People v. Williams (170 Cal. App. 4th 587, 2009)

Opinion

HOLLENHORST, J.

I. INTRODUCTION

Defendant Kenneth Dentario Williams appeals from his conviction of: possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1) — count 1); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) — a lesser offense in count 2); possession of a controlled substance while armed (Health & Saf. Code, § 11370.1 — count 3); possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1) — count 4); and participation in a criminal street gang (Pen. Code, § 186.22, subd. (a) — count 5), along with the true findings on allegations as to counts 2 through 4 that defendant committed the crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)).

Although framed under a variety of headings — trial court abuse of discretion, trial court misconduct, and prosecutorial misconduct — defendant’s principal argument is that it was error to admit evidence about dozens of contacts defendant and fellow gang members had with law enforcement, regardless of whether those contacts had led to convictions or even to arrests, and regardless of whether the evidence had any reliable basis. Although we find plain error in the admission of such unnecessary quantities of evidence, which turned the trial of this routine drug and weapons possession case into a weeks-long marathon, we nonetheless find the error harmless because the case against defendant was overwhelming.

Defendant also contends (1) the trial court erred by permitting expert witnesses to give opinions on the ultimate issues; (2) the trial court committed other misconduct; (3) the evidence was insufficient to support defendant’s conviction because a police officer testified that any one of the seven persons present in the house where the contraband was found could have possessed the guns and drugs; (4) misdemeanor assault was erroneously identified to the jury as a predicate offense to support the gang charge and enhancement allegations; (5) the trial court erred in instructing the jury that the specific intent for the gang enhancement was to promote any criminal conduct; (6) the trial court erred in failing to instruct the jury sua sponte on the definition of the term “principal”; (7) the prosecutor committed misconduct; (8) the upper term for the gang enhancement allegation in count 3 violated defendant’s Sixth Amendment right to a jury trial; (9) other sentencing errors occurred; and (10) cumulative errors resulted in a fundamentally unfair trial.

The People concede one sentencing error must be corrected, and we conclude additional sentencing errors must likewise be corrected. We find that any other errors that occurred, whether considered individually or cumulatively, were not prejudicial, and we affirm.

n. FACTS AND PROCEDURAL BACKGROUND

A. Evidence Relating to Current Charges

On February 16, 2006, Palm Springs Police Department officers went to an address on Avenida Cerca (the Avenida Cerca house or the Avenida Cerca address) to arrest Dimitri Allen on an outstanding warrant. Allen, who had been standing on the front porch of the house when the officers arrived, went inside and closed the door after the officers identified themselves and ordered him to the ground. The officers called for backup and set up a perimeter.

Sergeant Bryan Anderson knocked on the door. Defendant eventually opened the interior door but left the security screen locked. The officers told defendant they were there to serve the arrest warrant on Allen, but defendant refused to let the police enter. In a two- to three-minute conversation, defendant told the officers several times that they had no right to enter his house and that he had been working on the computer in his bedroom. Defendant was visible to the police the entire time, and the officers could hear other persons moving around inside the house. Eventually, defendant allowed the officers to enter the house.

Defendant and six other men — Allen, Tracy Session, Christopher Manning, Bobby Shaw, Trevon Smith, and Damion Lee — exited the house. All the men except Shaw were members of the Gateway Posse Crips (GPC) gang, and Shaw was an associate of that gang. A woman, Michelle Booty, was outside the house beside a car.

The officers searched the house. In the northeast bedroom, they found a laptop computer and two cell phones on a bed. A loaded nine-millimeter handgun was under a pillow on the bed. In that bedroom, the officers also found a drug pipe, two digital scales, and mail addressed to defendant at the Avenida Cerca and other addresses. The officers also found defendant’s driver’s license and California identification card in the bedroom; both pieces of identification had the Avenida Cerca address on them. A box of .44 magnum ammunition and a box of nine-millimeter ammunition were found on the dresser and a box of .44 Winchester ammunition was found in a Louis Vuitton bag in the bedroom closet. The closet contained men’s clothing consistent with defendant’s size. A ball cap found in the bedroom bore defendant’s moniker, “Swif.”

In the garage, approximately 11 to 15 feet from the bedroom, the officers found a duffel bag that contained 11 baggies of methamphetamine and a revolver with the word “Crip” etched on it. It was stipulated that one baggie contained 3.3 grams of methamphetamine, and each of the 10 smaller baggies contained 0.5 grams of methamphetamine.

The officers arrested all seven men who had been in the house for possession of guns and methamphetamine. Defendant, who was unemployed, had $776.98 in his possession. Manning had $0.35 on him; Shaw had $73.01; Smith had $72.40, and Session had $17.76.

Sergeant Matthew Beard testified at trial that the guns, ammunition, and drugs belonged to defendant. At the preliminary hearing, Sergeant Beard had testified that all those in the house had access to the drugs and firearms.

Sergeant Anderson testified as an expert on methamphetamine and drug sales. He testified that 0.5 grams of methamphetamine were a usable quantity worth $25 to $40, and 3.3 grams of methamphetamine were worth $120 to $180. In his opinion, the methamphetamine was possessed for sale. That opinion was based in part on the amount of methamphetamine and the manner in which it was packaged, as well as the presence of the scales and cell phones. That opinion was also based on evidence of other crimes admitted under Evidence Code section 1101, subdivision (b), further discussed below, and on a search conducted at defendant’s home in December 1989. At the time of the 1989 search, defendant had been living with a relative, Kenneth Crawford, who was a member of a predecessor gang to the GPC. During that search, the officers had found one or two sawed-off shotguns, a handgun, and drug paraphernalia. Another person in the house had drugs on his person. Defendant was arrested in that incident for maintaining a drug house, and he received diversion. Sergeant Anderson also testified he would have formed the opinion that the methamphetamine was possessed for sale even without considering defendant’s prior conduct.

Sergeant Anderson further stated his opinion that defendant had worked his way up from being a street-level drug seller or runner to his present position in which others sold drugs for him. The basis for that opinion included a police report stating that in February 1988, an officer had seen defendant on a street comer tossing a rock of cocaine. A fight had ensued when the officer had tried to arrest defendant, and defendant had escaped but had later turned himself in.

B. Evidence of Defendant’s Other Crimes and Arrests

Before trial, the trial court ruled the prosecutor could introduce evidence under Evidence Code section 1101, subdivision (b), of three prior crimes involving defendant. At trial, the prosecutor produced evidence of those crimes, as follows.

(1) In December 1991, officers searched defendant’s home and found two handguns, a rifle, a submachine gun, a shotgun with a pistol stock, a high-powered rifle, ammunition, $1,277 in cash, baggies, pay/owe sheets, and four pieces of rock cocaine. Defendant had another $360 on his person. Defendant was convicted in 1993 for possessing a controlled substance. (Health & Saf. Code, § 11351.5.) At the time of his arrest, he said he supported himself and his girlfriend and children by selling rock cocaine, and the money found was from such sales. He told the officers he was a member of the GPC, he had several drug runners working for him, and he needed the guns because he was a gang member selling rock cocaine.

(2) In January 1992, a police officer saw defendant and two GPC members standing near a parked car. When the officer approached, defendant twice reached into his waistband and each time placed an object into the trunk of the parked car. The officers conducted a consensual search of the car and found two pagers and a loaded pistol. Defendant admitted ownership of the pagers and the pistol. The officers arrested defendant for having a concealed firearm and found $1,428 in cash in his pocket. Sergeant Anderson testified that at the time, drug dealers and buyers communicated with pagers.

(3) In April 2003, pursuant to a search warrant, police officers searched Session’s house, where defendant was then living. Defendant, Session, and another GPC member were present during the search. The officers found a modified shotgun in defendant’s bedroom, and he was carrying $2,874 in his pocket. The officers found a revolver and marijuana in Session’s room, and a scale, a revolver, marijuana, and $1,000 in counterfeit money in the garage.

The prosecutor also introduced evidence of the following crimes and contacts with law enforcement.

(1) In 1988, unspecified members of the GPC were arrested for robberies of students at the high school defendant attended.

(2) In February 1988, defendant, who was then a juvenile, allegedly discarded cocaine and fought with officers on a street comer.

(3) In June 1988, defendant purportedly threatened to kill a teacher at his high school.

(4) While in high school, defendant purportedly shoplifted clothing.

(5) In July 1990, defendant was arrested for a home invasion robbery at the home of Norman Gant. Defendant was accused of possessing a firearm and purportedly told the police he was selling dmgs. The records of the case were destroyed.

(6) In September 1991, defendant was arrested for assaulting Tyler Hamm with a deadly weapon. Defendant was not convicted.

(7) In March 1992, defendant was arrested for an unspecified offense with another GPC member.

(8) In July 1999, defendant was involved in a traffic collision.

(9) Defendant coached his son’s football team, purportedly in violation of his probation.

(10) In November 2000, defendant broke up a riot at Session’s house. Defendant was not arrested or convicted.

(11) In October 2002, defendant received a traffic ticket.

(12) In January 2003, defendant drove around the neighborhood stopping his car to talk to drug runners.

(13) In June 2001, defendant was arrested for and later convicted of misdemeanor battery on an umpire.

(14) In April 2004, a police report stated defendant had been in the presence of other gang members at a nightclub. Defendant was not arrested or convicted.

(15) In April 2004, defendant broke up a fight at a Denny’s restaurant. The police claimed defendant possessed stolen property. Defendant was not arrested or convicted.

C. Gang Evidence

Palm Springs Police Detective William Judd testified as a gang expert. He testified that the GPC originated in 1988, and defendant, whose moniker is “Big Swif,” was one of the founding members. The GPC operates in the northern part of Palm Springs and Desert Hot Springs and has more than 100 members who use common signs and symbols. Detective Judd testified the GPC’s primary activities are drug sales, prostitution, and strong-arm robberies, and its members have also committed murder, kidnapping, grand theft auto, robbery, arson, and extortion.

Detective Judd had first met defendant during the 1986-1987 school year when the detective had been a campus police officer at defendant’s high school. The next year, Detective Judd became aware of defendant’s membership in the GPC when defendant and other students began bragging about it. Defendant distributed blue flannel shirts (blue was the GPC color) to fellow gang members at a football game and referred to the Crips in June 1988, when he threatened to shoot a teacher.

Detective Judd testified that defendant had GPC-related tattoos on his stomach and forearms, including a “RIP Tiny Crazo” tattoo on one forearm. GPC member Tiny Crazo died in early 2003.

Detective Judd identified defendant in GPC-related photographs from the early 1990’s. The detective testified that defendant’s name at the top of a gang roster indicated defendant’s leadership position. Defendant had admitted gang membership when he was arrested in the late 1980’s and again in the late 1990’s. Defendant also had admitted his gang membership during a traffic stop in January 2006 and when he was being booked in the present case.

Two letters found during the search of the Avenida Cerca house were addressed to defendant as “Big Swif’ and were from GPC member James Murrell, also known as “Little Swif.” The letters were dated in August and September 2005. Murrell was in prison, and in the letters he asked what was happening in the gang’s turf and asked about another GPC member. Detective Judd testified that he believed the language used in one letter indicated defendant was still an active participant in the gang.

Detective Judd further testified that defendant had frequently been seen in the company of other GPC members. In July 1990, defendant had been arrested for a robbery with two GPC members. In January 2003, Detective Judd had seen defendant stop at different street comers and talk to people whom Detective Judd believed were defendant’s dmg mnners. Also in 2003, defendant had paid the towing bill for a GPC associate whom Detective Judd believed was defendant’s drug business employee. Defendant had been with another GPC member when he had paid that bill.

Detective Judd stated his opinion, based on defendant’s police contacts, criminal activity, and admissions, that defendant was an active participant in the GPC from 1988 through 1999. In Detective Judd’s opinion, based on observations of defendant with other GPC members, the leadership position defendant took in calming people during the 2000 arrest of another GPC member, defendant’s “RIP Tiny Crazo” tattoo, and his 2003 arrest with other GPC members, defendant’s active participation in the GPC continued from 2000 through 2006. Detective Judd believed defendant was a leader in the gang and also ran the gang’s drug trade.

Detective Judd testified that on the day of the search of the Avenida Cerca house, defendant had tried to harbor Allen when the police arrived. Detective Judd believed the gang had been meeting about the recent gang-related murder of a GPC member. Detective Judd testified the GPC had been known to retaliate for violence against its members, and it was “quite possible . . . they were preparing for some sort of retaliation.” Detective Judd believed defendant had acted on behalf of the GPC by providing a place for the meeting, by having weapons available to protect the drugs and the gang’s territory, and by trying to intimidate or delay the officers at the front door of the house.

Detective Judd stated his opinion that the methamphetamine found in the garage was possessed for the benefit of the gang and was possessed for sale. He opined that the firearms and ammunition were possessed for the benefit of the gang to protect the gang’s turf and members. Detective Judd testified that in his opinion, it was possible the methamphetamine belonged to defendant alone, because defendant was running the drug trade for the GPC. Detective Judd did not believe the other GPC members would have been able to sell the methamphetamine from the house without defendant’s knowledge or permission.

The prosecutor introduced evidence of the following predicate crimes to establish the gang allegations and substantive gang offense.

(1) On August 10, 2001, four GPC members committed a robbery during which one GPC member fatally shot a drug buyer. Detective Judd believed the crime was gang related because all four participants were GPC members, and the shooter had fired when one of the gang’s leaders had directed him to do so.

(2) On December 2, 2002, GPC members beat a man and smashed his face with a boulder. Defendant was not involved. Detective Judd believed the crime was gang related because three GPC members participated together and because the victim had confronted them on their turf.

(3) In 2003, a GPC member was convicted of robbery based on an incident in which he had stuck a lit cigarette in the crotch of and took money from an undercover officer who had argued with the member over the quality of drugs the member was selling in an undercover buy program.

(4) In 2003, during the same undercover buy program, three other GPC members and a GPC associate sold cocaine to undercover operatives.

(5) On April 11, 2004, 10 to 15 GPC members were involved in a fight at a Denny’s restaurant in an area the gang claimed as its turf. A nongang member was beaten almost to death, and GPC members stole his wallet and cell phone. Defendant was present but not involved in the fight. Detective Judd believed the incident was gang related because GPC members were making a statement about their turf.

(6) After the fight at Denny’s, officers called the cell phone of the victim, and the person who answered the phone agreed to return the phone and the victim’s wallet for a reward. Officers stopped defendant and GPC member Manning in a car en route to collect the reward. Defendant gave the wallet and phone to the police. Manning was convicted of receiving stolen property; defendant was not charged. An officer had seen defendant at a nightclub earlier that evening with two GPC members, one of whom was later convicted of assault based on the beating at Denny’s.

(7) On July 7, 2005, a GPC member offered a $20 reward to the first junior member of the gang who could knock a 13-year-old boy unconscious. Detective Judd believed the crime was gang related because the victim had earlier been involved in a physical altercation with a GPC member. Certified court documents in San Bernardino County Superior Court case No. INF051266 showed that one GPC member had been convicted of aggravated assault.

(8) In addition, defendant’s 1993 conviction of possession for sale of a controlled substance (Health & Saf. Code, § 11351.5) was designated a predicate offense.

D. Defense Evidence

Defendant testified in his own behalf. He testified that on February 16, 2006, he had been living with his girlfriend, Latasha Strange, and their children on North Sunrise. He was visiting his aunt’s house at the Avenida Cerca address that day, preparing to leave for'a friend’s funeral in Texas. Allen, Session, Shaw, Lee, Manning, defendant’s brother Brandon Williams, and Michelle Booty were also at the aunt’s house. Booty and Session were defendant’s cousins; Allen, Shaw, and Lee were defendant’s childhood friends.

Defendant admitted he had been one of the original members of the GPC, having joined in 1988 when he was 18. He had been a well-respected member and a “shot caller.” He also admitted he had sold drugs from 1988 through 1993. He had used the profits from selling drugs to support his family, and he did not share the profits with the gang. He denied he had ever used runners to sell drugs.

Defendant testified he quit the gang in 1994 and had stopped selling drugs after 1997. He was not currently an active member of the gang. He testified that he had the gang tattoo put on his stomach in 1992 and had gang tattoos put on his arm in 1988 and 1990. He admitted a prior felony conviction for possession of cocaine for sale, a prior felony conviction for possession of a firearm by a felon, and a misdemeanor conviction for battery.

Defendant denied ownership of the guns, drugs, ammunition, and drug pipe found at the Avenida Cerca house. Defendant admitted he had possessed drugs when the police stopped him at a street comer in February 1988, but denied he had been selling drugs. He denied that he had maintained a drag house in 1989, and he testified that those charges had been dropped. He similarly denied involvement in other crimes. He explained that he had obtained the cash he was carrying on February 16, 2006, from Strange, a tax return, his aunts, and another person. The money was to pay for his car registration and his trip to the funeral in Texas.

Defendant’s aunt, Gwen Crawford, testified she had lived at the Avenida Cerca house for 18 years, and defendant had stayed there “quite a bit.” Defendant kept clothes and received mail there. He used the bedroom where the computer had been found. Others also had stayed at that house and had used that room. Two people had been living in her garage for the past couple of years. Crawford did not allow drugs or firearms in her house. On the afternoon of February 16, 2006, a friend had picked up Crawford at the Avenida Cerca house. When she left, defendant, Smith, and Booty were at the house, but Crawford did not remember any of the other men being there. Defendant had been preparing to go to his best friend’s funeral in Texas. Crawford testified that she and her friend had given defendant money that day for his trip. She testified the Louis Vuitton bag containing ammunition that the officers had found in the bedroom closet resembled a bag that defendant owned.

E. Rebuttal Evidence

The manager of Strange’s apartment complex testified she had occasionally seen defendant there in 2002 and had last seen him there in 2003. The manager testified she would have known if defendant had been living with Strange in February 2006, and he had not been living there.

A deputy who completed classification forms for defendant at the jail in February 2006 testified that defendant had told the deputy defendant was affiliated with the GPC, his moniker was “Big Swif,” and he had a tattoo saying “Gateway Posse” on his right arm and another tattoo saying “GWPC” on his stomach. Defendant certified with his signature that those statements were true. The purpose of asking inmates about their gang affiliation was to protect the inmates by ensuring they were not housed with members of rival gangs.

Another deputy testified that defendant had made similar statements in June 2006 concerning his gang affiliation, moniker, and tattoos. Defendant told that deputy his rival gangs were Tre 9 and the Bloods. Defendant had again signed a form certifying the statements were true.

An investigator with the district attorney’s office testified he knew defendant and had reviewed the jail classification notes. In the investigator’s opinion, defendant was a current member of the GPC. That opinion was based on the fact that other GPC members had asked to be transferred to defendant’s tank after his arrest — defendant was a founder and leader of the GPC, and other incarcerated members would want to be in his tank for mutual protection and to discuss and continue gang activity. In addition, defendant had been identified as a GPC member on a field identification card completed in January 2006 when defendant was stopped for a traffic violation, and the address listed for defendant on the card was the Avenida Cerca address. Defendant had approached the investigator about becoming an informant after defendant was arrested in this case. The investigator’s opinion was also based on defendant’s reputation throughout the Coachella Valley and the fact that defendant had identified himself as being affiliated with the GPC.

Sergeant Donald Fallon testified that in July 1990, in investigating the home invasion robbery of Norman Gant, he had contacted possible suspects, including defendant. Defendant had admitted going to the victim’s house armed with a firearm in the company of two other GPC members. Defendant had armed himself in advance because he anticipated a possible shootout. Defendant had intended to tell the victim to stop selling drugs because the victim “was cutting into their business.” Defendant had denied taking any money during the robbery. Sergeant Fallon did not know if defendant was convicted in the case. Defendant’s aunt, Gwen Crawford, had been arrested for harboring a fugitive, but she was not convicted.

F. Jury Verdicts and Sentence

The jury found defendant guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1) — count 1); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) — a lesser offense in count 2); possession of a controlled substance while armed (Health & Saf. Code, § 11370.1 — count 3); possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1) — count 4); and participation in a criminal street gang (Pen. Code, § 186.22, subd. (a) — count 5). The jury found true the allegations as to counts 2 through 4 that defendant committed the crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)), but found the same allegation not true as to count 1. In bifurcated proceedings, defendant stipulated that he had suffered a conviction in 1993 for a violation of Health and Safety Code section 11351.5.

The trial court sentenced defendant to 10 years in prison, consisting of the upper term of four years for count 3, a consecutive upper term of four years for the gang allegation as to that count, a consecutive term of eight months for count 4, and a consecutive term of one year four months for the gang allegation as to that count. The trial court imposed concurrent terms for counts 1 and 5 and stayed the sentence for count 2 under section 654.

HI. DISCUSSION

A. Admission of Gang Evidence and Evidence of Prior Arrests

Defendant contends the trial court erred in admitting inflammatory, speculative, and cumulative evidence of numerous uncharged crimes, as well as arrests of defendant and other alleged gang members that did not result in convictions, and in permitting witnesses to testify as gang experts without a proper foundation. In overlapping arguments, he contends the trial court erred in admitting prejudicial evidence of numerous uncharged crimes, and he contends the prosecutor committed misconduct by introducing the same evidence.

1. Additional Background

Before trial, the prosecutor, Deputy District Attorney Rosalind Miller, moved to admit evidence of uncharged offenses under Evidence Code section 1101, subdivision (b). The trial court conducted a hearing under Evidence Code section 402, at which defendant stipulated to the admission of an April 2003 incident during which the police searched a house where defendant and two other gang members were present, and where the police found guns, marijuana, and a scale, and defendant had $2,874 in cash in his pocket. Over the objection of defense counsel, Deputy Public Defender Brenda Miller, the trial court ruled two other incidents were admissible: A January 1992 incident in which the police found guns and pagers in the trunk of a car and a December 1991 home search in which the police found rock cocaine, pay/owe sheets, guns, and a large amount of cash. The trial court ruled the other offenses were inadmissible under Evidence Code section 1101, subdivision (b). However, the trial court repeatedly stated that such offenses might come in anyway as predicate crimes. At trial, the prosecutor introduced evidence of numerous prior uncharged offenses as set forth above in the statement of facts.

2. Standard of Review

The trial court has great discretion in determining the admissibility of evidence, and on appeal, we find reversible error if the trial court’s exercise of its discretion was arbitrary, capricious, or patently absurd resulting in a manifest miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438 [110 Cal.Rptr.2d 324, 28 P.3d 78], abrogated on another point as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14 [133 Cal.Rptr.2d 18, 66 P.3d 1123].)

3. Forfeiture

The People argue that defendant failed to timely object in the trial court to some of the evidence about which he now complains and has therefore forfeited his objections. Defendant did raise numerous appropriate and timely objections in the trial court. Because of the sheer volume of prior crimes evidence admitted, our analysis of the issue would not change even if we presumed forfeiture as to some subset of that evidence. We will therefore exercise our discretion to address the issues on the merits. (See People v. Bradford (2007) 154 Cal.App.4th 1390, 1411 [65 Cal.Rptr.3d 548].)

4. Analysis

a. Evidence admitted under Evidence Code section 1101, subdivision (b)

As a general rule, evidence the defendant has committed crimes other than those for which he is on trial is inadmissible to prove bad character, predisposition to criminality, or the defendant’s conduct on a specific occasion. (People v. Avila (2006) 38 Cal.4th 491, 586 [43 Cal.Rptr.3d 1, 133 P.3d 1076].) However, Evidence Code section 1101, subdivision (b), permits evidence of a defendant’s past criminal acts when relevant to prove a material fact at issue, such as identity, motive, or knowledge. (People v. Roldan (2005) 35 Cal.4th 646, 705 [27 Cal.Rptr.3d 360, 110 P.3d 289], overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11].) In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. (People v. Pijal (1973) 33 Cal.App.3d 682, 691 [109 Cal.Rptr. 230].)

Here, the trial court allowed the prosecutor to introduce evidence of three prior incidents under Evidence Code section 1101, subdivision (b). Those three incidents, as detailed in the statement of facts, were relevant to establishing defendant’s knowledge, among other things. (People v. Roldan, supra, 35 Cal.4th at p. 705.) We conclude there was no abuse of discretion in the admission of the three incidents under Evidence Code section 1101, subdivision (b).

Moreover, the trial court instructed the jury on the limited purposes for which the evidence of the December 1991, January 1992, and April 2003 offenses introduced under Evidence Code section 1101, subdivision (b) could be used. We presume the jury understood and followed those instructions. (See People v. Danielson (1992) 3 Cal.4th 691, 722 [13 Cal.Rptr.2d 1, 838 P.2d 729], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal.Rptr.2d 409, 25 P.3d 618].)

b. Evidence admitted for impeachment

Other evidence defendant challenges was properly admitted for impeachment. First, evidence of defendant’s two prior felony convictions was properly admissible for that purpose. In People v. Wheeler (1992) 4 Cal.4th 284 [14 Cal.Rptr.2d 418, 841 P.2d 938], superseded by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459 [119 Cal.Rptr.2d 272], the court held that under article I, section 28, subdivision (d) of the California Constitution, any felony and any misdemeanor involving moral turpitude could be used for impeachment, subject to the trial court’s discretion. (People v. Wheeler, supra, at p. 296.) Defendant’s convictions for possession of cocaine for sale and possession of a firearm by a felon both involved moral turpitude. (See People v. Harris (2005) 37 Cal.4th 310, 337 [33 Cal.Rptr.3d 509, 118 P.3d 545]; People v. Littrel (1986) 185 Cal.App.3d 699, 703 [230 Cal.Rptr. 83].)

Next, the People contend that the trial court properly permitted the prosecutor to question defendant on cross-examination about whether defendant had given police the Avenida Cerca address in July 1999, July 2002, October 2002, and April 2004, in making a traffic collision report and in signing traffic citations, because that evidence tended to impeach defendant’s testimony. Defendant testified that on February 16, 2006, he had been living with Strange, and he had lived with Strange “off and on for 17 years.” He testified he had been living with Strange in 2002 and 2003, but not in 2004. Evidence that defendant had given the Avenida Cerca address in 2002 was inconsistent with his testimony that he had been living with Strange in 2002 and was therefore relevant and admissible for purposes of impeachment. However, evidence that defendant had given the Avenida Cerca address in 1999 and 2004 was not inconsistent with defendant’s testimony and was therefore irrelevant and inadmissible for purposes of impeachment. Nor did such evidence tend to show that defendant was living at the Avenida Cerca house in 2006. We therefore conclude it was an abuse of discretion to admit evidence of the 1999 and 2004 incidents.

The People further contend that the police observations of defendant’s prior drug-related activities and testimony concerning defendant’s statement to the police that he had armed himself and had gone to Gant’s house to tell Gant to stop selling drugs because Gant was cutting into the gang’s drug business were also admissible for impeachment. We agree that evidence of the statements defendant had made to Gant was relevant and admissible to impeach defendant’s testimony that he had sold drugs to support his family and did not share the profits with the gang.

c. Evidence of predicate crimes

We next examine the evidence that was admitted to establish the predicate crimes for the gang charge and gang enhancement allegations. To prove the allegations under section 186.22, subdivisions (a) and (b), the prosecutor was required to establish that one of the gang’s primary activities was the commission of one or more of the crimes listed in section 186.22, subdivision (e), and that the gang’s members engaged in a pattern of criminal activity. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322 [109 Cal.Rptr.2d 851, 27 P.3d 739] (Sengpadychith).) In that case, the court observed that “[sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at p. 324.) And a “pattern” is established by the commission of two or more enumerated offenses committed on separate occasions or by two or more persons. (People v. Loeun (1997) 17 Cal.4th 1, 4 [69 Cal.Rptr.2d 776, 947 P.2d 1313].)

As noted above, the prosecutor introduced evidence of at least eight crimes committed by GPC members, and in argument to the jury, the prosecutor referred to several other incidents. We are unaware of any authority in which the court directly addressed the volume of evidence that may be introduced to establish the primary activities and predicate crimes elements of a gang enhancement or gang charge. However, any such evidence must be subject to scrutiny under Evidence Code section 352, and part of the analysis under that section is whether the evidence is cumulative. We will discuss below whether the admission of cumulative evidence resulted in prejudice.

d. Evidence as basis for expert testimony

Gang evidence, including expert testimony, is relevant and admissible to prove the elements of the substantive gang crime and gang enhancements. (People v. Avitia (2005) 127 Cal.App.4th 185, 192 [24 Cal.Rptr.3d 887].) Thus, a properly qualified gang expert may testify about a wide range of issues, including a gang’s territory, retaliation, graffiti, hand signals, tattoos, and clothing. (People v. Ochoa, supra, 26 Cal.4th at pp. 438-439.)

Expert testimony is also relevant and admissible to explain how a gang benefits from drug sales and to prove the gang’s primary activities. (Sengpadychith, supra, 26 Cal.4th at p. 324.) Defendant concedes that expert testimony was properly admissible for such purposes. He contends, however, that the foundation for the expert testimony was impermissible hearsay about prior crimes. We address that contention in a separate part of this opinion.

e. Evidence of prior arrests

In several of the incidents set forth in the statement of facts, defendant was arrested for but never convicted of various crimes. Generally, evidence of mere arrests that do not result in convictions is inadmissible because such evidence invariably suggests the defendant has a bad character. (People v. Duran, supra, 97 Cal.App.4th at pp. 1458-1459; see also People v. Anderson (1978) 20 Cal.3d 647, 650 [143 Cal.Rptr. 883, 574 P.2d 1235] [holding that evidence of prior arrests was inadmissible because it suggested the defendant had a bad character]; People v. Bryden (1998) 63 Cal.App.4th 159, 183 [73 Cal.Rptr.2d 554] [assuming that questioning of witnesses about their arrests and misdemeanor convictions was prosecutorial misconduct, but finding such misconduct nonprejudicial].) A key consideration for trial courts in evaluating the prejudicial nature of the uncharged acts is whether the prior bad acts resulted in criminal convictions; prior convictions minimize the risk the jury would be tempted to punish the defendant for the uncharged acts. (People v. Ewoldt (1994) 7 Cal.4th 380, 405 [27 Cal.Rptr.2d 646, 867 P.2d 757] (Ewoldt), superseded by statute as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505 [128 Cal.Rptr.2d 290].)

We conclude that evidence of prior arrests that did not result in convictions was inadmissible either as proof of guilt or for impeachment. (People v. Medina (1995) 11 Cal.4th 694, 769 [47 Cal.Rptr.2d 165, 906 P.2d 2]; People v. Anderson, supra, 20 Cal.3d at p. 650.) We therefore conclude the trial court abused its discretion in admitting such evidence.

5. Cumulative Evidence

It is not enough for us to determine, incident by incident, whether the trial court might have had a reasonable basis for admitting evidence of prior crimes and police contacts. Defendant has also challenged the cumulative impact of admitting evidence of dozens of prior crimes.

Courts have recognized that evidence of other crimes is extremely inflammatory, and the trial court must take great care to evaluate its admissibility. (People v. Roldan, supra, 35 Cal.4th at p. 705.) The trial court must find that the evidence has substantial probative value that is not outweighed by its potential for undue prejudice. (Evid. Code, § 352; Ewoldt, supra, 7 Cal.4th at p. 404.)

At one point during the trial, the court observed that all of the prosecutor’s evidence from the day before, up to 2:00 p.m., had been a repeat of previous evidence. The court stated, “the [district attorney] is entitled to the full force of their evidence. If they want to over-prove their case or put on all the evidence that they have, that’s their right.” When defense counsel objected under Evidence Code section 352 that such evidence was cumulative, the trial court responded, “I am exercising my discretion and declining to state that it’s cumulative.”

We strongly disagree with the view that prosecutors have any right to “over-prove their case or put on all the evidence that they have.” In our view, the trial court and the prosecutor must also be mindful of the burden on the court system and on the jurors who are required to disrupt their lives for the duration of the trial. In other contexts, courts have recognized the trial court’s duty to consider the burden on jurors and the court itself in, for example, determining whether to grant a continuance. (E.g., People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106 [31 Cal.Rptr.2d 321, 875 P.2d 36].) In short, the state has a strong interest in prompt and efficient trials, and that interest permits the nonarbitrary exclusion of evidence, including “when the presentation of the evidence will ‘necessitate undue consumption of time.’ ” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147 [78 Cal.Rptr.2d 488].) Accordingly, neither the prosecution nor the defendant has a right to present cumulative evidence that creates a substantial danger of undue prejudice (People v. Maestas (1993) 20 Cal.App.4th 1482, 1494-1495 [25 Cal.Rptr.2d 644]) or that unduly consumes the court’s time (People v. Milner (1988) 45 Cal.3d 227, 239-240 [246 Cal.Rptr. 713, 753 P.2d 669]). In Ewoldt, the Supreme Court emphasized that cumulative evidence of uncharged offenses may be inadmissible under Evidence Code section 352. The court explained, “In many cases the prejudicial effect of such evidence would outweigh its probative value, because the evidence would be merely cumulative regarding an issue that was not reasonably subject to dispute.” (Ewoldt, supra, 7 Cal.4th at pp. 405-406.)

Applying this principle, in People v. Leon (2008) 161 Cal.App.4th 149, 168 and 169 [73 Cal.Rptr.3d 786], the court held that the trial court abused its discretion in admitting evidence of the defendant’s prior juvenile robbery adjudication to establish both that the defendant was a gang member and that the group in question was a criminal gang. The court noted that the robbery convictions of other gang members were sufficient to establish the predicate offenses, and the evidence of the defendant’s gang membership was overwhelming. (Id. at p. 169.) Thus, the court held, “the evidence of [the defendant’s] 1999 robbery adjudication was ‘merely cumulative regarding an issue that was not reasonably subject to dispute.’ ” (Ibid.) The court nonetheless found the error harmless. (Id. at pp. 169-170.)

Although no bright-line rules exist for determining when evidence is cumulative, we emphasize that the term “cumulative” indeed has a substantive meaning, and the application of the term must be reasonable and practical. Here, as in People v. Leon, we conclude it was an abuse of discretion to admit cumulative evidence concerning issues not reasonably subject to dispute. The sheer volume of evidence extended the trial — and the burden on the judicial system and the jurors — beyond reasonable limits, and the endless discussions among the trial court and counsel concerning the admissibility of such evidence amounted to a virtual street brawl. We next evaluate whether the introduction of the cumulative gang evidence and prior arrests evidence was prejudicial error.

6. Harmless Error

We evaluate error in the admission of prior crimes evidence using the standard of People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] (Watson), under which we determine whether it was “reasonably probable that a result more favorable to defendant would have resulted” had the prior crimes evidence not been admitted. (People v. Welch (1999) 20 Cal.4th 701, 750 [85 Cal.Rptr.2d 203, 976 P.2d 754].) Defendant contends, however, that the erroneous admission of evidence rendered his trial fundamentally unfair, and therefore we should review the error under the harmless-beyond-a-reasonable-doubt test set forth in Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L.Ed.2d 705, 87 S.Ct. 824].

Relying on People v. Albarran (2007) 149 Cal.App.4th 214 [57 Cal.Rptr.3d 92] (Albarran), and People v. Bojorquez (2002) 104 Cal.App.4th 335 [128 Cal.Rptr.2d 411] (Bojorquez), defendant argues the introduction of gang evidence and prior crimes evidence violated his due process right and led to a fundamentally unfair trial. In Albarran, the court held that gang evidence was only marginally relevant but was highly prejudicial, and the defendant’s federal due process rights had been violated. (Albarran, supra, at pp. 230-232.) The court stated, however, that the case before it “presented] one of those rare and unusual occasions” where the error was of federal constitutional dimension. (Id. at p. 232.) The court explained, “ ‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.’ [Citation.]” (Id. at p. 229.)

Similarly, in Bojorquez, the court found reversible error in the admission of gang evidence. In that case, the court concluded that the evidence of gang membership was relevant for impeachment, but because no gang enhancements or crimes were alleged, the charged crimes were not gang related, and the evidence against the defendant was not overwhelming, admission of evidence concerning crimes committed by gang members was irrelevant and prejudicial. (Bojorquez, supra, 104 Cal.App.4th at pp. 343-345.)

Here, in contrast to the situations in Albarran and Bojorquez, the challenged evidence had direct relevance to and was directly probative of the gang enhancement and substantive gang crime allegations. Moreover, we find no reasonable likelihood the “jury’s passions were inflamed by the evidence of [the] uncharged offenses.” (Ewoldt, supra, 7 Cal.4th at p. 405.) The danger in admitting gang evidence is that the jury will improperly infer that the defendant has a criminal disposition. (See People v. Cardenas (1982) 31 Cal.3d 897, 905 [184 Cal.Rptr. 165, 647 P.2d 569].) However, in this case, the jury acquitted defendant of possession of methamphetamine for sale and found him guilty of only simple possession. The jury also found not true the gang enhancement allegation attached to the felon in possession of a firearm. Thus, the jury did not accept the gang evidence and prior crimes evidence uncritically. Finally, we have no doubt that the jury would have reached the same result in the absence of the error.

Defendant concedes that some gang evidence was relevant and admissible to establish the predicate offenses and to establish defendant’s continuing participation in the gang. Such relevant and admissible evidence could properly have included even the most inflammatory incidents. (See People v. Valdez (1997) 58 Cal.App.4th 494, 511-512 [68 Cal.Rptr.2d 135].)

The admissible evidence overwhelmingly established defendant’s guilt of the substantive offenses and the truth of the gang enhancement allegations. The evidence established that drugs and weapons were found in the bedroom of the Avenida Cerca house where defendant was staying. Substantial evidence tied him to that house and to that room. The contraband was found in close proximity to personal possessions that were in turn tied to defendant. Ample admissible evidence established defendant’s prior and current involvement with the gang and with drug sales. We conclude that the error in admitting cumulative gang evidence was harmless under Watson.

Moreover, the court properly instructed the jury that it was not permitted to consider the gang evidence to prove defendant has a bad character or is disposed to commit a crime. It is, of course, presumed the jury understood and followed the court’s instruction in the absence of any showing to the contrary. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [2 Cal.Rptr.3d 186, 72 P.3d 1166].) Here, the jury found not true the gang enhancement allegation attached to count 1. In our view, this supports our conclusion that the jury fulfilled its duty as instructed.

B. Trial Court Misconduct

Defendant contends the trial court committed misconduct in that (1) the trial court relinquished control of the proceedings to the prosecutor and refused to enforce its own rulings despite repeated violations by the prosecutor; (2) the trial court told the parties it could not rule fast enough, and counsel should “work it out”; (3) the trial court unfairly denied the defense the opportunity to present a two-minute demonstration after allowing the prosecution to introduce extensive cumulative testimony; and (4) the trial court held an improper ex parte discussion with the prosecutor before trial.

1. Enforcement of rulings

Defendant contends that the trial court recognized the prosecutor had ignored the court’s rulings but had done nothing to enforce those rulings. Before trial, the court ruled that the prosecution could admit evidence of only three prior crimes under Evidence Code section 1101, subdivision (b). Defendant complains that during the prosecutor’s opening statement, she referred to some 14 prior crimes, and during trial elicited testimony about multiple incidents.

To support his argument that the trial court failed to enforce its rulings, defendant cites the court’s statements in the record, as follows; “I mean why did I bother ruling on them if you were going to put them in anyway, you know?” “Okay, I’m not arguing with that, I’m just saying, for example, in February of 1988 he threw a rock [of cocaine base], a rock under the car. And I ruled that it’s — it’s remote, it’s 18 years old, it’s vague, it’s more prejudicial than probative. There was no sales evidence, no evidence of drug activity at the time, and so then under [Evidence Code section] 352 it’s not coming in. [1] You would think that you might say, well, that’s fine, Judge, but, by the way, I’m going to put it in anyway through the expert, so why don’t you let it in as [Evidence Code section] 1101 [subdivision] (b) because I’m going to put it in anyway? [][] I just assumed when I ruled that way it ain’t [sic] coming in.”

Those statements were made outside the presence of the jury. Following the prosecutor’s opening statement, defense counsel moved for a mistrial on the ground that the prosecutor had referred to various crimes which had either been ruled inadmissible or had never been brought up in pretrial discussions. The prosecutor responded that she had referred to the additional crimes as hearsay on which the expert witnesses had relied in forming their opinions, not as substantive evidence.

The trial court reminded counsel of its prior ruling that incidents it deemed inadmissible under Evidence Code section 1101, subdivision (b), might be introduced for other purposes, such as predicate acts to establish the gang allegations. Thus, the court’s comments did not in fact indicate that the court failed to enforce its earlier ruling.

Moreover, the trial court requested counsel to jointly formulate a limiting instruction to be given to the jury. After the prosecutor finished her opening statement, the court instructed the jury, “You’ll remember . . . that I told you that the evidence is what the witnesses say. Evidence is not what the attorneys say, not questions that they ask. So opening statement and closing arguments are not evidence, it’s just for your information, [f] Also, some of the evidence in this case will come in for a limited purpose, not a complete consideration by you for all purposes. And when that evidence is introduced, you will be given an instruction that tells you how you can consider this type of evidence and for what purpose you can use it and for what purposes you can’t.” We conclude defendant has failed to show trial court misconduct in this instance.

2. Maintaining Court Decorum

Next, defendant contends the trial court committed misconduct by failing to maintain decorum in the courtroom.

a. Additional background

During a discussion outside the presence of the jury concerning whether the prosecutor’s evidence was cumulative and unduly prejudicial, the trial court stated, “All right. Okay. Well, you two are not getting along. I think I’ll try a different tack maybe. I’m not going to try to control you. I’ll just let you two present your case as you want.” The court later stated, “And so you people say all that before I even get a chance to react. So instead of trying to sit on you, I think I’ll just let you two, you know, work it out between you.” The prosecutor responded, “This is your courtroom, and I think it’s important that you maintain control of the courtroom.” The trial court stated, “I haven’t been able to.” The court added, “Okay. Well, we’ll just — if it’s all going to come out anyway, the jury’s going to hear all the evidence eventually by the time you put all the witnesses on, so I’m sure it’s not harming anything.”

b. Analysis

The trial court has inherent and statutory discretion to control the proceedings to ensure the effective administration of justice (People v. Gonzalez (2006) 38 Cal.4th 932, 951 [44 Cal.Rptr.3d 237, 135 P.3d 649]) and has the duty to keep the trial within the bounds of the issues and not to stray into collateral matters (People v. Alfaro (1976) 61 Cal.App.3d 414, 421-424 [132 Cal.Rptr. 356]). The court also has the “duty to see that both sides receive a fair trial and that justice is done.” (Id. at p. 427.)

Although defendant has quoted remarks of the trial court that suggest the court did not fulfill its duty, defense counsel has not cited to the record to show any actual instance in which the court in fact failed to rule on an objection or in fact required counsel to “work it out” between themselves. The record clearly shows the contrary. The prosecutor and defense counsel continued to raise objections, and the trial court continued to rule on them. We therefore reject defendant’s argument that the trial court committed misconduct by failing to maintain decorum in the courtroom.

3. Denying Defense Counsel the Opportunity to Present a Demonstration

Defendant argues that the trial court’s denial of defense counsel’s request to conduct a two-minute demonstration showed unequal treatment because the court had allowed the prosecutor to introduce evidence of scores of other crimes and arrests.

a. Additional background

The evidence indicated that defendant had stood at the front door of the Avenida Cerca house for two minutes before opening the door to admit the police officers. During cross-examination of one of the police officers, defense counsel stated, “I’ll be quiet in the courtroom and we’re going to wait and see how long two minutes is for people who could be in that bedroom, eight other people, and see how long they had to fool around, okay. [j[] And the clock is going.” The court asked, “Can’t we just estimate[?]” The court directed defense counsel to proceed with her next question. Defense counsel later complained to the trial court that, given the length of the prosecutor’s opening statement, defense counsel should have been permitted to conduct the two-minute demonstration. After further discussion, the court responded, “I think you made that point.”

b. Standard of review

The trial court has great discretion in regulating the conduct of trial, and we review the court’s rulings concerning the conduct of trial only for abuse of discretion. (People v. Gonzalez, supra, 38 Cal.4th at p. 951.)

c. Analysis

Even if we assume for purposes of argument the trial court’s ruling was improper, no prejudice resulted. During closing argument, defense counsel told the jury to “look at the clock for one minute and then just double it. And you’ll see how long two minutes really is. [f] Okay. That’s one minute. Double that.” Thus, defense counsel effectively made her point. The error, if any, was therefore harmless.

4. Ex Parte Discussion with Prosecutor Before Trial

Defendant contends the trial court committed misconduct by holding an ex parte discussion of the case with the prosecutor.

a. Additional background

Before trial, the court and both counsel discussed trial scheduling in light of the fact that defense counsel would be taking a 30-day vacation. During the discussion, the prosecutor raised the issue of what would happen “if we go forward and put on 12 days worth of testimony and we can’t complete the case and the court entertains a mistrial — we’ve dedicated 12 days of judicial resources and time and energy and to have the case mistried and to have to do the whole thing again.” Following further discussion of the issue, the trial court stated, “Okay. Well, off the record this morning without the defense present you expressed a concern this was going to wind up being a mistrial, so I’m just asking you suggestions.”

b. Forfeiture

The People argue that the issue has been forfeited because defense counsel failed to raise any objection in the trial court. (See People v. Jennings (1991) 53 Cal.3d 334, 383-385 [279 Cal.Rptr. 780, 807 P.2d 1009].) However, we will address the issue on the merits because it is easily disposed of.

c. Analysis

Under the Code of Judicial Ethics, “[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as follows: [ft] . . . [][] (d) A judge may initiate ex parte communications, where circumstances require, for scheduling, administrative purposes, or emergencies that do not deal with substantive matters provided: [ft] (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and [ft] (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.” (Cal. Code Jud. Ethics, canon 3B(7)(d); see People v. Seaton (2001) 26 Cal.4th 598, 696 [110 Cal.Rptr.2d 441, 28 P.3d 175].) Here, it appears the ex parte communication did not fall within canon 3(B)(7)(d) because, by its terms, that provision applies only when the judge initiates the ex parte communication. The record indicates that here, the deputy district attorney initiated the conversation. Nonetheless, the context makes clear that the court’s ex parte discussion with the prosecutor concerned scheduling matters, and the court promptly gave defense counsel notice of the conversation and an opportunity to respond. Even if the ex parte communication were improper, it could not have resulted in prejudice to defendant.

C. Expert Opinion Testimony About Ultimate Issues

Defendant contends the trial court erred by permitting expert witnesses to give opinions on the ultimate issues.

1. Standard of Review

We review the trial court’s ruling on the admissibility of expert opinion testimony for abuse of discretion. (People v. Mendoza (2000) 24 Cal.4th 130, 177 [99 Cal.Rptr.2d 485, 6 P.3d 150].)

2. Analysis

Defendant cites Evidence Code section 805 and People v. Killebrew (2002) 103 Cal.App.4th 644 [126 Cal.Rptr.2d 876] (Killebrew) for the proposition that “the law clearly provides an expert witness may not testify on ultimate issues of fact which are reserved for the jury.” However, Evidence Code section 805 provides directly to the contrary; “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Italics added.) Similarly, the Killebrew court stated, “Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible.” (Killebrew; supra, at p. 651, italics added.) The court clarified, “ ‘ “Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided .... There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for [the] decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision.” ’ ” (Ibid.) In light of these principles, in the next parts of this opinion we will examine the specific testimony about which defendant complains.

3. Expert Opinion Testimony About Who Possessed Contraband

Defendant argues that it was error to admit the testimony of Sergeant Anderson, Sergeant Beard, Detective Judd, and Officer Mike Kovaleff about who posse