Filed 12/11/20 P. v. Birdine CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNY BIRDINE,

Defendant and Appellant.

B298724

(Los Angeles County

Super. Ct. No. PA087169)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Daniel B. Feldstern, Judge. Affirmed.

Laura Schaefer, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill and Marc A. Kohm, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

Kenny Birdine appeals the judgment entered following a 

jury trial in which he was convicted of first degree premeditated 

murder. (Pen. Code,1 § 187, subd. (a).) The jury found that 

appellant personally discharged a firearm causing death 

(§ 12022.53, subd. (d)) and that the crime was gang-related 

(§ 186.22, subd. (b)(1)(C)).2 The trial court sentenced appellant to

50 years to life in state prison.

Appellant contends the trial court’s prejudicial error in 

admitting evidence that appellant was arrested in possession of a 

gun unrelated to the shooting requires reversal. We disagree and 

affirm.

FACTUAL BACKGROUND

On August 20, 2016, appellant fatally shot Justin Lishey, a 

rapper known as Kid Cali, at a party held on the grounds of a 

large house in Granada Hills. The event had been advertised on 

social media and was attended by two to three hundred people. It 

started at 2:00 p.m., and was scheduled to end at 8:00 p.m. The 

house was equipped with numerous exterior surveillance cameras

at the gates and throughout the grounds, which recorded the

entire party including the arrival and departure of the guests and

the shooting of Lishey.

Appellant arrived at the party around 7:40 p.m. Security 

searched many of the guests before admitting them inside, and 

appellant was among those patted down as he entered.

Another party guest, Steven Abramovich, arrived around 

7:00 p.m. After walking around and listening to the music for a 

1 Undesignated statutory references are to the Penal Code.

2 Two counts of attempted murder charged in the amended 

information were dismissed prior to the start of trial.
3

while, Abramovich got a drink and sat down on a retaining wall 

near the basketball court. Sometime after 8:00 p.m., about five or 

ten minutes after he had sat down, Abramovich saw a slim Black 

male, later identified as appellant, emerge from the crowd and 

yell something at Lishey as he approached. Lishey, who was 

standing with a small group of people in a circle at the edge of the 

basketball court with his back to appellant, turned toward the 

sound. Appellant removed a gun from his waistband and fired 

directly at Lishey, aiming at his chest. As Lishey fell backward

to the ground, appellant fired four more times, advancing toward 

Lishey until he was standing directly over him. The party 

erupted in chaos, and appellant ran into the crowd as the guests

rushed to the exits. A few people remained with Lishey as 

Abramovich called 911. Before the shooting, Abramovich had not 

observed any fighting or arguments nor had he seen Lishey 

behave aggressively toward anyone. Investigators found no 

evidence to indicate Lishey had a gun.

Lishey suffered four gunshot wounds, one of which was 

fatal. He died shortly after the shooting. Five expended ninemillimeter shell casings were recovered from the scene and 

determined to have been fired from the same firearm.

At the time of the shooting, appellant was a 19-year-old

“young gangster” (YG) in the 92nd Street clique of the Inglewood 

Family Bloods (IFB) gang, with the moniker Rampage or Lil’ 

Rampage. He had “Family First” tattooed prominently across his 

chest, which signified both his membership in the gang and that

he had committed one or more crimes on the gang’s behalf. 

Appellant also admitted his IFB membership on numerous 

occasions going back to 2014, and he regularly associated with 
4

other IFB gang members, posing in numerous pictures with them 

throwing gang signs with his hands.

One of appellant’s best friends, Kamal Key, with whom 

appellant was seen on video entering the party before the 

shooting, was also an IFB member featured in many of the photos 

with other gang members. Akeem “2Much” Foreman, a senior

“original gangster” (OG) member of IFB arrived at the party after 

appellant and provided appellant with the gun he used to shoot 

Lishey. Several other IFB gang members, including a prominent 

rapper, also attended the party. In the moments before the 

shooting, the surveillance video showed appellant and Foreman 

standing together on the basketball court. As appellant began to 

make his way over to Lishey, the group around them disbursed in 

the opposite direction and Foreman walked away from appellant

while looking over his shoulder. After the shooting, the 

surveillance video showed appellant and Foreman meet on the 

street in front of the house where appellant returned the murder 

weapon to Foreman.

According to the prosecution’s gang expert, as an OG in the 

IFB, Foreman was an older senior member in the gang’s

hierarchy who had the authority to give orders to junior gang 

members, or YG’s, such as appellant. Because most individuals 

joined the gang in ninth grade, by the age of 19 a YG would be a 

well-established member of the gang. The gang expert further 

explained that only a trusted junior gang member would be 

permitted to socialize with an OG at a party, and a junior 

member would not be tasked with a shooting unless the OG were 

confident the junior member would carry it out. According to the 

expert, guns are important tools for the gang, but difficult to 

come by. As a result, when a firearm is acquired by the gang, it 
5

is released only to the most respected and trusted individuals 

who will use it as directed by an OG.

One of the major rivals of the IFB is the Neighborhood 

Crips, consisting of multiple cliques including the Rollin’ 90s or 

the 9-0 Neighborhood Crips. These Blood and Crips gangs have 

committed many violent crimes against one another, including 

murder. According to the gang expert, shooting a rival gang 

member is the ultimate act of loyalty to the gang, earning the 

greatest respect within the gang. Appellant’s own father had 

been a gang member who was killed in gang violence, and in his 

contacts with police prior to the shooting, appellant often 

expressed a hatred for the Neighborhood Crips. After the 

shooting, appellant got several new prominent IFB tattoos, 

including one that specifically referred to his hatred of the Rollin’ 

Neighborhood Crips gangs.

Following his arrest, appellant was interviewed by Los 

Angeles police detectives on September 12, 2016, and a video 

recording of the interview was played at trial.

Much of what appellant initially told the detectives was 

directly contradicted by the surveillance video, and after being 

confronted with portions of the video, appellant ultimately 

admitted his role in the shooting. At some point during the 

party, Lishey walked over to Foreman and identified himself as a 

9-0 Crip. Foreman responded, “ ‘No. I’m not shaking your hand; 

. . . I’m from Inglewood Family,’ ” and “ ‘I kill y’all niggas.’ ” A 

“big argument” ensued, which was broken up, but later “they got 

into it” again.

After seeing a portion of the surveillance video that showed 

him with a gun in his hand, appellant claimed someone had 

handed him a nine-millimeter gun only after the shooting. One 
6

of the detectives asked whether appellant had been scared that 

night. Appellant responded that he had been afraid of Foreman, 

who “talked me up to that shit. And I was drunk, you feel me?”

Appellant then explained that toward the end of the party, 

Foreman handed him a gun and told him that Lishey and his 

cohort were going to start shooting them at the end of the party. 

Everything was suddenly happening fast, and when Lishey’s 

group started to approach, appellant “just shot in the crowd.” At 

first he insisted he fired only two or three times, and was not 

aiming at anyone in particular. After the shooting, appellant 

returned the gun to Foreman.

Estimating the number of Crips at the party at 30, 

significantly outnumbering the Bloods, appellant said he had 

been nervous about the Crips from the moment he arrived. There 

had been “banging” “along with tension, arguing and drinking,” 

but appellant was just drinking and having fun with the people 

in his own group. Appellant insisted that he never intended to 

shoot anyone, much less kill a person, even as he admitted firing 

four or five times at Lishey as Lishey was backing away. He 

asserted, “that’s not the type of person I am. I think it was just, 

feel me, heat of the moment, and then, niggas handing me guns 

and alcohol and shit.”

Appellant maintained that when Foreman handed him the 

gun, he thought he was simply holding it for Foreman; it did not 

even occur to him he would use it to shoot someone. But 

appellant also claimed that Foreman “forced [him] to bust on that 

nigga,” and “he kept it in [appellant’s] head the whole party” that 

they were “about to get shot at, at the end of the party.” 

Appellant said that when Foreman gave him the gun about five 

minutes before the shooting, he put it on his hip. After waiting a 
7

few minutes, Foreman said, “ ‘Just bust, bust, bust,’ ” and 

appellant started shooting. Appellant never looked to see 

whether Lishey had a gun.

Three weeks later, appellant was arrested in possession of 

a nine-millimeter gun. Appellant insisted that the gun in his 

possession at his arrest was not the murder weapon. Although 

both guns belonged to Foreman, Foreman had left the murder 

weapon with someone else before flying to Arizona. Appellant 

told the detectives he could get the gun by simply calling 

Foreman and telling him, “hey, I need that nine.” As for the 

other gun, appellant claimed that Foreman had given it to Key, 

and it was in Key’s backpack in the car.

DISCUSSION

The Trial Court Did Not Abuse Its Discretion in 

Admitting Evidence that Appellant Had a Gun in 

His Possession When He Was Arrested a Few 

Weeks After the Shooting

A. Relevant background

The prosecution presented evidence that at the time of his 

arrest on September 10, 2016, appellant possessed a ninemillimeter semiautomatic handgun with a 30-round clip of 

ammunition. Although ballistics tests to determine whether it 

was the same weapon used to kill Lishey were inconclusive, the 

prosecution sought to admit the evidence that appellant was with 

gang members and possessed a loaded gun to counter appellant’s 

statements that he had been manipulated into committing the 

shooting and had been afraid for his life. Appellant objected to 

admission of the evidence on relevance grounds as well as under 

Evidence Code sections 1101 and 352.
8

Over appellant’s objections the trial court ruled the 

evidence admissible. Specifically, the court determined the 

evidence that appellant possessed a nine-millimeter gun three 

weeks after the shooting was relevant to impeach appellant’s

statements minimizing his culpability with respect to possession 

of the murder weapon and his state of mind in shooting Lishey. 

Finding the evidence of appellant’s subsequent gun possession 

was not inflammatory, the court concluded that any potential for

prejudice was substantially outweighed by the relevance and 

probative value of the evidence. The court also overruled 

appellant’s objection to the admission of appellant’s statements to 

the detectives during his interview regarding the firearm in his 

possession at his arrest.

The trial court instructed the jury that evidence appellant 

possessed a gun at the time of his arrest could not be considered 

as evidence of bad character, but could be considered in 

determining the issues of intent to kill, premeditation, credibility, 

and whether the shooting was gang-related.

B. The trial court did not abuse its discretion in 

admitting the gun evidence on the basis of its finding that 

the evidence was probative and relevant to issues other 

than a propensity to possess and use guns

Appellant contends the evidence of his possession of a gun 

at the time of his arrest should have been excluded because it 

was probative only as inadmissible propensity evidence and 

otherwise irrelevant to any disputed issue before the jury. We 

disagree.

Evidence Code section 1101, subdivision (a) “ ‘expressly 

prohibits the use of an uncharged offense if the only theory of 

relevance is that the accused has a propensity (or disposition) to 
9

commit the crime charged and that this propensity is 

circumstantial proof that the accused behaved accordingly on the 

occasion of the charged offense.’ ” (People v. Bryant, Smith and 

Wheeler (2014) 60 Cal.4th 335, 406 (Bryant).) Although evidence 

of the defendant’s commission of other crimes, civil wrongs or bad 

acts is inadmissible to prove the defendant’s conduct on a 

specified occasion, such evidence can be used to attack the

defendant’s credibility. (Evid. Code, § 1101, subd. (c); People v. 

Kennedy (2005) 36 Cal.4th 595, 620 [limitations on the 

admissibility of evidence of specific instances of misconduct “do 

not apply to evidence offered to support or attack the credibility 

of a witness”]; People v. Hawthorne (2009) 46 Cal.4th 67, 99 

[“Unless precluded by statute, any evidence is admissible to 

attack the credibility of a witness if it has a tendency in reason to 

disprove the truthfulness of the witness’s testimony”].) Such 

evidence may also be admitted to prove a material fact in dispute

such as motive, intent, preparation, plan, knowledge, or the 

absence of mistake or accident. (Evid. Code, § 1101, subd. (b); 

People v. Cage (2015) 62 Cal.4th 256, 273 (Cage); People v. Jones

(2013) 57 Cal.4th 899, 930.)

“ ‘Evidence Code section 210 defines “relevant evidence” as 

“evidence . . . having any tendency in reason to prove or disprove

any disputed fact that is of consequence to the determination of 

the action.” ’ ” (People v. Pearson (2013) 56 Cal.4th 393, 438

(Pearson).) If evidence of another instance of defendant’s 

misconduct is relevant to prove some fact other than propensity, 

the evidence may properly be admitted subject to a limiting 

instruction upon request. (Bryant, supra, 60 Cal.4th at p. 406.) 

We review the trial court’s ruling on the admissibility of such 

evidence for abuse of discretion (Cage, supra, 62 Cal.4th at 
10

p. 274; Bryant, at p. 405), reversing only where “ ‘it is shown 

“ ‘the trial court exercised its discretion in an arbitrary, 

capricious, or patently absurd manner that resulted in a manifest 

miscarriage of justice.’ ” ’ ” (People v. Jones (2017) 3 Cal.5th 583, 

609, quoting People v. Merriman (2014) 60 Cal.4th 1, 74.)

Here, the evidence that appellant possessed a firearm at 

his arrest within three weeks of the homicide was relevant to 

proving several disputed issues of fact other than appellant’s 

disposition to possess and use guns.

First, the gun possession evidence was relevant to proving 

the gang enhancement under section 186.22, subdivision (b)(1). 

To establish that enhancement, the prosecution was required to 

prove the killing of Lishey was “gang-related,” that is, it was 

“(1) ‘committed for the benefit of, at the direction of, or in 

association with any criminal street gang,’ and (2) ‘with the 

specific intent to promote, further, or assist in any criminal 

conduct by gang members.’ ” (People v. Rivera (2019) 7 Cal.5th 

306, 331; People v. Livingston (2012) 53 Cal.4th 1145, 1170–

1171.) According to one of the defense theories the shooting was 

not gang-related but was the culmination of a dispute over a 

woman between Foreman and Lishey. The evidence that at the 

time of his arrest three weeks after the killing appellant was with 

an IFB member while armed with another nine-millimeter gun 

belonging to Foreman tended to rebut this defense theory by 

showing appellant’s ongoing support of the gang and his 

relationship with one of its leaders. Moreover, appellant’s claims 

that he knew the firearm in his possession at his arrest was a 

different nine-millimeter gun than the one used in the shooting, 

that he knew Foreman had entrusted that other nine-millimeter 

gun to Key, and that he knew Foreman’s whereabouts, the 
11

probable location of the murder weapon, and could call Foreman 

to get the gun for police underscore the relevance of the gun 

evidence to the gang enhancement issue. As the prosecutor 

argued, appellant’s continued involvement with Foreman after 

the shooting and possession of his gun tended to show the 

shooting had been part and parcel of appellant’s gang 

involvement, and a way for appellant to demonstrate his fealty 

and commitment to strengthening the gang.

The gun evidence was also relevant to establish appellant’s 

intent to kill Lishey as well as to impeach appellant’s credibility 

with respect to his exculpatory statements about carrying out the 

shooting. The primary theory of the defense was that, having 

been manipulated by Foreman, appellant acted in unreasonable 

self-defense when he fired at Lishey, genuinely believing his life

was in imminent danger. During his recorded interview with 

police, appellant also made numerous exculpatory statements in 

an attempt to minimize his own responsibility for the killing. 

Appellant repeatedly insisted that he never intended to shoot or 

hurt anyone, much less kill Lishey, whom he did not even know. 

But the fact that appellant had a loaded gun in his possession 

just three weeks after killing Lishey directly undermined 

appellant’s credibility in making those assertions.

Of course, “ ‘[e]vidence is relevant when no matter how

weak it is it tends to prove a disputed issue.’ ” (Pearson, supra, 

56 Cal.4th at p. 438.) The gun evidence presented here was 

certainly not dispositive on the issues of “gang-relatedness,” 

intent to kill, or appellant’s credibility. It did, however, have 

some tendency in reason to prove or disprove disputed facts 

related to those issues, and was thus relevant. (Pearson, at 

p. 438.) The trial court did not abuse its discretion in admitting 
12

the evidence of appellant’s possession of a firearm at the time of 

his arrest.

C. The trial court properly determined that the gun 

evidence was not inflammatory, nor was its presentation 

confusing or lengthy, and its probative value outweighed 

any possible prejudice

Even if uncharged acts evidence is relevant and otherwise 

admissible, such evidence may nevertheless be excluded under 

Evidence Code section 352 if its probative value is substantially 

outweighed by the probability that its admission will require an 

undue consumption of time, will confuse or mislead the jury, or it 

is unduly inflammatory or poses a substantial risk of undue 

prejudice. (Bryant, supra, 60 Cal.4th at p. 407; People v. Wang

(2020) 46 Cal.App.5th 1055, 1076.) The trial court in this case 

did not abuse its discretion in determining that the gun evidence 

was admissible under Evidence Code section 352.

Presentation of the evidence that appellant possessed a 

loaded gun at the time of his arrest took very little time: The 

testimony of the arresting officer was reported in six pages of 

transcript, only two of which concerned the firearm. There was 

also nothing confusing about the officer’s straightforward 

account. He merely testified that, after seeing appellant in the 

front passenger seat of the car reach into his waistband and 

rummage in the backpack at his feet, the officer recovered a ninemillimeter gun and 30 rounds of ammunition from the backpack. 

And the evidence was not inflammatory. Given the gang 

evidence and appellant’s own account of the murder⎯he shot a 

complete stranger to death at a party while the man was backing 

away, without even bothering to check if the victim was 

armed⎯there was no substantial likelihood the jury would have 
13

been inflamed upon hearing appellant had a gun a few weeks 

after the shooting.

Admission of the gun evidence simply did not create a 

substantial danger of undue prejudice. (Evid. Code, § 352, subd. 

(b).) As our Supreme Court has repeatedly explained, “ ‘ “In 

applying [Evidence Code] section 352, ‘prejudicial’ is not 

synonymous with ‘damaging.’ ” ’ [Citation.] ‘ “ ‘[A]ll evidence 

which tends to prove guilt is prejudicial or damaging to the 

defendant’s case.’ ” ’ [Citation.] The ‘prejudice’ which section 352 

seeks to avoid is that which ‘ “ ‘uniquely tends to evoke an 

emotional bias against the defendant as an individual and which 

has very little effect on the issues.’ ” ’ ” (Cage, supra, 62 Cal.4th at 

p. 275; People v. Williams (2013) 58 Cal.4th 197, 270.)

Appellant contends that the gun evidence “was likely to 

evoke an emotional bias, as it suggested appellant was a violent 

person who possessed a loaded deadly weapon and reached for 

the weapon as the police approached.”3 But as set forth above, 

the gun evidence was relevant to several disputed issues of fact, 

including the elements of the gang enhancement, appellant’s 

intent to kill, and his credibility in explaining the mitigating 

circumstances of the shooting in his interview with police, while 

its probative value as propensity evidence was de minimus. 

Indeed, in the face of abundant evidence of appellant’s immersion 

in the gang lifestyle, his awareness of the deadly risks faced by 

gang members, the loss of his own father to gang violence, and 

3 The clear implication of the officer’s testimony is that 

appellant sought to hide the weapon and distance himself from it 

as the officer drew near to the car, not that he appeared ready to 

use it as the officer approached.
14

the new prominent gang tattoos he got after the shooting, it is 

virtually inconceivable that evidence of appellant’s possession of 

a gun three weeks after the killing would unduly prejudice him in 

the eyes of the jury.

Finally, we note that the jury was given a limiting 

instruction that appellant’s possession of a gun when he was 

arrested could not be considered as evidence of bad character, but 

could only be considered in determining the issues of intent to 

kill, premeditation, credibility, and whether the shooting was 

gang-related. In the absence of any indication to the contrary, we 

presume the jury followed the court’s instruction. (See Cage, 

supra, 62 Cal.4th at p. 275.)

In sum, we find no abuse of discretion in the trial court’s 

admission of the challenged gun evidence under Evidence Code 

section 1101 or section 352. For the same reasons, we reject

appellant’s federal constitutional claim that admission of the 

evidence violated his due process rights. (People v. Thompson

(2016) 1 Cal.5th 1043, 1116 [a defendant’s constitutional rights 

not impinged by the routine application of state evidentiary law].) 

Having determined the evidence was relevant and properly 

admitted to prove a fact of consequence, we find no violation of

appellant’s federal constitutional rights. (People v. Foster (2010) 

50 Cal.4th 1301, 1335; People v. Benavides (2005) 35 Cal.4th 69, 

96 [federal constitutional claim fails where the evidence was 

properly admitted under state law].)
15

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.