P. v. Arebalo

Filed 8/22/08 P. v. Arebalo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.

Benjamin Arebalo appeals from a judgment after a jury convicted him of possession of a firearm by a felon, receiving stolen property, possession for sale of controlled substances, heroin and methamphetamine, and street terrorism, and found true he committed the first three offenses for the benefit of a criminal street gang. Arebalo argues: (1) he received ineffective assistance of counsel because his defense counsel stipulated law enforcement officers lawfully entered his home pursuant to a search warrant; (2) the trial court erroneously denied his motion for mistrial because the prosecutor committed misconduct, or alternatively, his defense counsel was ineffective for failing to object to the prosecutors misconduct; and (3) the gang experts testimony exceeded its permissible scope and was prejudicial, or alternatively, his defense counsel was ineffective for failing to object to the experts testimony.

Although we agree defense counsel was ineffective for failing to object to aspects of the experts testimony, we conclude Arebalo was not prejudiced. None of his other contentions have merit, and we affirm the judgment.

FACTS

Orange County Sheriff Deputies executed a search warrant at Arebalos residence at 7861 Santa Catalina in the City of Stanton. The residence also housed six mentally challenged individuals. After a deputy repeatedly knocked and announced they were there to serve a search warrant, he turned the doorknob and opened the door. Someone from inside closed and locked the door. Deputies forced the door open and found Arebalo alone in the hallway five feet from the door. They handcuffed Arebalo for officer safety and secured the residence.

The deputies proceeded to a locked hallway closet and broke the lock. Inside the locked closet, deputies found the following: a camera bag containing a digital scale, a twin beam scale, a shoe polish tin containing what was later determined to be approximately five grams of heroin, a pair of scissors, and straws; a mans trench coat with a vitamin container containing four bindles of what was later determined to be

one-sixteenth of an ounce of methamphetamine and six unused syringes in the pockets;

a mans shirt with a bindle of what was later determined to be eight-tenths of a gram of methamphetamine and what appeared to be a burned out marijuana cigarette in the pocket; a shirt containing a glass vial with white residue; a belt buckle with the number 13; a blue baseball cap labeled Orange County and 211; a tan baseball cap with Two One One O.C.[,] Arebalo, and BEN; a magazine with V.C.V.L.S written on it; a day planner marked with 211 and Arebalo containing a newspaper article about a gang homicide in Stanton; a duffel bag containing a stolen nickel-plated loaded gun wrapped in a pair of black knit gloves and a copy of Alices Adventures in Wonderland with documents listing Arebalos name; and a Mickey Mouse tin containing black cotton, a spoon, and six syringes. In another closet there was a notebook with writings consistent with pay/owe sheets.

A deputy found the key to the locked closet in Arebalos pants pocket. He was the only individual in the house with a key to the closet. A deputy also found a cellular telephone with 211 written on the front and Ben written on the back.

An information charged Arebalo with being a gang member carrying a loaded firearm in public (Pen. Code,  12031, subd. (a)(1), (2)(C), 186.22, subd. (a))[1] (count 1), possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 2), possession for sale of a controlled substance, heroin (Health & Saf. Code, 11351) (count 3), possession for sale of a controlled substance, methamphetamine (Health & Saf. Code,

11378) (count 4), receiving stolen property ( 496, subd. (a)) (count 5), and street terrorism ( 186.22, subd. (a)) (count 6). The information alleged Arebalo committed counts 2, 3, 4, and 5 for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The information also alleged he had suffered two prior strikes ( 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)).

At trial, the prosecutor offered the testimony of William Balicki, an investigator with the Orange County Sherriff Departments narcotics unit. Based on the quantity and indicia of sales, Balicki opined the heroin was possessed for sale. Based on the quantity and packaging, he opined the methamphetamine was possessed for sale.

The prosecutor also offered the testimony of Officer John Borrego, a gang expert. After detailing his background, training, and experience, Borrego testified concerning the culture and habits of criminal street gangs, including Crow Village.

Borrego discussed the importance of a gangs territory and that Arebalos residence was in Crow Villages territory. He said that if someone is selling drugs in Crow Villages territory, that person is a Crow Village gang member.He explained guns are important in gangs because they enable gang members to commit crimes and instill fear and increase respect within their neighborhoods. He also explained the concept of a gang gun, which is a gun gang members give to other gang members to commit crimes. He stated gang members store their gang guns at safe houses, a house where officers would not generally look, like a home for the mentally challenged. He also testified concerning the importance of respect within a gang, including reaching the position of O.G., or Original Gangster. An O.G. is an older person who has attained reverential status in the gang because he has committed crimes throughout the years and the younger gang members take care of them and admit to committing a crime an O.G. committed. He said Crow Village gang members use combinations of the letters C, V, L, and S to represent the gang, and often have tattoos of crows or Crow Village.

Borrego opined Crow Village was a criminal street gang as statutorily defined. Based on Arebalos numerous tattoos, two letters Arebalo wrote while he was in jail (one to a Lisa Arebalo and one to a Maribel), the items found in the closet during the search, his prior contacts with Arebalo, his associates, and the fact he claimed to be a Crow Village gang member, Borrego opined Arebalo was an active participant in Crow Village at the time of the search. An additional basis for Borregos opinion was [h]es obviously selling drugs to Crow Village gang members. When the prosecutor asked Borrego whether Crow Village gang members sell to both fellow gang members and

non-gang members, he responded, Oh, sure[,] because a gang is a criminal enterprise with the proceeds of drug sales going to the gang to further its criminal pursuits.

The prosecutor repeated Borrego was involved in the search and reminded him of the contraband found in the closet and asked Borrego whether he was aware of these facts, and Borrego responded, Yes. The prosecutor stated, And in your

opinion -- in your investigation and looking at those particular crimes, based on those facts, do you have an opinion as to whether or not [the] particular offenses, . . . were those offenses committed for the benefit of or in association or at the direction of the Crow Village gang? After Borrego responded he did have an opinion, and the prosecutor asked him what that opinion was, he responded, Again, its him selling drugs inside Crow Village, handing those -- Defense counsel objected on the grounds his answer was nonresponsive. The trial court sustained the objection. The prosecutor asked Borrego, What is your -- what is your opinion? Was it done for the benefit of, in association with, at the direction of Crow Village? Borrego opined it was, and explained, The basis of my opinion is that . . . Arebalo again was selling drugs inside of Crow Village. Parts of those proceeds are going to go back into the gang so the gang can purchase weapons, more dope to increased their profit, money on peoples books. Possession of a firearm increases his respect within the gang. That he has that firearm increases his status within the community and with the rival gang members. That firearm increases his status, like I said, internally, that hes respected enough to possess that firearm, to hold it for the gang. Also hes respected enough within the gang to sell drugs.

The prosecutor asked Borrego, How does -- how does . . . Arebalo possessing that firearm benefit the gang? He opined: Well, its benefiting it in a few ways. Like I said, having that gun, hes possessing it to -- hes keeping it -- hes benefiting -- hes keeping it for Crow Village gang members. In this instance, even though he was using it because hes selling drugs and also -- hes also keeping it for them as -- for a safe house inside that Crow Village neighborhood. And with that gun, again, its not just his gun. Its a gang gun. And when Crow Village gang members tool around, they do their daily business, and theyre armed, its going to elevate their status. Its just going to benefit them by increased respect they will get from members of the community and rival gang members.

The prosecutor asked Borrego [b]ased on the investigation that you did, were those particular circumstances of those offenses -- how were those done to promote, further, or assist the criminal conduct of the Crow Village criminal street gang? He responded, It promotes -- first of all, it promotes . . . Arebalos status internally because hes trusted enough to sell drugs inside Crow Village and to harbor a gang gun. And hes trusted enough, respected enough that hes gonna [sic] turn some of those proceeds back into the gang. And trusted enough with that gun. Externally, of course, Crow Village is going to profit monetarily from this, and its going to promote their status by which theyre gonna [sic] go in turn and purchase weapons, purchase more dope for bigger financial gains.

Arebalo offered the testimony of Rebecca Louise Cox, who testified she was in state prison for possessing a loaded firearm in a vehicle and she used heroin. Cox testified she knew Arebalo her entire life because she lived next door to him. Cox claimed she dropped off the duffel bag containing the gun the night before deputies searched Arebalos residence. Cox said the book Alices Adventures in Wonderland was not in the bag when she dropped it off. She explained her criminal case files indicate she was a Crow Village associate because of her brother, Harold Cox (Harold), but insisted she was not an active participant in Crow Village. On cross-examination, the prosecutor confronted her with court records indicating she pled guilty to being a gang member carrying a loaded firearm in public.

On cross-examination, defense counsel stated: Now, the name Benny 211, as you probably learned this morning, that 211 represents his initials, isnt that correct, in the sequence in the alphabet, 211, two B, one A, and one A? Borrego responded, [t]here are other reasons why I believe its 211, if you want me to bring that up. Defense counsel replied, Not really.

On redirect examination, the following colloquy occurred:

[Prosecutor]: . . . Borrego, you werent asked. What does 211 mean to you?

[Borrego]: Its California Penal Code section for robbery.

[Prosecutor]: And 211 Arebalo is it your understanding that means robbery Arebalo?

[Borrego]: Yes.

[Defense counsel]: Objection, your honor; that calls for speculation.

[Trial court]: As phrased, sustained. The answers stricken.

[Prosecutor]: Did you talk to anybody regarding -- when you learned that . . . Arebalos moniker was 211 Arebalo or 211 Benny, did you talk to anybody regarding that 211?

[Trial court]: See counsel at sidebar, please. [] I think were treading on dangerous ground here.

[Prosecutor]: Okay.

[Trial court]: I think its pretty obvious to just about anyone what the 211 means. To go further into it is piling on. I dont want any undue prejudice shown.

[Prosecutor]: Thats fine, your honor.

On rebuttal, the prosecutor offered Borregos testimony. He testified that based on his experience, his investigation of Crow Village, and prior contacts with Cox and Harold, both were active members of Crow Village.

The jury convicted Arebalo on all remaining counts and found true the allegations.Arebalo moved to have the trial court to conduct an in camera hearing on the validity of the sealed search warrant.He also moved to request the court to exercise its discretion and dismiss his prior convictions. The court denied both motions.Because of Arebalos two prior convictions, the court sentenced him to 25 years to life in state prison.

DISCUSSION

I. Ineffective assistance of counselsearch warrant

Arebalo argues he received ineffective assistance of counsel because his defense counsel stipulated deputies were lawfully at his residence without . . . review[ing] or otherwise challeng[ing] the search warrant. As we explain below, the record on appeal does not permit us to address this contention, and Arebalos claim is better raised by way of a writ of habeas corpus.

In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsels performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsels performance prejudiced defendants case in such a manner that his representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations.] Moreover, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Citation.] Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] If defendant fails to show that he was prejudiced by counsels performance, we may reject his ineffective assistance claim without determining whether counsels performance was inadequate. [Citation.] (People v. Sanchez (1995) 12 Cal.4th 1, 40-41 (Sanchez).)

A felony complaint charged Arebalo in October 2005, and the trial court appointed the public defender to represent him. When the public defenders office declared a conflict in November 2005, the court appointed the alternate defender to represent Arebalo. In January 2006, Arebalo waived preliminary examination and was held to answer. The prosecutor filed an information and the court set an April trial date. Over the next three months, the court continued the jury trial to July. Three days before trial was to start, the alternate defenders office declared a conflict, and the court appointed a conflict attorney. The court set the case for pretrial in September, and after several continuances, the trial began in December.

When trial began, none of Arebalos three defense counsel had challenged the legality of the search warrant. During trial, at sidebar, the court stated it wanted to know [w]hy[] . . . there was no question concerning execution of the search warrant. After the prosecutor informed the court the search warrant was sealed, the court said, No. I mean, there was no evidence that the reason they were doing the search was pursuant to a search warrant. The court explained that it was concerned a juror might conclude the search and seizure was illegal. Defense counsel stated, We could stipulate. When the prosecutor indicated she had proposed such a stipulation, defense counsel explained he objected to the proposed stipulation because it used the word legally. The parties stipulated deputies were lawfully at the residence of [Arebalo] pursuant to a search warrant at 7861 Santa Catalina, Stanton, California.

After the jury convicted Arebalo, defense counsel filed a motion supported by counsels declaration requesting the court conduct an in camera hearing on the validity of the search warrant. In his declaration, counsel stated neither the alternate defender nor he moved to suppress evidence, quash or traverse the search warrant, unseal the affidavit, or conduct an in camera hearing. Recognizing it was highly irregular to file such a motion after the jury had returned verdicts, counsel stated, [he] knew of no grounds on which a preliminary showing could be made for unsealing of the search warrant and affidavit. However, as evidenced by the attached [a]uthorities, there should have been a review by the [t]rial court of the sufficiency of the probable cause set forth in the affidavit in support. The trial court denied the motion explaining the time to challenge the reasonableness of the search warrant had passed, but ordering the search warrant be retained for purposes of appeal.[2]

In People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello), defendant was charged with possessing cocaine, defense counsel did not move to suppress evidence, and defendant was convicted. After a divided panel of this court agreed and reversed the judgment, the California Supreme Court reversed. The court explained: Because the legality of the search was never challenged or litigated, facts necessary to a determination of that issue are lacking. [Citation.] . . . We have repeatedly stressed that [if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected. [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.] We recommended in [People v. Pope (1979) 23 Cal.3d 412] that, [t]o promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus. [Citations.] Because claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding, the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal [citations] would not bar an ineffective assistance claim on habeas corpus. (Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) The court explained it did not know why defense counsel failed to move to suppress evidence. The court opined, An appellate court should not declare that a police officer acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence. (Id. at

p. 267.)

Although the facts in Mendoza Tello are not identical to the facts here, its reasoning is instructive. Defense counsel stipulated deputies were lawfully at the residence of [Arebalo] pursuant to a search warrant[.] Because of the stipulation, the reasonableness of the search warrant was not litigated. Additionally, defense counsel was not asked for an explanation as to why he did not challenge the reasonableness of the search warrant, and we are not prepared, based on this record, to conclude there was no satisfactory explanation for counsels failure to challenge the warrants reasonableness. The facts necessary to determine the issue are lacking. Defense counsel did submit a postconviction declaration stating, [he] knew of no grounds . . . for unsealing of the search warrant and affidavit[,] but counsels statement fails to adequately convey the extent of his deliberation, if any, leading to his decision to stipulate deputies were lawfully at Arebalos residence. The record on appeal does not shed adequate light on why defense counsel acted in the manner challenged, and Arebalos claim on appeal must be rejected. As the court in Mendoza Tello, supra, 15 Cal.4th at page 267, stated claims of ineffective assistance of counsel are more appropriately litigated in a habeas corpus proceeding.

II. Motion for mistrialprosecutors opening statement

Arebalo contends the trial court erroneously denied his motion for mistrial because during opening statements the prosecutor impermissibly referenced a letter Arebalos son sent to him while Arebalo was in jail. Alternatively, he claims he received ineffective assistance of counsel because defense counsel did not object to the reference and request a mistrial. Neither of his contentions have merit.

A trial court should grant a motion for mistrial only when a partys chances of receiving a fair trial have been irreparably damaged [citation], that is, if it is apprised of prejudice that it judges incurable by admonition or instruction [citation]. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] Accordingly, we review a trial courts ruling on a motion for mistrial for abuse of discretion. [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 573.)

During the prosecutors opening argument, she stated: Whats also interesting about this mail cover is he receives mail, and another item of evidence that he receives is a letter from his son. Youre going to hear evidence his son is also an active participant in Crow Village. His son wrote this letter and drew a beautiful picture attached to this letter, and on that he writes -- draws a picture obviously of his father, . . . Arebalo, and he puts Arebalo 211. Giving him the respect, giving him the respect of putting his moniker on this picture. So youre going to see that they communicate with each other. Youre going to see that happen after this.

After opening statements, and on the record, but out of the presence of the jury, defense counsel moved for a mistrial based on the prosecutors statements concerning Arebalos sons letter. The trial court explained there was a chambers conference where defense counsel made a motion in limine to exclude Arebalos sons letter. The court explained the gang expert may rely on hearsay in forming an expert opinion, but the letters substance is inadmissible. The court reserved ruling on the mistrial motion until the issue of the letters admissibility was resolved. The prosecutor indicated she intended only to introduce the drawing and not the letter. The court ruled the probative value of the picture outweighed its prejudicial effect.

During trial, the prosecutor asked Borrego whether he recognized the picture. Borrego said he did, the prosecutor asked him how, and Borrego responded, It was found in one of the letters that I read. It was a letter from Benny Arebalo, Jr., to Benny, Sr. (Italics added.) The trial court sustained defense counsels objection, and struck the above italicized language.

Arebalo claims the prosecutors opening statements were incurably prejudicial because the prosecutor stated Arebalos son was an active participant in Crow Village, Arebalos son was showing Arebalo respect, and the letter contained [Arebalos] gang moniker and other gang indicia. Not so.

Where the admissibility of evidence is an issue, it is preferable for counsel to refrain from referencing that evidence until that issue has been resolved. When the evidence is later admitted, there is no prejudice. (People v. Hinton (2006) 37 Cal.4th 839, 863 (Hinton).)

Here, the prosecutor did not seek to admit Arebalos sons letter, but only the picture with Arebalos moniker, Arebalo 211. As Arebalo concedes, a gang expert may testify concerning gang culture and habits. Indeed, Borrego testified concerning Arebalos status in Crow Village based on items in his closet, including references to Crow Village, his moniker, and other gang indicia. References to Arebalo 211 were admitted at trial, and the prosecutors references to that evidence were proper.

Arebalos real complaint is that the prosecutor incurably prejudiced him by stating his son was a Crow Village gang member who is paying respect to his imprisoned father. The implication being Arebalo raised his son to be a Crow Village gang member, and therefore, he is a bad person and guilty of the offenses and enhancements charged.

Again, although the better practice is to litigate the admissibility of evidence before commenting on that evidence, we cannot conclude Arebalo was incurably prejudiced by the prosecutors statements concerning his son. The prosecutors reference to Arebalos son when viewed in context of the entire record was ill advised, but did not irreparably damage Arebalos chance of receiving a fair trial. Based on the items found in Arebalos closet and Borregos testimony, there was overwhelming evidence Arebalo was a longstanding active participant in Crow Village. Additionally, Borrego testified concerning two letters Arebalo wrote while he was in jail. In a letter Arebalo wrote to a person Borrego opined was his daughter, Arebalo referred to himself as a triple O.G.[,] mentioned Angel Luna, the Crow Village shot caller, and explained how he controls his boys in jail. In the letter Arebalo wrote to Maribel, Arebalo stated, I dont know what my homeboy told you about me, but I am from Crow Village, and Im fighting a case.

Finally, both before and after trial, the trial court instructed the jury the attorneys statements and arguments are not evidence. The trial courts instructions would have dispelled any prejudice. (Hinton, supra, 37 Cal.4th at p. 863.) Therefore, the prosecutors references to Arebalos son being an active participant in Crow Village and paying respect to his imprisoned father did not incurably prejudice him.

Alternatively, Arebalo claims his defense counsels failure to timely object to the prosecutors statements and request a mistrial constituted ineffective assistance of counsel. We disagree.

In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsels performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsels performance prejudiced defendants case in such a manner that his representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations.] Moreover, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Citation.] Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] If defendant fails to show that he was prejudiced by counsels performance, we may reject his ineffective assistance claim without determining whether counsels performance was inadequate. [Citation.] (Sanchez, supra, 12 Cal.4th at pp. 40-41.)

Here, it is not reasonably probable the result of the proceeding would have been different had Arebalos defense counsel objected to the prosecutors statement and requested a mistrial. Defense counsel did request a mistrial after opening statements. After the trial court stated counsel moved to exclude the letter and explained why the picture was admissible, the court reserved ruling on the mistrial motion. Based on our review of the record, it does not appear the court expressly ruled on that motion.[3] Nevertheless, counsel requested a mistrial and prevented the letter from being admitted. Additionally, assuming counsel objected to the prosecutors statement and requested the reference to Arebalos son be stricken, and the trial court sustained the objection and struck the material, no additional benefit would accrue to Arebalo. As we explain above, the trial court instructed the jury that attorneys statements and argument are not evidence. Therefore, Arebalo did not receive ineffective assistance of counsel.

III. Gang expert testimony

Arebalo argues the admission of [Borregos] opinion, or its scope, or its infringement on ultimate fact constituted prejudicial error . . . . Alternatively, Arebalo claims he received ineffective assistance of counsel because his defense counsel failed to object to Borregos testimony. Although we agree counsel was ineffective, we conclude Arebalo was not prejudiced.

As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.] (People v. Valdez (1997)

58 Cal.App.4th 494, 506 (Valdez).) In cases where gang offenses and enhancements are alleged, expert testimony regarding the culture, habits, and psychology of gangs is generally permissible because these subjects are sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Ibid.) For example, an expert may properly testify about the size, composition, or existence of a gang; motivation for a particular crime, generally retaliation or intimidation; and whether and how a crime was committed to benefit or promote a gang[.] (People v. Killebrew(2002) 103 Cal.App.4th 644, 656-657 (Killebrew); People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551 (Gonzalez) [we find it difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes respect[]].)

An expert, however, may not testify a specific individual had specific knowledge or possessed a specific intent. (Killebrew, supra,103 Cal.App.4th at p. 658.) In Killebrew, the court held an experts opinion testimony was improper: Through the use of hypothetical questions, [the expert] testified that each of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and

(2) jointly possessed the gun with every other person in all three cars for their mutual protection. In other words, [the expert] testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action. [] [The expert]s testimony was the only evidence offered by the People to establish the elements of the crime. As such, it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. (Ibid.)

In People v. Gonzalez (2006) 38 Cal.4th 932, 946-947, footnote omitted, the California Supreme Court stated: As did the court in . . . Gonzalez, supra,

126 Cal.App.4th 1539, we read Killebrew as merely prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. [Citations.] . . . [The expert witness] merely answered hypothetical questions based on other evidence the prosecution presented, which is a proper way of presenting expert testimony. Generally, an expert may render opinion testimony on the basis of facts given in a hypothetical question that asks the expert to assume their truth. [Citations.] The court explained: [T]here is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. (Id. at p. 946, fn. 3.)
Here, defense counsel did not object to any of the testimony Arebalo complains was improper except three statements: two where Borrego opined he was selling drugs in Crow Village territory, and one where Borrego stated his moniker meant robbery Arebalo. The trial court sustained defense counsels objections to all three statements, and struck the testimony concerning the meaning of his moniker. Because the trial court sustained counsels objections to this testimony, Arebalos claims as to the above testimony are unpersuasive. With respect to the testimony counsel did not object to, the trial court did not rule on its admissibility. Therefore, we must address Arebalos claims with respect to this testimony within the context of his ineffective assistance of counsel contentions.

In determining whether counsels performance was deficient, a court must in general exercise deferential scrutiny . . . and must view and assess the reasonableness of counsels acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act. [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. [Citation.] (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)

As we explain above, expert testimony on the culture, habits, and psychology of gangs is generally permissible and a prosecutor may question an expert through the use of hypothetical questions regarding hypothetical persons. But an experts testimony is not unfettered because an expert may not testify that a specific individual had specific knowledge or possessed a specific intent. To the extent, if at all, Arebalo makes the broad claim Borregos expert opinion was unnecessary because the jury was able to determine whether the applicable statutory elements were satisfied without his testimony and defense counsel should have objected to the expert testimony in toto, he is incorrect. The gang subculture is a proper subject of expert testimony. (Gonzalez, supra, 126 Cal.App.4th at p. 1550.)

When the prosecutor asked Borrego whether the current offenses were committed for the benefit of Crow Village Borrego explained, Arebalo again was selling drugs inside of Crow Village. Parts of those proceeds are going to go back into the gang so the gang can purchase weapons, more dope to increased their profit, money on peoples books. Possession of a firearm increases his respect within the gang. That he has that firearm increases his status within the community and with the rival gang members. That firearm increases his status, like I said, internally, that hes respected enough to possess that firearm, to hold it for the gang. Also hes respected enough within the gang to sell drugs. (Italics added.)

When the prosecutor asked Borrego how Arebalo possessing the gun benefitted Crow Village Borrego stated, [H]es possessing it to -- hes keeping it -- hes benefiting -- hes keeping it for Crow Village gang members. In this instance, even though he was using it because hes selling drugs and also -- hes also keeping it for them as -- for a safe house inside that Crow Village neighborhood. (Italics added.)

When the prosecutor asked Borrego whether the offenses were done to promote Crow Village Borrego responded, It promotes -- first of all, it promotes . . . Arebalos status internally because hes trusted enough to sell drugs inside Crow Village and to harbor a gang gun. And hes trusted enough, respected enough that hes gonna [sic] turn some of those proceeds back into the gang. And trusted enough with that gun. Externally, of course, Crow Village is going to profit monetarily from this, and its going to promote their status by which theyre gonna [sic] go in turn and purchase weapons, purchase more dope for bigger financial gains. (Italics added.)

Borregos opinion testimony concerning why Arebalo was selling drugs and why he possessed the gun did nothing more than inform the jury how he thought the case should be decided. He opined Arebalo sold drugs to benefit Crow Villages criminal enterprise, and he possessed the gun to increase his respect within Crow Village. He also opined his residence was a Crow Village safe house and he benefitted Crow Village by keeping the gun for Crow Village gang members. Finally, he opined Arebalo sold the drugs and possessed the gun to promote Crow Village because it increased his respect within Crow Village and Crow Village was going to profit from his actions. Borregos testimony concerning Arebalos specific intent to benefit Crow Village was impermissible. Arebalos state of mind was for the jury to decide.

We can think of no tactical decision for not objecting to Borregos testimony concerning Arebalos state of mind. Whether a hypothetical offense promotes or benefits a gang, or whether a hypothetical defendant intends to promote a gang is often times the critical inquiry in gang cases.[4] Therefore, defense counsel should have objected to admission of Borregos testimony concerning Arebalos state of mind. That does not end our inquiry, however, because we must now determine whether Borregos testimony was prejudicial. We conclude it was not.

The record contains ample evidence supporting the jurys finding the offenses were committed to promote and benefit Crow Village, and Arebalo specifically intended to promote Crow Village.[5] The record includes evidence Arebalo was a

long-time Crow Village gang member who resided in Crow Village territory. Deputies found significant quantities of heroin and methamphetamine, and indicia of sales at his residence, and Balicki opined Arebalo possessed the drugs for sale. Deputies also found a loaded gun. Borrego explained generally drug sales benefit a gang because it enables the gang to buy more drugs and guns. He also explained the importance of guns in gangs because they enable gang members to commit crimes and instill fear within their neighborhoods. Finally, he explained how gangs have safe houses to hide contraband from law enforcement officers. From this evidence, the jury could reasonably conclude Arebalo committed the substantive offense of street terrorism, and found he committed counts 2 through 5 for the benefit of a criminal street gang. Because there was ample evidence supporting the offenses and enhancements, it is not reasonably probable that had defense counsel objected to Borregos improper testimony the result of the proceeding would have been different.

DISPOSITION

The judgment is affirmed.

OLEARY, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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[1] All further statutory references are to the Penal Code, unless otherwise indicated.

Before trial, upon the prosecutors motion, the trial court dismissed count 1.

[2] Arebalo also requests this court unseal the search warrant and/or provide it to counsel for review. The Attorney General opposes the request. We DENY Arebalos request.

We requested the superior court transfer the sealed search warrant and affidavit to this court for our review.

[3] Arebalo asserts [t]he motion implicitly was denied.

[4] Part of the problem stems from the fact the prosecutor did not question Borrego using a typical hypothetical question. The prosecutor repeatedly referred to Crow Village in her questions and specifically asked how does . . . Arebalo possessing that firearm benefit the gang? We caution the district attorney to use proper hypotheticals when questioning a gang expert.

[5] Section 186.22, subdivision (a), states, Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be

punished . . . in the state prison for 16 months, or two or three years. (Italics added.)

Section 186.22, subdivision (b)(1), increases the punishment for

gang-related crimes 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 . . . . (Italics added.)