Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR451032
NEEDHAM, J.
Appellant Eldrick Emanuel Robison was tried before a jury and convicted of various theft and weapons charges after he orchestrated a plan to obtain a $270,000 loan on the home owned by his girlfriend’s son by concealing a debt owed to another lending institution under a first deed of trust. He does not challenge the weapons charges on appeal, but argues that the theft-related counts must be reversed because: (1) the trial court gave a jury instruction on mistake of fact that erroneously required the mistake to be “reasonable” to negate specific intent; (2) the court erred by refusing to admit into evidence a book on which appellant relied to formulate his plan, which he argued would show that his conduct was based on a genuine mistake of fact; (3) the court erroneously treated an investigating police detective with a real estate license as an expert in real estate transactions; (4) the court should not have allowed an attorney representing the victim title company to testify as an expert witness; (5) the court improperly admitted into evidence a handwritten note signed by appellant using his Muslim name; and (6) the prosecutor committed misconduct during closing argument. We affirm.
I. FACTS AND PROCEDURAL HISTORY
In 2001, appellant began dating Darcy Burgarella. Burgarella lived with her daughter and her adult son, Ricardo Huerta, in a Santa Rosa home on Dennis Lane that Huerta had purchased in 1999 with the proceeds of a personal injury lawsuit. Huerta requires continuous care because he suffers from cerebral palsy, which confines him to a wheelchair and limits his ability to communicate. Among other things, Burgarella opens Huerta’s mail for him.
In 2002, a $240,000 mortgage was taken out on Huerta’s home. A deed of trust securing the loan was recorded by Greenpoint Mortgage Funding, Inc. (Greenpoint). The promissory note for the loan was signed by Burgarella on behalf of Huerta.
Appellant moved in with Burgarella and her family. He read something in a magazine about copyrighting one’s name and began researching the idea. He and Burgarella bought a book entitled “Cracking the Code,” which, along with various seminars and instructional videos, described how a person could make a loan disappear. Using forms from the book, appellant and Burgarella filed a fictitious business name statement and took steps to copyright her name, even though it is not legally possible to do so.
In February 2003, appellant and Burgarella began sending Greenpoint a series of documents generated from forms contained in “Cracking the Code,” in which they claimed that Greenpoint had committed copyright violations amounting to $4 million by using Burgarella’s name without permission. One document entitled “Respondent’s Private Offer of Performance, Tender of Payment and Discharge of Alleged Monetary Obligation,” was sent on February 21, 2003 and purported to discharge the $240,000 loan. Other documents stated that Greenpoint’s lack of response had resulted in an agreement (through default) under which Burgarella was granted a “security interest” of $500,000 for each unauthorized use of her name, and that the loan on the Dennis Lane property had therefore been extinguished. Burgarella signed these documents and appellant’s signature appears on the affidavits of mailing attached to some of them.
The documents sent by appellant and Burgarella included a “Notice by Written Communication/Security Agreement” and copyright notices sent on March 7, 2003; an “Invoice, Verified Statement of Account” sent on March 21, 2003, stating that $4 million was owed based on eight unauthorized uses of Burgarella’s name; a “Certificate of Non-Response” sent on March 31, 2003, stating that the failure to respond to the “Notice by Written Communication” confirmed that the security agreement was acknowledged; a “Notice of Dishonor” and accompanying affidavit of mailing sent on April 3, 2003; an “Affidavit of Darcy Ellen Burgarella by Special Visitation” sent on April 15, 2003; and a “Notice of Protest and Opportunity to Cure” sent on April 22, 2003, stating that Greenpoint had failed to “accept or perform” the “Notice of Dishonor” and was now in default.
On March 3, 2003, Greenpoint sent a letter to Huerta (the mortgage holder) describing Burgarella’s correspondence as “legal nonsense” and reminding him of his obligation to continue making timely mortgage payments. On March 28, 2003, Greenpoint sent a letter directly to Burgarella demanding that she cease further communications.
On July 1, 2003, Greenpoint sold the loan on Huerta’s property, as well as several other loans, to Washington Mutual. Later, Huerta’s loan was pulled out of the sale and retained by Greenpoint, which sent a letter to Huerta advising him that he should continue to make his monthly payments to Greenpoint. According to a phone log kept by Greenpoint, the mortgagee on the Huerta loan called on October 7, 2003 and was advised to keep making payments to Greenpoint.
Meanwhile, appellant had filed a civil lawsuit against a deputy district attorney seeking damages for alleged copyright violations for the unauthorized use of his name in connection with an unrelated legal action. County Counsel for Sonoma County filed a demurrer on behalf of the deputy. That demurrer was sustained on February 13, 2004, based on appellant’s failure to state a cause of action predicated on a copyright infringement of his name.
On February 25, 2004, appellant and Burgarella submitted a document entitled “Substitution of Trustee” to the Sonoma County Recorder’s Office, which purported to substitute Burgarella as trustee on the Greenpoint trust deed. The document was signed by Burgarella under a power of attorney for Greenpoint and witnessed by appellant. The recorder’s office initially rejected it for filing because the Chief Deputy Recorder erroneously believed the power of attorney needed to be filed as well. The substitution was accepted for filing the following day. Although the Chief Deputy had never seen a commercial lender substitute a private individual as a trustee, the recorder’s office does not attempt to verify the signatures on documents or otherwise ascertain their authenticity or their legality. The recorder’s office will record a document so long as it meets certain elements making it recordable.
On February 27, 2004, Burgarella and appellant returned to the recorder’s office and filed a document purporting to be a “Full Reconveyance” of the property to Huerta. A reconveyance is a document used to transfer legal title of the property to a mortgagee who has paid off a loan secured by the property. Greenpoint had not in fact granted Burgarella power of attorney, consented to her substitution as trustee, authorized her to reconvey the property to Huerta or otherwise forgiven the loan.
In April 2004, appellant and Burgarella applied for a loan of $270,000 with World Savings, using the subject property as collateral. The loan application listed a $20,000 personal loan as the only debt outstanding on the property, which had an appraised value of $441,000. First American Title (First American) acted as the escrow agent and provided title insurance on the property to World Savings. First American conducted a title search that showed the $240,000 Greenpoint loan had been paid and the property reconveyed. Accordingly, the loan was not listed in the title report provided to World Savings, which approved the $270,000 loan and wired $245,391.28 to a Washington Mutual bank account held by Burgarella and Huerta. Had World Savings known about the outstanding Greenpoint loan, it would not have loaned $270,000 on the property.
Greenpoint filed a notice of default on September 23, 2004, after it stopped receiving payments on its loan. The recorder’s office contacted First American to report the default notice and certain discrepancies in the records. When First American learned that the $240,000 Greenpoint loan had not been paid off, it contacted the Santa Rosa Police Department. Santa Rosa Police Detective Goldschlag began an investigation.
On October 7, 2004, Burgarella went to a Washington Mutual Bank branch and said she wanted to withdraw all the money from her account. The teller did not have that much cash on hand, so Burgarella ultimately withdrew $1000 in cash and obtained two cashier’s checks: an $84,155.89 check payable to her and a $20,000 check payable to appellant. Detective Goldschlag obtained an order to freeze the bank account (which by then contained less than $3,000) and arranged a meeting with appellant and Burgarella outside their home. He searched them under the authority of a warrant and found the cash and cashier’s checks in Burgarella’s purse. Appellant explained that Burgarella had authority to act as trustee on the Greenpoint mortgage because it had been “tendered,” or paid with a negotiable instrument, and that Greenpoint had not responded to “an offer of remedy to clear title.” Appellant and Burgarella admitted that they had prepared the substitution of trustee and reconveyance and had filed them with the recorder.
A search warrant was executed at the home on Dennis Lane. Police found a locked safe and opened it after appellant provided the combination. It contained several documents relating to the property, including copies of the substitution of trustee and reconveyance that had been filed with the recorder, as well as two semi-automatic weapons and ammunition. Appellant told Detective Goldschlag the safe belonged to him and had nothing to do with Burgarella. Appellant had been convicted of a felony.
Appellant was charged by a first amended information with two counts of unlawful firearm possession by a felon (Pen. Code, § 12021, subd. (a)(1)), two counts of unlawful possession of an assault weapon (§ 12280, subd. (b)), unlawful possession of ammunition (§ 12316, subd. (b)(1)), two counts of commercial burglary (§ 459), two counts of forgery (§ 470, subd. (d)), two counts of grand theft, one of property valued at over $150,000 (§§ 487, subd. (a), 12022.6, subd. (a)(1)) and receiving stolen property (§ 496, subd. (a)). The information alleged a prior felony conviction within the meaning of the three strikes law. (§ 1170.12.)
Further statutory references are to the Penal Code unless otherwise indicated.
At trial, appellant represented himself under Faretta v. California (1975) 422 U.S. 806. His primary defense was that he had not committed the theft-related offenses because he mistakenly believed the process he employed was a legal way of extinguishing the Greenpoint loan. A jury convicted appellant of all charges and the court determined in a bifurcated proceeding that he had suffered the prior strike conviction. Appellant was sentenced to an aggregate prison term of six years eight months: four years for one count of possession of an assault weapon (the two-year middle term, doubled under the three strikes law), a consecutive sixteen-month term on the second count of possessing an assault weapon (one-third the middle term, doubled) and sixteen months for one count of grand theft (one-third the middle term, doubled).
II. DISCUSSION
A. CALCRIM No. 3406—Mistake
Appellant contends the trial court erroneously instructed the jury that a mistake of fact or law must be reasonable to negate specific intent. He argues that this instruction required him to make a higher showing regarding his claim of mistake than the law required, and he claims he is entitled to reversal of the theft-related counts because the jurors could have concluded that he was operating under a genuine, good faith mistake about the legal consequences of his actions that was nonetheless objectively unreasonable. We agree that the instruction should not have included a separate requirement of “reasonable” mistake, but conclude the error was harmless.
A mistake of fact occurs when a person understands the facts to be other than what they actually are, whereas a mistake of law occurs when a person knows the true facts but is mistaken as to their legal consequences. (People v. LaMarr (1942) 20 Cal.2d 705, 710.) A reasonable mistake of fact may be asserted as a defense to a general intent crime, and even an objectively unreasonable mistake of fact may negate a required specific intent or mental state so long as the defendant is acting in good faith. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425-1427 (Russell); People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11 (Navarro).) By contrast, a mistake of law is no defense to a general intent crime (ignorance of the law being no excuse), but, like a mistake of fact, may negate a specific intent or mental state when the defendant holds the mistaken belief in good faith. (People v. Vineburg (1981) 125 Cal.App.3d 127, 137 (Vineburg); see also People v. Stewart (1976) 16 Cal.3d 133, 140; People v. Urziceanu (2005) 132 Cal.App.4th 747, 776.)
Appellant’s defense to theft-related charges (grand theft, forgery, burglary and receiving stolen property) was that he genuinely believed Burgarella was entitled to cancel the Greenpoint loan after giving Greenpoint notice of the alleged copyright violations arising from the use of her name. Evidence was presented that he and Burgarella had relied on information from books and seminars and thought their course of action was legal. This alleged mistake was one of law because it involved the legal consequences of his and Burgarella’s efforts to extinguish the Greenpoint loan and reconvey the property to Huerta. (See People v. Mayer (2003) 108 Cal.App.4th 403, 412 (Mayer) [city council member’s belief that residency requirement did not require him to sleep or live in the city to call it his residence was mistake of law]; People v. Young (2001) 92 Cal.App.4th 229, 233 [erroneous belief that Compassionate Use Act of 1996 permitted transportation of marijuana as medicine was mistake of law that did not excuse the general intent crime of transporting drugs].) Effectively, appellant’s position was that due to his mistaken belief that their actions had cancelled out the Greenpoint loan, he lacked the specific intent or mental state necessary for each of the theft-related charges.
The trial court gave the jury a modified version of CALCRIM No. 3406: “The defendant is not guilty of the crimes charged in counts VI through XI, namely Burglary of the Sonoma County Recorder’s Office on February 26, 2004 (count VI), Passing of False Instrument, the “Substitution of Trustee Documentation” (Count VII), Grand Theft from Greenpoint Mortgage (Count VII), Burglary of Sonoma County Recorder’s Office on February 27, 2004 (Count IX), Passing of False Instrument, the “Full Reconveyance Documentation[”] (Count X), and the Grand Theft from World Savings as alleged in Count XI if he did not have the intent required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit those crimes alleged in Counts VI through XI as described above. [¶] If you find that the defendant in good faith believed that he was legally entitled to file the Change of Power of Attorney, the Substitution of Trustee, and the Reconveyance Document and to apply for the loan through World Savings with no encumbrance listed on the property at 1912 Dennis Lane, and if you find that belief was reasonable, defendant did not have the specific intent required for the crimes charged in [] Counts VI through XI. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for the crimes charged in Counts VI through XI, you must find him not guilty of those crimes.” (Italics added.)
Although this instruction characterized the mistake as one of fact rather than law, it was appropriate to the extent it advised the jury that appellant lacked the specific intent necessary for the theft-related offenses if he harbored a good faith belief that he and Burgarella were entitled to file the substitution and reconveyance with the recorder’s office. But a problem arises because the instruction additionally required that the mistake be “reasonable.” No published decision has required objective reasonableness in addition to good faith when a mistake of law is offered to negate specific intent.
The standard version of CALCRIM No. 3406 refers only to mistakes of fact and CALCRIM does not contain a separate instruction addressing mistakes of law and their potential to negate specific intent or mental state. The Bench Notes to CALCRIM No. 3407, which state the general rule that a mistake of law is no defense, explain that, “Although concerned with knowledge of the law, a mistake about legal status or rights is a mistake of fact, not a mistake of law,” and refers the reader to CALCRIM No. 3406.
Discussing a defendant’s claim that he was not guilty of receiving stolen property because he mistakenly believed that the wooden beams he was accused of taking from a construction site had been abandoned, one court explained: “ ‘ [I]f the defendant by a mistake of either fact or law did not know the goods were stolen, even though the circumstances would have led a prudent man to believe they were stolen, he does not have the required mental state and thus may not be convicted of the crime. . . . [T]he trial court in effect instructed the jury that even though [the] defendant in good faith believed he had the right to take the beams, and thus lacked the specific intent required for the crime of theft, he should be convicted unless such belief was reasonable. In doing so it erred. It is true that if the jury thought the defendant’s belief to be unreasonable, it might infer that he did not in good faith hold such belief. If, however, it concluded that defendant in good faith believed that he had the right to take the beams, even though such belief was unreasonable as measured by the objective standard of a hypothetical reasonable man, defendant was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established. (Navarro, supra, 99 Cal.App.3d Supp. at pp. 10-11, italics added.)
The trial court apparently modified CALCRIM No. 3406 to require a “reasonable” mistake because it believed that language was required by Vineburg, supra, 125 Cal.App.3d 127. Vineburg recognized that a defendant’s subjective belief that he or she possesses a legal right may be so “wholly unreasonable” as to be in bad faith. (125 Cal.App.3d at p. 138.) But it does not impose a separate requirement of objective reasonableness when the defendant asserts a mistake of law that is otherwise in good faith. (Ibid.)
We next consider whether the instruction’s requirement of reasonable mistake was prejudicial. We review the error under People v. Watson (1956) 46 Cal.2d 818, 836, which requires a showing of a reasonable probability that the error affected the outcome. (Russell, supra, 144 Cal.App.4th at p. 1431; Mayer, supra, 108 Cal.App.4th at p. 413.) This standard requires “ ‘ “at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.” ’ ” (Russell, supra, 144 Cal.App.4th at p. 1432.)
It is not reasonably probable the jury would have accepted appellant’s claim of mistake had the requirement of “reasonable belief” been stricken from the instruction. Appellant could only prevail if he demonstrated that he acted in good faith. There was scant evidence supporting such a finding. “ ‘ “Whether a claim is advanced in good faith does not depend solely upon whether the claimant believes he was acting lawfully. . . .” [citation.] For example, the circumstances of a particular case might indicate that although defendant may have ‘believed’ he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith. . . .” ’ ” (Vineburg, supra, 125 Cal.App.3d at p. 137.)
The jury could have inferred that appellant and Burgarella devised their scheme to extinguish the Greenpoint mortgage after reading a book and attending seminars that suggested, however improbably, that the process was legal. But any good faith belief in the legality of the scheme was negated by Greenpoint’s communications with Huerta and Burgarella. Greenpoint had advised Huerta (and in so doing, Burgarella and appellant) that payments on the mortgage remained due notwithstanding the letters and forms asserting copyright infringement. It directly advised Burgarella (and in so doing, appellant) that the documents she sent in an effort to extinguish the mortgage were without any legal effect. Greenpoint never granted Burgarella the power of attorney under which she purported to act and never gave her permission to execute any documents in its name. Moreover, appellant had filed a civil action seeking damages for copyright infringement on a theory similar to the one that gave rise to Burgarella’s claims against Greenpoint, and that lawsuit was dismissed only a few days before the substitution of trustee and reconveyance were filed with the recorder in this case.
In the face of Greenpoint’s correspondence asserting the continuing nature of the mortgage obligation, the lack of any authorization from Greenpoint to extinguish the mortgage, and the dismissal of another lawsuit based on a similar theory, appellant’s participation in a plan to file manufactured documents purporting to extinguish Greenpoint’s interest cannot be said to be in good faith. There is no reasonable probability a properly instructed jury would have accepted appellant’s claim of mistake when appellant’s alleged mistake about the legality of his acts was wholly unreasonable and the element of good faith was lacking.
B. Exclusion of “Cracking the Code”
Appellant argues that the trial court erroneously excluded from evidence the book that gave him the idea for his plan to extinguish the Greenpoint mortgage. We disagree.
Burgarella testified at trial that appellant had read a book entitled “Cracking the Code,” and had used it to generate the correspondence with Greenpoint, along with the substitution of trustee and reconveyance filed with the recorder. Appellant questioned Burgarella about the contents of the book during cross-examination and sought to introduce the book itself into evidence. The prosecutor objected because the book had not been shown to him in advance, despite a pretrial order requiring that appellant show “all reports, documents, and exhibits relative to [appellant]’s witnesses not previously shown to the People at least 24 hours before a witness is called to the stand” and prohibiting “items of evidence from being displayed to the jury or shown to a witness unless first shown to the People out of the presence of the jury so that appropriate objections may be lodged.”
In response to this objection, the court ruled that the book itself would not be admissible absent some demonstration as to why it had not been provided to the prosecution in advance. Appellant stated that the book had been inside his safe when police searched his home, but the prosecutor indicated he had not seen the book before it was shown to Burgarella at trial.
We review the court’s evidentiary ruling under the deferential abuse-of-discretion standard. (People v. Vieira (2005) 35 Cal.4th 262, 292.) Appellant argues that it was an abuse of discretion to exclude “Cracking the Code,” because its contents were relevant to his claim of mistake of fact or law in that it tended to show that he believed his actions were legal. We agree with appellant that once Burgarella testified that they had read the book and used its forms, its contents were relevant to appellant’s state of mind. But the court did not exclude the book based on its lack of relevance, it excluded it because appellant had failed to provide it to the prosecution as required by the in limine order. Accordingly, the issue is more aptly framed as whether the exclusion of the book was an appropriate sanction for violating that order.
Assuming the court should have granted the prosecutor more time to review the book as an alternative to excluding it from evidence, appellant cannot establish prejudice because it is not reasonably probable he would have obtained a more favorable verdict if the book itself had been admitted. (See People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Cunningham (2001) 25 Cal.4th 926, 999; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The relevance of the book to the claim of mistake was that appellant, having read about an implausible process of copyrighting one’s name and using the ensuing “copyright violation” as a springboard to extinguish a mortgage, was more likely to have harbored an actual belief in the legality of his acts. But introduction of the book itself would not have made the jurors more likely to accept the bona fides of this defense when Burgarella had already described its general content and relevance to their plan. As discussed in the previous section, the problem with appellant’s claim of mistake was that even if he subjectively believed he was acting lawfully, that belief could not have been in good faith when he had just lost a lawsuit based on similar grounds and when Greenpoint had advised Burgarella that her efforts amounted to “legal nonsense.” Exclusion of the book itself was harmless.
C. “Expert” Testimony by Detective Goldschlag
Detective Goldschlag was charged with investigating the lending transactions leading to the charges in this case. In addition to being a police officer, he has a real estate license and has investigated a number of cases involving property crime and fraud. Appellant complains that the trial court improperly allowed Goldschlag to testify as an expert witness in real estate fraud transactions because he lacked the necessary qualifications and was also testifying as an investigating officer. The record does not support the claim.
After questioning Detective Goldschlag on direct examination, the prosecutor asked that the court deem him an expert in real estate and the investigation of real estate transactions. Appellant objected. The court reserved ruling on Goldschlag’s status as an expert, indicating that it would consider the prosecutor’s questions on an individual basis. Although the court permitted the prosecutor to ask Goldschlag about real estate transactions, it informed the parties it would not allow leading questions, as would be permitted with an expert. The prosecutor then asked Goldschlag a number of questions concerning the conduct of a typical real estate transaction and the roles of the various parties involved (banks, mortgage brokers, title companies). Goldschlag also testified about his investigation into the transaction in this case. During redirect examination, the prosecutor asked Goldschlag about a document submitted as a defense exhibit and whether he had ever seen such documents in a real estate transaction. The court stated in front of the jury that it agreed with appellant that Goldschlag was not an expert witness, but that it would allow limited testimony as to whether he had seen a document such as the one presented.
A lay witness must testify to matters within his or her personal knowledge. (Evid. Code, § 702.) An expert witness may offer an opinion that is “related to 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)), and may base that opinion on matters outside his or her personal knowledge that are “of a type that reasonably may be relied upon by an expert in forming an opinion” on the subject at hand (Evid. Code, § 801 subd. (b)). On appeal, we will uphold a trial court’s ruling regarding expert testimony unless the defendant demonstrates an abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 131.)
We cannot say the court abused its discretion in deeming Goldschlag an expert because it never did so—to the contrary, it stated in front of the jury that it agreed with defense counsel that Goldschlag was not an expert. Consequently, this case did not present any of the problems noted by appellant that might arise when a witness serves a dual role as a percipient witness and a court sanctioned expert, an issue discussed more thoroughly below in connection with appellant’s challenge to the expert testimony of attorney Ron Arlas. (See U.S. v. Freeman (9th Cir. 2007) 498 F.3d 893, 902-904 (Freeman).)
The court did allow the prosecutor to elicit background information from Goldschlag regarding the way that real estate purchases are financed. Whether this evidence is viewed as testimony by a lay witness possessing personal knowledge of the manner in which real property transactions are financed (Evid. Code, § 702, subd. (a)), background testimony by a witness with “special knowledge, skill, experience, training or education” sufficient to qualify him as an expert in basic real estate financing (Evid. Code, § 720, subd. (a)), or an opinion offered by a witness with expertise in real estate “sufficiently beyond common experience” (Evid. Code, § 801, subd. (a)), the ultimate question is whether the testimony was supported by a sufficient foundation. We conclude that it was. As a licensed realtor, Goldschlag was qualified to describe the basic principles of real estate financing. The court did not abuse its discretion in allowing him to testify to this background information and to relate the documents in this case to a typical real estate transaction.
Nor was appellant unfairly prejudiced by the challenged testimony. Goldschlag’s explanation of how a real estate purchase is generally financed and his identification of the parties involved was essentially uncontroverted. His testimony about this particular transaction focused on the various documents prepared by appellant and Burgarella and gathered by police during the investigation, which would have been admissible even if Goldschlag had not testified at all. Indeed, the only allegedly improper “opinion” evidence cited by appellant is Detective Goldschlag’s testimony that the timing of the fraud in this case occurred when the substitution of trustee and reconveyance documents were filed at the recorder’s office. Appellant did not object to this testimony and has forfeited this aspect of the claim. (People v. Dennis (1998) 17 Cal.4th 468, 517-518; Evid. Code, § 353, subd. (a).)
Finally, appellant argues that the prosecution violated the criminal discovery statutes by failing to specify that Goldschlag would be offered as an expert. Section 1054.1 requires the pretrial disclosure of “[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial” (§ 1054.1, subd. (a)) as well as “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intents to call at the trial, including any reports or statements of experts. . . .” (§ 1054.1, subd. (f)). Detective Goldschlag was included on the prosecution’s witness list, and there is no indication the prosecution withheld any report or document prepared by him. Appellant cites no statute or case law requiring that a prosecution witness be designated an “expert” as such. (See People v. Tillis (1998) 18 Cal.4th 284, 294 [scope of criminal discovery cannot be broadened beyond statutory provisions].)
We deny as irrelevant appellant’s request that we take judicial notice of another case pending on appeal in which the same prosecutor allegedly failed to disclose to the defense that an investigating officer would be called as an expert witness.
D. Expert Testimony by Attorney Ron Arlas
The prosecution presented the testimony of attorney Ron Arlas, who specialized in mortgage banking law and had been retained as outside litigation counsel for Greenpoint. Arlas had reviewed the correspondence sent to Greenpoint by appellant and Burgarella and had drafted the response from the company characterizing them as legal nonsense. At the prosecution’s request, and with no objection by appellant, Arlas was deemed an expert in the area of mortgage banking and mortgage banking laws. After Arlas testified that he had seen “several of these types of schemes, scams, going on,” appellant lodged a belated objection to Arlas’s qualification as an expert. Appellant complained that he had not been given notice Arlas would be testifying as an expert and that Arlas had a conflict of interest because he represented a victim in the case. The court overruled the objection.
We reject appellant’s argument that the trial court abused its discretion in allowing Arlas to testify as both an expert and a percipient witness. Appellant relies mainly on Freeman, supra, 498 F.3d at pp. 902-903, in which a drug enforcement agent testified as both a lay witness and as an expert on the meaning of encoded drug language. Although finding no prejudicial error, the court noted that inherent difficulties arise when a witness acts in both capacities: “First, ‘by qualifying as an “expert,” the witness attains unmerited credibility when testifying about factual matters from first-hand knowledge.’ [Citation.] Second, it is possible that ‘expert testimony by a fact witness or case agent can inhibit cross-examination . . . [because a] failed effort to impeach the witness as an expert may effectively enhance his credibility as a fact witness.’ [Citation.] Third, ‘when the prosecution uses a case agent as an expert, there is an increased danger that the expert testimony will stray from applying reliable methodology and convey to the jury the witness’s “sweeping conclusions” about appellants’ activities’ . . . . Fourth, a case agent testifying as an expert may lead to juror confusion because ‘[s]ome jurors will find it difficult to discern whether the witness is relying properly on his general experience and reliable methodology, or improperly on what he has learned of the case.’ ” (Freeman, at p. 903.)
The concerns noted by the court in Freeman do not extend to Arlas’s testimony and did not require the trial court to exclude him as an expert. For one thing, it was not likely the expert designation would cause the jury to unduly credit Arlas’s testimony about factual matters when those matters concerned the correspondence between Burgarella and Greenpoint and were essentially uncontroverted. Nor has appellant suggested any way in which his cross-examination of Arlas as a witness was inhibited. Finally, Arlas’s expert testimony concerning the legal effect of certain documents was clearly based on his understanding of the law as a an expert in that field, and not on facts tied to this particular case. There is no likelihood the jury would have been confused by any interplay or overlap between the two aspects of his testimony.
Appellant complains that Arlas was unduly snide in his testimony, referring to Burgarella’s correspondence as “silly” and a “waste of time.” These comments were a fair characterization of the correspondence to which he referred, and appellant offered no evidence to suggest that the documents prepared by him and Burgarella actually had some legal effect. To the contrary, he relied on a claim of mistake of law or fact that implicitly recognized that he and Burgarella were not legally entitled to cancel the mortgage using the method they employed.
We also reject appellant’s claim that when Arlas testified he had seen “several of these types of schemes, scams, going on,” he was offering an improper opinion that appellant was guilty of the charged offenses. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) Arlas compared Burgarella’s correspondence to that received from third parties, but he did not directly comment on appellant’s culpability. In any event, in light of the overwhelming evidence of guilt, it is not reasonably probable appellant would have obtained a more favorable result in the absence of Arlas’s comment. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Appellant also complains he was not notified in advance that Arlas would testify as an expert. As discussed above in connection with the testimony of Detective Goldschlag, there is no statutory requirement in a criminal case that the prosecution designate an expert witness as such. The prosecution identified Arlas on its witness list and there is no contention it failed to provide appellant with any relevant reports or documents pertaining to his testimony. No discovery violation has been established.
E. Admission of Handwritten List of Goals Prepared by Appellant
Over defense objection, the prosecution offered into evidence a handwritten note signed by “As-Samad Abdul Allah El©” that had been found in the home of Burgarella and appellant when the search warrant was executed. Although the court originally sustained the objection based on a lack of authentication, it admitted the note into evidence as a declaration against penal interest (Evid. Code, § 1230) after Burgarella identified the note and testified that the name at the top of it was a name used by appellant. Appellant contends the note should have been excluded because it was irrelevant to any disputed issue and served only to show that appellant sometimes used a Muslim name.
Appellant did not raise the current relevancy challenge in the trial court. Though he objected to the introduction of the note, he did so solely on the grounds that it was hearsay and had not been authenticated. He has thus forfeited his claim. (Evid. Code, § 353, subd. (a); see People v. Partida (2005) 37 Cal.4th 428, 431, 435.)
We would also reject his argument on the merits. A trial court has broad discretion when ruling on the admissibility of evidence. (People v. Kelly (1992) 1 Cal.4th 495, 523.) Evidence is relevant so long as it tends logically, naturally and by reasonable inference to establish a material fact in the case. (People v. Carter (2005) 36 Cal.4th 1114, 1166.) Here, the note was relevant because it tended to show that appellant was engaged in a long term plan to acquire large amounts of money for his family, and because it utilized the copyright symbol after appellant’s name, which corroborated other evidence that he was the person who had devised the plan for extinguishing the mortgage: “FINANCIAL AS-SAMAD© GOALS 1-5-03 [¶] By October 21, 2003 we will have all personal accounts, bank, investment, savings, and any other accounts secured as private. Our personal family af[f]airs will be privately secured and safe. [¶] 1-5-03 As-Samad Abdul Allah El© [¶] FINANCIAL AS-SAMAD© GOALS [¶] We will have Ten Million Plus Dollars (US) $10,000,000.00+ by December 31, 2004. We will have our family participating at four thousand U.S. dollars $4,000.00 each a month by April 21, 2005. [¶] 1-5-03 As-Samad Abdul Allah El ©.”
We do not agree that the note was overly prejudicial simply because appellant signed it using a name that might identify him as Muslim. His religious beliefs played no part in this trial, and there is nothing in the record to suggest that the jurors in this case harbored any prejudice against the Muslim faith or would have treated appellant unfairly based on their perception of his religious affiliation. Appellant cannot demonstrate that it is reasonably probable the verdict would have been more favorable if the note had been excluded. (See State v. Mack (2003 La.App.) 850 So.2d 1035, 1045 [prosecutor’s reference to defendant’s Muslim name not prejudicial]; People v. Crew (2003) 31 Cal.4th 822, 839 [standard of prejudice for prosecutorial misconduct during closing argument].)
F. Prosecutorial Misconduct
Appellant contends the prosecutor engaged in three instances of misconduct during closing argument. First, he stated, “[I]t doesn’t matter if this idea or these ideas came from the Internet, from a book, from a seminar or from a cereal box. The minute he took the ideas and he put them into action he broke the law. He committed fraud.” Second, the prosecutor argued that appellant “spent most of his time concocting plots to get money without doing any work” and that as for his stated goal of obtaining $10 million, “He’s going to get it by stealing it.” Finally, the prosecutor urged the jury to conclude that by sustaining the demurrer to appellant’s complaint in his other lawsuit, the court handling that case effectively told appellant he couldn’t copyright his name. Appellant did not object to these comments and has not demonstrated that curative instructions would have been ineffective or that timely objections would have been futile (except to the extent that the comments were permissible argument and thus not subject to objection). (People v. Cole (2004) 33 Cal.4th 1158, 1201.) The claims have been forfeited on appeal. (People v. Williams (1997) 16 Cal.4th 153, 255.)
G. Cumulative Error
Appellant argues that the errors as a whole require reversal even if they are harmless when considered individually. Having found no prejudicial error as to any individual claim, we also find no synergy between the issues creating cumulative prejudice. (See People v. Holt (1984) 37 Cal.3d 436, 459; People v. Bradford (1997) 14 Cal.4th 1005, 1057.)
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., DONDERO, J.J.
Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.