Filed 4/6/17 P. v. Young CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----


THE PEOPLE,

Plaintiff and Respondent,

v.

MARQUIS YOUNG,

Defendant and Appellant.


C074451

(Super. Ct. No. 11F06720)




A jury convicted defendant Marquis Young for possession of a firearm by a felon. The trial court sentenced him to three years in prison.
Defendant now asserts various evidentiary errors and argues there is insufficient evidence to support his conviction. Because some of his contentions are forfeited and the rest lack merit, we will affirm the judgment.
BACKGROUND
Various gang members engaged in a confrontation and fight at a nightclub. Shooting subsequently erupted, resulting in injuries and a death.
Kenneth Knight was about to park across the street from the club when he saw a man walk behind his car. The man looked toward the club, lifted his hand, and fired a gun in the direction of a dark colored car across the street. Knight heard five to nine gunshots but did not see the shooter’s face. He then heard return gunfire and shots hit the front of Knight’s car. Knight was shot in the leg.
Jesse Fowler, a validated G-Mobb gang member, was shot in the head and died. A bullet and a small jacket fragment were recovered from Fowler’s head. The parts came from a .38 caliber bullet, which was most commonly used in a revolver. Police did not recover the murder weapon.
Detectives interviewed Chris Ellington shortly after the shooting. Ellington was a validated Garden Blocc Crips gang member. Ellington told detectives someone called Drastic handed a silver revolver to someone who shot at a black sports car across the street. Detectives later determined Drastic was defendant’s moniker. Ellington was called as a witness by the People at trial, where he testified he could not remember the shooting because of his drug use. He was impeached with his statement to detectives during his earlier police interview. He could not say whether he was truthful during his police interview, but he said there was no reason he would lie to detectives if he told them defendant gave a gun to the shooter.
Detective Tony Turnbull interviewed Donnail Washington a few months after the shooting. Donnail was a Garden Blocc Crips gang member. Donnail said defendant handed a silver revolver to Little AJ, and Little AJ fired the gun. He said Little AJ was from Fresno. Donnail identified Little AJ by photograph. Little AJ was Allen Benzler.
Detective Nick Goncalves testified as the prosecution’s gang expert. He said the primary activities of the Garden Blocc Crips included assault with a deadly weapon, murder, kidnapping, narcotics sales, drug trafficking, possession of weapons, and witness intimidation. Garden Blocc Crips associated with the color blue. Detective Goncalves demonstrated some of the hand signs of Garden Blocc Crips. He described tattoos common to the gang.
Detective Goncalves opined that defendant was an active member of the 24th Street Crips subset of Garden Blocc Crips. His opinion was based on defendant’s prior contacts with law enforcement, tattoos, and the facts of the charged offenses.
Detective Goncalves further opined that Benzler was a member of a gang called Modoc Boys, a Crips gang. Benzler admitted gang membership, associated with known gang members, was identified as a gang member by reliable sources, wore gang related clothing or jewelry, threw gang hand signs, and had gang tattoos. Detective Goncalves said Benzler associated with the Garden Blocc Crips after he moved to Sacramento. The detective connected Benzler to Garden Blocc Crips member Martin Suarez. According to Detective Goncalves, when a gang member moved to a new area, he would have to “put in work” to gain status within the gang.
Detective Goncalves opined that the confrontation in front of the club before the shooting was related to Garden Blocc Crips because it involved an act of disrespect against validated Garden Blocc Crips gang member Alphonso Johnson. In response to a hypothetical, the detective said Crips gang members would restore respect to the gang by retaliating in some way after a fellow Crips member was disrespected. A retaliatory act would “answer” an earlier disrespect, instill fear in opposing gangs, teach younger gang members how they should react when disrespected, and communicate to the community and to other gangs that the gang members will do what it took to gain respect. A retaliatory act would also show that a person was willing to do whatever the gang asked him to do and whatever was necessary to gain respect and status within the gang. Goncalves opined that the act of violence in that scenario would be an act in association with or for the benefit of Garden Blocc Crips. The detective further opined that a person who provided a gun to a gang member, knowing that gang member intended to use the gun to commit a shooting, acted for the benefit of the gang.
The prosecution introduced evidence of a letter from defendant to his mother, asking the mother to ask Lawrence Stallworth to testify that he helped defendant pass out flyers about 30 minutes before the shooting; that someone asked defendant to hold a gun; that defendant responded “Hell no;” and that Stallworth and defendant left. The prosecution also introduced evidence of recorded telephone calls between defendant and Stallworth when defendant was in jail. During the recorded calls defendant asked Stallworth if defendant’s mother gave Stallworth a letter. Defendant told Stallworth defendant needed Stallworth as a witness. Stallworth told defendant, “I’m trying to do everything for you, cuz.”
Defendant took the stand. He said he was a Crips gang member but he had quit the gang in 2005. Defendant said he went to the club with Stallworth to hand out flyers for a tattoo business. According to defendant, about 20 to 25 minutes after he arrived at the club someone called T Daddy asked him to hold a gun while T Daddy engaged in a fight, but defendant refused to take the gun. Defendant said he wrote the letter to his mother because Stallworth tended to exaggerate and was “pretty much trying to help me too much” when he spoke with the defense investigator.
Defendant denied handing a gun to Benzler or to anyone else. He said he did not touch a gun that night; T Daddy handed Benzler the gun.
The jury convicted defendant of possession of a firearm by a felon. (Pen. Code, former § 12021, subd. (a)(1) -- count three.) The trial court found that the jury was hopelessly deadlocked on counts charging murder (§ 187, subd. (a) -- count one) and assault with a firearm (§ 245, subd. (a)(2) -- count two) and declared a mistrial as to those counts. The trial court sentenced defendant to the upper term of three years in prison.
DISCUSSION
I
Defendant asserts various evidentiary errors. We address each in turn.
A
Defendant contends the trial court erred in excluding Benzler’s pretrial statement to detectives. He moved in limine to admit the following portions of Benzler’s pretrial statement under Evidence Code section 1230: (1) Benzler’s description of the person who handed him a gun, (2) that Benzler fired the gun because he was afraid of something he saw across the street, (3) that Benzler was drunk at the time of the shooting, and (4) that Benzler was just trying to disperse the people across the street.
Evidence Code section 1230 provides: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” The Evidence Code section 1230 exception to the hearsay rule is “founded on the assumption that a person is unlikely to fabricate a statement against his [or her] own interest at the time it is made.” (Chambers v. Mississippi (1973) 410 U.S. 284, 299 [35 L.Ed.2d 297, 311] (Chambers).) The proponent of the evidence must show that (1) the declarant is unavailable, (2) the declaration was against the declarant’s penal interest when made, and (3) the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Lawley (2002) 27 Cal.4th 102, 153 (Lawley).)
An out-of-court statement is not sufficiently reliable for admission under Evidence Code section 1230 “ ‘ “solely because it incorporates an admission of criminal culpability.” ’ [Citations.] As the high court reasoned in interpreting the analogous exception to the federal hearsay rule, ‘[t]he fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory nature. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.’ [Citation.]” (Lawley, supra, 27 Cal.4th at p. 153, italics omitted.) Thus, a court must view the proffered statement in context to determine whether it is self-inculpatory. (Ibid.) Only a statement or portion of a statement that is itself specifically disserving to the interests of the declarant is admissible under Evidence Code section 1230. (Lawley, at p. 153.)
We review a trial court’s decision as to whether a statement is admissible under Evidence Code section 1230 for abuse of discretion. (People v. Valdez (2012) 55 Cal.4th 82, 143-144; Lawley, supra, 27 Cal.4th at p. 153; People v. Gordon (1990) 50 Cal.3d 1223, 1252, overruled on another ground in People v. Edwards (1991) 54 Cal.3d 787, 835.) We will not disturb the trial court’s ruling if it is correct upon any theory of the law applicable to the case, regardless of the considerations which may have moved the trial court to its conclusion. (People v. Brown (2004) 33 Cal.4th 892, 901; People v. Johnson (2010) 183 Cal.App.4th 253, 288 [we review judicial action and not judicial reasoning].)
According to defendant, Benzler’s admission that he fired a gun was against his interest because it subjected him to criminal liability. It was also exculpatory for defendant because it showed that someone other than defendant handed Benzler the gun and that Benzler had no intent to kill. The trial court concluded Benzler’s pretrial statement was not clearly inculpatory and thus was not admissible under Evidence Code section 1230.
Applying the elements of the Evidence Code section 1230 analysis, it is undisputed that Benzler was unavailable to testify as a witness. But as the trial court found, Benzler’s statement was not entirely self-inculpatory. Benzler denied involvement with the shooting during the first half of the interview. He said he left before the shooting happened. He then claimed he was talking to a woman and heard gunfire. He denied that someone handed him a gun and that he shot a gun.
Benzler eventually admitted, “yeah I shot him.” That statement is clearly against Benzler’s penal interest. But that was not the portion of Benzler’s statement which defendant sought to introduce. And Benzler’s admission does not automatically render his entire pretrial statement admissible under Evidence Code section 1230. (Lawley, supra, 27 Cal.4th at p. 153.) Only those portions of Benzler’s statement to the detectives which are specifically disserving to Benzler’s interests are admissible under the statute. (Ibid.)
Defendant sought to introduce Benzler’s description of the person who handed him a gun. Defendant’s trial counsel argued that Benzler’s description did not match defendant’s appearance. Benzler described the person who handed him a gun after he admitted that he shot twice. Benzler said the person was light skinned and “like 5’9” ” (taller than Benzler), and wore a beanie or a hoodie. Benzler’s description did not further incriminate Benzler. Benzler said he did not know who handed him the gun. He said he did not know all of the people who were there. He did not say the person who handed him a gun was a Crips gang member. Benzler’s description of the person who handed him a gun is not admissible under Evidence Code section 1230 because it does not specifically disserve Benzler’s penal interest. (Lawley, supra, 27 Cal.4th at p. 154 [declarant’s statement that he killed the victim was against the declarant’s penal interest but the statement about who hired the declarant to kill the victim did not make the declarant more culpable than the other portions of his statement and was not specifically disserving of the declarant’s interests]; People v. Vasquez (2012) 205 Cal.App.4th 609, 622.)
Defendant also sought to introduce Benzler’s statement that he was drunk at the time of the shooting, he shot because he was afraid, and he was just trying to get people to leave. But those portions of Benzler’s statement attempted to minimize Benzler’s responsibility for the shooting and were entirely self-serving. They are not statements against Benzler’s penal interests. (People v. Duarte (2000) 24 Cal.4th 603, 612-613 (Duarte) [statements that the declarant did a shooting in retaliation for an earlier shooting but later realized he had shot at the wrong house, and that the declarant aimed at the roof because he did not want to kill anyone, suggesting that other shooters were responsible for the victim’s injury, were not admissible under Evidence Code section 1230 because they were not specifically disserving of the declarant’s penal interest].)
The trial court did not err in ruling that the proffered portions of Benzler’s pretrial statement are not admissible under Evidence Code section 1230. Because the proffered portions were not against Benzler’s interest, we need not address whether the statements are not sufficiently trustworthy to warrant admission. (Lawley, supra, 27 Cal.4th at p. 153 [proponent of statement must show both elements to qualify for admission under Evidence Code section 1230].)
B
Defendant also argues Benzler’s pretrial statement is admissible under Chambers, supra, 410 U.S. 284 [35 L.Ed.2d 297] because it is trustworthy. He says the trial court applied Evidence Code section 1230 in an arbitrary and disproportionate manner when it excluded evidence of Benzler’s pretrial statement.
The defendant in Chambers was convicted of killing a policeman. (Chambers, supra, 410 U.S. at p. 285 [35 L.Ed.2d at p. 303].) He sought to introduce evidence that Gable McDonald, a person who signed a confession admitting he shot the policeman but later repudiated his sworn confession, told three friends on three separate occasions that he was the person who shot the officer. (Id. at pp. 289-293 [35 L.Ed.2d at pp. 305-307].) The defendant also sought to call McDonald as an adverse witness. (Id. at p. 291 [35 L.Ed.2d at p. 306].) The trial court excluded evidence of McDonald’s hearsay statements and denied the defendant’s motion to examine McDonald as an adverse witness based on Mississippi rules of evidence. (Id. at pp. 289-294 [35 L.Ed.2d at pp. 305-308].) Mississippi recognized a hearsay exception for declarations against pecuniary interest but not for declarations against penal interest. (Id. at p. 299 [35 L.Ed.2d at p. 311].) Even though the defendant was able to present some evidence that chipped away at the fringes of the story McDonald told at the trial, the defense was less persuasive than it would have been if the trial court had admitted McDonald’s hearsay statements and permitted the defendant to cross-examine McDonald. (Id. at p. 294 [35 L.Ed.2d at p. 308].) The Mississippi Supreme Court upheld the trial court’s rulings (id. at pp. 291-293 [35 L.Ed.2d at pp. 307-308]), but the United States Supreme Court reversed, concluding McDonald’s hearsay statements bore persuasive assurances of trustworthiness, McDonald testified at the trial and could have been cross-examined by the State, and McDonald’s hearsay statements were critical to the defense. (Id. at pp. 300-302 [35 L.Ed.2d at pp. 312-313].) The high court held that coupled with the refusal to allow the defendant to cross-examine McDonald, the application of state hearsay rules under the circumstances in that case denied the defendant his right to due process of law. (Id. at p. 302 [35 L.Ed.2d at p. 313]; see Green v. Georgia (1979) 442 U.S. 95, 97 [60 L.Ed.2d 738, 741].) The high court was careful to note, however, that it did not establish any new principles of constitutional law. (Chambers, at p. 302 [35 L.Ed.2d at p. 313.) The holding was limited to the facts and circumstances of that case. (Id. at p. 303 [35 L.Ed.2d at p. 313].)
Discussing Chambers, supra, 410 U.S. 284 [35 L.Ed.2d 297], the California Supreme Court explained: “The general rule remains that ‘ “the ordinary rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” ’ ” (Lawley, supra, 27 Cal.4th at p. 155; see People v. Yeoman (2003) 31 Cal.4th 93, 141-142 [neither due process nor Chambers precludes “ ‘the application of evidentiary rules that themselves serve the interests of fairness and reliability -- even if the defendant would prefer to see that evidence admitted’ ”]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [the high court has never suggested Chambers “abrogated ‘the respect traditionally accorded to the States’ in formulating and applying reasonable foundational requirements” for hearsay exceptions].)
Unlike the state in Chambers, supra, 410 U.S. 284 [35 L.Ed.2d 297], California recognizes a declaration against penal interest exception to the hearsay rule. Defendant does not claim that the requirements for admission under Evidence Code section 1230 offend due process principles or do not serve any legitimate interests. (Contrast Holmes v. South Carolina (2006) 547 U.S. 319, 325-331 [164 L.Ed.2d 503, 509-513] [rules that exclude important defense evidence but that do not serve any legitimate interests violate the defendant’s constitutional right to have a meaningful opportunity to present a complete defense].) The trial court excluded Benzler’s hearsay statements because defendant did not establish admissibility under Evidence Code section 1230.
Moreover, defendant fails to demonstrate that those portions of Benzler’s statement which he sought to introduce bore persuasive assurances of trustworthiness. The statements at issue in Chambers were made spontaneously to a friend during a private conversation shortly after the murder had occurred. (Chambers, supra, 410 U.S. at pp. 291-293, 300-301 [35 L.Ed.2d at pp. 306-308, 311-312].) The statements in this case were made to police detectives, during an interrogation, months after the shooting, when Benzler was in custody and was accused of murder. A statement made in such circumstances is inherently suspect. (Duarte, supra, 24 Cal.4th at p. 617; Williamson v. United States (1994) 512 U.S. 594, 601 [129 L.Ed.2d 476, 483] [“ ‘The arrest statements of a codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence.’ ”].)
The hearsay statements in Chambers were “unquestionably against [the declarant’s] interest.” (Chambers, supra, 410 U.S. at p. 301 [35 L.Ed.2d at p. 312].) McDonald told the first friend that he shot the officer. (Id. at p. 292 [35 L.Ed.2d at p. 307].) He told the second friend he shot the officer, and subsequently urged the friend to not “mess him up.” (Ibid.) He told the third friend he was the one who shot the officer and he disposed of the gun used in the shooting. (Id. at p. 293 [35 L.Ed.2d at p. 307].) Here, while Benzler said “I shot him,” he subsequently claimed he did not kill anyone and did not shoot or “hit” anyone. Benzler also claimed it looked like the people who were standing by the black car were about to kill somebody or kill him. He further claimed he did not aim to hit anybody and just wanted to scare them so that they would leave. In other words, Benzler continually attempted to diminish his culpability for the shooting. Statements that minimize the declarant’s culpability lack indicia of reliability. (Duarte, supra, 24 Cal.4th at pp. 615-616, 618.)
In addition, the hearsay statements in Chambers were corroborated by some other evidence in the case: McDonald’s sworn confession, the testimony of an eyewitness to the shooting, testimony that McDonald was seen with a gun immediately after the shooting, and proof of McDonald’s ownership of a gun that was the same caliber as the murder weapon. (Chambers, supra, 410 U.S. at p. 300 [35 L.Ed.2d at p. 312].) Here, Benzler’s description of the person who handed him a gun is inconsistent with the statements other witnesses gave to authorities. And Benzler’s statement that he did not know who handed him the revolver because it was very dark undercuts the reliability of his description. Moreover, unlike McDonald in Chambers, Benzler was not present in the courtroom and available for cross-examination. (Chambers, supra, 410 U.S. at p. 301 [35 L.Ed.2d at p. 312].)
The “unique circumstances” present in Chambers, supra, 410 U.S. 284 [35 L.Ed.2d 297] and Green v. Georgia, supra, 442 U.S. 95 [60 L.Ed.2d 738] are not found in this case. Exclusion of Benzler’s pretrial statement on the ground that it does not meet the requirements of Evidence Code section 1230 does not violate defendant’s right to present a defense and to a fair trial. Defendant presented his theory of defense to the jury, i.e., that T Daddy, and not defendant, handed the gun to Benzler.
C
Defendant next claims the use of a synopsis of Ellington’s pretrial statement to impeach Ellington violated the principles enunciated in California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413] (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51, 57 [102 L.Ed.2d 281, 289] (Youngblood). Trombetta and Youngblood provide that “[l]aw enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a significant role in the suspect’s defense.’ ” (People v. Roybal (1998) 19 Cal.4th 481, 509-510.) “To fall within the scope of this duty, the evidence ‘must possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ” (Id. at p. 510.)
The Attorney General responds that defendant forfeited his Trombetta/Youngblood claim by failing to object on that ground in the trial court. We agree with the Attorney General.
Detectives believed they had recorded the Ellington pretrial statement on a DVD. But detectives later discovered the DVD which they thought contained the Ellington interview was blank. Detective Turnbull instead gave a summary of the Ellington interview at trial.
Defendant did not move to suppress the summary of Ellington’s interview based on Trombetta, supra, 467 U.S. 479 [81 L.Ed.2d 413] or Youngblood, supra, 488 U.S. 51 [102 L.Ed.2d. 281], and he did not argue the failure by police to preserve the recording of Ellington’s interview was in bad faith or violated defendant’s constitutional rights. Defendant argued instead that evidence of the synopsis of Ellington’s interview was inadmissible because it was incomplete and inaccurate. The parties did not address the inquiries under Trombetta and Youngblood, i.e., whether the recording of Ellington’s interview possessed an exculpatory value that was apparent before the recording was lost or destroyed and whether the police acted in bad faith in failing to preserve the recording. Consequently, the trial court did not make any findings under Trombetta and Youngblood. Under the circumstances, defendant failed to preserve his appellate Trombetta/Youngblood claim. (People v. Tully (2012) 54 Cal.4th 952, 979-980 [appellate claims involving analyses the trial court was not asked to conduct and requiring factual bases additional to those adduced in the trial court are forfeited]; People v. Williams (2008) 43 Cal.4th 584, 620 [“ ‘ “questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal” ’ ”]; People v. Beeler (1995) 9 Cal.4th 953, 975-976.)
Defendant argues, in the alternative, that his trial counsel was ineffective for not making a Trombetta/Youngblood motion. To establish ineffective assistance of trial counsel, defendant must prove that (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to the defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury); Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) If defendant makes an insufficient showing on either one of these components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703 (Holt); Strickland v. Washington, at p. 687 [80 L.Ed.2d at p. 693].) We review trial counsel’s performance with deferential scrutiny, indulging a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and recognizing the many choices that attorneys make in handling cases and the danger of second-guessing an attorney’s decisions. (Maury, at p. 389; Strickland v. Washington, at p. 689 [80 L.Ed.2d at p. 694].) Counsel is not ineffective for failing to make a meritless objection or motion. (People v. Weaver (2001) 26 Cal.4th 876, 931 (Weaver).) “On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, there is no indication in the record that anyone asked defense counsel why she did not make a Trombetta/Youngblood motion. But counsel could have had a tactical reason for the omission. Ellington identified Drastic as the person who handed a revolver to the shooter. Nothing in the record indicates the recording of Ellington’s interview had apparent exculpatory value before it was lost. (People v. Alexander (2010) 49 Cal.4th 846, 877-879 [the exculpatory value of missing evidence could not have been apparent before it was destroyed if defendant could not show the unavailable evidence had exculpatory value]; People v. Cook (2007) 40 Cal.4th 1334, 1349 (Cook) [rejecting the defendant’s due process claim where the defendant failed to show that the missing evidence actually contained possibly exculpatory evidence]; People v. Zapien (1993) 4 Cal.4th 929, 965 [exculpatory value of the evidence must have been apparent before it was destroyed].)
Even if Detective Turnbull’s summary of the Ellington interview was flawed, Ellington and the detectives who interviewed Ellington were on the People’s witness list. Defense counsel cross-examined Ellington about what he observed on the night of the shooting and what he told the detectives during his interview, and also cross-examined the detectives about Ellington’s interview statements, the synopsis of Ellington’s interview, and what happened to the recording of Ellington’s interview. (Trombetta, supra, 467 U.S. at p. 490 [81 L.Ed.2d at p. 423] [cross-examination of officer who administered Intoxilyzer test was an alternate means of challenging the result of the defendant’s breath-analysis test]; People v. Walker (1988) 47 Cal.3d 605, 638 [in a case involving the failure by the police to preserve a recording of the defendant’s conversation with his cousin in which the defendant threatened to kill an undercover officer, the Supreme Court concluded that the opportunity to cross-examine the officer who directly monitored the taped conversation was adequate to protect the defendant’s rights under Trombetta].) Defendant’s trial counsel could have reasonably concluded defendant could not prevail on a Trombetta motion because the exculpatory value of the missing recording was not apparent before it was lost and the missing recording was not of such a nature that defendant would be unable to obtain comparable evidence through other reasonably available means.
Moreover, defendant does not cite any part of the record that would support an assertion of bad faith by the detectives at the time the recording process failed. (Cook, supra, 40 Cal.4th at p. 1349 [rejecting the defendant’s due process claim where the defendant failed to show officers exercised bad faith in not preserving the missing evidence].) The People provided defendant with recordings of other witness interviews and two of those witnesses also identified defendant as the person who handed a gun to the shooter. Defendant’s trial counsel could have reasonably concluded defendant had no grounds for a Youngblood motion because there was no evidence of bad faith by the police.
Evidence adduced at the trial supports a conclusion that there was no bad faith by the detectives. Detective Paul Belli said detectives checked to make sure a recording was written to the DVD. “Everything seemed to be fine” until the detectives discovered the DVD for Ellington’s interview was actually blank, even though the DVD showed it contained a nearly two-hour recording. Detective Turnbull said he wrote his report as accurately as he could for a summary.
Defendant does not establish that his trial counsel’s representation was deficient.
D
Defendant further argues the trial court erred in allowing the gang expert to testify that Benzler was trying to join the Garden Blocc Crips. Defendant claims the testimony improperly referred to Benzler’s state of mind. The Attorney General again counters that defendant forfeited his argument by failing to object on that ground in the trial court.
Defendant moved in limine to preclude the prosecution’s gang expert from testifying about the knowledge, intent, or state of mind of any individual. The prosecutor agreed the gang expert could not testify about defendant’s specific intent, but it was proper for the gang expert to testify about gang psychology, such as that younger gang members “put in work” to impress older gang members. Defendant’s trial counsel did not disagree with the prosecutor’s statement. The trial court ruled that the prosecution’s gang expert could testify about how gangs operated in general but could not testify about what a particular individual thought on a particular occasion.
At trial, the prosecutor asked gang expert Detective Goncalves whether a Modoc Boys gang member who moved to Sacramento could become a member of Garden Blocc Crips. The detective said the person would have to “put in the work to gain status” with the new gang. The detective said Benzler associated with Suarez (whose moniker was “Half Dead”), a member of the 29th Street Garden Blocc Crips. Detective Goncalves learned from validated gang members that Benzler was trying to become “Little Half Dead” and that according to Suarez, Benzler was trying to impress Johnson, a validated Garden Blocc Crips gang member. Detective Goncalves opined that committing an act of violence against a person who disrespected Johnson would enhance the reputation of the gang and bolster the reputation and status of someone in Benzler’s position.
As defendant acknowledges, his trial counsel did not object to Detective Goncalves’s testimony. Therefore, the prosecutor did not have a chance to respond and the trial court was not given an opportunity to consider whether the challenged statements referred to Benzler’s state of mind. Defendant forfeited his appellate claim. (People v. Partida (2005) 37 Cal.4th 428, 433-435 (Partida); People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208 (Zepeda).)
Defendant argues he received ineffective assistance of counsel when his attorney did not object to Detective Goncalves’s testimony. As we have already explained, defendant must prove that trial counsel’s deficient representation resulted in prejudice to him. (Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, 466 U.S. at p. 687 [80 L.Ed.2d at p. 693].) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (Maury, supra, 30 Cal.4th at p. 389) It is not enough for defendant to show that errors had some conceivable effect on the outcome of the case. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) Defendant must show a reasonable probability of a more favorable result. (Id. at pp. 217-218; Strickland v. Washington, supra, at pp. 693-694.)
Even if defendant’s trial counsel should have objected to Detective Goncalves’s testimony, defendant has not established a reasonable probability that, but for counsel’s omission, the result of the trial would have been different. Defendant has not established prejudice and his ineffective assistance claim lacks merit.
E
In addition, defendant claims the trial court erred in allowing the gang expert to testify about hearsay statements indicating that defendant gave Benzler a gun before the shooting.
Detective Goncalves testified that according to police reports, validated gang members told police defendant gave Benzler a gun. Defendant did not object when Detective Goncalves referred to hearsay statements that defendant gave Benzler a gun. Accordingly, defendant did not preserve his appellate claim. (Partida, supra, 37 Cal.4th at pp. 433-435; Zepeda, supra, 87 Cal.App.4th at p. 1208.) But the claim lacks merit in any event.
Detective Goncalves did not express an opinion about whether defendant was the person who gave Benzler a gun. Rather, the detective was explaining what led him to contact a detective in Fresno to learn more about Benzler. Further, the jury had already heard evidence that defendant handed Benzler the gun Benzler used in the offense. Detective Goncalves’s testimony about the hearsay statements could not have prejudiced defendant.
Moreover, defense counsel was not ineffective for failing to make a meritless objection (Weaver, supra, 26 Cal.4th at p. 931) and counsel could have had a tactical reason not to object: evidence identifying defendant as the person who handed Benzler a gun had already been presented to the jury. For the same reason, defendant cannot show a reasonable probability that, but for his trial counsel’s omission, he would have obtained a more favorable result at trial. Consequently, defendant’s ineffective assistance of counsel claim fails.
II
Defendant also challenges the sufficiency of the evidence supporting his conviction.
In reviewing the sufficiency of the evidence under the due process clause of the Fourteenth Amendment to the United States Constitution and article I, section 15 of the California Constitution, we look at the entire record and ask “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Holt, supra, 15 Cal.4th at p. 667; People v. Rowland (1992) 4 Cal.4th 238, 269.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Ramirez (2006) 39 Cal.4th 398, 463.) “ ‘ “ ‘If the circumstances reasonably justify the trier of fact’s findings, [our] . . . opinion . . . that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” (Holt, supra, 15 Cal.4th at p. 668.)
The jury convicted defendant for possession of a firearm by a felon. (Former § 12021, subd. (a)(1); the statute is now found at section 29800, subdivision (a).) Former section 12021, subdivision (a)(1) provided: “Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government or country . . . and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony . . . .” (Stats. 2011, ch. 15, § 501.5.) The elements of the offense include (1) a felony conviction, (2) ownership, possession, custody, or control of a firearm, and (3) knowledge of the firearm’s presence. (People v. Kim (2011) 193 Cal.App.4th 836, 846; People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) A defendant has actual possession of a firearm when the firearm is in his or her immediate possession or control. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1029.) “ ‘Implicitly, the crime is committed the instant the felon in any way has a firearm within his control.’ ” (Id. at pp. 1029-1030.) Conviction under the statute requires intentional exercise of control over the firearm. (Jeffers, at pp. 923-924.) “Thus, a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent.” (Id. at p. 922.)
It is undisputed that defendant had a prior felony conviction. On this record, a rational trier of fact could also have found beyond a reasonable doubt that defendant possessed a firearm with the intent to exercise control over that firearm on the night of the shooting. Witnesses told police defendant handed a gun to someone who then fired the gun. The jury had an opportunity to observe two of the witnesses and assess their credibility. The jury also had an opportunity to assess the credibility of Detectives Belli and Turnbull, who recounted Ellington’s pretrial statement that defendant held a gun, and of Stallworth and defendant, who testified to the contrary. Defense counsel argued there was no proof beyond a reasonable doubt that defendant handed anyone a gun. The trial court instructed the jury on assessing the credibility of witnesses, evaluating conflicts in the evidence, the use of pretrial statements, the elements of the crime of felon in possession of a firearm, and the prosecution’s burden to prove each element of the crime beyond a reasonable doubt. The jury convicted defendant after assessing the conflicting evidence and the credibility of the various witnesses, and we will not disturb the jury’s findings. (People v. Young (2005) 34 Cal.4th 1149, 1181 [“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts.”].)
We reject defendant’s claim of insufficient evidence.
DISPOSITION
The judgment is affirmed.



/S/
MAURO, J.



We concur:



/S/
HULL, Acting P. J.



/S/
DUARTE, J.