Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F10729.
BLEASE, Acting P. J.
When Lerome Franklin (aka Little Rome) was arrested in connection with an altercation involving Timothy Hurst (aka T- Money) Franklin telephoned his fellow gang member, Floyd Martin (aka YG) and told him to “get on Money.” Shortly thereafter, Martin shot Hurst several times. Luckily, Hurst survived.
Separate juries convicted both Martin and Franklin of conspiracy to commit murder and attempted murder. As to both defendants, the juries found true allegations that a principal discharged a firearm causing great bodily injury, and that the crime was perpetrated to benefit the criminal street gang known as the Del Paso Heights Bloods. Each defendant was sentenced to two consecutive 25 year-to-life terms for the conspiracy and firearm enhancements. Because Franklin had suffered a prior strike, his 25 year-to-life sentence for conspiracy was doubled, resulting in a 75 year-to-life sentence. Martin received a 50 year-to-life sentence.
Both defendants claim the trial court erred when it admitted the testimony of the prosecution’s gang expert because the expert impermissibly testified regarding their state of mind, and because the expert was unqualified. They also claim there was insufficient evidence of an intent to kill to support their convictions for conspiracy.
Defendant Martin claims the gang expert’s testimony violated his right to confront the witnesses against him to the extent the expert relied on police reports, discussions with other police, and with gang members, victims, and witnesses to form his expert opinion. He also claims there was insufficient evidence to support the finding that the crime was committed to benefit the Del Paso Heights Bloods, and that he received ineffective assistance from his trial counsel.
Defendant Franklin argues the trial court should have granted his request to give an instruction that felony assault was a lesser included offense to attempted murder.
We conclude there was no error or no prejudice with regard to each issue raised, and shall therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of March 15, 2007, the victim, Timothy Hurst (aka T-Money) and Taurus Baker (aka Stretch) were sitting in a van next to a park in south Sacramento waiting for their buyer to arrive to complete a drug deal. Baker was a member of the Crips criminal street gang. As they sat in the van, co-defendant Lerome Franklin (aka Rome) and Anthony Colbert (aka Ant) exited a tan Buick that pulled up alongside the van, and approached the van on foot. Franklin and Colbert were members of the Del Paso Heights Bloods gang. Crips and Bloods are enemies. Franklin and Colbert told Hurst to get out of the van. Franklin tried to get inside the van, but the sliding door was broken. Colbert told Hurst, “This ‘aint between you.” Hurst was not a member of a gang. Franklin pulled out a gun.
Just as Franklin pulled out his gun, a police car drove up. The officers observed a struggle going on in the front passenger seat. They identified Franklin as one of the men outside the van. Franklin was inside the passenger window of the van with his arms outstretched, struggling with the passenger of the van. Colbert yelled, “the Police, ” and Franklin threw the gun in the van. Colbert jumped back into the Buick, which then took off. Franklin started running. He was soon caught and arrested, and transported to the Sacramento County main jail.
While Franklin was in the holding tank at the main jail, he made a phone call to his “girl” who proceeded to make a series of three-way calls at his direction. During one conversation he told someone to tell “YG” to “get on wa -- uh, Money.” The person on the other end of the line said, “Who?” Franklin responded, “Money. You hear me?” He asked, “You know who I’m talking about, right?” The person indicated he knew who Franklin was talking about.
Finally, Franklin got through to YG, Young General, (aka defendant Martin). The following conversation took place:
“Franklin: Yeah, ma, you gotta get on Money, bru.
“YG: Huh?
“Franklin: You gotta get on Money.
“YG: Money?
“Franklin: Yeah.
“YG: We -- how much?...
“Franklin: No, nigger. Not chalupa, nigger, Money.
“YG: Oh -- I’m trying to comprehend....
“Franklin: Arden and Del Paso, man, where your whip got snatched.
“YG: Oh, okay. Yeah, yeah, yeah, yeah.
“Franklin: You know I’m talkin’ bout?
“YG: Yeah.
“Franklin: You’re my momma, nigger.
“YG: He the fault?
“Franklin: Yeah.
“YG: Well, on TMG I’m about to go right now, nigger.
“Franklin: You feel me, nigger?
“YG: Yeah
“Franklin: Nigger, MOB, my nigger. Ma -- man -- man, that nigger, blu, you feel me, they gonna tell the police, nigger, nigger I tried to rob him. You feel me?
“YG: What?
“Franklin: You feel me?
“YG: Little TMG (Unintelligible) nigger is -- you are (Unintelligible) my momma, bro. You already know, blood, I love ya, blu. My momma, nigger, tooken care of, my nigger. And nigger’s
“Franklin: Yeah.
“YG: -- (Unintelligible) nigger.
“Franklin: TMG, my nigger, man. Man, that’s some cold shit, though, bru.
“YG: Well, my mother, blu, nigger. You ain’t gotta say nothing else, bro.
“Franklin: Yeah, for real, for real....
“YG: [U]h, they -- they said something -- they -- they found something or some shit.
“Franklin: Yeah, they found the banger in them nigger’s -- in their whip.... you feel me, ma -- ma -- man, let that little ho-ass nigger know, though. You feel me?”
After talking to Martin, Franklin told his “girl” to call Big Row (Rome). While talking to Franklin, Big Rome told him, “YG calling right now on another line.” Franklin told Big Rome to see what YG had to say. After speaking with YG, Big Rome came back on the line to Franklin and said, “Yeah, he ‘bout to -- you know wha I mean -- to go pop-pop-pop - on young boy.” Franklin responded, “Yeah, man....” Big Rome continued, “And, uh, it’s gravy and shit. And, uh, you feel me?... Said -- he said he gonna do that, like he - immediately right now.... And, um, yeah, them niggers got the guy and questioned him. Uh, nigger, I don’t know what them niggers thought they was getting down with....”
Franklin’s nickname is Little Rome. His older brother Jerome Franklin’s nickname is Big Rome.
A few hours after this call, at approximately 11:00 p.m. Hurst and Colbert were walking in the area of El Camino and Del Paso Boulevard, where they encountered several men at a motel, including Martin (YG). One of the men said to Hurst, “So I heard you snitching.” Then the man challenged him to fight, “before YG hit you with the heat.” At that moment, YG started shooting. Hurst felt the first two shots in his face, but managed to run away. He was eventually taken to University of California at Davis Medical Center and treated. The police questioned him while he was there, but he lied and said he did not know who had shot him.
Hurst suffered gunshot wounds to the chest, thigh, and hand. He had a fractured scapula, fractured cervical vertebra, and several fractured ribs. He suffered damage to his lungs, and a bullet lodged next to his neck.
At approximately 11:18 that night, another call was recorded from Franklin to an unidentified male. During the conversation, the male said, “There’s hella of ‘em in the air, boy. Hella flies flying around this motherfucker.... I don’t know. Man, there’s hella flies flying around this motherfuckin’ (Unintelligible). It’s over.”
Franklin placed one more call to Martin at approximately 11:37 p.m. Franklin told Martin, “I only got to say one (Unintelligible), I love you, nigger.” Franklin told Martin that he was his “savior, man.”
Robert Quinn was a detective with the gang suppression unit of the Sacramento Police Department. He was unaware of the above events when, in October 2007, he contacted Hurst in connection with a gang-related homicide. He talked to Hurst to see if Hurst could identify some of the people in the gang. Hurst was on probation at the time, and gave police his unwilling cooperation. As Hurst looked through the pictures, he identified one of the photos as a picture of the person who shot him back in March. Hurst did not want to tell Detective Quinn who the person was because he had been shot for snitching, and he did not want to snitch again. Finally, Hurst stated that YG shot him, and pointed to a picture of defendant Martin.
Hurst was placed in the witness protection program and relocated from Sacramento. He gave a statement regarding his shooting and testified at trial.
Hurst identified three other men who were present when he was shot: Giovanni Figueroa (aka Tay), a person known as Country, and Steven Hendrix (aka Steve-O). Hendrix was associated with the Trigger Mob street gang, a part of the Del Paso Heights Bloods.
Detective Quinn proceeded to question Hendrix, and took a statement from him, portions of which were played for the jury when Hendrix’s trial testimony was not forthcoming. In the recorded statement, Hendrix identified Martin as the person who shot Hurst, and identified him as a Trigger Mob member.
Detective Quinn conducted a videotaped interview with defendant Franklin. During the interview, Franklin stated he had never heard of anyone called T-Money (Hurst), and that he had not talked to YG (Martin) since he had been in jail. Quinn told Franklin that he had tapes of his telephone conversations in which he talked about T-Money and talked to YG (Martin). Franklin refused to explain the conversations.
The trial court accepted Detective Quinn as the prosecution’s gang expert. He testified that the Bloods are the predominant Black gang in Sacramento. There are numerous sets of Bloods in the Sacramento area, broken down by geographic area. These sets are further broken down into subsets. Thus, the Del Paso Heights Bloods further break down into Elm Street, True Heights Villains, Trigger Mob (TMG), Beast Mob, and Flat Dogs, to name a few.
TMG is a part of Del Paso Heights Bloods. Their primary activities are robbery, assault with a deadly weapon, murder, narcotics dealing, burglary and auto theft. It has roughly 20 to 25 members. Defendant Franklin is a validated member of TMG, and admitted his association with the Del Paso Heights Bloods. Martin is also a validated member of the Del Paso Heights Bloods, subset TMG.
Detective Quinn testified to his knowledge of gang slang. He stated that “banger” and “clapper” are words used for gun. “Whip” is slang for car. “Chalupa” means cash. “TMG” and “MOB” both refer to Trigger Mob. “Flies flying around” means someone or something has died.
Detective Quinn testified the phrase “get on someone” could be used in multiple contexts. It could mean to put pressure on someone, as to get on someone about getting a lawyer. The phrase “get it on” would mean to party or use narcotics. He was then asked what the phrase would mean under the hypothetical scenario where a “Del Paso Heights Blood member subset Trigga Mob has been arrested for a crime, and that a Blood member perceives one witness is snitching on him, and he in turn calls another Blood member and says, hey, get on this witness. To which the other Blood member replies, is he the fault? And the original caller responds, yeah. And then later on in the conversation says let that punk ass know, in that context. What does ‘get on’ mean....” Detective Quinn replied that in that context it would mean to go shoot that person or kill them so that there would not be any witnesses.
The prosecutor then posed another hypothetical: “Let’s assume you have a Del Paso Heights Blood subset Trigga Mob member who goes out in broad daylight with another Del Paso Heights Blood subset Trigga Mob member to shoot, kidnap or rob a 29th Street Crip. [¶] During the robbery, the police pull up. As one of the Del Paso Heights Blood gang members is pulling out his firearm, he drops the firearm, runs from that robbery or assault scene, is caught, apprehended, brought back to the scene, sees witnesses talking with police officers, is then booked into the Sacramento County Jail, makes a phone call to another Del Paso Heights Bloods subset Trigga Mob member where he says -- the phrase is that I just described, get on this witness that he saw earlier during his arrest, to which the other person replies is he the fault, and the original caller responds, yeah, and then shortly thereafter let that punk ass know, and then later on that night the person who received the phone call, that validated Del Paso Heights Trigga Mob member, goes out and locates the witness, has another person confront him about being a snitch, and then right after that, from point blank range, pulls out a revolver and fires off several rounds at his head, and then after he falls and is [lying] on the ground is firing several rounds at his back and legs, critically wounding the individual, do you have an opinion as to whether or not that crime would benefit the Del Paso Heights Bloods?”
Detective Quinn responded that the crime would benefit the gang for multiple reasons. It would serve to keep the gang member out of jail, to let other people know that this is what happens if you talk to the police, and would establish respect among the Del Paso Heights Bloods.
DISCUSSION
Issues Raised by Both Defendants
I
Testimony of Detective Quinn
Defendants claim the testimony of Detective Quinn was improperly admitted because it was an opinion on the state of mind of the defendants and because Detective Quinn lacked the qualifications for the offered testimony. As indicated above, Detective Quinn testified in part as to the meaning of some of the slang terms used in defendant Franklin’s telephone calls. Detective Quinn also interviewed defendant Franklin about the shooting, and a video recording of that interview was shown to the jury.
Defendants claim that when Detective Quinn gave expert testimony to explain the meaning of words used by defendants during their recorded phone conversations, this amounted to impermissible testimony regarding the ultimate issue to be decided by the jury, the defendants’ motivations. Not true.
Otherwise admissible expert testimony is admissible even if it embraces the ultimate issue to be decided by the trier of fact. (Evid. Code, § 805.) This does not mean that an expert may express any opinion he or she may have, such as a general belief as to how the case should be decided. (People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew.) There is no bright line to determine when opinions encompassing the ultimate issue of fact in the case are or are not admissible. (Ibid.)
Citing Killebrew, supra, defendants contend that Detective Quinn’s testimony was not limited to the hypothetical questions addressed to him, but that he opined directly on the motivation of the speaker and the meaning of the words. In Killebrew, supra, the court concluded it was error to admit a gang expert’s testimony that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and constructively possesses it. (103 Cal.App.4th at p. 652.) The court held that a gang expert could properly testify to the culture and habits of a gang, such as a person’s membership or association with a gang, primary activities, motivation for a particular crime, and whether or how a crime was committed to benefit a gang. (Id. at pp. 656-657.) However, the cases do not permit expert testimony that a specific individual had specific knowledge, or possessed a specific intent. (Id. at p. 658.)
Detective Quinn’s testimony was directed at defining certain terms as they are used by gang members. Expert testimony is properly admissible to explain gang terminology as relevant to show a defendant’s intent. (People v. Lindberg (2008) 45 Cal.4th 1, 47 (citing with approval State v. Campbell (1995) 78 Wash.App. 813, 823); People v. Champion (1995) 9 Cal.4th 879, 924-925, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.)
Such definitions are necessarily dependent upon context, because a word or phrase may have different meanings depending on the context in which it is used. Detective Quinn’s testimony did not cross the line into an inadmissible opinion encompassing the ultimate issue in the case, even though the hypothetical presented to him was factually identical to the facts of the case. It was allowable for the expert to explain what meaning the speaker likely attached to the words he was using, because the meaning a gang member attached to such words was “‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (People v. Gardeley (1996) 14 Cal.4th 605, 617.)
The definition of gang terminology in a particular situation is not the equivalent of “testimony that a specific individual had specific knowledge or possessed a specific intent[, ]” as was the case in Killebrew, supra, 103 Cal.App.4th at page 658. Franklin’s trial counsel highlighted this fact when she asked Detective Quinn on cross examination, “you are not Mr. Franklin. You don’t know what was going through his mind, do you?” He responded, “No, ma’am. I’m not Mr. Franklin.” Detective Quinn’s testimony was not inadmissible testimony of the defendants’ intent.
Defendants argue Detective Quinn impermissibly expressed his opinion directly about the meaning of the words in his recorded interview with Franklin. This is irrelevant to the issue. The videotaped interview with Franklin was not admitted as expert testimony on the meaning of the words, and Detective Quinn was not acting as an expert in the interview.
In the videotaped interview, Franklin said, “it never came out of my mouth, hey, man, go shoot dude -- go shoot you.” Detective Quinn told Franklin that he used street slang to communicate the same meaning, and stated, “we’ll have gang experts come into court and testify to what this conversation is.... Just because you don’t say, ‘Go shoot’ doesn’t mean you’re not saying it in that -- in that recorded message.”
Defendants also claim Detective Quinn was not qualified to render an expert opinion because he had no experience in a situation in which a gang hit was communicated to another person. Detective Quinn did not need experience in this particular situation, only in interpreting gang communications. In this regard, Detective Quinn testified he worked in the gang suppression unit at the Sacramento Police Department, where he had worked for nine years, and focused on gang crime for approximately two years. By the time of his testimony, his training included a 10 hour conference regarding Asian gangs, a 40 hour course on narcotics training, a 24 hour gang update, a 32 hour advanced gang investigation class, a 40 hour conference for gang investigators, and an eight hour gang seminar.
In his work for the gang suppression unit, he actively went out and contacted members of gangs. He had at least 100 contacts specifically with the Del Paso Heights Bloods.
A trial court is given considerable latitude when determining the qualification of an expert witness. (People v. Singleton (2010) 182 Cal.App.4th 1, 21.) We will disturb the trial court’s acceptance of an expert’s qualification only for a manifest abuse of discretion, which occurs only if the witness clearly lacks qualification as an expert. (Ibid.) We find no abuse of discretion under the facts of this case.
II
Agreement to Kill
Defendants argue there was insufficient evidence to support the finding of an agreement to kill as required for a conviction of conspiracy to murder (count one). We disagree.
Evidence of the intent to kill element necessary for a conviction of conspiracy to murder is usually derived from all the circumstances of the attempt, including the actions of the defendant. (People v. Vu (2006) 143 Cal.App.4th 1009, 1025.) The evidence produced included more than the phone call between the defendants as interpreted by Detective Quinn.
In addition to the telephone conversation, the jury could consider the circumstance that the victim of the shooting, Hurst, was the driver of a van whose passenger had been held up by Franklin. It was that crime for which Franklin was in jail. Franklin told Martin and others that Hurst and Stretch had tried to rob him, and were now trying to pin the crime on him. Shortly after Franklin told Martin to “get on” Hurst, Franklin’s older brother told him Martin was on the other line, and that he was about to “go pop-pop-pop on young boy.” Franklin did not protest that this was not what he meant to happen.
Martin’s jury did not hear that Martin was the person on the other end of the call.
That same night, someone told Hurst that the word on the street was that he was snitching. Shortly thereafter, when Hurst encountered Martin and the others, one man said to Hurst, “So I heard you snitching.” The man challenged Hurst to a fight “before YG hit you with the heat.” Immediately afterward, Martin began shooting Hurst. When Franklin was informed that Hurst was dead, he expressed no regret that his instructions had been misunderstood. On the contrary, after being informed that Hurst had been killed, he told Martin he loved him and that Martin was his “savior.”
Based upon the totality of the circumstances, there was sufficient evidence for the jury to conclude that the defendants intended to murder Hurst.
Issues Raised by Martin
III
Confrontation Clause
Detective Quinn’s expert testimony included a recitation of the facts of the predicate offenses offered to establish a pattern of criminal gang activity for the purpose of proving the gang enhancement. (Pen. Code, § 186.22, subd. (b)(1).) He derived this information from police reports and a discussion with the lead investigator. He testified that TMG was a subset of Del Paso Heights Bloods, and that one homicide and a number of assaults had been committed by TMG members. He obtained his information in part from conversations with gang members, victims, and witnesses.
All subsequent references to undesignated codes are to the Penal Code.
Detective Quinn’s expert testimony also included his opinion that TMG was a subset of the Del Paso Heights Bloods and that Elm Street Bloods were another subset.
Citing Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), Martin argues Quinn’s testimony violated his right of confrontation “to the extent it relied on and relayed testimonial hearsay” against him. Other California courts have rejected this argument when evaluating gang expert testimony. (People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas); People v. Ramirez (2007) 153 Cal.App.4th 1422 (Ramirez).)
Thomas, supra, 130 Cal.App.4th at pages 1209-1210, held that a gang expert’s conversations with other gang members were not admitted for the truth of their contents, but only as the basis for the expert’s opinion. As such, their use was not barred under Crawford, supra.
In Ramirez, supra, 153 Cal.App.4th 1422, the court held that testimony about the facts of predicate crimes did not violate the defendant’s rights of confrontation because “[h]earsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned.” (Id. at p. 1427.)
Martin does not identify any particular statement that was improperly admitted, and has failed to demonstrate that the information upon which Detective Quinn relied was obtained from a custodial interrogation or was otherwise testimonial. Instead, he points to the broad category of “statements of suspected gang members, victims, and witnesses to police, ” and argues that when an “officer questions an individual about his or someone else’s gang membership” such conversation amounts to testimonial hearsay.
The types of statements upon which Detective Quinn relied do not appear to have been the types of statements protected by the Confrontation Clause. There is no demonstration that they were “‘formalized testimonial materials, such as affidavits, deposition[s], prior testimony, or confessions[, ]’” or “‘“solemn declarations or affirmation[s] made for the purpose of establishing or proving some fact.”’” Nor is there any demonstration that they were “‘declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.’” (Melendez-Diaz v. Massachusetts (2009) ____ U.S. ___, ___ [174 L.Ed.2d 314, 321].) Instead, they appear to be informal exchanges of information or instances of fact-gathering that were not undertaken in contemplation of pursuing criminal charges against a particular person or persons. As such, they were not testimonial.
Following the reasoning in Thomas, supra, and Ramirez, supra, we conclude that Detective Quinn’s reliance on these statements did not violate the defendants’ confrontation rights.
IV
Crimes Benefitted Del Paso Heights Bloods
The juries found that both defendants conspired to commit murder “for the benefit of, at the direction of, or in association with a criminal street gang, the Del Paso Heights Bloods, with the specific intent to promote, further or assist in criminal conduct by gang members pursuant to Penal Code section 186.22(b)(1)[.]” Martin argues there was insufficient evidence to support the finding that the crimes benefitted the Del Paso Heights Bloods.
The trial court did not impose the section 186.22, subdivision (b)(1) enhancement; however, it was necessary for the jury to find that Martin had violated section 186.22, subdivision (b) before the court could impose the 25-year-to-life firearm enhancement pursuant to section 12022.53, subdivision (e).
We conclude there was sufficient evidence to support the jury’s finding. Martin relies principally upon People v. Williams (2008) 167 Cal.App.4th 983 (Williams). In Williams, it was held that there was insufficient evidence that the defendant was an active participant in the large Peckerwoods gang, but only that he was an active participant in a smaller gang (the Small Town Peckerwoods). (Id. at p. 987.) The court held that more than just a shared ideology and name must be shown before multiple units can be treated as a whole. (Id. at p. 988.) There must be evidence of collaborative activities or collective organizational structure before various groups may be viewed as parts of the same overall organization. (Ibid.)
In Williams, supra, the defendant argued there was no evidence he was an active participant in the larger Peckerwoods gang, and no evidence linking the Small Town Peckerwoods, of which he was a member, to the larger gang. (People v. Williams, supra, 167 Cal.App.4th at p. 987.) Here, because we are dealing with a different subdivision of section 186.22, it was not necessary for the prosecution to prove in which gang Martin actively participated. Instead, it had to prove that the crime was “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....” (§ 186.22, subd. (b)(1).)
The street gang for which Martin was alleged to have committed the offense was the Del Paso Heights Bloods. The gang expert Detective Quinn testified that the Del Paso Heights Bloods had numerous subsets, one of which was the Trigga Mob Gang (TMG), and that the various subsets claim membership in the larger gang, as well as the subset. TMG members told Detective Quinn that they are Del Paso Heights Bloods first, subset Trigga Mob. Martin was a validated member of the Del Paso Heights Bloods, and the subset TMG. He was validated because of the recorded jail phone call, in which he referred to TMG and the Bloods, his admission to being an associate of TMG, pictures of him throwing a Blood hand sign and a TMG hand sign, and TMG tattoos.
Co-defendant Franklin was observed in photographs throwing the hand signs for Del Paso Heights Bloods. He had TMG and Del Paso Heights tattoos. Franklin also admitted that he was associated with the Del Paso Heights Bloods and with TMG.
The evidence of predicate crimes were two crimes attributed to the Del Paso Heights Bloods. Detective Quinn testified the instant crime would have benefitted the Del Paso Heights Bloods by keeping a fellow gang member out of jail, by letting other people know what happens if one talks to the police, and by establishing respect among the Del Paso Heights Bloods.
Martin argues there was insufficient evidence that TMG engaged in collaborative activities with other Del Paso Heights Blood subsets or that they worked under a collective organizational structure. However, unlike People v. Williams, supra, there was evidence Martin and Franklin were members of the larger Del Paso Heights Bloods, and that the crime was committed for the benefit of that gang. The evidence presented showed that both defendants identified with the Del Paso Heights Bloods, and specifically with the TMG subset. There was sufficient evidence the crime was committed for the benefit of the Del Paso Heights Bloods and that the Del Paso Heights Bloods was a criminal street gang. It was not necessary to show the organizational relationship between the TMG and the Del Paso Heights Bloods, since the evidence indicated the defendants claimed both gangs, and the crime was committed to benefit the larger gang. Nothing further was needed.
V
Ineffective Assistance of Counsel
After the jury rendered its verdict, defendant Martin brought a motion for new trial based on a claim of ineffective assistance of counsel. The grounds for the claim were twofold. First, he claimed his trial counsel should not have allowed his jury to hear the testimony of Jerome Franklin, Lerome Franklin’s older brother, whom Lerome Franklin called as a witness in his defense. Second, he claimed his trial counsel should have redacted a portion of the videotaped statement of Steven Hendrix, in which Hendrix said he had heard on the streets that Martin killed an individual named Chuck Nitty.
Martin argued in the new trial motion that Jerome Franklin’s testimony harmed his case not because of any statements Jerome Franklin made incriminating him, but because it was apparent from Jerome’s testimony that he was lying, because Jerome told the jury he (Jerome) was a pimp, and because he otherwise conducted himself in such a fashion as to completely alienate the jury. Martin argued he never would have taken the stand had his case not been so damaged by Jerome’s testimony. He claimed that Hendrix’s testimony that he had heard Martin killed Chuck Nitty was not prejudicial standing alone, but was stronger when considered in conjunction with Jerome’s testimony.
To prevail on a claim of ineffective assistance of counsel, Martin must not only demonstrate that his trial counsel’s performance was deficient, he must also show prejudice. (In re Hardy (2007) 41 Cal.4th 977, 1018.) We conclude that Martin has not demonstrated prejudice. We need not determine whether counsel’s performance was deficient where we find no prejudice. (People v. Medina (2009) 171 Cal.App.4th 805, 819.)
Prejudice is shown if there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674]; accord, In re Cox (2003) 30 Cal.4th 974, 1020.) A reasonable probability is one that is sufficient to undermine confidence in the outcome.” (In re Hardy, supra, 41 Cal.4th at p. 1018.)
Martin claims prejudice because the evidence of a conspiracy and of his identity as the shooter was not overwhelming. We disagree.
The evidence of the conspiracy was presented in the form of the recorded jail phone conversations between defendant Franklin and others, including Martin. In those conversations, Franklin told one of the men he called to “Tell that nigger YG to get on wa -- uh, Money.” The man replied, “Who?” and Franklin answered, “Money. You hear me?... You know who I’m talking about, right?” Later, talking to Martin (YG) he said, “you gotta get on Money, ” and clarified he was not talking about “chalupa, ” slang for money or cash. Martin asked “He the fault?” When Franklin replied that he was, Martin said, “well, on TMG I’m about to go right now, nigger.” Martin told Franklin it was “tooken care of” and that he did not have to “say nothing else, bro.”
Still later, Franklin was on the phone to his older brother, Jerome, who told him, “he ‘bout to - you know what I mean - to go pop-pop-pop - on young boy.”
In addition to these calls, there was evidence Hurst was accused of being a snitch immediately before he was shot.
Finally, the timeline around the shooting was persuasive evidence supporting a conspiracy. As the trial court stated when ruling on the motion for new trial,
“And then lastly, the final crushing blow to the defendant’s case was the District Attorney did an outstanding job in his opening portion of his closing argument. He sat down all the loose ends, all the leads, all the information that didn’t quite gel. He set out a timeline minute by minute and had each phone call played in live action audio from the defendants, Mr. Martin, Mr. Franklin, from Big Ro [Jerome], actual phone calls. And then he placed them by sequence of what was going on out in the streets, and it destroyed any doubt in my mind, in any juror’s mind, as to who was guilty in this case. Because you could see exactly when the shooting went down, when the police calls went down, when the ambulance calls went, everything in relation to the sequence of the calls from the jail.
And then on top of it, you get Mr. Martin and Mr. Franklin’s celebratory phone call at the very end of the case. There is no doubt that Mr. Martin is the shooter. There’s no reason to consider a new trial motion under these circumstances.”
The evidence that Martin was the shooter was also persuasive. The victim testified that Martin was the shooter. Hendrix, an eye witness, told police Martin was the shooter, although he was apparently afraid to finger Martin on the stand.
Given the strength of the evidence against him there is not a reasonable probability that he would have received a more favorable outcome had his jury not heard Jerome Franklin’s testimony, or Hendrix’s statement that he was rumored to have killed someone else. Martin’s ineffective assistance of counsel claim fails.
Issues Raised by Franklin
VI
Lesser Included Offense Instruction
Franklin argues the trial court erroneously denied his request for an instruction on felony assault as a lesser included offense to count two, attempted murder. He argues that the jury was instructed it could find him guilty of attempted murder if it found he either conspired with Martin to commit murder, or if he conspired with Martin to commit felony assault, and attempted murder was the natural and probable consequence of the assault. He argues that if the jury found he conspired with Martin to commit felony assault, but did not believe that attempted murder was the natural and probable consequence of the assault, he would be guilty only of felony assault, not attempted murder. Therefore, he argues, the jury should have been instructed in felony assault as a lesser included offense of attempted murder.
We conclude that even if such an instruction should have been given, a determination we do not make, it was harmless under the circumstances of this case.
In a criminal trial the court must instruct on the general principles of law that are relevant to the issues raised by the evidence, whether or not the parties request such instruction. (People v. Cruz (2008) 44 Cal.4th 636, 664.) This means the court is obligated to instruct on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense are present. (Ibid.) The trial court has no obligation to instruct on lesser included offenses when there is no evidence that the offense committed was less than charged. (Ibid.)
In a noncapital case we review any error to properly instruct the jury on a lesser included offense for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. Under this standard, the conviction may be reversed only if “‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d 818, 836).” (People v. Breverman (1998) 19 Cal.4th 142, 178, fn. omitted.)
In this case there is no reasonable probability that Franklin would have obtained a more favorable outcome on count two had the jury been instructed that felony assault was a lesser included offense to attempted murder, because the jury found beyond a reasonable doubt in count one that Martin and Franklin were guilty of conspiracy to murder Hurst. Thus, the conspiracy to murder would have formed the basis for the attempted murder conviction whether or not the jury also found Franklin had conspired to feloniously assault Hurst. There is no reasonable probability that the jury would have found that attempted murder was not a natural and probable consequence of conspiracy to commit murder. Thus, if such an instruction was required in this case, its omission was harmless error.
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit as he was committed for a serious felony. (§§ 1192.7, subd. (c)(1), 4019, former subds. (b)(2) and (c)(2) [as amended by Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 425, § 1, eff. Sept. 28, 2010].)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J.