Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CH024889
CANTIL-SAKAUYE, J.
In this prison stabbing case, a jury convicted defendant of assault with a deadly weapon or by force likely to cause great bodily injury by an inmate serving less than a life sentence (Pen. Code, § 4501). The trial court found true allegations defendant had two strikes (Pen. Code, § 667, subds. (b)-(i)). Sentenced to 25 years to life in prison, consecutive to the term he is already serving, defendant appeals. He raises numerous claims of instructional error, including the failure to instruct on various defenses, and contends counsel was ineffective in failing to request such instructions and present the defenses. He also contends there is insufficient evidence, the verdict form was defective, and the trial court erred in permitting an expert to testify about defendant’s knowledge and intent. We affirm.
Pursuant to Miscellaneous Order No. 2010-002, we have considered whether defendant is entitled to additional presentence custody credits under recent amendments to Penal Code section 4019. Because defendant has prior convictions for a serious felony, he is not entitled to additional credit. (Pen. Code, § 4019, subd. (b)(2).)
FACTUAL BACKGROUND
One afternoon, in yard D at High Desert State Prison, James Cussik, who was known as a shot-caller who controlled White inmates in the yard, turned his baseball cap around. At that signal, two White inmates, defendant and Michael Baker, ran towards a third White inmate, M. Ramadanovic. Baker made a stabbing motion and defendant struck Ramadanovic. A correctional officer yelled, “get down, ” indicating an incident was taking place and all inmates were to get down for staff safety.
All the inmates got down, except defendant, Baker and Ramadanovic. Baker was making stabbing motions and defendant struck Ramadanovic about the head and shoulders. The correctional officers formed a skirmish line and approached. The three inmates got down and Baker threw an object away. The object was an inmate manufactured weapon, metal and sharpened to a point.
The medical staff assisted Ramadanovic, who was bleeding and had puncture wounds to his chest and right side. Something, perhaps intestines, was protruding from his abdomen and Ramadanovic was taken to the emergency room. The only injury noted on defendant was a laceration to his elbow.
An officer from the investigative service unit testified as an expert on prison culture. He testified inmates segregated by race. When a White inmate assaulted another with a weapon, he intended to kill. Two people were not usually sent on an attack if no weapon was involved. Usually in a two-on-one attack with a weapon, both attackers would have a weapon.
Cussik testified for the defense. He admitted he was a shot-caller and had called for the assault on Ramadanovic. Cussik claimed defendant was not assigned a role in the attack and he wondered why defendant was involved. He denied he turned his hat as a signal because “everyone knows their job before they come out.” Cussik claimed he ordered only Baker, who had a personal beef with Ramadanovic, to hit Ramadanovic. Cussik believed two inmates were not necessary for this assault. Cussik testified if someone else intervenes to aid the victim in an ordered attack, he will pay for it later. The payment would vary with the situation; it could be as little as extra exercise.
Baker testified and admitted he attacked Ramadanovic with a knife. He testified defendant did not know what he had planned or that he had a weapon. Baker also stabbed defendant who ran up and said, “don’t, ” and “what the fuck are you doing?” Baker did not see defendant punch Ramadanovic. Baker denied he was trying to kill Ramadanovic.
A defense investigator testified he interviewed Cussik, who said he told Baker to hit Ramadanovic. Baker had no choice; it was “do it or he’ll be next.” Cussik said everyone knew their job; others were involved in the attack but he would not identify them. A correctional officer who transported Cussik to trial said Cussik told him he did not order the hit, but gave permission. Cussik advised that because it was a personal issue, the attack should be two on one.
The parties stipulated defendant was serving less than a life term.
DISCUSSION
I.
No Unanimity Instruction Was Required
Defendant contends the trial court erred in failing to give a unanimity instruction. He asserts two factual scenarios were offered to convict defendant: defendant punched Ramadanovic with force likely to cause great bodily injury or he aided and abetted Baker in stabbing Ramadanovic. Defendant raised the need for such an instruction and the prosecutor agreed it might be appropriate. The trial court declined to give the instruction.
“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.]” (People v. Beardslee (1991) 53 Cal.3d 68, 92.) “When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.]” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
The unanimity requirement applies where there are different acts, but not where there are only different theories of the crime. “It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of [the charged offense] as that offense is defined by statute, it need not decide unanimously by which theory he is guilty. [Citations.] More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator. [Citation.]” (People v. Santamaria (1994) 8 Cal.4th 903, 918-919.)
While the prosecutor offered the jury two theories of the crime, both were based on the same act. As the perpetrator, defendant hit Ramadanovic about the head and upper body. If defendant aided and abetted Baker, his act of aiding and abetting was that of striking Ramadanovic as Baker stabbed him. There was no evidence defendant did anything else. Since the same act supports both theories, there was no need for a unanimity instruction.
II.
Although There Is Insufficient Evidence Defendant Himself Used Force Likely to Cause Great Bodily Injury, Reversal Is Not Required Because There Is Sufficient Evidence He Committed Aggravated Assault
Defendant contends there is insufficient evidence to support a conviction of assault by means of force likely to cause great bodily injury because there was no evidence as to the force he used to strike Ramadanovic. There was no evidence defendant suffered injuries to his hands or that Ramadanovic was injured by defendant’s blows. The Attorney General contends there is ample evidence; defendant continuously struck Ramadanovic in the head, shoulders and upper body, making contact. The assault occurred while Baker was stabbing Ramadanovic and there was no evidence defendant pulled his punches.
The Attorney General also relies on People’s exhibit 1, a picture of Ramadanovic that purportedly shows a wound near his eye with blood. The black and white picture is inconclusive as to the nature of any injury; it is unclear if the picture shows blood and where the blood originated. Even if we assume it shows blood from an eye injury, the picture alone does not establish the cause of the injury. The victim could have fallen to the ground after being stabbed.
When a criminal conviction is challenged on the basis of insufficient evidence, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
It is well established that the use of hands or fists alone may support a conviction of assault by means of force likely to produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) “Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied. [Citation.]” (People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.) In McDaniel, the evidence supported the use of force likely to cause great bodily injury where defendant repeatedly punched the victim about the head and upper body with closed fists, with such force that he fractured his knuckle, and continued to punch even after officers had intervened. The victim suffered abrasions, contusions, and scratches on his face and body; a bloody nose; and two lacerations on his neck, one of which required five stitches. (Id. at p. 749.)
Here the People presented no evidence as to the force defendant used when striking Ramadanovic. There was no evidence to distinguish defendant’s attack on Ramadanovic, considered alone, from simple assault. The absence of evidence that defendant himself used force likely to cause great bodily injury, however, does not require reversal of the conviction because defendant did not act alone, but with Baker. As discussed post, there was substantial evidence that by attacking Ramadanovic at the same time as Baker attacked, defendant was participating with Baker in an aggravated assault on Ramadanovic. In the attack, Baker used a deadly weapon, a sharp instrument, and applied force likely to cause great bodily injury and did cause such injury. Substantial evidence supports the conviction for violation of Penal Code section 4501.
III.
The Trial Court Did Not Err in Failing to Define Sua Sponte the Term “Likely”
Defendant contends the trial court erred in failing to define sua sponte the term “likely” in connection with assault by means of force likely to cause great bodily injury. Defendant notes that the term “likely” can “cover a range of expectability from possible to probable, ” and its synonyms include “‘“conceivable, ”’” “‘“potential, ”’” and “‘“inclined.”’ [Citation.]” (People v. Roberge (2003) 29 Cal.4th 979, 988.) Citing People v. Savedra (1993) 15 Cal.App.4th 738 and People v. Russell (2005) 129 Cal.App.4th 776, defendant asserts that in the context of aggravated assault, “likely” means “probable” or “more probable than not.” He argues that since this definition is narrower than ordinary usage, the trial court had a duty to define the term.
“The rules governing a trial court’s obligation to give jury instructions without request by either party are well established. ‘Even in the absence of a request, a trial court must instruct on general principles of law that are... necessary to the jury’s understanding of the case.’ [Citations.] That obligation comes into play when a statutory term ‘does not have a plain, unambiguous meaning, ’ has a ‘particular and restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of law [citation].” (People v. Roberge, supra, 29 Cal.4th 979, 988.) “‘The court should define sua sponte terms used in statutory definitions of an offense that have a technical or specialized meaning.’” (People v. Friend (2009) 47 Cal.4th 1, 70, quoting 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trials, § 616, p. 881.)
In People v. Savedra, supra, 15 Cal.App.4th 738, defendant was charged with possession of a deadly weapon while lawfully confined in prison. The jury was instructed that a deadly weapon was one “‘likely to inflict great bodily injury or death.’” (Id. at p. 742.) During deliberations the jury asked about the meaning of “‘“likely to cause great bodily harm, ”’” whether it meant “‘“merely possible?”’” or “‘“more probable than not?”’” The court responded “‘likely’” in this context meant “‘has the potential for use as a deadly weapon.’” (Id. at p. 744.) The appellate court found no error in the trial court’s response because the statute was concerned with only the potential of the weapon used, but acknowledged “that in ordinary usage and in many legal contexts ‘likely’ means ‘probable’ or, as the jurors put it, ‘more probable than not.’” (Ibid.)
In People v. Russell, supra, 129 Cal.App.4th 776, the issue was sufficiency of the evidence defendant used force likely to cause great bodily injury when he pushed the victim in front of a moving car. In finding the evidence sufficient, the court, relying on Savedra, used the ordinary meaning of “‘“likely”’” as “‘“probable”’” or “‘“more probable than not.”’” (People v. Russell, supra, at p. 787.) Since the definition of “‘likely’” that defendant advances here is the “ordinary usage” (People v. Savedra, supra, 15 Cal.App.4th at p. 744), and defendant did not request amplification of clarification, the trial court had no obligation to define sua sponte the term. “A trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request where the terms used in the instructions given are ‘commonly understood by those familiar with the English language.’” (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, italics omitted.) Defendant’s contention fails.
IV.
There Was Substantial Evidence of Assault with a Deadly Weapon
Defendant contends there was insufficient evidence to support a conviction of aggravated assault by an inmate on the theory that he aided and abetted assault with a deadly weapon. He contends that since the jury was not instructed on the natural and probable consequence doctrine, to prove he aided and abetted Baker in his assault with a knife or sharp homemade instrument, the People had to prove defendant knew Baker had the weapon. He contends there was no evidence of this knowledge and no evidence he grabbed or held Ramadanovic so any finding that he aided and abetted assault with a deadly weapon was not a rational inference from the evidence, but unjustified speculation.
“A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
There was ample evidence from which the jury could find defendant was aiding and abetting Baker in a coordinated joint attack of assault with a deadly weapon. Cussik, the shot-caller for White inmates in yard D, ordered or approved the attack and gave the signal for it to occur by turning his hat. Immediately, defendant and Baker acted together, running towards Ramadanovic and hitting and stabbing him. In later conversations Cussik indicated Baker was not the sole planned assailant. Cussik said “everyone” knew their job and told the defense investigator others were involved although he would not identify them. He told a correctional officer that because it was a personal issue, he advised a two-on-one attack. The expert testified if an attack involved two assailants, a weapon would be used. The role of the second attacker could be to hit or distract the victim.
Substantial evidence supports the conviction.
V.
The Verdict Form Was Not Defective
Defendant contends the judgment must be reversed because the verdict form was defective. He contends the verdict form improperly lessened the prosecution’s burden of proof by permitting the jury to convict if the assault was by means of a sharp instrument, regardless of whether such instrument was a deadly weapon.
The verdict form read: “We, the jury in the above entitled cause, do find the defendant, GREGORY ALLEN BUCK, J-71080,
__ GUILTY
__ NOT GUILTY
of a violation of Penal Code Section 4501, assault on M. Ramadanovic, with a sharp instrument or by means likely to produce great bodily injury; a felony, as charged in the information.”
The information charged: “On or about 9th day of May, 2007, defendant GREGORY ALLEN BUCK, J-71080, did commit a felony namely: a violation of Section 4501 of the Penal Code of the State of California, in that said defendant did unlawfully and while confined in a state prison serving less than a life term, commit an assault upon M. Ramadan[o]vic with a deadly weapon, to wit, a sharp instrument and by means of force likely to produce great bodily injury.”
We reject defendant’s contention. First, defendant forfeited any claim of a defect in the verdict form by failing to object when the form was submitted to the jury or the jury returned its finding. (People v. Jones (2003) 29 Cal.4th 1229, 1259; People v. Bolin (1998) 18 Cal.4th 297, 330.)
Second, the verdict form is not defective when read in light of the information and the instructions. “A verdict should be read in light of the charging instrument and the plea entered by the defendant. [Citations.]” (People v. Paul (1998) 18 Cal.4th 698, 706.) The verdict is to be construed in light of the instructions of the court. (People v. Jones (1997) 58 Cal.App.4th 693, 710.) “[T]he form of the verdict generally is immaterial, so long as the intention of the jury to convict clearly may be seen. [Citations.]” (People v. Paul, supra, at p. 707.) The information charged assault with a deadly weapon and the jury was fully instructed on assault with a deadly weapon. In this context, the reference to the sharp instrument in the verdict form would be understood as shorthand for the language of the information that charged assault with “a deadly weapon, to wit, a sharp instrument.”
Finally, even if we assume error in the verdict form, there was no prejudice. “[T]echnical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 447, fn. omitted.) Any error in failing to include the term “deadly weapon” in the verdict form was harmless under any standard because there was no dispute the sharp instrument Baker used was a deadly weapon.
Penal Code Section 1258 provides that an appellate judgment shall be given “without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.” Penal Code Section 1404 provides that “[n]either a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.” (See also Cal. Const., art. VI, § 13.)
VI.
An Instruction on Simple Assault Was Not Required
Defendant contends the trial court erred by failing to instruct on the lesser included offense of simple assault. He contends substantial evidence supported this instruction because there were no injuries to either defendant’s hands or Ramadanovic’s head and the evidence failed to show defendant knew Baker had a knife.
A trial court’s obligation to instruct on general principles of law relevant to the issues raised by the evidence includes “giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
The parties agree simple assault (Pen. Code, § 240) is a lesser included offense of aggravated assault by a prisoner (Pen. Code, § 4501). “Thus, the question posed by defendant’s claim is whether a reasonable jury could have found that defendant committed only a simple assault and not an assault with a deadly or dangerous weapon or force likely to produce great bodily injury.” (People v. McDaniel, supra, 159 Cal.App.4th at p. 748.)
As discussed above, the evidence amply supported a finding that Baker’s assault on Ramadanovic was an aggravated assault with a deadly weapon and with force likely to cause great bodily injury and that defendant participated in that assault. Accordingly, for the jury to have convicted defendant of only simple assault, it would have had to find he acted alone, just coincidentally at the same time as Baker. There was no evidence to support this scenario. The defense was that defendant did not assault Ramadanovic at all. The other evidence pointed to a joint coordinated two-on-one assault, approved and orchestrated by the shot-caller, initiated by his signal, and carried out together by Baker and defendant. The only motive suggested for the assault was that Baker had a personal beef with Ramadanovic and Cussik advised a two-on-one assault in that situation. Since no evidence supported an independent simple assault by defendant, the trial court had no obligation to instruct on simple assault.
In connection with this contention, defendant further contends that in addition to an instruction on simple assault, the trial court should also have instructed the jury to give the defendant the benefit of any doubt as to whether the offense was aggravated or simple assault. Since there was no evidence to support an instruction on simple assault, this additional instruction was unnecessary.
VII.
The Trial Court Did Not Err in Failing to Instruct Sua Sponte on the Defenses of Duress, Necessity, or Defense of Another
Defendant contends the trial court erred in failing to instruct sua sponte on the defenses of duress, necessity and defense of another. He contends there was substantial evidence to support these defenses.
A trial court’s duty to instruct sua sponte on a particular defense arises “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 195.)
A. Duress
“Duress is available as a defense to defendants who commit a crime ‘under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.’ ([Pen. Code, ] § 26, subd. six; People v. Otis (1959) 174 Cal.App.2d 119 [ ].) An essential component of this defense is that the defendant be faced with a direct or implied demand that he or she commit the charged crime. ‘The defense of duress, unlike the necessity justification, requires that the threat or menace be accompanied by a direct or implied demand that the defendant commit the criminal act charged.’ [Citation.]” (People v. Saavedra (2007) 156 Cal.App.4th 561, 567.)
“Duress is an effective defense only when the actor responds to an immediate and imminent danger.” (People v. Heath (1989) 207 Cal.App.3d 892, 900.) “Decisions upholding the duress defense have uniformly involved ‘“a present and active aggressor threatening immediate danger.”’ [Citation.] A ‘phantasmagoria of future harm’ such as a threat of death to be carried out at some undefined time, will not diminish criminal culpability. [Citation.]” (People v. Petznick (2003) 114 Cal.App.4th 663, 676-677.)
Defendant asserts there was evidence Baker was ordered to commit the attack and failure to do so would mean “he was next.” Defendant argues that if he participated under the same threat, there was evidence to support a duress instruction and it was reversible evidence not to give such an instruction.
There was no evidence defendant acted under duress. Although defendant’s participation may have been ordered and a failure to do so may have had consequences, there was simply no evidence defendant acted due to a threat or from fear of immediate harm; there was no evidence his participation in the assault was anything but voluntary. Second, there was no evidence of a threat of immediate harm. A threat of unspecified harm to be carried out at some undefined time, a “phantasmagoria of future harm, ” is insufficient. (People v. Otis (1959) 174 Cal.App.2d 119, 125.) Finally, the defense of duress was inconsistent with defendant’s defense that he did not assault Ramadanovic, but was trying only to protect him. There is no obligation to instruct sua sponte on an inconsistent defense. (See People v. Barton, supra, 12 Cal.4th 186, 197 [requiring instruction sua sponte on inconsistent defenses would place undue burden on courts and potentially prejudice defendants].)
B. Necessity
The necessity defense is founded upon public policy considerations and “involves a determination that the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged. [Citation.]” (People v. Heath, supra, 207 Cal.App.3d 892, 900-901.) “To justify an instruction on the defense of necessity, there must be evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency. [Citations.]” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)
Defendant contends the evidence supported a necessity instruction because, although participating in the attack as ordered, he sought to minimize the harm to Ramadanovic by pulling his punches. Defendant argues he “may have hit the victim so that the victim would simply be taken off the yard and not subject to further attack.” Further, he had no reasonable alternative because there was no time to report the attack to guards and other inmates may have been armed.
No evidence supports a defense of necessity. There was no evidence from which the jury could conclude defendant’s participation in the attack, which seriously injured Ramadanovic, was intended to or did prevent a significant evil. Nor has he established there was no adequate alternative. He could have alerted the guards to the ordered attack even before Cussik gave the signal. Again, the necessity defense is inconsistent with his defense that he did not participate in the attack.
C. Defense of Others
The defense of self-defense also applies when a defendant acts to defend another. (See CALCRIM No. 3470; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2009) Defenses, § 65, pp. 400-401.) Defendant contends the trial court should have instructed sua sponte on this defense because the evidence showed he intervened in the attack to prevent harm to the victim. However, if the jury believed defendant intervened only to protect Ramadanovic, getting stabbed by Baker in the process, the jury would have acquitted defendant. There is no evidence that defendant assaulted Ramadanovic in defense of others. Defendant fails to explain how he was defending Ramadanovic by assaulting him.
VIII.
There Was No Abuse of Discretion in the Admission of the Expert Testimony
Defendant contends the trial court abused its discretion in permitting the expert to testify beyond the permissible scope of expert testimony. Specifically, he objects that the expert testified that (1) when a White inmate uses a weapon, he intends to kill the other inmate, and (2) where no weapon is used, there is usually only one assailant. Defendant argues the expert improperly testified as to defendant’s knowledge, intent or purpose. He claims prejudice because the jury could conclude defendant knew Baker was armed since it was a two-on-one attack.
Before the expert testified, the defense objected to his proposed testimony on intent to kill when a weapon is used, claiming that was an issue for the jury. After a hearing under Evidence Code section 402, during which the expert previewed his testimony, the trial court ruled the expert could testify. The court found the requisite expertise, no prejudice “in the real sense of prejudice, ” and that the expert’s testimony was “an attempt to explain the culture of the prison.”
Any error in admitting the expert’s testimony that use of a weapon indicated an intent to kill was harmless because the jury hung on the attempted murder count, which required an intent to kill, and that count was dismissed.
“The use of expert testimony in the area of gang sociology and psychology is well established. [Citations.] The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case. [Citations.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.)
A trial court has wide discretion to admit or exclude expert testimony and we will not interfere with the exercise of that discretion unless it is clearly abused. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
In People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), the court found expert testimony that defendants knew there was a gun in the car and jointly possessed it went beyond the permissible scope of expert testimony. The Killebrew expert testimony “was the only evidence offered by the People to establish the elements of the crime. As such, it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. [Citation.]” (Id. at p. 658.) The Killebrew court did not prohibit any expert testimony about a gang member’s knowledge; for example, an expert could testify that oftentimes gang members traveling together may know if another gang member is armed. (Ibid.)
In People v. Gonzalez (2006) 38 Cal.4th 932, 946, footnote 3, the Supreme Court noted it was unclear how the expert in Killebrew testified to the knowledge of specific defendants when his testimony came in as answers to hypothetical questions.
Here the expert did not testify as to defendant’s intent or knowledge. Instead, he provided information about the culture of White prison inmates and the manner in which attacks were carried out from which the jury could infer defendant’s knowledge that Baker had a weapon and intent to kill. This type of expert testimony is permissible. “Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator’s intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551 [expert testimony about the motives of jailhouse gang members in general was admissible even though it may have led the jury to “the ineluctable conclusion” that defendant intended to kill victim].)
IX.
There Was No Ineffective Assistance of Counsel
Defendant contends trial counsel was ineffective in failing to present defenses of simple assault, duress, necessity and defense of another. He further contends counsel was ineffective in failing to request instructions on these defenses.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Defendant cannot make a showing of ineffective assistance of counsel because there was no evidence to support simple assault, duress, necessity or defense of another. Counsel is not deficient in failing to assert, or request instructions on, defenses for which there is no evidentiary support.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., ROBIE, J.