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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KE NNY BIRDINE

,
Defendant and Appellant. B298724

(Los Angeles County Super. Ct. No. PA08716 9 )

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 sentence d appellant to 50 years to life in state prison

. Appellant contends the trial court’s prejudic ial 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

star ted 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 s hooting 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., a bout 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 exit s . 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 t oward 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 nine

millimeter shell casings were recovered from the scene and
de termined to have been fired from the same firearm

. A t the time of the shooting, a ppellant 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” tattoo ed prominently across his
chest , which signif

ied 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 , a nd he regularly associated with4

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” For e man , 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 ot her 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 wal ked 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 member s , or YG ’ s , such as appellant. Because most individuals joined the gang in ninth grade, by the age of 1 9 a YG would be a well

- established member of the gang. The gang expert further explained that o nly 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 we re confident the junior member would carry it out. According to the expert, g uns are important tools for the gang, but difficult to come by. As a result, when a firearm is acquired by the gang, it5

is released only to the most respected and trusted indivi duals 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 crime s against one another, including
murder

. A ccording 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. A fter the shooting, appellant got several new prominent IFB tattoos, including one that specifically referred to his hatre d 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. One6

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 t oward 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 h e insisted he fired only two or three times, and was not aiming at a nyone 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 insist ed 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.” Appe llant 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 ke pt 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 a7

few minutes, Fore man 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 t he 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
Admit ting 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 nine

millime ter semiautomatic handgun with a 30

- round clip of
ammunition. Although b allistics 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 an d 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 sect ions 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

pos session at his arrest.
T he 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 onl y theory of relevance is that the accused has a propensity (or disposition) to9

commit the crime charged and that this prope nsity 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) ; Peo ple 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

e vidence may also be admitted to prove a material fact in disp ute 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 ( Pe arson ) .) 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 at10

p. 274; Bryant , at p. 405 ) , revers ing onl y 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 (20 14) 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, t he 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 o ne 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 a nother 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 lea ders. 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 th at other nine

- millimeter gun to Key, and that he knew Foreman’s whereabouts

, the11

probable location of the murder weapon , and could call Foreman to get the gun for police underscore the relevance o f 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, a nd 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 h is life
was in imminent danger

. During his recorded interview with police, appellant also made numerous exculpatory statements in

an at tempt 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 .) T he trial court did not abuse its discretion in admitting12

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 sect ion 352 if it s 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 evide nce that appellant possessed a loaded gun at the time of his arrest took very little time: T he 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 nine

millimeter gun and 30 rounds of ammu nition 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 vict im was armed

⎯ there was no substantial likelihood the jury would have13

been inflamed upon hearing appellant had a gun a few weeks after the shooting.
A dmission 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 individ ual 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
i ts 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 con sidered 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, w e presume the jury fo llowed 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 (2 005) 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.