Filed 10/6/23 P. v. Phonsongkham CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDY CHANH PHONSONGKHAM,

Defendant and Appellant. D080131

(Super. Ct. No. SCD281869)

APPEAL from a judgment of the Superior Court of San Diego County,

Melinda Lasater, Judge. Affirmed and remanded with directions

. Patricia J. Ulibarri, under appointment by the Court of Appeal, for

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa

Mandel and Seth Friedman, Deputy Attorneys General, for Plaintiff and

Responde nt.

INTRODUCTION

Andy Chanh Phonsongkham , a n active member of the Oriental Killer

Boys (OKB) criminal street gang

, opened fire upon a group of four teenage2

members of a rival gang, killing one boy

. Although the trial court granted

the defense motion to bifurcate the gang enhancement allegations (Pen. Code,

§ 186.22, subd. (b)(4) & (5) ) , it permitted t he prosecution to introduce gang

evidence to prove Phonsongkham committed the shooting to retaliate against

the rival gang for their assault of a fellow OK B member the same day

. The

jury convicted Phonsongkham of a special circumstance murder, among other

charges . Phonsongkham’s sole contention on appeal is that the trial court

abused its discretion and violated newly

- enacted Penal Code section 1109 and

Ev idence Code sections 1101 and 352 by admitting the gang evidence at the

bifurcated trial on the substantive crimes . Finding no error in his contention,

we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Drive

- By Shooting

Linda Vista 13 (LV1 3) is a criminal street gang that claims territory in

the Linda Vista neighborhood of San Diego. Kelly Street is in the heart of

LV13’s territory; the sidewalks, walls, and fences that border the street are

covered in LV13 gang graffiti. Tiny Locos (TLS) is a subset of LV13.

T he OKB criminal street gang operates in Southeast San Diego, in an

area that includes 49th Street. OKB is affiliated with a rival gang of LV13.

Phonsongkham and his friend, Anthony L., are OKB members.

At around 5:30 p.m. on Ma y 23, 2019, Anthony was standing in front of

a smoke shop in LV13 territory when a van pulled up. Someone in the van

said “Chino” and “go get him.” Several juvenile LV13 members (including

C.L. and C.C.) exited the van, walked up to Anthony, and asked if he knew

where he was. Anthony answered, “I’m from OKB” and “yeah, I’m in your

turf.” The juveniles beat up Anthony and fled.3

Minutes after the beating ended, Anthony called Phonsongkham and

sent texts to him with a geographic “pin” that pointed to a location just

behind the strip mall where Anthony had been assaulted . Phonsongkham

texted back, “On my way!” Phonsongkham then drove from Southeast San

Diego to Linda Vista

— a drive that takes about 15 minutes

— and arriv ed just

before 6:00 p.m.

At the s ame time, shortly before 6:00 p.m., 16

- year

- old Carlos V. left his

house in Linda Vista and joined his friends, C.L., C.C., and J.C.

, outside.

Three minutes later , as Carlos, C.L., J.C., and C.C. were walking together

down Kelly S treet , Phonsongkham drove up to them in a car, screeched to a

halt, yelled “fuck TLS,” and started shooting. C.L., J.C., and C.C.

immediately threw themselves to the ground. Carlos , who had remained

standing with his back to the street

, fell as shots were fired. Phonsongkham

fi red five shots

, then sped away.

As the boys were getting up, Carlos told his friends that he had been

shot. They took Carlos’s jacket off and pulled up his shirt to see a bullet

wound in the middle of his chest. Carlos lost consciousness. A concerned

p asserby

, who heard the gunshots and saw that Carlos was bleeding

, pulled

up to the boys in his pickup truck and told them to put Carlos inside. The

passerby drove Carlos and the boys to the nearest hospital, but b y the time

the y arrived, Carlos had alread y died. He had been struck with a single

bullet that entered his body through the left side of his back, traveled

through his left lung and heart, and exited through the right side of his chest.4 II.

Investigation and Arrest

The shooting happened in day light, and several neighbors called 911 to

report it. Police officers responding to the scene found four spent 9

-

millimeter bullet casings in the middle of the street.

One neighbor told a responding officer that his house had been hit by a

bullet. Whe n d etectives examined the house , they concluded that three

bullets had hit the structure , including at the fence, gate, and an exterior

window

. O ne detective described the bullet holes as “spread out.”

Eyewitnesses who saw the shooter told officers he w as a heavyset Asian

male in his 20s wearing a white t

- shirt and red

- brimmed baseball cap. They

described his vehicle as a small, older, gold or metallic

- colored sedan of

Japanese make

— either a Honda, Toyota, or Mitsubishi.

After learning the decedent a nd his friends were LV13 gang members,

investigating officers suspected the shooting was gang related. A detective

checked law enforcement databases and determined that Phonsongkham had

prior law enforcement contacts while driving a vehicle that matched

e yewitness descriptions of the shooter’s vehicle.

Another detective reviewed video footage from the surveillance cameras

of a neighbor’s home and a nearby school

, which showed a vehicle that

matched witnesses’ descriptions driving down Kelly Street near the time of

the shooting. The detective observed that in addition to having the features

identified by eyewitnesses, the vehicle also had 10

- point rims, a spoiler, and a

white sticker on one window.

A detective staked out a house on 41st Street associa ted with

Phonsongkham. When the detective arrived at the house, it was dark and

there were no vehicles in the driveway. While the detective waited, he5

received information that Phonsongkham had prior law enforcement contacts

in a 1993 Honda Accord regist ered to someone at the 41st Street address. He

also received a screenshot of a Facebook photo graph of a group that included

Phonsongkham wearing a red baseball cap.

At around 9:45 p.m., the detective saw Phonsongkham pull into the

driveway of the 41st Street house in an older gold Honda Accord. He was

wearing a red baseball cap and a white t

- shirt. He got out of the car, walked

to the trunk and opened it, reached inside and appeared to rack a handgun.

He took a dark

- colored bag from the trunk, closed it, and entered the house

through the front door. After a few seconds, lights inside the garage were

turned on.

As the detective continued to wait, he received screenshots of

surveillance video of the crime scene. The vehicle in the screenshots

appea red to match the car Phonsongkham was driving when he arrived at

the 41st Street house.

Phonsongkham remained inside the house for around 40 minutes.

When he emerged, he had changed his clothing. He got in his Honda Accord

and drove a few blocks bef ore police pulled him over and took him into

custody. A spent bullet casing was found inside his car on the floorboard in

front of the driver’s seat.

An eyewitness to the shooting was brought to Phonsongkham for a field

identification. She positively identified Phonsongkham as the shooter and

said she recognized his Honda Accord as the shooter’s vehicle.

The Honda Accord was impounded and a crime scene specialist who

processed the car collected the spent bullet casing from the floorboard as well

as two cell phones that were inside the car.6

Police searched the 41st Street house. They determined that

Phonsongkham had been living in the garage. They found a 9

- millimeter

Glock handgun with a box of 9

- millimeter ammunition between the box

spring and mattress of Phonsongkham’s bed. They also found a cell phone,

red baseball caps, and several white t

- shirts in the garage bedroom.

Phonsongkham’s DNA was on the handgun.

A criminalist from the San Diego Police Department examined ballistic

patterns on the four spent bullet casings recovered from the crime scene and

the fifth casing found on the floorboard of Phonsongkham’s car. She

determined that all five casings had been fired from Phonsongkham’s

handgun.

III.

Charges

, Trial , and Sentence

Phonson gkham was charged with the murder of Carlos V. ( Pen. Code,

§ 187, subd. (a); count 1) with the special circumstance it was an intentional

murder perpetrated by means of intentionally discharging a firearm from a

motor vehicle ( Pen. Code, § 190.2, subd. (a) (21); attempted first degree

murder s of J.C., C.C., and C.L. ( Pen. Code, §§ 664, 187, subd. (a), 189; counts

2

‒ 4); and shooting at an inhabited dwelling house ( Pen. Code, § 246; count 5).

All five counts included firearm enhancement allegations ( Pen. Code

, § 12022.53, subds

. (b)

− (d) ) and were alleged to have been committed for the

benefit of a criminal street gang ( Pen. Code, § 186.22, subd

. (b)( 1 ) & (5) ;

counts 1

– 4; id ., subd. (b)(1) & (4); count 5 )

The case went to jury trial in October 2021. In a pr etrial hearing, the

trial court granted a defense motion to bifurcate the gang enhancement

allegations from the trial o n the substantive charges, special circumstances

and firearm enhancement allegations

.7

At the bifurcated trial, t he prosecution’s theor y was that

Phonsongkham committed the shooting against rival LV13 to retaliate for the

earlier assault of his fellow OKB gang member. Over 10 days, t he

prosecution established the facts (as set forth above ) through a total of 40

witnesses, including C .L., J.C., C.C.

, and more than a dozen neighbors who

lived near the crime scene and witnessed the shooting

, a s well as numerous

law enforcement witnesses who investigated the shooting . At the conclusion

of the prosecution’s case

- in

- chief, the defense rested w ithout calling

witnesses.

In closing arguments to the jury, the prosecutor argued Phonsongkham

was the shooter and had committed murder and attempted murder s of the

first degree. The prosecutor told the jury LV13’s four

- on

- one assault of

Anthony was a si gn of disrespect Phonsongkham would not tolerate, so he

decided to retaliate with the “death of a rival.” Pointing to the evidence that

Phonsongkham had traveled from Southeast San Diego to Linda Vista with a

loaded gun, she argued he had the duration of th e drive to deliberate and

premeditate a killing

— to “ think about death.”

Defense counsel sought to persuade the jury that the percipient

eye witnesses were not credible, and that the prosecution had fallen short of

its burden of establishing that Phon songkham was the shooter. Defense

counsel argued that if Phonsongkham was the actual shooter, there was

insufficient evidence he had intended, premeditated, or deliberated on

shooting the victims. He claimed the prosecution’s theory that the crimes

were gang

- motivated was unfounded because there was no evidence Anthony

was a gang member. Referring to Phonsongkham’s gang moniker “Temper

, ”

defense counsel told the jury Phonsongkham “had a temper” and shot at the

juveniles because he was provoked and angry after learning “what happened8

to his friend.” Defense counsel also characterized the shooting as a “wild

spraying” of bullets, and argued the lack of “aiming” showed Phonsongkham

lacked inten t to kill.

After deliberating for less than two days, the jur y convicted

Phonsongkham of first degree murder and returned a true finding on the

special circumstance allegation. It convicted Phonsongkham of the

attempted murder s of J.C., C.C., and C.L. as charged in counts 2 through 4,

but was unable to reach a unan imous decision as to whether the attempted

murders were willful, deliberate, and premeditated. The jury also found

Phonsongkham guilty of shooting at a n inhabited dwelling as charged in

count 5 and found true the firearm enhancement allegations attached t o all

five counts

. T he bifurcated gang enhancement allegations were dismissed on

the prosecution’s motion due to the unavailability of an essential witness.

Phonsongkham was sentenced to an indeterminate term of life without

the possibility of parole f or the special circumstance murder in count 1 ; the

midterm of seven years for the attempted murder in count 2 ; two years, four

months (one

- third the midterm of seven years) on each of the other attempted

murders in counts 3 and 4; and one year, eight month s (one

- third the

midterm of five years) on the shooting of an inhabited dwelling in count 5.

The court imposed five c onsecutive terms of 25 years to life for the firearm

enhancement allegations under Penal Code section 12022.53, subdivision (d),

attached to each of the five counts ; the court stayed sentence on all of the

remaining firearm enhancement allegations . The total sentence was 13 years

and four months, plus 125 years to life, plus life without the possibility of

parole.9 DISCUSSION

I.

Phonsongkh am’s Claims of Evidentiary Error Lack Merit

A. Additional Background

T he parties brought three motions in limine that are relevant to

Phonsongkham’s appellate claims of evidentiary error.

A s previously noted, the defense moved to bifurcate the Penal Code

section 186.22 gang enhancement allegations from the trial of the substantive

crimes . The defense argued the predicate crimes the prosecution would use

to demonstrate a “pattern of criminal gang activity” under subdivisions (b)

and (f) of section 186.22 w ould be highly inflammatory if admitted during the

trial of the substantive offenses.

T he prosecution also moved to admit gang evidence to establish motive,

identity, intent, and premeditation relevant to Phonsongkham’s commission

of the substantive cri mes ; to explain witnesses’ fear about testifying ; and to

prove the elements of the Penal Code section 186.22 gang enhancement

allegations

. T he prosecution sought an order permitting it to introduce the

following nine categories of gang evidence: (1) gang expert testimony on the

existence of OKB, including number of members, territory, and common

signs; (2) gang expert testimony on the primary activities of OKB members ;

(3) certified copies of court records from three criminal cases to prove the

predicate crimes necessary to establish a “pattern of criminal gang activity”

under section 186.22; (4) testimony and photographs related to the gang

participation of individuals whose convictions would be used to establish the

pattern of gang activity; (5) gang exp ert opinion on Phonsongkham’s

membership and active participation in OKB, including interpretation of his

tattoos, associations with other OKB members, photo graph s indicating gang10

allegiance, and correspondence with other OKB members; (6) gang expert

testi mony on the rivalries and alliances of OKB; (7 ) gang expert testimony on

the role of respect in Asian criminal street gangs and the expected responses

to disrespect; (8) gang expert testimony on the culture and habits of Asian

criminal street gangs; and (9 ) gang expert opinion in response to hypothetical

fact patterns on how and whether certain crimes would be committed in

association with or for the benefit of a criminal street gang.

The defense filed a competing motion in limine to exclude evidence of

Ph onsongkham’s OKB gang membership and activities in which it objected to

the introduction of gang evidence under Evidence Code sections 1101 and

352.

A hearing on the motions in limine took place in October 2021. At that

time, Assembly Bill No. 333 (2021

‒ 2022 Reg. Sess.) (Assembly Bill 333), had

passed but was not yet effective. (Stats. 2021, ch. 699, § 5, eff. Jan. 1, 2022.)

Among other things, Assembly Bill 333 created Penal Code section 1109,

which requires bifurcation of section 186.22 gang enhanceme nt allegations

upon the defendant’s request.

During the hearing, defense counsel and the prosecutor recommended

that the trial court grant bifurcation in accordance with the soon

- to

- be

effective Penal Code section 1109 . The prosecutor told the court th e

imminent change in law made it “wise to bifurcate the predicates” since the

judgment, if any, would not be final by the time the new law went into effect;

granting bifurcation would avoid a possible appellate reversal for failure to

comply with its manda te. The court granted the bifurcation motion.

The trial court then considered whether the prosecution’s gang

evidence would be admissible during the trial of the substantive crimes . The

prosecutor argued gang evidence was relevant to the murder and at tempted11

murder charges because it tended to establish Phonsongkham’s identity as

the perpetrator of the shootings as well as his motive for killing and intent to

kill. She explained the prosecution’s theory that OKB and LV13 were rival

criminal street gan gs, and Phonsongkham was a member of OKB who

committed the shooting in retaliation for LV13’s earlier assault on his fellow

gang member. The prosecutor asserted that gang evidence was “baked into

this case,” and the offenses would not be understandable to the jury without

evidence of the gang context in which they were committed.

Defense counsel sought to limit the scope of gang evidence that would

be admitted. He appeared to argue that the gang evidence was only relevant

to the bifurcated gang allegat ions, not to the substantive crimes . The trial

court responded that notwithstanding its decision to bifurcate the gang

allegations, “there is evidence that can and is admissible

. . . for identity,

motive, and intent to kill

. . . . [I]t’s grounded in th e gang overtones to this

entire situation.” Defense counsel conceded the “entire case is baked with

gang issues,” mean ing that “parsing them out becomes very difficult.”

The trial court engaged in an extended discussion with counsel for both

sides abou t the nature and admissibility of the proposed gang evidence.

When the prosecutor discussed her intent to introduce a variety of evidence to

prove Phonsongkham was an OKB member, including field interviews, cell

phone evidence, and a jail incident in whic h fresh OKB graffiti was found in a

holding cell after Phonsongkham left it, defense counsel objected that this

evidence was irrelevant and prejudicial under Evidence Code section 352.

The court ruled it would admit “limited” evidence to support the theor y that

Phonsongkham was a n OKB member, but left the specifics for future

determination because it had not yet heard the evidence. It suggested the

defense had the option of stipulating to gang membership to avoid12

introduction of the evidence, and that if no stipulation was forthcoming, it

would “have to do [a] 352 evaluation.”

After the hearing, the trial court issued a minute order granting the

prosecution’s motion to admit gang evidence in part and denying the defense

motion to exclude gang evidence i n part . In this order, the court made the

following rulings regarding the admissibility of gang evidence during the first

phase of the bifurcated trial: gang expert testimony was admissible on the

existence of the OKB criminal street gang, including the number of its

members, its territory, and “common name/sign/symbol”; gang expert

testimony on the rivalries and alliances of the OKB gang was admissible,

except that the history of how the rivalry between OKB and LV13 developed

was not; gang expert opinion testimony regarding Phonsongkham’s

membership and active participation in OKB, including interpretation of his

tattoos, prior admissions of membership to officers on the street, associations

with other OKB members, and possession of gang paraphernalia, in cluding

social media postings and phone content demonstrating association or

membership in OKB was admitted “ subject to possible stipulation or 352

analysis ” (emphasis omitted) ; gang expert testimony on the culture and

habits of Asian criminal street gangs , the role of respect within Asian

criminal street gang sub

- culture, including the forms disrespect can take and

expected responses to disrespect, was admitted “when relevant to the gang

dynamics” (emphasis omitted).

The remaining categories of evidenc e identified in the prosecution’s

motion (predicate gang crimes, gang expert testimony on the primary

activities of OKB, and gang expert opinion on hypothetical crimes) were

deemed admissible “as to the bifurcated gang allegation only.” (Emphasis

omitted. )13

B. Gang Evidence Challenged on Appeal

Relevant to this appeal, the following gang evidence was admitted

during the initial phase of the bifurcated trial: 1

(1) Detective Eddie Escamilla, an expert on Linda Vista gang sets, identified two active gangs in the a rea: LV13, and its rival gang,
the Linda Vista Crips. T he juveniles who a ssault ed Anthony
were known or suspected LV13 gang members. He explained the importance to a gang of defending gang territory; targeting rival gang members who enter a gang’s claim ed territory; “ ‘ putting in

work ’ ” by backing up fellow gang members who are assaulted;
and avoiding any appearance of cooperating with law enforcement, also known as “snitching,” such as by talking openly
with the police or testifying in court.

(2) Detective Dan Caropreso

, an expert on Asian gangs including

OKB

, described OKB’s hand signs and tattoos, and testified that
OKB claims territory in an area of Southeast San Diego that

included 49th Street. He was shown five screenshots from Phonsongkham’s Facebook account and testified they showed Phonsongkham “throwing” gang signs or standing next to others
who were throwing gang signs, and they included an image of

49th Street.

(3) Detective Nestor Hernandez described the mission of the gang
suppression unit of the S an Diego Police Department. H e explained that law enforcement collected information about gang members because “they are usually involved in some type of
criminal activity, either at the time that they were contacted or

sometime later on.”

(4) The jury was s hown numerous photo graph s from the cell phones

re cover ed from Phonsongkham’s garage bedroom and 1993
Honda Accord. They included at least one image of him holding a
gun, possibly a Glock.

1 Phonsongk ham did not stipulate to his membership in the OKB
criminal street gang.14

(5) The jury also heard the following testimony about field

interview s of Phonsongkham: (i) in October 2018, Officer Michael McGruder stopped Phonsongkham after seeing him with
another person apparently spraying gang graffiti that said “OMC” for Oriental Mafia Crips, a sister gang of OKB (two

officers testified about this field interview: Officer McGruder and
his partner, Officer Adam Schrom); (ii) in November 2015, Officer
Christina Berg stopped and interviewed Phonsongkham, who
said he was living on 44th Street within known OKB gang territory; (iii) in April 2017, Officer Gerald Perrin conducted a traffic stop of Phonsongkham and saw that he had a 49th Street
tattoo on his left hand signifying OKB territory as well as a hat that may have been associated with OKB.

(6) Deputy Sheriff John Barrios, who is assigned to the superi or court in downtown San Diego, testified that in July 2020 (i.e.,

after Phonsongkham’s arrest for the instant offenses), he found
fresh OKB graffiti carved in the wall of a holding cell after
Phonsongkham was placed in it alone while he was being

transpor ted to court.

C. Standard of Review

Phonsongkham contends the trial court erred and violated Penal Code

section 1109, Evidence Code section s 1101, subdivision (b), and 352, as well

as his federal and state constitutional rights to due process of law, by

admitting the six categories of gang evidence listed above. We review a trial

court’s rulings on the admissibility of evidence for an abuse of discretion.

( People v. Thomas (2023) 14 Cal.5th 327, 358 ( Thomas ); People v. Chhoun

(2021) 11 Cal.5th 1, 31 ( Ch houn ) .) “ We do not disturb the trial court’s ruling

unless it was arbitrary, capricious, or made in a ‘ “patently absurd manner

that resulted in a manifest miscarriage of justice .” ’ ” ( Thomas , at p. 358.)

D. No Violation of Penal Code Section 1109

Phon songkham’s first challenge to the admission of the gang evidence

relies on newly enacted Penal Code section 1109. He contends section 1109 is

retroactive under the rule of In re Estrada (1965) 63 Cal.2d 740 because it15

benefits criminal defendants. Althou gh he believes the trial court complied

with section 1109 insofar as it granted bifurcation of the gang allegations , he

argues the scope of gang evidence admitted to prove the substantive crimes

violated section 1109. He claims that by requiring bifurcati on of gang

allegations upon defense request, the Legislature has “given a clear

indication of its concern of the prejudice inherent in gang evidence.”

Appellate courts are currently divided on whether Penal Code section

1109 applies retroactively, and t his issue is now before the California

Supreme Court. (Compare People v. Burgos (2022) 77 Cal.App.5th 550,

566

− 567, review granted July 13, 2022, S274743 [§ 1109 applies retroactively

under Estrada ]; People v. Ramos (2022) 77 Cal.App.5th 1116, 1128

− 1131

( Ramos ) [same]; People v. Montano (2022) 80 Cal.App.5th 82, 105

− 108

( Montano ) [same]; with People v. Perez (2022) 78 Cal.App.5th 192, 207,

review granted Aug. 17, 2022, S275090 [§ 1109 is not retroactive]; People v.

Ramirez (2022) 79 Cal.App.5th 48, 65, rev iew granted Aug. 17, 2022, S275341

[same]; People v. Boukes (2022) 83 Cal.App.5th 937, 948, review granted Dec.

14, 2022, S277103 [same].) In People v. Tran (2022) 13 Cal.5th 1169, 1208,

our Supreme Court declined to resolve this split.

W e do not need to decide this issue. Even if we assume Penal Code

section 1109 is retroactive, it did not disturb existing case law holding that

gang evidence may be admitted to prove substantive crimes. Prior to the

enactment of Assembly Bill 333 , the California Supreme Court repeatedly

affirmed that gang evidence is admissible to prove crimes even in cases in

which no gang allegations have been asserted. “The People are generally

entitled to introduce evidence of a defendant’s gang affiliation and activity if

it is rel evant to the charged offense. [Citation.] ‘Evidence of the defendant’s

gang affiliation

— including evidence of the gang’s territory, membership,16

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. ’ ” ( Chhoun

, supra
, 11 Cal.5th at p. 31.)

The enactment of Penal Code section 1109 did not change this rule.

Section 1109 creates a procedure for bifurcating section 186.22 gang

enhancement allegations. It states, in relevant part, “If requested by the

defense, a case in which a gang enhancement is charged under subdivision (b)

. . . of S ection 186.22 shall be tried in sepa rate phases as follows: [¶] (1) The

question of the defendant’s guilt of the underlying offense shall be first

determined[;] [¶] (2) If the defendant is found guilty of the underlying offense

and there is an allegation of an enhancement under subdivisio n (b)

. . . of

Section 186.22, there shall be further proceedings to the trier of fact on the

question of the truth of the enhancement. Allegations that the underlying

offense was committed for the benefit of, at the direction of, or in association

with, a criminal street gang and that the underlying offense was committed

with the specific intent to promote, further, or assist in criminal conduct by

gang members shall be proved by direct or circumstantial evidence. ” ( Pen.

Code, § 1109, subd. (a).)

This statutory text is devoid of language limiting the scope of evidence

admissible to prove the substantive crimes underlying any gang allegations.

The absence of any such limitation is meaningful, as we are required to

derive the Legislature’s intent from t he words of the statute it enacted.

( People v. Leal (2004) 33 Cal.4th 999, 1007; see ibid. [ “ ‘ When the language of

a statute is “clear and unambiguous” and thus not reasonably susceptible of

more than one meaning, “ ‘ “ ‘there is no need for construction , and courts

should not indulge in it. ’ ” ’ ” ’ ” ].) Moreover, “ ‘ “[t] he Legislature is presumed17

to know the existing law and have in mind its previous enactments when

legislating on a particular subject .” ’ ” ( Montano

, supra, 80 Cal.App.5th at

p. 113.) Despite its presumed awareness of prevailing precedent holding

gang evidence admissible to prove substantive criminal charges, the

Legislature did not alter this rule when it enacted Penal Code section 1109.

We may not rewrite section 1109 to conform to an unexpressed legislative

intent. ( Hale v. Superior Court (2014) 225 Cal.App.4th 2 68 , 276 [courts must

avoid “ ‘rewriting statutes to find an unexpressed legislative intent’ ”].)

“ ‘Doing so would violate the cardinal rule that courts may not add provi sions

to a statute. ’ ” ( Montano , at p. 113.)

Moreover, other courts have interpreted Penal Code section 1109 not to

create new limitations on the admissibility of gang evidence to prove

substantive crimes. “ [ N ] othing in Assembly Bill 333 limits the in troduction

of gang evidence in a bifurcated proceeding where the gang evidence is

relevant to the underlying charges.” ( Ramos

, supra
, 77 Cal.App.5th at

p. 1132.) The California Supreme Court has implicitly endorsed this view. In

People v. Tran

, supra
, 1 3 Cal.5th at page 1208, our high court rejected the

defendant’s claim that failure to bifurcate gang enhancement allegations

under section 1109 constitutes structural error, reasoning that it “ha[s] held

that gang evidence, even if not admitted to prove a gang enhancement, may

still be relevant and admissible to prove other facts related to a crime.”

For these reasons, we reject Phonsongkham’s claim that Penal Code

section 1109 required exclusion of gang evidence in the bifurcated trial on the

substantiv e crimes

.

E. No Violation of Evidence Code Section 1101, Subdivision (b)

Phonsongkham’s next claim of evidentiary error under Evidence Code

section 1101 is directed at the gang evidence described in categories (5)(i) and18

(5)(iii) (the testimony of Officers McGruder, Schrom, and Perrin) and (6) (the

testimony of Deputy Barrios) in part B above. He maintains that in each

instance, “officers described [him as] being involved in some type of gang

activity that amounted to criminal conduct such as illegally tag ging graffiti or

vandalism.” He also contends that “at one point, Officer Perrin testified that

[he] was arrested, thus leaving the jury to surmise about what caused the

arrest.” He argues the prior criminal or bad acts reflected in this testimony

were n ot similar enough to the charged offenses to be admissible under

section 1101, subdivision (b). We are not persuaded by these contentions.

“ With certain exceptions not relevant here, Evidence Code section 1101,

subdivision (a), provides that ‘evidence of a person's character’

— whether in

the form of an opinion, evidence of reputation, or evidence of specific

instances of conduct

— ‘is inadmissible when offered to prove [the person’s]

conduct on a specified occasion.’ This prohibition, however, does not prec lude

‘the admission of evidence that a person committed a crime, civil wrong, or

other act when relevant to prove some fact

. . . other than [the person’s]

disposition to commit such an act,’ including ‘motive, opportunity, intent,

preparation, [or] plan. ’ ” ( People v. Valdez (2012) 55 Cal.4th 82, 129.) “In

other words, [section 1101] allows the admission of evidence of criminal

activity other than the charged offense ‘ “ ‘when such evidence is relevant to

establish some fact other than the person’s chara cter or disposition. ’ ” ’ ”

( Thomas

, supra , 14 Cal.5th at p. 358.)

First, Phonsongkham is incorrect that Officer Perrin’s testimony about

an arrest left the jury to imagine what Phonsongkham did to get arrested.

According to Perrin’s testimony, the ar rest took place “on May 23rd into the

early morning hours of May 24th, 2019[.]” Plainly , the arrest was for

Phonsongkham ’s commission of the current shooting offenses, not an19

uncharged or unidentified act of misconduct. Perrin’s testimony created no

dang er of juror speculation about the conduct that precipitated the arrest.

Second, Phonsongkham relies on flawed reasoning and inapposite cases

to the extent he claims the testimony of Officers McGruder, Schrom, and

Deputy Barrios was inadmissible under Ev idence Code section 1101,

subdivision (b)

, because the bad acts to which they testified (graffiti or

vandalism) were insufficiently similar to the charged homicide offenses. This

argument incorrectly assumes the prosecution offered the evidence to prove

t hat a similarity between the prior and current offenses existed.

Phonsongkham relies on cases such as People v. Ewoldt (1994) 7 Cal.4th 380

( Ewoldt ), and People v. Balcom (1994) 7 Cal.4th 414, that addressed the

admissibility of evidence of uncharged misc onduct under subdivision (b) of

section 1101 “[t]o establish the existence of a common design or plan.”

( Ewoldt , at p. 403; Balcom , at pp. 424

‒ 425.) Under this theory of

admissibility, “evidence that the defendant has committed uncharged

criminal acts th at are similar to the charged offense may be relevant if these

acts demonstrate circumstantially that the defendant committed the charged

offense pursuant to the same design or plan he or she used in committing the

uncharged acts.” ( Ewoldt , at p. 403.) B ut here the prosecution was not

trying to prove the existence of a “common design or plan

. ” ( Ibid. ) Rather, it

offered the evidence of Phonsongkham’s field interviews (which included

references to his possible spraying of gang graffiti) and the incident when he

carved OKB graffiti in the holding cell not to prove the shooting was a

recurrence of earlier, similar incidents

— plainly, there was no such

similarity

— but to prove he was a longstanding OKB member. It was this

gang affiliation which, in turn, asse rtedly supplied Phonsongkham with both20

the motiv e to retaliate against LV13 for its assault of his fellow gang member

by committing a shooting at LV13 gang members, and the intent to kill the m

. This was a different factual theory from the common plan or scheme

theory discussed in Ewoldt , but it was no less viable to support admission

under Evidence Code section 1101, subdivision (b). It is settled that the

prosecution may offer evidence of uncharged misconduct to prove issues of

motive or intent. ( Evid . Code, § 1101, subd. (b).) When offered for this

purpose, “ ‘t he probativeness of other

- crimes evidence on the issue of motive

does not necessarily depend on similarities between the charged and

uncharged crimes, so long as the offenses have a direct log ical nexus

. ’ ”

( Thomas

, supra , 14 Cal.5th at pp. 361

– 362 , italics added ; see People v.

Spector (2011) 194 Cal.App.4th 1335, 1381 [admission under § 1101,

subdivision (b), is permissible where “ ‘the uncharged act evidences the

existence of a motive, but t he act does not supply the motive

. . . . [T]he

motive is the cause, and both the charged and uncharged acts are effects.

Both crimes are explainable as a result of the same motive

. ’ ”] .)

Such a direct logical nexus between the officers’ testimony,

Pho nsongk h am’s OKB membership, and Phonsongkham’s commission of the

charged offenses exists here, as our discussion of the prosecution’s factual

theory has already established. Indeed, in his opening brief on appeal (albeit

in a different section from the on e in which he challenges admission of the

gang evidence under Evidence Code section 1101), Phonsongkham implici t ly

concedes the existence of a logical connection between the challenged

evidence and issues of motive, identity, and intent. He states : “The court’s

bifurcation of gang evidence [ sic ] meant that the People’s case would be

hamstrung without an ability to prove an underlying gang basis. Therefore,

in order to prove motive, identity or intent, evidence of appellant’s gang21

membership or associatio n with a gang, gang culture, or ‘gang dynamics’ as

the court framed it was relevant to these matters. In this respect, courts

have repeatedly held it is proper to introduce evidence of gang affiliation and

activity where such evidence is relevant to an is sue of motive or intent.”

The conclusion that the prosecution’s theory of admissibility under

Evidence Code section 1101, subdivision (b), was a sound one is supported by

People v. Valdez

, supra
, 55 Cal.4th 82, in which our high court considered the

pro priety of the admission of gang evidence to prove motive and identity

under a factual theory akin to the one pursued by the prosecution here. In

Valdez , “the prosecution’s theory was that the Mexican Mafia had directed

the Sangra gang to kill Dido Moreno because he had dropped out of the

Mexican Mafia, and that Sangra gang members

— including defendant and

[his confederate]

— obeyed that order because of their own gang allegiances.”

( Id. at pp. 130

‒ 131.) The Court held evidence of the defendant’s and his

con federate’s “membership in and level of commitment to [the] Sangra

[gang]” was admissible under section 1101, subdivision (b)

, to prove the

identity of the murderers as well as their motive to commit a gang

- related

killing. ( Ibid .)

We conclude the testi mony about Phonsongkham participating in

spraying gang graffiti and carving the OKB gang name in a holding cell was

not inadmissible under Evidence Code section 1101, subdivision (b), for the

purposes of proving motive

, intent, and identity, even though th e acts of

misconduct were not similar to the charged offenses.

F. No Violation of Evidence Code Section 352

Finally, Phonsongkham contends the gang evidence described in

categories (1) through (6) above was prejudicial and should have been

excluded under Evidence Code section 352 because it was cumulative. He22

claims the trial court exceeded the point of “ ‘just enough, but no more’ ” that

is the “tipping point beyond which prejudice outweighs probity.” 2 He

contends the defense theory regarding his mental state

— that Anthony’s text

message that said “ ‘ I love you ’ ” with “a bi g emoji with the arms out” showed

his relationship with Anthony was not a gang relationship, and that

Phonsong k ham acted in a heat of passion

— was “all but obliterated from

serious jury consideration by the overlay of gang evidence.” He also appears

to contend that section 352 is an ineffective safeguard to protect criminal

defendants against the prejudice created by the admission of gang evidence.

“T he People are generally entitled to introduce evidence of a

defendant ’ s gang affiliation and activity if it is relevant to the charged

offense. [Citation.] ‘ Evidence of the defendant ’ s gang affiliation

— including

evidence of the gang ’ s territory, membership, signs, symbols, beliefs and

p ractices, 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. ’ [Citation.] Even

when it is relevant, how ever, ‘ courts should carefully scrutinize evidence of a

defendant ’ s gang membership because such evidence “ creates a risk the jury

will improperly infer the defendant has a criminal disposition and is

therefore guilty of the offense charged

. ” ’ ” ( Chhoun

, supra
, 11 Cal.5th at

p. 31.)

2 Within his arguments advancing a n Evidence Code section 352 challenge to the trial court’s admission of gang evidence, Phonsongkham
appears to reassert his earlier position that As sembly Bill 333 limits the scope of gang evidence that can be introduced during the trial of criminal

offenses other than Penal Code section 186.22 gang enhancement allegations.
Because we have already considered and rejected this position, we do not

read dress it here.23

To comply with Evidence Code section 352, “[t]he trial court must find

that the evidence has substantial probative value that is not outweighed by

its potential for undue prejudice.” ( People v. Williams (2009) 170 Cal.App. 4th

587, 610 ( Williams ).) “ When the evidence has probative value, and the

potential for prejudice resulting from its admission is within tolerable limits,

it is not unduly prejudicial and its admission is not an abuse of discretion. ”

( People v. Tran (201 1) 51 Cal.4th 104 0

, 1049 ( Tran ) .)

Cumulative evidence “may be inadmissible under Evidence Code

section 352.” ( Williams

, supra
, 170 Cal.App.4th at p. 611.) “Although no

bright

- line rules exist for determining when evidence is cumulative,

. . . the

term ‘cumulative’ indeed has a substantive meaning, and the application of

the term must be reasonable and practical.” ( Ibid. ) “The prejudicial effect of

evidence defendant committed a separate offense may, of course, outweigh its

probative value if it is mer ely cumulative regarding an issue not reasonably

subject to dispute.” ( Tran

, supra
, 51 Cal.4th at p. 1049.)

As we discuss next

, Phonsongkham fails to establish that the trial

court’s admission of the challenged gang evidence, either individually or

cum ulatively, violated these standards.

1. The Challenged Gang Evidence Was Not Prejudicial When

Considered Individually

i) Detective Escamilla

⎯ Category (1)

The People argue that Phonsongkham forfeited his appellate challenge

to Detective Escamilla’s testimony a bout LV13 and the victims’ membership

in LV13

, because his motion in limine only sought to exclude gang evidence

related to him, not the victims, and defense counsel did not object to

Escamilla’s testimony at trial. We agree. (See People v. Holmes, McCla in

and Newborn (2022) 12 Cal.5th 719, 773 [claims of error in admission of gang24

evidence forfeited where defendant did not raise an objection under Evid.

Code, § 352].)

Phonsongkham responds that he preserved his evidentiary challenge to

the detective’s testimony by requesting bifurcation of the gang allegations.

But his bifurcation motion sought different relief on a different legal basis. It

was therefore inadequate to preserve his current claim of evidentiary error

under Evidence Code section 352. “[N]umerous decisions by [the California

Supreme Court] have established the general rule that trial counsel’s failure

to object to claimed evidentiary error on the same ground asserted on appeal

results in a forfeiture of the issue on appeal.” ( People v. Dykes (2009) 46

Cal.4th 731, 756 , italics added .) Phonsongkham asks us to exercise our

discretion to overlook the forfeiture. However, we are not authorized to do so

where, as here, the forfeited issue involves the admission of evidence. ( People

v. Wil liams (1998) 17 Cal.4th 148, 161, fn. 6; Evid. Code, § 353.)

The vast majority of Detective Escamilla’s testimony addressed the

territory of LV13, its subsets and rival gangs, and the LV13 gang

membership of Anthony’s assailants. As Phonsongkham has fo rfeited his

appellate challenge to the admission of this testimony, we do not consider

whether it was prejudicial.

To a lesser extent, Detective Escamilla also explained gang dynamics

, including concepts of defen ding gang territory, targeting rival gang members

who enter a gang’s claimed territory, “ ‘ putting in work ’ ” by backing up

fellow gang members, and avoiding the appearance of cooperating with law

enforcement. This testimony was highly probative of issues relevant to

determining Phonsongkham’s g uilt of the charged crimes

, including his

motive and intent in committing the shooting. It was also relevant to explain

why certain percipient witnesses (particularly J.C. and C.C.) were reluctant,25

even hostile, when questioned by counsel at trial. Phons ongkham fails to

establish that the probative value of this testimony was substantially

outweighed by its prejudicial effect.

ii) Detective Caropreso

⎯ Category ( 2 )

Detective Caropreso’s testimony about OKB’s territory, common gang

tattoos, and gang signs, incl uding his testimony that certain images showed

Phonson g kham “throwing” OKB gang signs, was relevant for the jury’s

interpret ation of photo graph s and testimony offered as circumstantial

evidence of Phonsongkham’s membership in OKB and was not unduly

prejudi cial.

iii) Detective Hernandez

⎯ Category ( 3 )

Detective Hernandez participated in investigating the current crimes

. His background with the San Diego Police Department included assignments

with its street gang unit. The only part of Hernandez’s testimony that

Phonsongkham challenges on appeal is his statement that gang members

“are usually involved in some type of criminal activity, either at the time that

they were contacted or sometime later on.”

Detective Hernandez made this statement in response to the

p rosecutor’s question asking why the San Diego Police Department’s gang

unit collected information about gang members. 3 Hernandez’s answer was

responsive to this question and was relevant to explain the purpose of

conducting field interviews of apparent ga ng members. Although this

3 Defense counsel did not object to the prosecutor’s question or move to

strike Detective Hernandez’s statement. (See People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 81

‒ 82 [failure to object or move to strike testimony forfeits the arg ument the testimony was inadmissible].) Although counsel’s inaction forfeits Phonsongkham’s current appellate challenge, we address the
challenge on the merits because the People have not asserted forfeiture

.26

statement arguably imputed a criminal disposition to gang members, its

prejudicial impact was mitigated by evidence of the specific field interviews

involving Phonsongkham. The only crime disclosed in the testimony

describing hi s field interviews was th at of spraying graffiti, and one in which

his only role involved serving as a lookout while his companion did the actual

spray painting. When considered in context, Hernandez’s testimony was “no

stronger and no more inflammatory t han the [evidence] concerning the

charged offenses.” ( Ewoldt

, supra
, 7 Cal.4th at p. 405.)

iv) Cell Phone Photos

⎯ Category ( 4 )

As for the admission of what Phonsongkham describes as “numerous

photos over a period of years that included [him] holding guns, i n one

possibly a Glock [i.e., the same model of gun as the handgun found under his

mattress], gang graffiti with the word ‘Temper’ (his aka) and screen shots of

[him] making gang signs alone or with others,” he fails to establish the

photographs were undul y prejudicial. 4

4 We are impeded in our ability to determine whether the photographs
were prejudicial because we have not been provided with a record revealing
what they showed. The photographs were marked as Exhibits 226 through

263 and were shown to the jury during the testimony of Detective Marco
Perez. Except for one instance that we discuss below, Perez was not asked to
describe what the photo graph s depicted. Phonsongkham did not request the transmission of Exhibits 226 through 263 to this court for consideration and

review as required by California Rule s of Court, rule s 8.320 and 8.224. (See

Cal. Rules of Court, rules 8.320(e) [“ Exhibits admitted in evidence . . . are deemed part of the record, but may be transmitted to the reviewing court only as provided in rule 8.224.”], 8.224(a)(1) [“a party wanting the reviewing
court to consider any original exhibits that were admitted in evidence . . . but that were not copied in the clerk’s transcript under rule 8.122 or the
appendix under rule 8.124 must serve and file a notice in superior court
designating such exhi bits”].) I t is the appellant ’s burden to present a record adequate for review and to affirmatively demonstrate error. ( People v.

Whalen (2013) 56 Cal.4th 1, 85 ; see ibid. [where defendant fails to supply a27

The photographs were recovered from the three cell phones found in

Phonsongkham’s garage bedroom and Honda Accord

. They were introduced

in evidence through the testimony of Detective Perez, who testified about law

enforcement’s collecti on of evidence from the cell phones. According to Perez,

the photographs were taken between 2014 and 2018.

After 10 of the cell phone photographs were shown to the jury, defense

counsel objected that the photo graph s were cumulative. The prosecution

re sponded that they were admissible to support the gang expert’s anticipated

opinion that Phonsongkham was an OKB member, and to show that

Phonson g kham was a longstanding member of OKB. The trial court

overruled the objection. It explained that it did not find the contents of the

photo graph s to be unduly prejudicial to the defense, and that the number of

photo graph s was arguably helpful to the defense because it showed “the

degree of [ his ] gang involvement” which was “important” to the heat of

passion defen se because “that’s why he had such a strong reaction.” Defense

counsel agreed, saying “You are on the right track.”

Phonsongkham does not challenge this reasoning, which both

establishes the probative value of the photographs and tends to refute his

app ellate claim that the photographs were prejudicial. Nor are we persuaded

there was any such prejudice. Even if we assume, as he claims, that the

record adequate to review his claim of error, “[ the claim] fails”].) We cannot
determine whether the photographs were prejudicial without knowing what they revealed. Phonsongkham’s failure to compile an appellate record
allowing this court to consider the content of all of the challenged photos

forfei ts his claim they were cumulatively prejudicial. In any event, his
challenge also fails on the merits.28

photo graph s “included [him] holding guns, [ 5 ] in one possibly a Glock, gang

graffiti with the word ‘Temper’ (h is aka) and screen shots of [him] making

gang signs alone or with others

, ” the photo graph s were relevant to establish

his membership and dedication to the OKB gang and were not more

inflammatory than the current offenses. ( Ewoldt

, supra
, 7 Cal.4th at p. 4 05.)

The photo of gang graffiti that said “Temper” could not have prejudiced the

defense; Phonsongkham’s gang moniker of “Temper” was one of the pillars of

its heat of passion theory. The fact that Phonsongkham made gang hand

signs tended to establish hi m as a member of OKB and was not unduly

prejudicial.

(v) Law Enforcement Testimony About Field Interviews and

Holding Cell Graffiti

⎯ Categories (5) and (6)

As we have discussed, four officers testified about three field interviews

with Phonsongkham that to ok place in November 2015, April 2017, and

October 2018. One crime

— spray painting graffiti

— was revealed during this

testimony. Deputy Barrios testified about his July 2020 discovery of the OKB

gang name carved in the holding cell after it was occupied (a lone) by

Phonsongkham. The evidence of the field interviews and holding cell graffiti

was relevant to show he was a longstanding member of OKB who not only

remained a gang member at the time of the May 2019 offense, but was

sufficiently committed to his g ang and entrenched in gang culture that he

would react violently to the news of a rival gang’s assault of an OKB gang

5 E xhibits 226 through 263 were shown to the jury as Detective Perez

testified. The only photograph he described in his testimony was a single
photo graph introduced as E xhibit 253. Perez testified the individual in this
photograph was Phonsongkham, and that he “appear[ed]” to have “a
handgun, maybe a Glock handgun,” in his hand. Perez testified he located

additional photos of Phonsongkham with firea rms, but it was not clear these
photos were shown to the jury.29

member. Although crimes were revealed during this testimony, they were no

more inflammatory than the charged crimes. ( Ewoldt

, supra
, 7 C al.4th at

p. 405.)

2. The Challenged Gang Evidence Was Not Prejudicial When

Considered Collectively

In addition to determining that no undue prejudice resulted from

introduction of the individual items of evidence Phonsongkham challenges,

we also are not pe rsuaded they were impermissibly cumulative or unduly

prejudicial in the aggregate

.

In Williams

, the case on which Phonsongkham principally relies, the

defendant was charged with four counts of nonviolent substantive offenses, 6

a fifth count of participa tion in a criminal street gang under Penal Code

section 186.22, subdivision (a), and gang enhancement allegations under

section 186.22, subdivision (b), attached to the first four counts. ( Williams

,

supra
, 170 Cal.App.4th at p. 595.) In the course of the defendant’s

unbifurcated trial, the trial court admitted evidence of three prior crimes

involving the defendant; 15 additional crimes and law enforcement contacts

involving the defendant; as well as eight gang

- related crimes, two of which

involved the def

endant, that were designated as predicate offenses. ( Id. at

pp. 598

− 602.) Some of the crimes were introduced multiple times and for

multiple purposes, “including (1) under Evidence Code section 1101,

subdivision (b), (2) as predicate crimes for the gang enhancements and [the]

6 F elon in possession of a firearm ( Pen. Code, former § 12021, subd. (a)(1) ) and ammunition ( Pen. Code, former § 12316, subd. (b)(1) )

, possession

of methamphetamine (Health & Saf. Code, § 113 77, subd. (a) )

, and possession

of a controlled substance while armed (Health & Saf. Code, § 11370.1).
( Williams, supra, 170 Cal. A pp.4th at p. 595.)30

substantive gang crime, and (3) as the basis for expert opinion testimony.”

(See id. at p. 598, fn. 5.)

The appellate court concluded it was “an abuse of discretion to admit

cumulative evidence concerning issues not reasonably su bject to dispute. The

sheer volume of evidence extended the trial

— and the burden on the judicial

system and the jurors

— beyond reasonable limits, and the endless discussions

among the trial court and counsel concerning the admissibility of such

evidence am ounted to a virtual street brawl.” ( Williams

, supra
, 170

Cal.App.4th at p. 611.)

Phonsongkham does not contend the evidence he challenges concerned

issues not reasonably subject to dispute. To the contrary, in his opening brief

on appeal, he explic itly acknowledges that “[t] o prove an underlying gang

motive and intent, it was essential that the jury understand: (1) that the

OKB and LV13 are rival gangs, (2) that [Phonsongkham] and [Anthony] were

OKB gang members or associates, while [Carlos] and th e group he was with

were gang members or associates, (3) that rival gangs will fight and defend if

one of their members is hurt or risk consequences from the gang, and (4) that

witnesses are recalcitrant to testify, fearful of retaliation if they cooperate

with police .” (Italics added.) We agree. And the gang evidence in categories

(1) through (6) above tended to prove one or more of these points, which in

turn served to establish Phonsongkham’s motive and intent in committing

the shooting, which were th e critical issues in dispute at trial. And although

the evidence in categories (4), (5), and (6) were admitted for the same

purpose

— to prove Phonsongkham’s membership and degree of commitment

in the OKB gang

— each individual item of evidence, on its own, w as relatively

weak. There were no outright admissions of gang membership by

Phonsongkham. It was only in the aggregate that the evidence tended to31

support the prosecution’s position that Phonsongkham was a longstanding,

committed gang member and remained affiliated with OKB at the time of the

shooting. Defense counsel’s questioning of law enforcement witnesses elicited

that Phonsongkham had covered over his 49th Street tattoo, suggesting

Phonsongkham may have withdrawn or at least distanced himself from the

gang before the May 23, 2019 shooting. Thus, the issue and depth of his

commitment to the gang was reasonably in dispute, and the quantity of

evidence offered on these points was not unreasonable.

Phonsongkham’s chief complaint is that while the chal lenged gang

evidence was probative, not all of it was necessary. In his view, the jury

would have been equally capable of evaluating his motive and intent, among

other relevant issues, with only a subset of the evidence. But

Phonsongkham’s capacity to im agine an effective trial presentation on a

lesser showing does not establish that the trial court abused its discretion by

admitting a broader scope of evidence. “[T] he prosecution cannot be

compelled to ‘ “ present its case in the sanitized fashion sugges ted by the

defense

. ” ’ ” ( Tran

, supra
, 51 Cal.4th at p. 1049

, quoting People v.

Salcido (2008) 44 Cal.4th 93, 147.)

Phonsongkham’s other arguments are equally unavailing. His

complaint that the defense theory that his relationship with Anthony

transce nded gang membership was “all but obliterated from serious jury

consideration by the overlay of gang evidence” does not establish the type of

prejudice Evidence Code section 352 was designed to pr event

. “ ‘ “The

prejudice that section 352 ‘ “is designed t o avoid is not the prejudice or

damage to a defense that naturally flows from relevant , highly probative

evidence .” ’ ” ’ ” ( Tran , supra
, 51 Cal.4th at p. 1048.) “[T]hat t he evidence32

tended to establish elements of the prosecution’s case did not render i t

prejudicial for purposes of Evidence Code section 352 .” ( Id. at p. 1050.)

Phonsongkham complains that Detective Escamilla’s testimony took up

65 pages of the trial record and Detective Caropreso’s testimony took up 33

pages of the trial record. Howe ver, the vast majority of Escamilla’s testimony

pertained to LV13, and (as we have discussed) Phonsongkham has forfeited

any objection under Evidence Code section 352 to the admission of this

testimony. Also, the “length of [a] gang expert’s testimony alo ne” does not

establish it to have been cumulative or unduly prejudicial. ( People v. Coneal

(2019) 41 Cal.App.5th 951, 964.) In comparison with the 1,856 pages of

witness testimony in the reporter’s transcript, Escamilla and Caropreso’s

testimony was not excessive and did not exceed reasonable limits. Nor did

the volume of the challenged evidence as a whole approach anything near the

circumstance that led the Williams court to declare the admission of evidence

impermissibly cumulative. (See Williams

, sup ra
, 170 Cal.App.4th at p. 611.)

And to the extent Phonsongkham argues that Evidence Code section

352 is not an effective safeguard “against a fundamentally unfair trial,” our

role is to apply section 352 as written, not to expand upon it. (See In re J.C.

(2017) 13 Cal.App.5th 1201, 1207 [“ ‘Courts do not sit as super

- legislatures to

determine the wisdom, desirability or propriety of statutes enacted by the

Legislature.’ ”].)

Finally, the trial court gave a limiting instruction, which mitigated any

pote ntial for prejudice created by introduction of the gang evidence. “ As part

of the [Evidence Code] section 352 prejudice analysis, courts consider

whether the trial court gave a limiting instruction. A limiting instruction can

ameliorate section 352 preju dice by eliminating the danger the jury could

consider the evidence for an improper purpose.” ( People v. Hendrix (2013)33

214 Cal.App.4th 216, 247; see People v. Foster (2010) 50 Cal.4th 1301, 1332

[where the jury was instructed not to consider prior crimes evidence to prove

that defendant was a person of bad character, th us “ ‘minimizing the

potential for improper use’ ”] .) The court instructed the jury pursuant to

CALCRIM No. 1403 that it could not consider the gang evidence to prove that

he was “a person of bad character” with “a disposition to commit crime.” We

presume the jury followed the court’s instruction. ( Ramos

, supra , 77

Cal.App.5th at p. 1132.)

In sum, we conclude the trial court did not abuse its discretion under

Evidence Code section 352 by admitting the gang evidence summarized in

categories (1) through (6) above. Because there was no state law evidentiary

error, Phonsongkham’s state and federal constitutional rights to due process

of law were not violated. 7 ( People v. Hovarter (2008) 44 Cal.4th 983, 1010

( Hovarter ) [“The ‘routine application of state evidentiary law does not

implicate [a] defendant’s constitutional rights.’ ”].)

II.

We Do Not Consider Phonsongkham’s Withdrawn Claim That He Is Entitled

to a n Additional Day of Presentence Custody Credits

At sentencing, the trial court gave Phonsongkham credit for 1,009 days

of presentence custody credits, a calculation that was based on a confinement

date of May 24, 2019. In his opening brief on appeal, Phonsongkham took the

position he was deprived of one day of presentence credits because he was

arrested on May 23 at 11:00 p.m., not May 24. He withdrew this claim,

however, in response to the People’s counterargument that credits begin to

7 Because we find no error in the admission of the challenged evidence,

we need not and do not address t he merits of the parties’ competing
arguments regarding the harmlessness of the asserted error.34

accrue when a defendant is booked into jail, not when he is arrested ( People

v. Ravaux (2006) 142 Cal.App.4th 914, 919

‒ 921), and the evidence indicates

Phonsongkham’s booking could have taken place no sooner than May 24. As

this claim of error has been withdrawn, we do not consider it

.

III.

The Abstrac t of Judgment Must Be Corrected

The parties agree the trial court made a mathematical error when it

pronounced sentence. As noted above, the trial court sentenced

Phonsongkham to an indeterminate term of life without the possibility of

parole for the spe cial circumstances murder in count 1, and a total

determinate term of 13 years and four months for the attempted murders and

shooting at a n inhabited dwelling in counts 2 through 5. It also imposed and

executed five 25

- year

- to

- life terms, one for each of the firearm enhancement

allegation s under Penal Code section 12022.53, subdivision (d), attached to

counts 1 through 5. It ordered all of the terms to run consecutively.

In aggregating the terms

, the trial court stated the total sentence was

13 years, four months, plus 150 years to life , plus life without the possibility

of parole. Th e parties agree (as do we) that this was incorrect, because five

25

- year

- to

- life sentences equals 125 years to life , not 150 years to life.

Both parties take the furthe r position that this mathematical error was

not carried over into the abstract of judgment

. In this respect

, however, th ey

are in correct . Although the abstract of judgment correctly identifies each of

the individual term s imposed by the trial court

, it a lso contains the

inaccurate aggregation of the terms

. Specifically, section 16 of page two of

the abstract of judgment states , “Total term: 13.4 Years + 150 Years to Life +

Life without Parole.” (Italics added.)35

The trial court’s oral pronouncement of judgment controls over the

abstract of judgment. ( People v. Mitchell (2001) 26 Cal.4th 181, 185

– 188.)

There is no dispute the trial court’s oral pronounce ment of sentence resulted

in a total term of 13 years, four months, plus 125 years to life, plus life

without the possibility of parole, which is not the total term set forth in the

abstract of judgment. “ It is, of course, important that courts correct errors

and omissions in abstracts of judgment.” ( Id. at p. 185.) We will remand to

the trial cou rt with directions to correct the error.

DISPOSITION

The judgment is affirmed.

The matter is remanded to the trial court with directions to correct the

abstract of judgment to reflect that Phonsongkham’s total term is 13 years,

four months, plus 125 years to life, plus life without the possibility of parole.

The court shall forward a copy of the corrected abstract of judgment to the

Department of Corrections and Rehabilitation.

DO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DATO, J.