Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. TA091639, John T. Boyle, Judge.
Law Office of G. Martin Velez and G. Martin Velez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant defendant Roy Darcell Debose (defendant) of one count of second degree robbery (Pen. Code, § 211) and found true the special allegation that defendant committed the robbery for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist criminal conduct by gang members (§ 186.22, subd. (b)(1)). On appeal, defendant contends that (1) the trial court improperly instructed the jury pursuant to CALCRIM 360 that it should consider an out-of-court statement by defendant only to evaluate an expert’s opinion, when defendant also relied upon that statement as affirmative evidence to support his duress defense; (2) the trial court had a sua sponte duty separately to instruct the jury that duress was a defense to the gang enhancement, even though the trial court had instructed the jury on duress as a defense to the robbery charge; (3) the trial court improperly excluded impeachment evidence relating to an out-of-court declarant whose statement was relied upon by the prosecution’s gang expert; and (4) the evidence was insufficient to support the jury’s true finding on the gang enhancement.
All statutory references are to the Penal Code unless stated otherwise.
For the reasons stated below, we conclude that none of defendant’s contentions has merit. We note, however, that when sentencing defendant, the trial court failed to impose a mandatory court security fee pursuant to section 1465.8, subdivision (a)(1). We modify the judgment to impose the fee, and affirm the judgment in all other repsects.
BACKGROUND
A. The Crime
On the morning of November 30, 2006, defendant and Lamarr Perkins entered a gas station near 99th Street and Broadway in southeast Los Angeles. Perkins held a pellet gun to the head of the cashier while defendant removed approximately $1,500 in cash from the cash register. Travis Ford acted as a lookout. Both Perkins and Ford were members of the Main Street Mafia Crips street gang, also known as 98 Main Street Crips (the Main Street gang). The robbery was videotaped by surveillance cameras in the gas station.
Perkins was charged as a codefendant. During jury selection, Perkins pleaded no contest to the robbery charge and admitted the gang enhancement. Perkins is not a party to this appeal. Ford was the subject of separate proceedings. (See post Discussion, Part C.)
B. Defendant’s Interview
On December 29, 2006, officers of the Los Angeles Police Department (LAPD) conducted a probation search at Ford’s residence. Defendant was discovered in a back bedroom playing videogames. After advising defendant of his constitutional rights, police conducted a recorded interview with defendant.
Defendant told police that he was aware that police had been looking for him in connection with the robbery, but he denied any involvement and claimed that he was staying with his aunt in San Bernardino when the robbery occurred. After police showed defendant still photographs taken from the surveillance video, defendant admitted that one of the people shown in the photos had a goatee like his and wore Vans tennis shoes like his. Defendant insisted, however, that the person in the photo was much larger than he and pointed out that a lot of people wore Vans tennis shoes. Defendant told police that he had a “good feeling” who it was in the photos, but that he was “not going to say no names though.” Defendant gave police a telephone number he claimed was his aunt’s, but when police called the number it was out of service.
Defendant then told police that he knew some “stuff about that gas station and stuff like that.” He said, “[Y]ou probably know the gang... but tend [sic] to make you do stuff you see what I’m saying—that you don’t want to do, see what I’m saying? But if they be threatening to you and your... family stuff like that [sic], see what I’m saying[?] [W]hat would your first mind. [sic] Do it, right?” Defendant said he knew that police had been “taking pictures of the house” where he lived, and that there were “always just people coming in and out.” Defendant said, “[S]o I mean there’s a lot of inside stuff. But I’m not trying to get caught up. But if I told you all some names and stuff like that you all are going to tell them that I told y’all. See what I’m saying? And that’s gonna come back on me and my family and stuff like that.”
A police officer asked, “So basically what you’re trying to tell me is that you did this but it wasn’t something you wanted to do. Okay? Is that what you’re trying to tell me?” Defendant responded, “Mm-hmm.” Defendant said that he and another guy went into the gas station. The other guy hopped the counter, and defendant knew that he “would have to go because he went over there and would tell them [and] there would’ve been problems.” The other guy had the gun in his back pocket.
Defendant stated that he refused to hold the gun, and that he received none of the money from the robbery. Defendant said, “And I was like ‘oh shit’ I was like ‘aw shoot’ you see what I’m saying I had to hop the counter [sic]. I couldn’t leave him, see what I’m saying?” Defendant said, “I just took the money, that’s it.” Defendant reiterated that he did not have the gun. “I told him that I’m not gonna get out like that. I’m not gonna... [I]’m really not going to do that, you see what I’m saying? But they understood they said I gotta do something, you see what I’m saying?” Afterward, they fled, and defendant gave the money to his accomplices.
Defendant told police that he used to live in Redondo Beach, and was not used to life in a neighborhood where “[y]ou hear gun shots all day, helicopters, look on the news, people you actually know on the news, throwing gang signs out their cars, [inaudible] stuff like that, see what I’m saying.” He continued, “My cousin, whose house you guys came from. He know like it’s his homies, but like he knows [sic] that I ain’t trying to get out like that. He knows that though but everytime he not around, that’s when [inaudible].” A police officer asked, “Oh really? So he protects a little... from the other guys?” Defendant replied, “Naw... it’s not that I’m scared of some of them[.]... [¶]... [B]ut I could give you guys so much information about that shit over there.... I mean it’s just ridiculous. You know what I’m saying?”
Defendant stated, “I’m not trying I’m not trying... see that’s the thing though—see I’m getting in trouble for stuff that... you see what I’m saying?... [¶] For stuff that I didn’t... it wasn’t my intention.” A police officer responded, “But you got forced into doing it.” Defendant stated, “Yeah, that’s it [inaudible].”
B. Defense Evidence
1. Lamarr Perkins
Defendant called Perkins to testify. Initially, Perkins invoked his Fifth Amendment privilege against self-incrimination and refused to testify. Perkins later changed his mind, against the advice of counsel.
Perkins testified that he was a member of the Main Street gang, but that defendant was not. Perkins first met defendant on the day of the robbery. Ford, also a member of the Main Street gang, had planned the robbery and told Perkins that it was “okay to go get it.”
Perkins testified that he was in a car with Ford, whom Perkins knew by the moniker Ace, and other gang members known to Perkins as D Mack and Slim, when they saw defendant coming out of an alley. They pulled over and told defendant to get into the car. Defendant seemed shocked and nervous. They told defendant, “Get in because we really need to talk to you, man, and, you know, if you don’t, you know, we gonna have to really talk to you otherwise, you know what I mean by that?” Perkins testified that this was a threat of physical violence, and that someone might have told defendant before he got in the car that his life depended on it.
Perkins told defendant about the robbery right before they entered the gas station. Defendant told Perkins he did not want to do it. Perkins told defendant that he “didn’t want a beating or a killing of [defendant] on [his] shoulders.” Perkins told defendant to take the money. After the robbery, defendant gave the money to Slim or D Mack, who divided it. Perkins testified that, if defendant had not done as he was told, one of the other gang members would have fought him.
Perkins stated that, although he knew he would be labeled as a snitch and would be in a lot of trouble because of his testimony, he had agreed to testify because defendant was “an intelligent guy, a good guy. He study [sic] the Bible, and he been going over certain Bible verses with me.... He’s a good guy, an all around person.”
On cross-examination, Perkins testified that he joined the gang through family connections and was not jumped in, but he did have to fight some people off. People could also join the gang by committing a crime for the gang. Loyalty to the gang and fellow members was a basic tenet of being a member of the Main Street gang.
On redirect examination, Perkins testified that the Main Street gang often used youngsters to help commit crimes because gang members were less likely to be caught, and the youngsters knew that if they snitched terrible consequences could ensue.
2. Larry Debose
Larry Debose was defendant’s brother. At the time of the robbery, defendant lived both with his father on 66th Street and with his grandmother near 102nd Street and Broadway. There were several gangs in his grandmother’s neighborhood, including the Main Street gang.
Members of the Main Street gang would hang out at a mini-market at 103rd Street and Broadway. Larry Debose testified that Main Street gang members had “hit him up” at the store, meaning they had asked him why he was going to that store and why he was around so much. Gang members had asked him “to rob people or do something with them or go out with them.” He was “scared a little bit” because he did not know what would happen to him. When gang members hit him up, he told them that he was not affiliated with a gang and did not know about gangs. He simply walked away or called someone to pick him up. He had seen gang members hit up a few other people as well. He had seen gang members beat up non-gang members who they believed to be rival gang members.
In late October 2006, Larry Debose saw defendant at the store when two or three people approached him. Larry Debose was too far away to hear what they said, but defendant looked scared.
Larry Debose testified that defendant was not a gang member. Defendant had tried to avoid the gangs by staying in the house a lot and by getting rides to and from school. Defendant had lived in the neighborhood of 102nd and Broadway for about a year, since he “got out of camp.”
3. Roy Debose, Sr.
Roy Debose, Sr. was defendant’s father. He testified that defendant was not a gang member.
D. Procedure
Defendant was charged with second degree robbery. (§ 211.) The information specially alleged that defendant committed the robbery for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist criminal conduct by gang members. (§ 186.22, subd. (b)(1)(C).) The jury convicted defendant and found true the gang enhancement allegation. The trial court sentenced defendant to 12 years in state prison, consisting of the low term of two years on the robbery and a consecutive 10-year term on the gang enhancement. The trial court also imposed a $200 restitution fine and a $200 parole revocation restitution fine, stayed. The trial court awarded defendant 450 days of presentence credit, consisting of 392 days of actual custody and 58 days of conduct credit. Defendant timely appealed.
DISCUSSION
A. CALCRIM 360
1. Additional Background
Defendant did not testify at trial. The recording of defendant’s interview with police was played for the jury, was offered into evidence by the prosecution, and was received into evidence by the trial court without a limiting instruction (See Evid. Code, § 355.)
The prosecution’s gang expert, Detective Michael Levant, testified that he reviewed defendant’s statements, among other things, in reaching his conclusion that the robbery was committed for the benefit of, at the direction of, or in association with the Main Street gang. In arguing the case to the jury, defense counsel relied on defendant’s statements as support for defendant’s duress defense.
The trial court instructed the jury pursuant to CALCRIM 355 that defendant had a constitutional right not to testify. The trial court then instructed the jury pursuant to CALCRIM 358 as follows: “You have heard evidence that the defendant made oral or written statements (before the trial while the court was not in session). You must decide whether or not the defendant made any (such as these) statements in whole or in part. If you decide that defendant made such statements, consider the statements, along with all other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements.”
The trial court then instructed the jury pursuant to CALCRIM 360 as follows: “Officer Michael Levant testified in reaching his conclusions as an expert witness, he considered statements made by other LAPD officers, the Defendant, Travis Ford, and Lamarr Perkins. You may consider those statements only to evaluate the expert’s opinion. Do not consider those statements as proof that the information contained in the statements is true.” Defendant did not object to the jury instructions at trial.
2. Standard of Review
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).) Our task is to determine whether the trial court “‘fully and fairly instructed on the applicable law.’ [Citation.]” (Ramos, supra, 163 Cal.App.4th at p. 1088.) When instructions are claimed to be conflicting or ambiguous, “we inquire whether the jury was ‘reasonably likely’ to have construed them in a manner that violates the defendant’s rights.” (People v. Rogers (2006) 39 Cal.4th 826, 873.) We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. (People v. Stone (2008) 160 Cal.App.4th 323, 331; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) We assume that the jurors are intelligent persons capable of understanding and correlating all of the instructions given. (Ramos, supra, 163 Cal.App.4th at p. 1089 .) If reasonably possible, we will interpret the instructions in support of the judgment rather than to defeat it. (Id. at p. 1088.)
Generally, a party forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if the party fails to object in the trial court. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; Ramos, supra, 163 Cal.App.4th at p. 1087.) The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law (People v. Hudson, supra, 38 Cal.4th at p. 1012), or if the instructional error affected the defendant’s substantial rights. (§ 1259; Ramos, supra, 163 Cal.App.4th at p. 1087.) “‘Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.’ [Citation.]” (Ramos, supra, 163 Cal.App.4th at p. 1087.) Because defendant contends both that the instruction was an incorrect statement of the law and that any error affected his substantial rights, we assume defendant’s claim of error was not forfeited and address the merits. (Ibid.; but see People v. Stone, supra, 160 Cal.App.4th at p. 331 [finding forfeiture notwithstanding defendant’s claim that error affected his substantial rights].)
3. Discussion
Defendant argues that, by referring to defendant’s statements when instructing the jury pursuant to CALCRIM 360, the trial court effectively precluded the jury from considering defendant’s statements as affirmative evidence supporting his duress defense. We assume without deciding that the trial court incorrectly referred to defendant’s statements when formulating its instruction under CALCRIM 360. (See Evid. Code, §§ 356, 1220; see also People v. Arias (1996) 13 Cal.4th 92, 156 [“if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which ‘have some bearing upon, or connection with, the admission... in evidence’”]; Bench Note to CALCRIM 360 [“This instruction should not be given if all of the statements relied on by the expert were admitted under applicable hearsay exceptions”].) We conclude, however, that it is not reasonably likely that the jury was misled by the instruction such that defendant’s rights were violated. In any event, any error was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Flood (1998) 18 Cal.4th 470, 489-490; People v. Palmer (2005) 133 Cal.App.4th 1141, 1157.)
It is important to put events in their proper context. At trial, Detective Levant was the first witness called to testify. The jury had not heard the recording of defendant’s interview, nor was that recording played for the jury during Detective Levant’s testimony. Detective Levant did not recount or summarize defendant’s statements, nor was a transcript of any portion of defendant’s interview read or published to the jury during Detective Levant’s testimony. The only reference to defendant’s statements during Detective Levant’s examination occurred as follows:
“[PROSECUTOR]: And did you review the statements made by the defendant and the other two [Lamarr and Ford] in this case?
“[DETECTIVE LEVANT]: Yes, I did.”
The only facts referenced during Detective Levant’s testimony that might have been derived from defendant’s statements were the facts of the crime itself—but those facts also were apparent from the videotape of the crime, or were included in the statements of Perkins and Ford and the reports of the investigating officers, also relied upon by Detective Levant. Detective Levant made no explicit reference in his testimony to defendant’s claim that he acted under duress. Accordingly, it is not reasonably likely that the jury was misled by the trial court’s formulation of CALCRIM 360 to believe it must disregard the exculpatory portions of defendant’s statements.
If we were to accept defendant’s argument that the jury was misled by the trial court’s instruction to disregard the truth of defendant’s exculpatory statements, then we also would have to conclude that the jury was misled to disregard the truth of defendant’s inculpatory statements, for the instruction did not differentiate between the inculpatory and exculpatory statements. Any error thus would have favored defendant, for defendant’s statements were strong evidence of his guilt, but—as discussed post—only weak evidence of duress.
The remainder of the trial record supports this conclusion. The trial court’s instruction pursuant to CALCRIM 358 told the jury to “consider [defendant’s] statements along with all other evidence in reaching your verdict. It is up to you to decide how much importance to give to such statements.” The jury was thus expressly told to consider defendant’s statements. The jury also was properly instructed pursuant to CALCRIM 3402 that defendant was not guilty of robbery if he acted under duress.
The trial court instructed the jury, in relevant part, “The defendant is not guilty of Robbery if he acted under duress. The defendant acted under duress if, because of threat or menace, he believed that his or someone else’s life would be in immediate danger if he refused a demand or request to commit the crime. The demand or request may have been express or implied. [¶]... [¶] The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty of Robbery.”
During defense counsel’s argument to the jury—that is, after the jury had been instructed—defense counsel read lengthy excerpts from defendant’s interview to the jury to support his argument that defendant acted under duress. Defense counsel relied so heavily on the transcript of defendant’s interview that, at one point, the prosecutor objected that defense counsel was no longer arguing, but was merely “reading a transcript.” The trial court overruled the objection, stating (in the presence of the jury) that defense counsel “can argue that portion of the statement.... It’s not an improper argument.”
Moreover, when viewed in the context of the entire trial, defendant’s statements were not particularly compelling evidence of duress. When interviewed by police, defendant initially denied any involvement in the robbery, and maintained his denial even after police showed him surveillance photographs. Defendant did not claim that he was forced to commit the robbery until after police showed him that they possessed compelling evidence of his participation. Even then, defendant never articulated any particular, immediate threat. Defendant never told police, for example, the story related by Perkins that defendant had been picked up at random by several gang members who threatened to beat or kill him unless he committed the robbery. Rather, defendant’s statements conveyed a generalized fear of living in gang territory and the consequences of “snitching” on gang members. Finally, that defendant was discovered by police playing video games in Ford’s home a month after Ford allegedly forced defendant to commit a robbery also was inconsistent with defendant’s story.
The testimony of Perkins was far more compelling evidence of duress than defendant’s statement. Defense counsel argued extensively to the jury that Perkins’s testimony supported defendant’s duress defense, and during deliberations, the jury requested to hear Perkins’s testimony repeated and “further definition of the term duress.” Ultimately, the jury rejected Perkins’s testimony and found beyond a reasonable doubt that defendant did not act under duress in committing the robbery. Accordingly, even if the jury misconstrued or was misled by the trial court’s instructions, it is not reasonably probable that defendant would have received a more favorable result based on the relatively weak evidence of duress in defendant’s statements. (People v. Watson, supra, 46 Cal.2d at p. 836.)
B. Duress Instruction on Gang Enhancement
As discussed above, the trial court instructed the jury on duress as a defense to the robbery charge. Defendant contends that the trial court also had a sua sponte duty separately to instruct the jury on duress with respect to the gang enhancement. We disagree. Defendant cites no authority holding that duress is a defense to a sentencing enhancement, such as a gang enhancement, as distinct from the underlying crime. “The defense of duress is available to defendants who commit crimes, except murder, ‘under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.’ (§ 26; see People v. Anderson (2002) 28 Cal.4th 767, 780[.])” (People v. Wilson (2005) 36 Cal.4th 309, 331, italics added.) The gang enhancement is not a crime.
In any event, the trial court did not err in this case. A trial court is required to instruct sua sponte on duress only if there is substantial evidence of the defense, and the defense is not inconsistent with the defendant’s theory of the case. (People v. Wilson, supra, 36 Cal.4th at p. 331; People v. Breverman (1998) 19 Cal.4th 142, 157.) For the jury to reject duress as a defense to the robbery but accept duress as a defense to the gang enhancement, there would have to be evidence that the Main Street gang members were, in effect, unwelcome interlopers in a robbery that defendant intended to commit. In other words, the evidence would have to show that defendant intended to commit the robbery, but was coerced into doing so in association with the Main Street gang members. Defendant advanced no such theory and produced no such evidence at trial. To the contrary, defendant tried the case on the theory that he was coerced by the gang members to commit the robbery. That theory was rejected by the jury. The trial court had no duty sua sponte to instruct the jury separately on duress with respect to the gang enhancement.
C. Exclusion of Impeachment Evidence
1. Additional Background
Detective Levant, the prosecution’s gang expert, testified that his opinion that defendant committed the robbery in association with the Main Street gang was based, in part, on a police report of an interview with Travis Ford. Detective Levant stated, “In addition to the other factors that I explained..., when one of the other defendants Travis Ford, a.k.a. Tiny Hen, was acting as lookout during the robbery, when they interviewed him following that arrest about what other people were present during the robbery, he referred to Mr. Debose as either Roy or Larry but also by a moniker as Killer Kam.” The prosecutor asked, “So he [Ford] referred to him [defendant] with a specific moniker?” Detective Levant answered, “With a moniker.” Ford did not testify at trial.
The report of Ford’s statement relied upon by Detective Levant is not part of the record on appeal.
As note ante,Larry Debose was defendant’s brother. Defendant indicated during his interview with police that his brother Larry sometimes used the name Roy.
Ford was charged in a separate proceeding with a crime stemming from his role in the robbery. For that crime, Ford received a disposition of time served. Prior to Detective Levant’s testimony, both parties requested a ruling from the trial court with respect to whether defendant could impeach Ford’s out-of-court statement with evidence of the disposition he received. After an in camera hearing, and based on representations by the prosecutor in Ford’s case, the trial court concluded that Ford’s statement was made prior to and was unrelated to the decision by law enforcement authorities with respect to Ford’s disposition. Ford made his statement to police in November of 2006; he entered his plea with respect to the robbery in October of 2007. Because the offer of the disposition did not induce Ford’s statement, the trial court ruled that defendant could not impeach Ford’s statement with evidence of the disposition.
The transcript of the in camera hearing was ordered sealed. This court previously denied defendant’s motion to unseal the transcript.
2. Discussion
An expert may base his opinion on any “matter” known to him, including hearsay statements not otherwise admissible, which may “reasonably... be relied upon” for that purpose. (Evid. Code, § 801, subd. (b); People v. Catlin (2001) 26 Cal.4th 81, 137; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1324-1325.) Out-of-court statements offered to support an expert’s opinion are not hearsay because they are not offered for the truth of matter asserted. “Instead, they are offered for the purpose of assessing the value of the expert’s opinion.” (People v. Dean (2009) 171 Cal.App.4th 1252, 1258.) On direct examination, the expert may explain the reasons for his opinions, including the matters he or she considered in forming them. (People v. Catlin, supra, 26 Cal.4th at p. 137; People v. Dean, supra, 171 Cal.App.4th at p. 1259.)
An expert witness is subject to cross-examination “to the same extent as any other witness and, in addition, may be fully cross-examined as to... the matter upon which his or her opinion is based and the reasons for his or her opinion.” (Evid. Code, § 721, subd. (a).) “[T]he scope of cross-examination of an expert witness is especially broad; a [party] may bring in facts beyond those introduced on direct examination in order to explore the grounds and reliability of the expert’s opinion.” (People v. Lancaster (2007) 41 Cal.4th 50, 105.) However, “[a]n expert witness may not be cross-examined regarding matters that are not relevant to the expert’s opinion or qualifications.” (People v. Smithey (1999) 20 Cal.4th 936, 960.) The trial court has broad discretion in controlling the scope of cross-examination and in ruling on the admissibility of impeachment evidence. (People v. Lancaster, supra, 41 Cal.4th at p. 102; see also Evid. Code, § 765, subd. (a); People v. Hamilton (2009) 45 Cal.4th 863, 946.) The trial court abuses its discretion only if its ruling exceeds the bounds of reason. (People v. Dean, supra, 171 Cal.App.4th at p. 1258.)
We discern no abuse of discretion in the trial court’s ruling. Although the existence of a plea agreement generally is relevant to impeach the testimony of an accomplice (People v. Fauber (1992) 2 Cal.4th 792, 821), Ford did not testify at trial and the jury was instructed not to consider his statement for the truth of the matter asserted. (CALCRIM 360.) Ford made the statement relied upon by Detective Levant on November 30, 2006, nearly a year before Ford’s plea resulting in his disposition for time served. The trial court found that the disposition Ford received was neither related to nor an inducement for his statement. That finding is supported by the record. Furthermore, because Detective Levant relied on Ford’s statement, defendant had the right to call Ford to testify and to cross-examine him regarding his statement. (Evid. Code, § 804, subd. (a); see People v. Ledesma (2006) 39 Cal.4th 641, 701-702.) Defendant did not do so, and there is no indication in the record that Ford was unavailable to testify. Accordingly, the trial court did not abuse its discretion in determining that evidence of Ford’s disposition was irrelevant to the credibility of the statement relied upon by Detective Levant.
D. Sufficiency of the Evidence on the Gang Enhancement
1. The Gang Expert Evidence
Detective Levant worked in LAPD’s Southeast Division and formerly was assigned to the Gang Enforcement Detail. He was familiar with the Main Street gang. The Main Street gang’s territory was centered approximately at the intersection of 98th Street and Main Street in southeast Los Angeles. The Main Street gang had about 200 members.
The Main Street gang’s activities included narcotics sales, burglaries, robberies, prostitution, assaults with deadly weapons and murder. Its members often committed burglaries and robberies in groups because a group could perpetrate the crime more quickly, more effectively and more safely. Two members of the Main Street gang recently had been convicted of felonies, one for murder and one for robbery.
Detective Levant testified that people could join the gang in various ways. Committing a crime for the benefit of the gang was one way of being initiated into the gang.
Detective Levant stated that Ford was a member of the Main Street gang and was known by the gang moniker Tiny Hen. Perkins also was a member of the Main Street gang and was known by the moniker T.K. or Toast Killers. (The term “Toast” was a derogatory play on the word “Coast” in the name of the rival 118 East Coast Crips gang.) Perkins formerly had “MSC”—for Main Street Crips—cut into his hair. Detective Levant did not know defendant personally, but he believed defendant was a member of Main Street. His conclusion was based on the facts of the crime, defendant’s presence in Ford’s residence one month after the crime, and Ford’s reference to defendant by the moniker Killer Kam, as discussed ante.
Detective Levant opined that defendant committed the robbery for the benefit of, at the direction of, or in association with Main Street. Detective Levant explained that one known gang member, Ford, was acting as a lookout. Ford had called a more senior gang member or “shot caller”—Christopher Rawls, also known by the moniker BC—for clearance to commit the robbery. Defendant entered the gas station with another gang member, Perkins. Perkins held a gun to the cashier’s head while defendant removed the money from the cash register. Based on these events, Detective Levant opined that the perpetrators were working together as a cohesive unit. Furthermore, by committing the robbery, the perpetrators obtained money for the gang that could be used to purchase weapons to defend the gang’s territory or to commit acts of violence against rival gangs, or more generally to purchase items such as cars or jewelry to enhance the gang’s status.
On cross-examination, Detective Levant testified that he had never spoken to defendant and, prior to this case, did not know defendant as a member of the Main Street gang. Detective Levant had found no field interview card with respect to defendant in the police database. Detective Levant testified that it is “extremely rare” that someone would be physically coerced into joining a gang. He was aware that people had been beaten up for refusing to join a gang, but usually that was the end of the matter. Detective Levant had never heard of a person being forced by a gang to commit a crime against his will. On redirect, Detective Levant testified it would make no sense for gang members to pick up random people and force them to commit crimes because such people would be unreliable while committing the crime and untrustworthy afterward. It was also unnecessary, as there were plenty of willing participants in the gang.
2. Discussion
Section 186.22, subdivision (b)(1) provides for a sentence enhancement for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]” (See People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) Defendant argues that there was insufficient evidence that (1) he was a member of the Main Street gang because Detective Levant’s opinion to that effect was mere speculation; and (2) he had the specific intent to promote, further or assist criminal conduct by the Main Street gang because the evidence showed he was merely trying to avoid getting beat up by gang members. Neither contention has merit.
Section 186.22, subdivision (b)(1) provides, in relevant part: “... [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as [specified].”
“‘In determining the sufficiency of the 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.” [Citation.]’” (People v. Kelly (2007) 42 Cal.4th 763, 787-788.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) We will reverse for insufficient evidence only if “‘“upon no hypothesis whatever is there sufficient substantial evidence to support”’” the conviction or enhancement. (People v. Manriquez (2005) 37 Cal.4th 547, 577.) This standard of review applies to gang enhancement findings. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508; People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
The evidence established—and defendant does not contest—that the Main Street gang was a criminal street gang. The evidence was equivocal whether defendant was a member of the Main Street gang. As defendant recognizes, however, the prosecution was not required to prove that defendant was a member of the gang, and the jury properly was instructed pursuant to CALCRIM 1401 that “the People need not prove that the defendant is an active or current member of the alleged criminal street gang.” (See People v. Valdez (1997) 58 Cal.App.4th 494, 505 [“gang membership is not an element; nor does one need to be a gang member or associate to commit an act for the benefit of, in association with, or at the direction of a street gang”].) Rather, the prosecution had to prove only that defendant committed the robbery “for the benefit of, at the direction of, or in association with” the gang. (§ 186.22, subd. (b)(1).) Detective Levant testified that both Ford and Perkins were known members of the Main Street gang. Perkins admitted gang membership, and it appears that Ford did as well. Perkins testified that no fewer than four members of the Main Street gang—Perkins, Ford, D Mack and Slim—were involved in the robbery. Defendant indicated in his statement to police that he knew his accomplices were gang members—indeed, his duress defense was premised on his contention that he was threatened by known gang members. The jury could reasonably infer the requisite association from the very fact that defendant committed the robbery in concert with known gang members. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1332; People v. Morales (2003) 112 Cal.App.4th 1176, 1179.)
With respect to the specific-intent element, there might have been sufficient evidence to support defendant’s contention that he committed the robbery to avoid being beaten up by gang members. But the jury rejected that evidence. The evidence that defendant’s own criminal conduct was gang related (People v. Hill (2006) 142 Cal.App.4th 770, 774), or that defendant committed his crime in concert with known gang members, was sufficient to support a finding that defendant intended to promote, further, or assist in any criminal conduct by gang members. (People v. Villalobos, supra, 145 Cal.App.4th at p. 322; People v. Romero (2006) 140 Cal.App.4th 15, 20; People v. Morales, supra, 112 Cal.App.4th at pp. 1198-99). Moreover, defendant told police that he gave the money from the robbery to members of the Main Street gang. There could hardly be a more tangible benefit to the gang. There was thus sufficient evidence to support the jury’s finding on the gang enhancement.
E. Court Security Fee
Section 1465.8, subdivision (a)(1) mandates that “a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense....” (See People v. Le (2006) 137 Cal.App.4th 54, 60 [fee applies to all offenses].) The trial court failed to impose such a fee in this case. The failure to impose the fee is an unauthorized sentence that we may correct on appeal. (See People v. Walz (2008) 160 Cal.App.4th 1364, 1372.) Accordingly, we order the judgment modified to impose a court security fee.
DISPOSITION
The judgment is modified to impose a $20 court security fee pursuant to section 1465.8, subdivision (a)(1). The clerk of the superior court shall prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.