THE PEOPLE, Plaintiff and Respondent, v. ANTHONY AUSTIN, Defendant and Appellant.
D082809
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 8/29/25
NOT TO BE PUBLISHED IN OFFICIAL REPORTS. California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD294001)
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Robin Urbanski, Supervising Deputy Attorney General and Anastasia Sagorsky, Deputy Attorney General for Plaintiff and Respondent.
Austin contends the court prejudicially erred by admitting gang-related evidence because it was minimally relevant to the issues, including as to motive, context, intent and identity, and more prejudicial than probative. He maintains the error rendered his trial fundamentally unfair in violation of his Fifth Amendment due process rights. Austin further contends the section 1202.45 parole revocation fine is unauthorized and must be stricken. The People correctly concede the latter point. We modify the judgment to strike that fine, but otherwise affirm.
Williams‘s Shooting and Andre Carroll‘s Murder Five Days Earlier
Witnesses saw Austin drive up in a red Ford Explorer to Williams‘s vehicle and shoot Williams. One such witness was Williams‘s sister, S.J., who that morning was at a park where she spent time with friends every day. Williams had arrived to the park that morning after work, but ended up taking a nap in his car. S.J.‘s family and Austin‘s family were close friends, and had known each other for years. According to S.J., earlier in the month before the shooting, she answered her brother‘s phone and heard Austin, who she knew as “Bone,” on the other end say in an unfriendly tone, “A-Rocc you can get it too cuz,” and hung up. Williams‘s street name or moniker was A-Rocc. S.J. told her brother it was Bone who called.
When S.J. saw the red SUV pull up, she walked toward it and from about 12 feet away, saw Austin raise his head up from the driver‘s seat, give her a “cold[ ] look” then drive to her brother‘s car and started shooting. Before the shooting, S.J. did not have personal problems with Austin. She had no doubt in her mind that Austin shot her brother.
Another witness, J.W., was at the park that morning. J.W. had a close relationship with Williams; he considered him like an uncle and loved him. Williams was J.W.‘s mentor in the Neighborhood Crips, a gang in the neighborhood of 47th and Market Street, including 41st Street. According to J.W., he and Austin were from the same “hood,” but Austin was from the 41st Street subset of Neighborhood Crips, and J.W. and Williams were from the 47th Street subset of the same gang.
J.W. went up to Williams‘s car to talk, and Williams told J.W. he was anxious. J.W. saw that Williams had bags under his eyes and appeared that he had not slept a few days. Williams also had a gun in his seat, which was
D.M., a phlebotomist with some life support training, was in her car across the street when she saw the red SUV pull up, someone stick their arm out the passenger window and shoot. The red SUV then sped away. She went to help and asked someone to put pressure on Williams‘s neck wound, then she found a towel and put it on his neck. D.M. asked Williams if he knew who had done this, and he muttered something that sounded like “Bo.” D.M. later told police that she believed she saw two black individuals in the red SUV, including a large, older man.
An unidentified man called 911 to report the shooting. He reported seeing the red SUV and a man shot in the neck bleeding heavily. While on the call, the man spoke with a woman who stated the red car was a Ford Explorer, and that the person in it was “Little Bone [or] Baby Bone . . . from Raven Street.”
Five days before William‘s shooting, police began working up a case in which Chantell Tompkins (“Tiny Crip Sticc,” a 4-7 member) was charged with the murder of Andre Carroll (“Baby Sed Dogg,” a 4-1 member).
Pretrial Motions and Court‘s Ruling re Admission of Gang Evidence
Before trial, the court addressed the parties’ respective motions on the admission of gang-related evidence. Initially, the People moved to admit testimony from a gang expert about a feud within the Neighborhood Crips gang, specifically resulting from the murder of Carroll by Tompkins, which assertedly triggered Williams‘s murder by Austin in retaliation. In supplemental briefing, the People clarified that they wanted to give the jury “context into the gang world which is unfamiliar to most ordinary everyday citizens and to show evidence of motive[,] intent and identity,” and thus sought to introduce testimony on the existence, subsets and territory of the Neighborhood Crips criminal street gang as well as expert opinion on the gang membership, associations and tattoos of Tompkins, Carroll, Austin and Williams; culture and habits of Neighborhood Crips gang members; and the interpretation of certain language, statements and actions.
The court stated: [I]f all [the expert is] saying is, ‘it‘s a neighborhood street gang, I‘ve worked gangs, here‘s the territory and there are these different sects and they are identified. . . . [H]e‘s worked this Crip gang and he can say, ‘There are these sects.’ That‘s fine. And then you tie it in with defendant‘s actual statements about this, which are admissible, they are admissions. So that would come in. [¶] If other witnesses can say anything about that, . . . I don‘t know the foundation for their statements. But assuming they had sufficient foundation that they‘ve discussed with him, for example, . . . it could come in, all of that.”
Defense counsel stated her belief that S.J. and J.W.‘s testimony would be based on hearsay, lack foundation, and amount to speculation. The prosecutor stated both witnesses were at the time “very closely connected” to the gang, but agreed it would depend on the foundation they could lay. The
The following day, defense counsel advised the court that the prosecutor had provided an audio-recorded interview with S.J. Defense counsel asked for an offer of proof. The prosecutor explained thаt S.J. had gone “back and forth” as to whether the matter involved an internal gang dispute or whether it was personal. He pointed out that J.W. had stated Williams‘s homicide was based on Carroll‘s murder by Tompkins, and the personal connections between Austin and Carroll on the one hand, and Williams and Tompkins on the other. The prosecution‘s theory was that Austin‘s motive was retaliation for the previous murder.
The prosecutor ultimately explained that the “gang is still very much entwined in this case,” so his plan was to “generally introduce the sect, and then have the witnesses come in and do specifics. And if I can get those specifics, to have an expert come at the end to explain what . . . the witnesses said on the stand. If they don‘t say that, then that expert doesn‘t come in, obviously. [¶] So in opening, I do not intend to go into ‘This is 4-1 versus 4-7.’ This is a personal beef. I‘m going to say, ‘This is a disagreement within Neighborhood Crips,’ and then I‘m going tо leave it there, and I will not describe it further than that.” The court responded: “Okay. That‘s appropriate. That‘s fine. . . . [T]rials being dynamic, we will adjust.”
Before the parties presented witnesses, the prosecutor confirmed with the court that J.W. would in fact testify Austin was a 4-1 member, and that the impetus for the homicide was Carroll‘s murder. The prosecutor explained he would be calling a detective to lay a foundation for homicide investigations, generally about the Neighborhood Crips gang and its areas, and how gang homicides differ from other homicides. He also explained how J.W. had foundation for his testimony, which was to establish there was an argument between the two Neighborhood Crips subsets to use as circumstantial evidence of the reason for Williams‘s killing. The court allowed it conditioned on a proper foundation.
Detective Sergeant Christopher Leahy testified that the Neighborhood Crips сriminal street gang was a large, very active gang set in San Diego. They claimed territory between the Interstate 15 and Euclid, and the highway 94 to the North to 36th and Imperial to the South. The Neighborhood Crips gang had generational or geographical subsets: one clique or subset grew up along the 41st Street corridor, and another along 47th Street, which was a very large clique. The detective testified that Raven Street was right around the corner from 41st Street, and the park where Williams was shot was located near 41st Street.
Detective Leahy explained that the numbers 4-1 and 4-7 were significant to the Neighborhood Crips, as was the glove of the Milwaukee
Defense counsel conducted a lengthy cross-examination of Detective Leahy. She asked the detective to further describe the difference between the Neighborhood Crips and the other crip gang, the West Coast Crips, and their territories. She asked whether gang members could live in areas outside their territory, and whether the West Coast Crips and Neighborhood Crips would feud. The detective explained that the Crip gangs would almost never feud as they were aligned and closely connected, but “just like in any large organization you‘re going to have tiffs happen because you have so many people involved,” and that with most gang members “it‘s all about respect.”
J.W. testified about the different groups within the Neighborhood Crips, including the groups from 41st and 47th Street, who intermingled with each other. He stated that in normal times, the Neighborhood Crips subgroups got along well. He testified that Tompkins, who he knew as “Tiny Sticc,” was from 47th Street and his given name was Chantell. J.W. had known Tompkins since they were in elementary school. Williams was also a mentor to Tompkins. J.W. understood that Carroll (who J.W. only knew as “Baby Sed Dogg“) and Austin were close, like family in some way, and referred to each other as “brother.” J.W. did not know Carroll personally since they did not grow up in the same clique. J.W. identified photographs of Williams‘s tattoos and explained their meaning, including one reading “Original Little Crip,” 4 Seven, and a glove symbolizing “40 Crip” with the
J.W. and Williams were both present at a meeting between the 4-1 and 4-7 Neighborhood Crips subsets, which was called due to the animosity that arose between them after Carroll‘s shooting. The meeting, which J.W. said occurred a couple of weeks before Williams‘s shooting, was to air out what was happening and dispel some of the animosity. According to J.W., “[t]here were threats floating around between certain individuals of 41st Street and 47th Street. So we werе kind of like trying to kill the . . . beef so nothing else would happen further.”
After Austin‘s girlfriend disrupted the courtroom and was removed, J.W. testified that when officers began questioning him at the scene, he was worried about answering questions. Asked to explain, he said: “For the same reason that that girl that just walked in here right now, calling me a snitch. The whole hood is saying the same thing, and I don‘t care because at this point, the truth got to come out.” He explained that in his neighborhood, people were not supposed to report things that happened even if it was between the same gang members and it bothered them. The consequence of talking to police or testifying in court was that if he did not remain silent, “I‘d be dead.” J.W. testified that he wanted the killing to stop, and he no longer associated with the gang.
J.W. described what normally happens when a killing occurs in gang culture. Rather than going to police, there was “one оf two things: either it can get handled in-house and they could dispatch the person, or they excommunicate him, tell him to get away and don‘t come back.” Dispatching meant killing the person. But when another gang takes the life of a Neighborhood Crips member, that was an “easier equation. Like when
Defense Evidence
The defense presented evidence from various investigators who had received prior inconsistent statements from S.J. and J.W. about the events surrounding Williams‘s shooting.5
Austin testified on his оwn behalf. He denied driving the red Ford Explorer on the day of the incident, explaining the car belonged to his girlfriend‘s uncle‘s wife, S.E. Austin admitted driving the car earlier in the month to do S.E. some favors. He explained he became involved with gangs as an early teenager because most of his family had gang ties. Austin had tattoos, including the numbers 41 and 47, reflecting his association with the Neighborhood Crips. He did not consider himself within any particular Neighborhood Crips subgroup or “clique,” though some individuals who were
Austin knew Williams from the neighborhood; they were not friends. Williams was another Neighborhood Crips member who idеntified with 47th street. Austin also knew of Tompkins and Carroll from the neighborhood, but had no relationship with them. He heard that Tompkins had shot Carroll, but he was not involved and did not know anything more about it; those men were in a younger generation and he did not mingle with them.
On the day of the shooting, Austin was at home with his children. He heard about the shooting later that night or the next day, when people started saying he had shot somebody at the park. He went ahead and bought a firearm as well as a new cell phone so that police would not be able to see his connections and transactions. When police arrested him, they found the gun, which was a .357-caliber Magnum.
Austin admitted that after his arrest while in a holding cell, he made the following statement to another inmate: “No, I‘m saying I popped on him. He tried to cut my Explorer up, and he‘s like my cousin. He used to be from Skyline. I put the n[****] on. Homies winding him up. Boom, boom, boom, boom, boom, because it‘s a big 4-1 / 4-7 thing going on, but you from 4-1 like me.” Austin also made statements indicating knowledge about the shooting, including the use of a red car and that police did not have any shell casings. He tried to explain his statements were made because he was from both the 4-1 and 4-7, and was repeating rumor and hearsay from the neighborhood.
The prosecutor began his closing argument by attributing Austin‘s actions on the day of the shooting, to the “Neighborhood Crip code,” stating: “Violence begets violence, a life for a life. That‘s the code. That‘s the gang code. That‘s the Neighborhood Crip code. That‘s the code that Anthony Austin followed on August 30th, 2021 . . . .” He explained that J.W. had told the jury Austin‘s motive stemmed from Tompkins‘s murder of Carroll, who was like a brother to Austin. The prosecutor pointed out that while Austin had “41” tattooed on his wrist, he tried to distance himself from the subset, since, “If he‘s not 4-1, then he doesn‘t have a motive.”
DISCUSSION
I. Admission of Gang-Related Evidence
Austin contends the сourt prejudicially erred by permitting the jury to hear what he describes as extensive testimony regarding gang rivalry, rules and gang life in his case, where the People did not charge gang-related substantive offenses or enhancements or allege any gang rivalry, and he and Williams were in the same gang. Though Austin recognizes gang-affiliation and activity evidence can be introduced to show motive or intent and in such cases its probative value “generally exceeds its prejudicial effect,” he maintains the evidence in this case should have been excluded under
A. Standard of Review
We review the trial court‘s evidentiary rulings under
B. Legal Principles
In 2021, the Legislature amended section 186.22 by imposing new substantive requirements relating to gang enhancements and the criminal offense of gang participation. (People v. Burgos (2024) 16 Cal.5th 1, 7;
Indeed, “[a]lthough evidence of gang membership carries the potential for prejudice, it ’ “is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant‘s gang affiliation—including evidence of the gang‘s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” ’ ” (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 772; accord, People v. Ramirez (2022) 13 Cal.5th 997, 1095 [gang evidence “is admissible even when a gang enhancement is not charged, provided the probative value of the evidence is not substantially outweighed by its prejudicial effect“].)
Even if relevant, “[c]ourts must ’ “carefully scrutinize[ ]” ’ ” gang-related evidence because such evidence ” ’ “creates a risk the jury will improperly
In People v. Chhoun, supra, 11 Cal.5th 1, the California Supreme Court found no abuse of discretion or constitutional violation in admitting evidence of defendant‘s membership in an Asian gang, as well as a gang expert‘s opinions generally on Asian gangs’ organization, their differences from other types of gangs, use of firearms and typical practice of committing home invasion robberies. (Id. at p. 30.) A jury convicted defendаnt of murder, among other crimes, and found true a special circumstance allegation of murder during a burglary after he and other gang members participated in a home invasion robbery during which he killed five members of a Vietnamese family, and shot the sixth member, a three-year-old child, in the hand. (Id. at pp. 11-14.) One parent had superficial cuts and another had toothpaste smeared around her face. (Id. at pp. 13-14.) After the court gave limiting instructions to the jury (that the expert was called for a limited purpose and evidence of defendants’ gang membership “may not be considered by you to prove that [defendants] are persons of bad character or that they have a disposition to commit crimes,” id. at pp. 30-31), the expert testified that home
The defendant contended the evidence was not relevant to any disputed issue in part because his intent to kill and motive of financial gain was apparent from the manner of the crimes, which he argued were not gang-related. (People v. Chhoun, supra, 11 Cal.5th at p. 31.) The California Supreme Court rejected the argument. Because the defendant‘s not guilty plea disputed all elements of the crimes, evidence of the gang membership was relevant to show his relationship with his accomplices who testified against him, as well as his identity as one of the robbers. (Id. at p. 31.) It tended to show his intent to steal and kill if neсessary, and illuminated the evidence of plan or scheme by which Asian gangs committed such crimes. (Id. at p. 32Ibid.)
The court also rejected defendant‘s argument that the evidence as to Asian gangs generally was overbroad, inflammatory and unduly prejudicial.
This court in People v. Garcia, supra, 107 Cal.App.5th 1040, on the other hand, held the admission of a gang-related evidence was prejudicial error in a case involving a murder that occurred during a robbery committed in the course of a gun sale transaction. The defendants, both Logan gang members, were charged with murder with allegations of a robbery murder special circumstance, attempted murder and robbery, after they robbed two individuals, killing one. (Id. at pp. 1044, 1045-1046.) During a jail undercover operation, one of the defendants stated the other defendant he was with ” ‘messed up,’ the incident was not gang-related or involve[d] gang enemies, and ‘was supposed to be just a robbery.’ ” (Id. at pp. 1047, 1051.) Nevertheless, the court allowed the People to present evidence of the gang‘s violent nature, engagement in illegal activities, and the defendants’ gang
This ruling was an abuse of discretion under
Further, other circumstantial evidence showed the existence of a conspiracy and aiding and abetting without the need to refer to gang-related evidence. (People v. Garcia, supra, 107 Cal.App.5th at p. 1053.) “[A]bundant evidence,” including social media posts and cell phone message streams, showed the defendants’ relationship with each other and their planning and participation in the robbery. (Ibid.) Nor was the gang evidence needed to prove the defendant was a major participant in the robbery, which was established by other evidence—including phone messages planning the robbery and communicating with the victim concerning the gun sale—unrelated to the Logan gang. (Id. at p. 1054.)
We reached a similar conclusion in People v. Huynh (2021) 65 Cal.App.5th 969, in which the defendant was convicted of murder by means of discharging a firearm from a moving vehicle. (Id. at p. 972.) The People did not bring any gang allegations. (Id. at p. 982.) In Huynh, a gang expert testified that the defendant was not a documented member of a criminal street gang, nor was the victim, and defendant was not an associate (a person who engaged in crimes and spent time with gang members) either. (Id. at p. 976.) But the prosecution argued defendant was a member of Thien Dang, “an older group of guys who hang out and commit crime.” (Id. at p. 980.)
We reversed: “Here, there was no evidence that Thien Dang was a criminal street gang; nor was there any evidence that committing crimes was one of its primary aсtivities or that any of its members had committed any crimes, with the exception of defendant‘s crimes at issue here. Rather, the evidence established that Thien Dang was a place or a group of Vietnamese
Without the “fundamental link” of Thien Dang being a criminal street gang, the defendant‘s membership was not relevant to his motive or intent, but rather “the evidence was inflammatory by implying to the jury that defendant had a disposition or character for using overwhelming violence in retaliation for disrespect, with no foundational support.” (People v. Huynh, supra, 65 Cal.App.5th at p. 983.) And the error was prejudicial in part because the gang expert was permitted to testify that all Asian gangs were extremely violent, “tagg[ing] the defendant with the character or disposition for using overwhelming violence in retaliation for disrespectful actions, with no basis in fact.” (Id. at p. 986.)
This case lies closer to People v. Chhoun, supra, 11 Cal.5th 1 than People v. Garcia, supra, 107 Cal.App.5th 1040 and People v. Huynh, supra, 65 Cal.App.5th 969. We recognize that with numerous eyewitnesses to the shooting, including S.J. and J.W., who personally knew Austin and were able to identify him as the shooter, as well as cell phone data that circumstantially placed Austin both at S.E.‘s house then at the crime scene, evidence of Austin‘s and Williams‘s gang membership—with its potentially inflammatory impact—was arguably of “tangential[ ]” (People v. Garcia, at p. 1049) relevance to Austin‘s guilt of the charged offenses. And while the court instructed the jury with the standard limiting instruction, CALCRIM No. 303 (“During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other“), there is no indication either the court or counsel in closing arguments identified further which evidence the jury was required to consider in a limited manner. Chhoun stated an instruction explaining the limited purpose for which gang evidence has been admitted, such as CALCRIM No. 1403, is “advisable” in these situations. (People v. Chhoun, at p. 34, fn. 15.) Austin in his reply brief points out such an instruction was “most certainly apprоpriate.” Yet, as Chhoun also acknowledged, “[i]f [Austin] believed a more extensive instruction was needed, it was his burden to request one.” (Id. at p. 33.)
Despite these concerns, we cannot say the court manifestly erred in admitting the evidence of the Neighborhood Crips gang and its subsets, as well as Williams‘s and Austin‘s affiliations and membership. The evidence was more than “minimally relevant” to motive, intent, and identity. ” ’ “The test of relevance is whether the evidence tends ’ “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or
Further, evidence about the Neighborhood Crips subsets and the animosity that arose due to Carroll‘s murder was highly relevant to the accuracy of J.W.‘s identification of Austin as the shooter and his credibility as a witness. (Accord, People v. Benson (2025) 110 Cal.App.5th 1068, 1079-1080.) It provided an explanation for J.W.‘s shifting stories about the events of August 30, 2021. (See ibid. [evidence of a witness‘s fear of the defendant and his gang associates explained her “near-total recantation of her prior testimony and statements“].) ” ‘Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.’ ” (Id. at p. 1080.)
Austin points to the prosecutor‘s shifting rationales for admitting the gang evidence. But we are not concerned with the prosecutor‘s reasoning, we
Austin also argues that the People failed to prove he belonged to a criminal street gang within the meaning of section 186.22, subdivision (f)—that is, that Neighborhood Crips was an organized group “having as one of its primary activities the commission of one or more of the criminal aсts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.” He argues the People did not prove the element of criminal gang activity within the meaning of section 186.22, subdivision (e). According to Austin, though subdivision (e) of section 186.22 pertains to a defendant‘s guilt on substantive gang offenses and enhancements that “are not applicable” to this case, “the prosecution must still prove there is a gang.” We may disregard the contention, which is made without reasoned legal argument or authority. (People v. Sorden (2021) 65 Cal.App.5th 582, 603 [absence of reasoned legal argument supported by citation to authority allows reviewing court to treat contention as forfeited]; Siskiyou Hospital, Inc. v. County of Siskiyou (2025) 109 Cal.App.5th 14, 39 [same].) It is meritless in any event. During his testimony, Detective Leahy referred to the Neighborhood Crips as a “criminal street gang” unique to San Diego and identified their “predominant [sets]” as West Coast and Neighborhood. He described them as a “very large, very active gang set in San Diego.” He identified the gang symbols common to Neighborhood Crips. The record is unlike that in People v. Huynh, supra, 65 Cal.App.5th 969, in which no evidence established the defendant‘s organization was a criminal
The tattoo evidence further tended to establish Austin‘s identification with the 4-1 Neighborhood Crips subset, which he denied at trial. It also helped to establish Austin‘s motive to shoot Williams in broad daylight while he slept in his car as retaliation for the murder of Carroll, Austin‘s close 4-1 associate. And the evidence concerning the Neighborhood Crips subsets gave meaning and context to Austin‘s statements to the holding cell inmate, “Boom, boom, boom, boom, boom, because it‘s a big 4-1/4-7 thing going on, but you from 4-1 like me.” We note finally that some of the more provocative evidence Austin cites—the detective‘s identification of cliques such as Young Reckless Mafia, which he described as “really bad guys,” and the Young Original Crips and his description of things “that benefit the gang” such as “making money, committing crimes, spray painting“—were elicited by defense counsel on cross examination.
Thus, we conclude the evidence was relevant and admissible. Allowing significant evidence about the Neighborhood Crips gang and Austin‘s gang affiliation was neither arbitrary, capricious, nor patently absurd. Nor did the evidence render Austin‘s trial fundamentally unfair. Motive and intent for Williams‘s shooting was crucial to the People‘s case. The People were entitled to place this seemingly random act, and Austin‘s incriminating statements, into context. This case was more than a defendant charged with a non-gang-related crime who happens to be a gang member as in People v. Garcia, supra, 107 Cal.App.5th 1040. The evidence went to show Austin‘s crime was committed because of the gang subset animosity, as well as
D. Prejudice
Even if we were to hold the trial court abused its discretion by admitting the testimony Austin complains of, he cannot show that he was prejudiced. “Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439; People v. Watson, supra, 46 Cal.2d at p. 836.) Erroneous admission of evidence results in an unfair trial ” ’ “[o]nly if there are no permissible inferences the jury may draw from the evidence,” ’ ” and ” ’ ” [e]ven then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ ” ’ ” (People v. Thompson (2022) 83 Cal.App.5th 69, 104.)
There is ample substantial evidence supporting Austin‘s convictions. Both S.J. and J.W. positively identified Austin as the shooter, his street name and the location of his home was mentioned by a bystander in the 911 call, and police tracked his phone to the vicinity of S.E.‘s street and to the park. Austin made incriminating statements to the holding cell inmate that he “popped on” a person due to the “4-1/4-7 thing going on . . . .” The gang evidence here was not uniquely or extremely inflammatory as was the evidence regarding the gang‘s targeting of vulnerable elderly and children in Chhoun. (People v. Chhoun, supra, 11 Cal.5th at p. 33.) We agree with the People that it is not reasonably probable Austin would have obtained a better result had the court excluded the evidence.
The trial court imposed a $300 fine pursuant to section 1202.45, indicating it was suspended unless parole is revoked. Austin contends, and the People agree, we must strike this fine because he was sentenced to a term of life without possibility of parole. The People‘s concession is correct. A section 1202.45 parole revocation fine is unauthorized in cases where the defendant is sentenced to LWOP and there are no determinate terms. (People v. Montes (2021) 70 Cal.App.5th 35, 48-49; People v. McInnis (2021) 63 Cal.App.5th 853, 866-867; see People v. Baker (2021) 10 Cal.5th 1044, 1108 [parole revocation fine held applicable despite death sentence “because defendant was also sentenced to a determinate term“].) Although Austin did not object when the court imposed the fine, he is nevertheless entitled to the requested relief. An unauthorized sentence may be corrected at any time even if there was no objection in the trial court. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249, citing In re Sheena K. (2007) 40 Cal.4th 875, 886 & People v. Smith (2001) 24 Cal.4th 849, 854.)
The judgment is modified to strike the $300 section 1202.45 parole revocation fine, and otherwise is affirmed. The court is directed to issue an amended and corrected abstract of judgment reflecting removal of the fine and forward a certified copy to the Department of Corrections and Rehabilitation.
O‘ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.