defendant during a post-Miranda interrogation of both parties. The defendant waived her Miranda rights and participated in the joint interview, during which she did not deny some of the codefendant's accusations. (Id. at pp. 471-474.) Normally, under the Aranda/Bruton rule, a nontestifying codefendant's statements inculpating the defendant are inadmissible because they are considered unreliable given the motivation to shift the blame to the defendant and because the defendant cannot cross-examine the codefendant. (See People v. Anderson (1987) 43 Cal.3d 1104, 1120-1121.) Jennings concluded the defendant's silence in the face of the codefendant's accusations during the joint interrogation was equivocal, and that the purpose of the Aranda/Bruton rule would be undermined if the codefendant's accusatory statements and the defendant's silence were admitted as implied adoptive admissions by the defendant. (Jennings, supra, 112 Cal.App.4th at pp. 472-474.)
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.
Distinct from Jennings, this case does not involve accusations by a codefendant; rather, it involves accusations by the authorities. Thus, this case does not involve Aranda/Bruton concerns. Unlike a nontestifying codefendant, the authorities had no incentive to shift culpability to Esparza and there was nothing inherently unreliable about their statements which assumed that Esparza made the calls. Under the circumstances of this case—involving Esparza's agreement to speak to the police and his voluntary responses to their questions about the voice mail messages—Esparza's failure to deny that he made the calls during the police interrogation was properly admitted as adoptive admissions evidence.
We note that the rule set forth in Jennings has been questioned based on a later California Supreme Court case. (See People v. Castille (2005) 129 Cal.App.4th 863, 880, citing People v. Combs (2004) 34 Cal.4th 821, 842.) Because Jennings is factually distinguishable from the case before us, we need not evaluate this issue.
Moreover, even if there was error in admitting the adoptive admissions evidence, it was harmless beyond a reasonable doubt. (See People v. Earp (1999) 20 Cal.4th 826, 858.) Error is harmless beyond a reasonable doubt if there is no reasonable possibility it affected the jury's verdict. (People v. Lewis (2006)139 Cal.App.4th 874, 885, 887.) According to Officer Evans's testimony, during the police interrogation Esparza made repeated statements indicating that he did, in fact, leave the messages on Morris's voicemail—i.e., stating he did not know why he made the phone calls, explaining why he called himself the "shot caller," stating that he would like to kill or assault the authorities as he threatened in the message, and repeating a portion of the message as quoted by the detective. Given this affirmative evidence showing Esparza essentially admitted he made the calls, the adoptive admissions evidence was of minor consequence. Additionally, the record contains compelling evidence of guilt based on the discovery of the cell phone used to call Agent Morris at Esparza's residence; the observation of gang-related graffiti at Esparza's residence consistent with the caller's identification of himself as Devil from OTNC; the evidence that Esparza was an OTNC gang member who used the moniker Devil; and the preexisting relationship between Agent Morris and Esparza. Viewing the record as a whole, there is no reasonable possibility the adoptive admissions evidence (and ensuing instruction and argument) might have affected the jury's verdict.
In sum, if defense counsel had preserved the issue by objecting to the adoptive admissions evidence, we would find the evidence admissible, and even if not, we would find its admission was harmless beyond a reasonable doubt. Accordingly, Esparza cannot prevail on an ineffective representation claim, and his challenge to the judgment based on the adoptive admissions evidence fails. (See People v. Huggins (2006) 38 Cal.4th 175, 249 [no ineffective representation if federal constitutional error harmless beyond a reasonable doubt].)
III. Gang Expert Opinion Testimony
During pretrial motions, Esparza unsuccessfully argued that the prosecution's gang expert should not be permitted to address the issue of whether the crimes were committed for the benefit of the gang. Esparza argues the judgment must be reversed as to the gang enhancement findings because the gang expert improperly opined that the criminal threats were (1) for the benefit of the gang, and (2) were made to "promote, assist, [or] further the criminal conduct by gang members."
To be admissible, expert opinion testimony must be "[r]elated to a subject that is sufficiently beyond common experience" so that the opinion of the expert would "assist the trier of fact." (Evid. Code, § 801, subd. (a).) If expert opinion evidence addresses a matter beyond common experience, it is admissible even if it encompasses an ultimate issue in the case. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371; Evid. Code, § 805.) The jury need not be wholly ignorant of the subject matter of the opinion to justify its admission. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) Even if the jury has some knowledge of the matter, expert opinion may be admitted if it would assist the jury. (Id. at p. 1300.) The expert opinion testimony must be excluded only " 'when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness." ' " (Ibid.) On appeal, we apply the abuse of discretion standard to review a trial court's admission of expert opinion testimony. (Id. at p. 1299.)
To establish a gang enhancement, the prosecution must prove (1) the crime was "committed for the benefit of, at the direction of, or in association with" a criminal street gang, and (2) the defendant had "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Generally, expert testimony is permissible to show whether and how a crime was committed to benefit a gang because this is a matter sufficiently beyond common experience so as to assist the jury. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v. Olguin, supra, 31 Cal.App.4th at pp. 1367, 1370-1371 [permissible for expert to testify that defacing gang's graffiti was sign of disrespect and that murder (precipitated by graffiti defacement) was for benefit of gang].)
However, the scope of an expert's opinion testimony is restricted by the rule that when the trier of fact is as competent as the expert to make a particular factual determination, expert opinion testimony on this fact is of no assistance to the trier of fact and should be excluded. (See People v. Torres (1995) 33 Cal.App.4th 37, 45, 47.) Further, the courts exercise caution to ensure that the expert's testimony is "not tantamount to expressing an opinion as to [the] defendant's guilt." (People v. Ward (2005) 36 Cal.4th 186, 210; People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
Consistent with these principles, the courts have concluded that although a gang expert may testify regarding gang-related motivations and may provide gang-related information from which the jury may infer the defendant's state of mind, generally the gang expert may not give an actual opinion about the particular defendant's subjective knowledge or intent. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513; People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551; People v. Killebrew, supra, 103 Cal.App.4th at p. 658; People v. Gonzalez (2006) 38 Cal.4th 932, 946 & fn. 3; People v. Ward, supra, 36 Cal.4th at pp. 209-210.)
Here, the prosecution's gang expert, Officer Daniel Nagle, opined that the threatening calls were "clearly . . . done to benefit the gang." He explained that the calls were for the benefit of the gang because they could instill fear of the gang in law enforcement and the community; they could be an attempt to deter law enforcement from its antigang duties; and they could increase the caller's clout within the gang and increase the gang's clout in the community. The trial court reasonably concluded that this expert testimony addressing the benefits that could be derived from threatening calls was not a matter completely understood by the jury and that it would assist the jury in its determination of whether the crime was for the benefit of the gang.
Officer Nagle's testimony also delved into Esparza's subjective motivations for making the calls. Officer Nagle opined that Esparza's statements themselves (i.e., stating that he is a gang member and that the authorities labeled "us" and used this against "us") showed that Esparza was "doing this to benefit the gang." The prosecutor then inquired, "Specifically, is this threat made, in your opinion, to promote, assist, further the criminal [conduct] by the gang members[.]" Officer Nagle replied, "Oh, absolutely." Because this testimony focused on the subjective intent prong of the gang enhancement elements, we conclude it was improper. The issue of Esparza's actual specific intent was a matter the jury could determine for itself with no assistance from the expert.
We note that Esparza did not specifically object to the subjective intent aspect of the expert's testimony. However, for purposes of our analysis we will assume that Esparza's pretrial argument that the expert should be foreclosed from addressing the gang-benefit issue adequately preserved the issue for appellate review. The Attorney General does not contend otherwise.
However, reversal is not warranted unless it is reasonably probable that absent the erroneous admission of the evidence the outcome would have been more favorable to the defendant. (People v. Earp, supra, 20 Cal.4th at p. 878; People v. Maestas (1993) 20 Cal.App.4th 1482, 1498.) The record here does not show such prejudice. Esparza's clear references to his gang in the voicemail messages, and his statements that he intended to use violence against the authorities because of the stereotyping and labeling of "us," created a strong inference that Esparza was acting to further his gang's position. We have no doubt the jury would have reached the same conclusion even if it had not heard Officer Nagle's opinion that Esparza intended to benefit the gang and promote the gang's criminal conduct.
Esparza argues that without Officer Nagle's opinions there was insufficient evidence to support the gang enhancement findings. The contention is unavailing. As stated, it was permissible for Officer Nagle to opine that the type of threatening calls involved in this case were for the benefit of the gang. Further, as noted, there was sufficient evidence to support the gang enhancement findings from the contents of the voicemail messages themselves.
To support his challenge to the sufficiency of the evidence without the gang expert's opinion, Esparza cites the gang expert's testimony that the threats would not stop law enforcement from doing its job. Regardless of whether the crime succeeds in benefiting the gang, the gang enhancement allegation is established if the crime was committed to benefit the gang and the defendant intended to promote the gang's criminal activity. The evidence supported these elements even without the gang expert's opinion that Esparza intended to benefit the gang and promote the gang's criminal conduct. Esparza also notes that no other gang members were involved in the offense and there was no evidence that Esparza told other gang members about the calls. These factors are not essential to a gang enhancement finding. The jury could reasonably infer from the contents of the voicemail messages that the offenses were committed for the benefit of the gang because they were designed to engender fear of the gang in any persons who heard about the calls, and that Esparza specifically intended that the calls promote the gang's criminal conduct.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.