Filed 3/19/24 P. v. Sirypangno 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication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.

KONESAVANH DONALD 

SIRYPANGNO,

Defendant and Appellant.

 D080934

 (Super. Ct. No. SCD191585)

APPEAL from an order of the Superior Court of San Diego County, 

Peter C. Deddeh, Judge. Order affirmed; matter remanded with directions.

George L. Schraer, 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, Daniel 

Rogers and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

INTRODUCTION

In 2008, a jury convicted Konesavanh Donald Sirypangno1 of first 

degree murder, attempted murder, and assault with a semiautomatic 

firearm, with true findings he committed the crimes for the benefit of a 

criminal street gang, that he was a principal, and that a principal personally 

and intentionally discharged a firearm causing great bodily injury or death. 

After he prevailed in two petitions for writ of habeas corpus, his conviction for 

attempted murder was vacated and his conviction for first degree murder was 

reduced to second degree murder. 

In 2019, Sirypangno filed a petition under former Penal Code section 

1170.95, now section 1172.6,2 which altered liability for those convicted of 

murder under the felony murder rule or the natural and probable 

consequences doctrine. He argued in relevant part that his second degree 

murder conviction should be vacated because he could not now be convicted of 

second degree murder under the newly amended murder laws. 

In 2022, following an evidentiary hearing, the trial court denied 

Sirypangno’s petition, finding he remained liable for second degree murder 

under a still valid theory, namely that he directly aided and abetted a murder 

and did so with express malice. In this appeal, Sirypangno contends the 

court’s determination is not supported by substantial evidence. We disagree 

and affirm the order.

1 Sirypangno’s first name is sometimes spelled as “Konrsavanh” in the 

record. 

2 Unspecified statutory references are to the Penal Code. 
3

FACTUAL AND PROCEDURAL BACKGROUND

I.

Factual Background3

In 2005, Sirypangno and David Phommachanh were documented 

members of the Oriental Killer Boys (OKB) criminal street gang. 

Sirypangno’s gang moniker was “Reckless”; Phommachanh’s moniker was 

“Felon.” Other OKB members included Devin Giraud (“Striker”) and Steven 

Joyce (“Turtle”).4

On the evening of June 11, 2005, Phommachanh drove his cousin, 

Danny Boualouang, and Judy Rattana5 to a friend’s residence and later to a 

birthday party for a girl. Rattana was Phommachanh’s girlfriend and the 

mother of their daughter. Sirypangno, and Joyce and his girlfriend, Melissa 

Rasasack, drove to these locations in a separate vehicle. Giraud also was at 

the birthday party. At that party, Rattana learned some of her girlfriends 

were going to another party in Mira Mesa and decided to accompany them. 

3 The following factual background is taken nearly verbatim from this 

court’s opinion in People v. Sirypangno (Feb. 15, 2012, D055015) [nonpub. 

opn.] (Sirypangno I). 

4 Giraud and Joyce were charged as defendants in this case. Before trial, 

Joyce entered a negotiated guilty plea to voluntary manslaughter and an 

admission he committed the crime for the benefit of a criminal street gang. 

Giraud entered a negotiated guilty plea to being an accessory after the fact 

and admitted he committed the crime for the benefit of a criminal street 

gang.

5 Rattana was also charged as a defendant in this case, but entered a 

negotiated guilty plea to voluntary manslaughter and an admission she 

committed the crime for the benefit of a criminal street gang. As part of the 

plea agreement, Rattana agreed to testify truthfully at Sirypangno’s trial.
4

Rattana left the birthday party with her girlfriends. The plan was for 

Phommachanh to first pick up their daughter at her grandparent’s house and

take her home, then pick up Rattana at the Mira Mesa party and bring 

Rattana home.

Before Phommachanh went to the Mira Mesa party, he received a call 

on his cell phone. Boualouang heard Phommachanh tell someone to bring a 

“strap,” which is street jargon for a gun, because there might be “some 

problems” at the party.

At about 11 p.m., Phommachanh, Boualouang and Giraud went to the 

Mira Mesa party, which was in the backyard of a house. Sirypangno, Joyce 

and Rasasack went in a separate vehicle.

Access to the party was through a side gate to the backyard; admission 

cost $2. At first, Phommachanh and the others were not allowed to enter 

because there were too many people at the party. Phommachanh told the two 

young men who were manning the gate there would be trouble if he and his 

friends were not allowed inside. Rattana walked up to the young men at the 

gate and told them to let Phommachanh and the others in to avoid problems. 

Phommachanh, Boualouang, Giraud and Rasasack walked into the backyard 

without paying. Sirypangno and Joyce jumped over the backyard fence.

There were a number of altercations at the party that evening, 

including at least one before Phommachanh, Sirypangno and the others 

arrived. While Hasib Farhan, an invited guest, was standing near a young 

woman, he accidentally blew cigarette smoke in her face and almost burned 

her hair. An argument ensued, and Julie Nguyen, who was with the young 

woman, threatened to have Farhan jumped by OKB members if he did not 

apologize. Nguyen, who is known to her friends as “Mai,” is an affiliate of 
5

OKB. After Phommachanh and the others entered the backyard, they were 

greeted by Mai and the young woman.

At one point, some of the invited guests complained they were 

uncomfortable because Phommachanh and his group were “mad-dogging” or 

staring at people at the party.6 Farhan and some of his friends, all of whom

played football in high school, approached Phommachanh and Sirypangno

together and told them to calm down or they would have to leave. 

Sirypangno pulled up his shirt, removed a black semiautomatic gun from his 

waistband, racked a round and pointed the gun at Farhan. Although Farhan 

did not hear Sirypangno say “OKB” or “this is OKB” and did not see 

Phommachanh flash gang signs, others who were present testified they did. 

Once the gun was displayed, Farhan’s friends pushed him back into the 

house. Sirypangno and Phommachanh jumped over the back fence and onto 

a sidewalk. In the process, they knocked out one of the wood planks from the 

fence.

One of the party hosts, Natasha Richardson, who had gone outside with 

Farhan, approached Mai, tapped her on the shoulder and asked Mai to have 

Sirypangno put the gun away. Mai told Richardson not to touch her, yelled 

“OKB” and punched Richardson in the face.

After Sirypangno and Phommachanh jumped the fence, Sirypangno 

stayed on the sidewalk behind the backyard of the party house, but 

Phommachanh did not. Sirypangno became angry when he overheard 

portions of a conversation between Tylor Thompson (the victim in the murder 

count) and Jeremy Waller, who were standing near the fence. Waller and 

6 Neither the people hosting the party nor the invited guests were gang 

members.
6

Thompson were talking about a group of girls who had earlier been fighting 

and wondered where “the bitches” had gone. From the other side of the fence, 

Sirypangno said: “Who you guys calling a bitch?” According to Waller’s 

testimony, he and Thompson replied they were not talking to Sirypangno, 

they did not know him and they did not call him a bitch. Sirypangno threw a 

piece of wood over the fence at Waller and Thompson. When Waller and 

Thompson looked over the fence, Sirypangno pulled up his shirt and 

displayed the gun in his waistband.

K.A. (the victim in the attempted murder count) who also was a friend 

of Thompson, gave a slightly different version of the over-the-fence exchange 

between Thompson and Sirypangno. K.A. testified Sirypangno said: “What 

the fuck did you say?” Thompson replied: “I don’t know what you’re talking 

about, I don’t even know you, you’re tripping” and “I don’t know who the fuck 

you are.” Sirypangno said: “You fucking said something, what the fuck did 

you say, don't be a pussy.” Thompson responded: “Fuck you, suck my dick.” 

K.A. testified Sirypangno then said he would catch Thompson outside and 

threw a piece of wood at them. E.N., a long-time friend of Phommachanh, 

provided another version of this exchange. E.N., who is not a gang member, 

testified Thompson said something to the effect that “these guys are not real 

gangsters[;] they’re just bitches.” Upon hearing this, Sirypangno responded 

by saying: “I’m a real fucking gangster[;] you’ll see when you get out.”

After the Sirypangno-Thompson exchange, K.A., Thompson, his 

girlfriend, and Brandon Guaderrama, who went to the party with Thompson, 

remained in the backyard for 15 to 20 minutes before leaving to allow 

tempers to calm down.

Meanwhile, Phommachanh, Rattana and Boualouang decided to leave 

the party and go home. As the trio started walking to the car, Giraud called 
7

out Phommachanh’s name and asked him to return. Phommachanh and 

Boualouang walked back to see what Giraud wanted while Rattana continued 

walking to the car. A visibly upset Sirypangno then approached 

Phommachanh and told him about his exchange with Thompson. According 

to Boualouang, Phommachanh told Sirypangno not to worry about it and 

tried to calm him down. While Sirypangno and Phommachanh were talking, 

Rattana drove up to the house. As Phommachanh stepped into the front 

passenger seat, Sirypangno handed him the gun. When Rattana asked 

Phommachanh about the gun, he replied he was just holding it. 

Phommachanh then put the gun inside the glove compartment. Rattana 

drove away and headed home.

Within five minutes, Phommachanh received a cell phone call to come 

back and pick up Sirypangno. The call was made by E.N. at Sirypangno’s 

request. When they returned, Phommachanh put a bandana over his face, 

removed the gun from the glove compartment and stepped out of the car. 

Phommachanh waved the gun and shouted “who wants it”; he then joined 

Sirypangno, Joyce and Giraud, who were lined up in front of the house 

waiting for Thompson to emerge from the backyard. When Thompson came 

out, Sirypangno approached him, said “you the fool that fucking told me to 

suck your dick,” and punched or tried to punch him in the face. Guaderrama 

then tackled Sirypangno, and Joyce joined the fight as well. Anderson tried 

to get Thompson to stop fighting and pull him away.

Phommachanh pointed the gun at Thompson, who put his hands up 

and said “no.” He pulled the trigger but when the gun did not fire, 

Phommachanh racked back the slide of the gun to clear the unfired round. 

He then fired five shots, striking both Thompson and K.A. Thompson and 

K.A. struggled to get up and run away, but both collapsed.
8

Phommachanh, Sirypangno, Joyce and Boualouang got into the car and 

Rattana drove away. The group discovered Joyce had been shot in the foot. 

Phommachanh gave the gun to Sirypangno. Sirypangno then told Rattana to 

drive to Giraud’s house because they needed to hide “the strap.” Rattana 

dropped off Phommachanh and Sirypangno at Giraud’s house, where the gun 

was hidden in a rice bin.7 Rattana then drove home with Joyce and 

Boualouang. Phommachanh phoned Rattana and told her to get rid of 

Boualouang’s clothes, which had blood on it from Joyce’s wound. When 

Phommachanh returned home, he tried to clean the blood from his car. He 

told Rattana and Boualouang to say he was at home that night if anyone 

asked. Phommachanh also phoned E.N., who had witnessed the shooting, 

and told him not to tell anyone what had happened.

Thompson bled to death. He had two gunshot wounds to the left side of 

his body that could have been caused by the same bullet. One wound was to 

the left arm; the other wound was to his left flank. The bullet that entered 

the left flank severed the iliac artery and vein.

K.A. had gunshot wounds to her abdomen and right hip. She had 

surgery to remove her ruptured appendix and half of her colon. She was in 

the hospital for five days.

Detective Daniel Hatfield of the San Diego Police Department’s gang 

unit testified that at the time of the shooting, OKB was an Asian criminal 

street gang with 106 documented members. Hatfield said OKB engaged in a 

7 During a search of Giraud’s residence, police located the firearm, which 

was a .45 caliber semiautomatic handgun. Ballistics tests showed the gun 

fired the shell casings that were found at the crime scene. Testing of the 

DNA collected from the gun was a mixture of three possible DNA 

contributors: Phommachanh, Sirypangno and a third person.
9

pattern of criminal gang activity and the gang’s primary activities were 

serious assaults, burglaries, automobile thefts and murders.

Detective Hatfield also discussed gangs in general and explained that 

reputation and respect are of upmost importance to gangs because they 

enable a gang to instill fear among rival gangs and people who live in the 

community. People who live in the community often are reluctant to testify 

against gang members because they fear retaliation from the gang. Gang 

members gain respect by committing violent crimes and by backing up their 

fellow gang members in fights. Hatfield also testified that disrespect to a 

gang member is considered disrespect to the entire gang. Such disrespect can 

take many forms, including a person looking at a gang member in the “wrong 

way.” Gang fights easily escalate into violence. When gang members are 

involved in crimes, including murder, the gang’s reputation for violence 

increases and the community’s fear of and intimidation by the gang 

increases. 

II.

Procedural Background

Sirypangno and Phommachanh were charged in an amended 

information with murder (§ 187, subd. (a); count 1), attempted murder 

(§§ 187, subd. (a), 664; count 2), and assault with a semi-automatic firearm 

(§ 245, subd. (b); count 3). It was further alleged that Sirypangno was a 

principal, that at least one principal personally used a firearm in the 

commission of the murder and attempted murder, proximately causing great 

bodily injury or death (§ 12022.53, subds. (d), (e)(1)), and that both 

Sirypangno and Phommachanh committed all three of the charged crimes for 

the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). 
10

In 2008, a jury found Sirypangno guilty as charged. In Sirypangno I, 

this court affirmed his convictions.8 (Sirypangno I, supra, D055015.) 

In 2018, this court granted Sirypangno’s petition for writ of habeas 

corpus in which he alleged his jury was improperly instructed on the natural 

and probable consequences theory of aiding and abetting first degree 

premeditated murder. (In re Sirypangno (June 25, 2018, D073602) [nonpub. 

opn.] (Sirypangno II); see People v. Chiu (2014) 59 Cal.4th 155, 158–159 

(Chiu) [“We now hold that an aider and abettor may not be convicted of first 

degree premeditated murder under the natural and probable consequences 

doctrine. Rather, his or her liability for that crime must be based on direct 

aiding and abetting principles.”]; In re Martinez (2017) 3 Cal.5th 1216, 1225 

(Martinez) [holding the federal “beyond a reasonable doubt” standard applies 

when determining the prejudicial effect of a jury instruction marred by Chiu

error].) We vacated Sirypangno’s conviction for first degree murder and 

directed the superior court to modify the judgment to second degree murder if 

the People did not elect to retry Sirypangno for first degree murder. The 

People chose not to retry Sirypangno. In 2019, the trial court reduced 

Sirypangno’s murder conviction to second degree murder and resentenced 

him.

In 2018, the Legislature passed Senate Bill No. 1437 (2017‒2018 Reg. 

Sess.) (Senate Bill 1437), which eliminated the natural and probable 

consequences theory of liability as a basis for a murder conviction. (Stats. 

2018, ch. 1015, § 2.) In 2019, Sirypangno filed a petition for resentencing 

under former section 1170.95, which has since been renumbered as section 

8 Phommachanh was tried separately.
11

1172.6 (Stats. 2022, ch. 58, § 10),9 challenging the validity of his second 

degree murder conviction under the murder laws as amended by Senate Bill 

1437. In 2020, after appointing counsel, the trial court denied the petition 

without issuing an order to show cause after concluding Sirypangno had not 

succeeded in making a prima facie showing of entitlement to relief. 

In 2021, we granted Sirypangno’s petition for writ of habeas corpus and 

vacated his attempted murder conviction after accepting the People’s 

concession that the kill zone instruction provided to the jury with respect to 

his attempted murder charge was legally erroneous under People v. Canizales

(2019) 7 Cal.5th 591. (In re Sirypangno (Oct. 14, 2021, D078705) [nonpub. 

opn.] (Sirypangno III); see Canizales, at pp. 607–608 [holding the kill zone 

theory applies where the defendant has a primary target and “ ‘reasons [that] 

he cannot miss that intended target if he kills everyone in the area in which 

the target is located,’ ” but does not apply where the defendant “acted with 

only conscious disregard of the risk of serious injury or death for those 

around a primary target”].) We remanded the matter to the trial court with 

directions to allow the People to elect to retry Sirypangno on the attempted 

murder charge. At the evidentiary hearing held in 2022 with respect to 

Sirypangno’s resentencing petition, the People informed the trial court they 

would not retry Sirypangno on the attempted murder charge, and the court 

granted the People’s motion to dismiss that count. 

Also in 2021, and concurrently with our decision in Sirypangno III, we 

reversed the trial court’s order denying Sirypangno’s petition for 

resentencing. (People v. Sirypangno (Oct. 14, 2021, D078188) [nonpub.opn.]

(Sirypangno IV).) In Sirypangno IV, we accepted the People’s concession that 

9 For clarity, we will simply refer to section 1172.6. 
12

the trial court erred and deviated from the statutorily mandated procedure 

for adjudicating resentencing petitions by engaging in factfinding at the 

prima facie stage. We remanded the matter to the trial court with directions 

to issue an order to show cause and hold an evidentiary hearing to determine 

whether Sirypangno was eligible to be resentenced on his murder conviction.

In July 2022, following remand and further briefing from the parties, 

the trial court held an evidentiary hearing. The prosecution, relying on the 

record of the jury trial, argued that Sirypangno was ineligible for 

resentencing because the evidence demonstrated beyond a reasonable doubt 

that Sirypangno was an aider and abettor of second degree murder who acted 

with implied malice. Sirypangno, also relying on the trial record, argued the 

evidence failed to demonstrate that he harbored implied malice.

In September 2022, the trial court issued an order denying 

Sirypangno’s resentencing petition under section 1172.6. The court found the 

evidence showed beyond a reasonable doubt that Sirypangno “did, with the 

intent to kill, aid and abet the actual killer in the commission of second 

degree murder.” This fifth appeal followed.

DISCUSSION

I.

Our Decision in Sirypangno II Did Not Preclude the Trial Court from Finding 

That Sirypangno Was a Direct Aider and Abettor of the Murder

Before we discuss Sirypangno’s substantial evidence challenge, we 

must first consider an argument he raises under the doctrine of the law of the 

case. His argument is based on our decision in Sirypangno II, in which we 

vacated his first degree murder conviction after finding the trial court 

committed Chiu error by giving the jury an instruction that permitted it to 

convict him of first degree murder on a natural and probable consequences 
13

theory. (See Sirypangno II, supra, D073602; Chiu, supra, 59 Cal.4th at 

pp. 158–159 [aider and abettor may not be convicted of first degree 

premeditated murder under the natural and probable consequences 

doctrine].) 

In Sirypangno II, after concluding the instruction given to Sirypangno’s 

jury was not materially different from the instruction deemed erroneous in 

Chiu, we considered whether the error was harmless. The relevant 

harmlessness standard permitted us to affirm only if we concluded beyond a 

reasonable doubt that the jury actually relied on a direct aiding and abetting 

theory, which remained a legally valid theory of first degree murder after 

Chiu. (See Martinez, supra, 3 Cal.5th at p. 1218 [“Chiu error requires 

reversal unless the reviewing court concludes beyond a reasonable doubt that 

the jury actually relied on a legally valid theory in convicting the defendant 

of first degree murder”].) The People, who bore the burden of establishing 

harmlessness under this standard, did not “point to anything in the verdict 

showing beyond a reasonable doubt that the jury made the findings necessary 

to convict Sirypangno as a direct aider and abettor.” Instead, they asserted 

the evidence in the record demonstrated beyond a reasonable doubt that the 

jury necessarily relied only on a direct aiding and abetting theory when it 

convicted Sirypangno of first degree murder. 

In analyzing the merits of the People’s harmlessness argument, we 

made several statements conveying our view of the facts and of the relative 

strength of the evidence supporting the valid aiding and abetting theory 

versus the invalid natural and probable consequences theory. We stated, for 

example, that Sirypangno’s attack of Thompson “raises a reasonable doubt in 

this court regarding what Sirypangno believed Phommachanh would do and 

when he would do it.” As another example, we commented that while the 
14

evidence “shows a tacit agreement that Phommachanh would return to the 

party,” it was “not entirely clear from the record . . . whether Sirypangno and 

Phommachanh agreed on what the backup would entail.” We further stated

that it was “not clear from the evidence that Sirypangno assailed Thompson 

knowing and intending that Phommachanh should shoot him,” that we found 

it “reasonably plausible that Sirypangno thought Phommachanh would point 

the gun at Thompson to scare him, like Sirypangno had done to another 

individual earlier at the party,” and that the fact that Phommachanh shot 

Thompson “does not prove that Sirypangno shared the same intent as 

Phommachanh.”

Sirypangno contends the trial court was bound by these comments from 

Sirypangno II under the doctrine of the law of the case, and was precluded 

from finding he acted as a direct aider and abettor who harbored an intent to 

kill. He characterizes our statements in Sirypangno II as “a judicial 

determination that the evidence presented at [his] trial did not prove beyond 

a reasonable doubt that [Sirypangno], while harboring an intent to kill, 

directly aided and abetted Phommachanh in the commission of murder.”

We disagree. The law of the case doctrine provides that when an 

appellate court “states in its opinion a principle or rule of law necessary to 

the decision, that principle or rule becomes the law of the case and must be 

adhered to throughout its subsequent progress, both in the lower court and 

upon subsequent appeal . . . , and this although in its subsequent 

consideration this court may be clearly of the opinion that the former decision 

is erroneous in that particular.” (Kowis v. Howard (1992) 3 Cal.4th 888, 892–

893.) “The principle applies to criminal as well as civil matters.” (People v. 

Shuey (1975) 13 Cal.3d 835, 841 (Shuey).) However, the “application of the 

rule is . . . subject to the qualifications that ‘the point of law involved must 
15

have been necessary to the prior decision, that the matter must have been 

actually presented and determined by the court, and that application of the 

doctrine will not result in an unjust decision.’ ” (Id. at p. 842; see 

Quackenbush v. Superior Court (2000) 79 Cal.App.4th 867, 874 

(Quackenbush) [“dicta . . . is not binding on the parties, the trial court or 

[intermediate appellate] court as law of the case”].) 

There are three reasons why Sirypangno’s reliance on the doctrine of 

the law of the case is unavailing. First, in Sirypangno II we were presented 

with a claim of instructional error, not an insufficiency of the evidence 

challenge. We determined only that the record failed to demonstrate beyond 

a reasonable doubt that the jury exclusively relied on a direct aiding and 

abetting theory, and not on a natural and probable consequences theory, in 

convicting Sirypangno of first degree murder. We neither considered nor 

decided whether there was insufficient evidence in the record upon which to 

conclude beyond a reasonable doubt that Sirypangno was guilty under a 

direct aiding and abetting theory. Thus, the issue raised in Sirypangno’s 

resentencing petition was not “ ‘actually presented and determined by [this] 

court’ ” in Sirypangno II. (Shuey, supra, 13 Cal.3d at p. 842.)

Second, contrary to Sirypangno’s argument, in Sirypangno II we 

expressly refrained from finding the trial evidence insufficient to support the 

conclusion that he acted as a direct aider and abettor. We stated: “Although 

it may be that this evidence would be sufficient to support a conviction under 

a direct aiding and abetting theory, the evidence also supports the theory 

that the murder was a natural and probable consequence of gang motivated 

battery.” 

Third, the relevant question in Sirypangno II was whether we could 

determine beyond a reasonable doubt that the jury’s verdict finding him 
16

guilty of first degree murder was based only on the still-valid direct aiding 

and abetting theory such that the error in instructing the jury with the 

invalid natural and probable consequences theory was harmless. The 

assertions in which we offered our view of the facts and of the persuasiveness 

of the People’s aiding and abetting theory went further than was necessary to 

answer this question. Our factual commentary was therefore “not necessary 

or essential to our decision[ and] was dicta.” (Quackenbush, supra, 79 

Cal.App.4th at p. 874.) 

Accordingly, we reject Sirypangno’s contention that the foregoing 

comments from Sirypangno II were binding on the trial court as law of the 

case so as to preclude it from finding him guilty of second degree murder on a 

direct aiding and abetting theory. 

II.

Substantial Evidence Supports the Trial Court’s Finding That Sirypangno Is 

Guilty of Second Degree Murder Because He Directly Aided and Abetted 

Thompson’s Murder and Acted with Express Malice

A. Legal Principles

1. Senate Bill 1437 and Senate Bill No. 775

Senate Bill 1437 “was enacted to ‘ “amend the felony murder rule and

the natural and probable consequences doctrine, as it relates to murder, to

ensure that murder liability is not imposed on a person who is not the actual

killer, did not act with the intent to kill, or was not a major participant in the

underlying felony who acted with reckless indifference to human life.” ’ ” 

(People v. Didyavong (2023) 90 Cal.App.5th 85, 93 (Didyavong).) “Senate Bill

1437 did this by amending section 188, which defines malice, and section 189,

which defines the degrees of murder. . . . Amended section 188 states: 

‘Except as stated in subdivision (e) of Section 189, in order to be convicted of 
17

murder, a principal in a crime shall act with malice aforethought. Malice 

shall not be imputed to a person based solely on his or her participation in a 

crime.’ (§ 188, subd. (a)(3).) Amended section 189 states: ‘A participant in 

the perpetration or attempted perpetration of a felony listed in subdivision 

(a) in which a death occurs is liable for murder only if one of the following is 

proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not 

the actual killer, but, with the intent to kill, aided, abetted, counseled, 

commanded, induced, solicited, requested, or assisted the actual killer in the 

commission of murder in the first degree. [¶] [or] (3) The person was a major 

participant in the underlying felony and acted with reckless indifference to 

human life, as described in subdivision (d) of Section 190.2.’ (§ 189, 

subd.(e).)” (Didyavong, at p. 94, first citation omitted.) 

“Senate Bill 1437 also established resentencing relief for eligible

defendants. . . . Under former section 1170.95 (now § 1172.6, subd. (a)), ‘[a]

person convicted of felony murder or murder under a natural and probable

consequences theory may file a petition’ with the sentencing court to have his

or her murder conviction vacated and to be resentenced on any remaining

counts ‘when all of the following conditions apply: [¶] (1) A complaint,

information, or indictment was filed against the petitioner that allowed the

prosecution to proceed under a theory of felony murder or murder under the

natural and probable consequences doctrine. [¶] (2) The petitioner was

convicted of first degree or second degree murder following a trial or accepted

a plea offer in lieu of a trial at which the petitioner could be convicted for first

degree or second degree murder. [¶] (3) The petitioner could not be convicted

of first or second degree murder because of changes to Section 188 or 189

made effective January 1, 2019’ under Senate Bill 1437. After receiving a

petition containing the required information, ‘the court must evaluate the
18

petition “to determine whether the petitioner has made a prima facie case for

relief.” ’ . . . If the defendant makes a prima facie showing of entitlement to 

relief, the court must issue an order to show cause and hold an evidentiary 

hearing.” (Didyavong, supra, 90 Cal.App.5th at p. 94, citations omitted.) 

“Effective January 1, 2022, Senate Bill No. 775 (2021–2022 Reg. 

Sess.) (Senate Bill 775) amended section 1172.6 to clarify certain aspects of

the law, including that (1) the burden of proof at a resentencing hearing

under this section is ‘on the prosecution to prove, beyond a reasonable doubt,

that the petitioner is guilty of murder’ under California law as amended by

Senate Bill 1437 and (2) ‘[a] finding that there is substantial evidence to

support a conviction for murder . . . is insufficient to prove, beyond a

reasonable doubt, that the petitioner is ineligible for resentencing.’ . . . 

Senate Bill 775 [also] clarified that the trial court’s role in a section 1172.6

proceeding is to act as an independent fact finder and determine, in the first

instance, whether the petitioner committed murder under the law as

amended by Senate Bill 1437.” (Didyavong, supra, 90 Cal.App.5th at pp. 94–

95, citations omitted.) 

2. Aiding and Abetting Second Degree Murder

Although Senate Bill 1437 eliminated natural and probable 

consequences liability for second degree murder, a defendant who did not 

personally kill may still be convicted of second degree murder under a direct 

aiding and abetting theory. (People v. Reyes (2023) 14 Cal.5th 981, 990; 

People v. Gentile (2020) 10 Cal.5th 830, 848–849 (Gentile).) “ ‘One who 

directly aids and abets another who commits murder is thus liable for murder 

under the new law just as he or she was liable under the old law.’ ” (People v. 

Vargas (2022) 84 Cal.App.5th 943, 953 (Vargas).)
19

“Second degree murder is the unlawful killing of a human being with

malice aforethought but without the additional elements, such as willfulness,

premeditation, and deliberation, that would support a conviction of first

degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151.) “Malice can 

be express or implied. It is express when there is a manifest intent to kill 

(§ 188, subd. (a)(1)); it is implied if someone kills with ‘no considerable 

provocation . . . or when the circumstances attending the killing show an 

abandoned and malignant heart’ (§ 188, subd. (a)(2)).” (Gentile, supra, 10 

Cal.5th at p. 844; see also People v. Superior Court (Valenzuela) (2021) 73

Cal.App.5th 485, 500 [explaining that a killing is committed with implied 

malice when it is proximately caused by “ ‘ “an act, the natural consequences

of which are dangerous to life, which act was deliberately performed by a

person who knows that his conduct endangers the life of another and who

acts with conscious disregard for life” ’ ”].) 

Liability for a crime extends to the direct perpetrators of a crime as 

well as those who aid and abet the crime’s commission. (See § 31; Gentile, 

supra, 10 Cal.5th at p. 843 [“A person who aids and abets the commission of a 

crime is culpable as a principal in that crime.”].) “Guilt as an aider and 

abettor is guilt ‘based on a combination of the direct perpetrator’s acts and 

the aider and abettor’s own acts and own mental state.’ ” (People v. Powell

(2021) 63 Cal.App.5th 689, 710.) “[P]roof of aider and abettor liability 

requires proof in three distinct areas: (a) the direct perpetrator’s actus reus—

a crime committed by the direct perpetrator, (b) the aider and abettor’s mens 

rea—knowledge of the direct perpetrator’s unlawful intent and an intent to 

assist in achieving those unlawful ends, and (c) the aider and abettor’s actus 

reus—conduct by the aider and abettor that in fact assists the achievement of 

the crime.” (People v. Perez (2005) 35 Cal.4th 1219, 1225 (Perez).) 
20

To act with the mental state necessary to be found guilty of second 

degree murder under a theory of express malice, the aider and abettor “must

have ‘knowledge of the unlawful purpose of the perpetrator’ and ‘the intent or

purpose of committing, encouraging, or facilitating’ the commission of the

offense. . . . Alternatively, in the context of implied malice murder, the aider

and abettor must know the perpetrator intends to commit a life-endangering

act, intend to aid the perpetrator in the commission of that act, know the act

is dangerous to human life, and act in conscious disregard for human life.” 

(People v. Curiel (2023) 15 Cal.5th 433, 468 (Curiel), citation omitted.) 

3. Substantial Evidence Standard of Review

“We review the trial court’s factfinding on the question of whether a 

defendant committed a murder under a still-valid theory for substantial 

evidence.” (Didyavong, supra, 90 Cal.App.5th at p. 97.) “Under this familiar

standard, ‘ “we review the entire record in the light most favorable to the

judgment to determine whether it contains substantial evidence—that is,

evidence that is reasonable, credible, and of solid value—from which a

reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt.” . . . We determine “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” . . . In so

doing, [we] “presume[ ] in support of the judgment the existence of every fact

the trier could reasonably deduce from the evidence.” ’ ” (Vargas, supra, 84 

Cal.App.5th at p. 951, citations omitted.) “ ‘The same standard applies when 

the conviction rests primarily on circumstantial evidence.’ . . . ‘An appellate 

court must accept logical inferences that the [trier of fact] might have drawn 

from the circumstantial evidence.’ ” (Didyvavong, at p. 97, citation omitted.) 

When we review a decision under this standard, “[w]e will not reverse unless 
21

there is no hypothesis upon which sufficient substantial evidence exists to 

support the trial court’s decision.” (Ibid.)

B. Analysis10

We first consider an issue the parties raise regarding the scope of our 

substantial evidence review. Both sides agree that although the prosecution 

opposed Sirypangno’s resentencing petition on the ground he acted with 

implied malice in aiding and abetting Phommachanh’s murder of Thompson, 

the trial court denied the petition on the finding Sirypangno acted with 

express malice in aiding and abetting Phommachanh’s murder of Thompson. 

We agree with the parties that the trial court found Sirypangno acted with 

express malice in aiding and abetting the murder. In its order denying 

Sirypangno’s petition, the court stated it found “beyond a reasonable doubt, 

that he did, with the intent to kill, aid and abet the actual killer in the 

commission of second degree murder.” (Italics added.) The italicized phrase 

was the equivalent of a finding of express malice. (See People v. Smith (2005) 

10 In December 2022, Sirypangno filed a motion with this court seeking 

judicial notice of the transcripts and records from his direct appeal of the 

judgment of conviction in case number D055015. We grant this request. In 

the motion, Sirypangno also seeks judicial notice of “[t]he records” in case 

numbers D073602, D078188, and D078705, without specifying or citing any 

particular records to be noticed. We grant this request in part as to our prior 

decisions in case numbers D073602, D078188, and D078705. To the extent 

Sirpangno seeks judicial notice of any other records from the latter three 

cases, this request is denied for failure to identify the records to be noticed 

and establish their relevance to this appeal. (See People v. Franklin (2016)

63 Cal.4th 261, 280 [motion for judicial notice of document denied for failure

to establish document’s relevance]; accord, People v. Young (2005) 34 Cal.4th

1149, 1171, fn. 3 (Young).) In sum, we grant in part and deny in part

Sirypangno’s motion.
22

37 Cal.4th 733, 739 (Smith) [“Intent to unlawfully kill and express malice 

are, in essence, ‘one and the same.’ ”].) 

However, the parties dispute whether we must limit our review to 

determining whether there is sufficient evidentiary support for the conclusion 

Sirypangno acted with express malice, or whether we can also affirm if we 

find the theory he acted with implied malice to be factually supported. 

Sirypangno, relying on Eaton v. Tulsa (1974) 415 U.S. 697, contends our 

review must be limited to the express malice theory. Eaton was a criminal 

contempt case in which the state appellate court was held to have violated 

the defendant’s due process rights by affirming his conviction after 

determining substantial evidence supported convicting him of contempt on an 

alternate ground not alleged in the information. Sirypangno argues we 

would run afoul of Eaton’s holding if we were to affirm the trial court’s ruling 

on a factual theory it did not expressly adopt, even if (as was the case here) 

that theory was advanced by the prosecution as a basis for convicting him.11

The People contend we may affirm if we find sufficient evidentiary 

support for either the express malice or implied malice theories of guilt for 

aiding and abetting second degree murder. They rely in part on People v. 

Edwards (2013) 57 Cal.4th 658, in which the prosecution advanced two 

theories of first degree murder—murder by means of torture and felonymurder burglary—and the jury found the defendant guilty of first degree 

murder without “specify[ing] the theory on which it rested its verdict.” (Id. at 

11 Sirypangno has not argued the trial court erred by denying his petition 

on the basis of a theory not advanced by the prosecution. Any such claim has 

therefore been forfeited. (See e.g., People v. Duff (2014) 58 Cal.4th 527, 550, 

fn. 9 [claim forfeited where not raised in opening brief]; accord People v. 

Harris (2008) 43 Cal.4th 1269, 1290; People v. Barragan (2004) 32 Cal.4th 

236, 254, fn. 5; People v. Taylor (2020) 43 Cal.App.5th 1102, 1114.) 
23

p. 715.) The People contend we must do as the Edwards court did and affirm 

on any theory of guilt supported by the evidence, even if (as was the case 

here) the factfinder’s decision expressly rested on only one of those theories. 

Ultimately, we do not need to resolve the parties’ dispute about our 

ability to affirm on the basis that Sirypangno acted with implied malice. The 

parties agree, and so do we, that we can affirm the trial court’s decision to the 

extent we conclude substantial evidence in the record supports its finding 

that Sirypangno acted with express malice in aiding and abetting 

Phommachanh’s murder of Thompson. (See e.g., Didyavong, supra, 90 

Cal.App.5th at p. 97 [“We review the trial court’s factfinding on the question 

of whether a defendant committed a murder under a still-valid theory for 

substantial evidence.”].) Because our review of the record persuades us the 

express malice theory of guilt is factually supported, we can affirm on this 

basis without addressing whether it would also be proper to affirm under an 

implied malice theory.

For the following reasons, we conclude that substantial evidence 

supports the trial court’s finding that Sirypangno aided and abetted the 

murder of Thompson and did so with the intent to kill. Again, “proof of aider 

and abettor liability requires proof in three distinct areas: (a) the direct 

perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the 

aider and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful 

intent and an intent to assist in achieving those unlawful ends, and (c) the 

aider and abettor’s actus reus—conduct by the aider and abettor that in fact 

assists the achievement of the crime.” (Perez, supra, 35 Cal.4th at p. 1225.) 

Here, Sirypangno concedes the evidence sufficiently demonstrates that 

Phommachanh, the direct perpetrator, committed a crime: he murdered 

Thompson. Sirypangno also raises no dispute whether the evidence 
24

establishes he engaged in conduct—e.g., supplying Phommachanh with the 

murder weapon; starting the brawl that ended in Thompson’s death—that in 

fact assisted Phommachanh in the achievement of that crime. We agree with 

his concessions. Our review of the record persuades us both of these 

requirements of direct aiding and abetting liability have ample evidentiary 

support.

Instead, Sirypangno’s challenge is limited to disputing whether 

substantial evidence supports the remaining requirement for aiding and 

abetting a murder with express malice—that is, whether Sirypangno knew 

Phommachanh intended to kill Thompson and whether Sirypangno shared 

that intent. (See Curiel, supra, 15 Cal.5th at p. 468 [aider and abettor of

second degree express malice murder “must have ‘knowledge of the unlawful

purpose of the perpetrator’ and ‘the intent or purpose of committing,

encouraging, or facilitating’ the commission of the offense”].) Viewing the

record in the light most favorable to the judgment, we conclude there is

sufficient substantial evidence in the record to support such a finding beyond

a reasonable doubt. 

Although direct evidence of Sirypangno’s intent was lacking, 

circumstantial evidence supported the inference that in aiding and abetting 

Phommachanh’s commission of the murder, Sirypangno harbored express 

malice. (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 [because “ ‘[e]vidence 

of a defendant’s state of mind is almost inevitably circumstantial . . . 

circumstantial evidence is as sufficient as direct evidence to support a 

conviction’ ”]; Smith, supra, 37 Cal.4th at p. 741 [“it is well settled that intent 

to kill or express malice, the mental state required to convict a defendant of 

attempted murder, may . . . be inferred from the defendant’s acts and the 

circumstances of the crime”].) Witnesses who observed Sirypangno and 
25

Phommachanh’s conduct before, during, and after the shooting testified to the 

following facts, which collectively support this conclusion. 

Sirypangno and Phommachanh were good friends as well as fellow 

OKB members. Earlier in the evening, before the Mira Mesa party at which 

Thompson was shot and killed, Phommachanh was overheard telling 

someone—inferably, Sirypangno12—to bring a “strap” (street lingo for a 

“gun”) because there might be some “funk” (meaning “problems”) at that 

party. 

Once Sirypangno and Phommachanh arrived at the party, their 

demeanor was aggressive. Phommachanh pushed his way past the entrance 

gate, and both men were “mad-dogging” the invited party guests. Tensions 

appeared to escalate after Farhan and his friends approached Phommachanh

and Sirypangno in the backyard to tell them to calm down or leave the party. 

One witness testified there were 10 people in Farhan’s group, and although 

they did not intend to do anything to Phommachanh or Sirypangno, they 

looked “threatening.” There was “cussing” back and forth between Farhan’s 

group and the OKB members. It was at this point that Sirypangno jumped

on a retaining wall, raised his shirt, pulled out a .45-caliber semiautomatic 

handgun, and chambered a bullet while pointing the gun at Farhan from a 

distance of only one or two feet as Mai, who was standing nearby, cursed and 

said “OKB.” One witness also heard Sirypangno say “OKB” in a raised voice.

Testimony of multiple witnesses established that Sirypangno then 

jumped over the backyard fence, gun in hand, breaking one of the fence’s 

wooden planks in the process. He then got into another conflict with another 

12 Sirypangno was not present at the Mira Mesa party when 

Phommachanh made this call; he thereafter joined Phommachanh at the 

party and brought a gun, later used in the shooting.
26

guest, this time Thompson, over his perception that Thompson had slighted 

him by calling him a “bitch” and telling him “fuck you, suck my dick.” 

Sirypangno responded by throwing a two-and-one-half-foot-long wooden 

plank—missing Thompson’s head only because Thompson moved—displaying 

his gun, and telling Thompson, “I’m a real fucking gangster, you’ll see when 

you get out” or “I’ll show you when you get outside.” 

K.A., who witnessed this altercation from inside the backyard, testified 

Thompson took Sirypangno’s threat seriously. According to Detective 

Hatfield, calling a gang member a “bitch” or saying “you can suck my dick” 

would be taken by a gang member as a sign of disrespect, and that acts of 

disrespect toward a gang member generally result in violence, including a 

shooting. 

After Thompson’s over-the-fence exchange with Sirypangno, E.N. saw 

Sirypangno approach Phommachanh. Sirypangno appeared angry and was 

“very firm with his actions.” Sirypangno talked to Phommachanh. Rattana 

then pulled up in Phommachanh’s car, headlights facing west (the same 

direction in which she pulled up later when she returned with 

Phommachanh). Phommachanh got in the front passenger seat, and 

Sirypangno “[d]iscreetly” passed him the gun. Rattana testified there was a 

conversation between Phommachanh and Sirypangno at this point, but she 

could not recall what was said. Rattana testified Phommachanh did not seem 

surprised Sirypangno had handed him the gun.

Minutes after Rattana and Phommachanh drove off, Phommachanh

received a phone call asking him to return to the party to pick up Sirypangno. 

E.N., who placed the call for Sirypangno, testified that Phommachanh said he 

and Rattana were already on their way back. Rattana testified that as they 

headed back to the house, Phommachanh, moving “quickly,” retrieved the 
27

gun and donned the bandana. Phommachanh’s actions led Rattana to think 

he was probably going to shoot the gun “at someone.” When they returned to 

the party, Rattana stopped the car at the corner of the house with the 

headlights facing west and remained in the driver’s seat of the car with the 

engine running. 

Phommachanh then exited the car, gun in hand, and began “waving” 

the gun while yelling “who wants it” and “all right, we’re going to do this 

shit.” Sirypangno did not try to get in the car, despite having had E.N. call 

Phommachanh for a ride. Instead, Sirypangno, Phommachanh, and the other 

OKB gang members who had attended the party lined up in front of the car. 

They stood in that location “looking towards the exit of the party where 

everyone was exiting.” E.N. testified there was a conversation between 

Sirypangno and Phommachanh although he did not know what was said. 

When Thompson emerged from the party, Sirypangno “pointed him 

out,” said “you the fool that fucking told me to suck your dick,” and struck 

him. Accounts of the ensuing fight differed. According to E.N., after 

Sirypangno struck Thompson, two of the other OKB members “jump[ed]” 

Thompson and it became a three-on-one fight. As Sirypangno and the two 

other gang members continued fighting Thompson, Phommachanh stepped 

forward from the area where he had been lined up in front of his car, pulled 

out the gun, pointed it at Thompson, and attempted to shoot. When the gun 

did not fire, Phommachanh “fiddl[ed]” with the gun and pulled back the slide 

to clear the unfired round. He then fired five shots in Thompson’s direction, 

hitting Thompson, K.A., and Joyce and killing Thompson. Phommachanh did 

not fire a warning shot; the “very first place” he pointed the gun was “right at 

[Thompson].” Thompson fell to the ground and “was motionless.” 
28

The OKB members fled to the awaiting car with Rattana in the driver 

seat and the engine still on. Sirypangno did not appear to be injured. Once 

all the gang members were in the car, Rattana “peel[ed] out”—she pressed 

the accelerator so that the tires lost traction and spun—and headed 

westbound on an adjacent street. Everyone in the car was nervous; 

Sirypangno said, “shit, where the hell we going to put the strap at.” 

Phommachanh gave the gun to Sirypangno, who told Rattana to drive to 

“Striker’s” (i.e., Giraud’s) house. When Rattana stopped there, Sirypangno 

exited with Phommachanh; the gun was later recovered from a rice bin at 

Giraud’s house. 

A reasonable fact finder could infer from the totality of these facts that 

Sirypangno acted with express malice in aiding and abetting the murder of 

Thompson. Even before Sirypangno became embroiled in his argument with 

Thompson, he revealed a willingness to use a gun in confrontations with 

partygoers when he racked the gun to chamber a bullet and aimed it directly 

at Farhan at close range. But it was the verbal exchange with Thompson 

that appeared to particularly provoke Sirypangno’s rage. According to 

Detective Hatfield, the language Thompson used would have been perceived 

by a gang member as disrespectful, and the perceived disrespect was 

sufficient to motivate a violent response—including a shooting—from gang 

members. (See People v. Glukhoy (2022) 77 Cal.App.5th 576, 599 (Glukhoy) 

[motive is a circumstance to be considered in determining aiding and abetting 

liability]; Smith, supra, 37 Cal.4th at p. 741 [evidence of motive is probative 

of intent to kill].) 

Sirypangno’s actions before the shooting support the conclusion he told 

Phommachanh what Thompson had said and then, with Phommachanh, 

formulated a plan to retaliate against Thompson by committing an act of 
29

violence against him. The evidence is overwhelming that their plan involved 

shooting Thompson. Sirypangno approached Phommachanh before he left 

the party with Rattana, and the two of them were continuing to talk when 

Sirypangno “[d]iscreetly” handed Phommachanh the gun. The subsequent 

phone call to Phommachanh telling him to return to give Sirypangno a ride 

home was inferably pretextual. Phommachanh started putting on the 

bandana before he got back to the party; when he arrived, Sirypangno made 

no effort to get in the car, and instead Phommachanh immediately got out, 

waved the gun, and used words that conveyed an intent to shoot (“who wants 

it” and “all right, we’re going to do this shit”). Although Sirypangno asked to 

use E.N.’s cell phone to call Phommachanh, it was E.N. who placed the call. 

Thus there was no opportunity for Sirypangno and Phommachanh to speak 

and further coordinate their actions. Yet their subsequent actions—

Phommachanh telling E.N. he was already on the way back, donning the 

bandanna even before his arrival, retrieving the gun, lining up with 

Sirypangno and the other OKB members— demonstrate that Sirypangno and 

Phommachanh had already coordinated their plan before execution. 

That the men’s plan specifically entailed inflicting Thompson with a 

fatal wound was supported by the evidence of both men’s behavior during and 

after the gang assault. After Sirypangno pointed out Thompson and then 

struck him, Phommachanh stepped forward and pointed the gun directly at 

Thompson from a short distance of eight feet away and pulled the trigger. 

When his first attempt failed, he racked the slide again and successfully fired 

five shots in total, stopping only after Thompson fell. Phommachanh did not 

fire a warning shot; instead, he immediately pointed the gun directly at 

Thompson. Although the evidence showed not all of the subsequent shots 

actually hit Thompson, Phommachanh’s actions nevertheless demonstrated 
30

that Thompson was his target and his intent was to kill Thompson. (See 

People v. Houston (2012) 54 Cal.4th 1186, 1218 [“The act of shooting a 

firearm toward a victim at close range in a manner that could have inflicted a 

mortal wound had the shot been on target is sufficient to support an 

inference of an intent to kill.”]; Smith, supra, 37 Cal.4th at p. 742 [the fact 

that a bullet misses its mark is not dispositive, since the very act of firing a 

weapon in a way that could have caused a mortal wound if the bullet had 

been on target is sufficient to support an inference of intent to kill].) 

Sirypangno, who was seen speaking with Phommachanh before 

Phommachanh initially drove off with the gun, and again after 

Phommachanh returned, waving the gun around and yelling “who wants it,” 

inferably knew of Phommachanh’s homicidal purpose. That Sirypangno 

continued fighting and did not object or attempt to intercede as 

Phommachanh aimed the gun at Thompson and fired it again and again 

suggests Sirypangno was not surprised by Phommachanh’s actions and did 

not object to them. (See Glukhoy, supra, 77 Cal.App.5th at p. 599 [“It is well 

settled that the presence at the scene of the crime and failure to prevent it, 

companionship and conduct before and after the offense, including flight, are 

relevant to determining whether a defendant aided and abetted in the 

commission of the crime.”].) 

Sirypangno’s conduct after the shooting further supports the conclusion 

he intended for Phommachanh to inflict Thompson with a fatal wound. 

(Glukhoy, supra, 77 Cal.App.5th at p. 599.) Sirypangno did not summon aid, 

nor did he attempt to distance himself from the crime. Instead, he fled side 

by side with Phommachanh, accepted possession of the murder weapon, and 

took responsibility for hiding it. (See People v. Lasko (2000) 23 Cal.4th 101, 

112 [defendant’s actions after striking fatal blow “were not those of an 
31

unintentional killer,” including because defendant did not call an ambulance 

and tried to obscure evidence of the killing].) 

For all of these reasons, there is sufficient substantial evidence in the 

record to support the trial court’s conclusion that Sirypangno acted with 

express malice in aiding and abetting Thompson’s murder. We do not find 

Sirypangno’s arguments to the contrary persuasive. He contends, first, there 

is “no evidence” that when he gave Phommachanh the gun he told 

Phommachanh he was doing so because he wanted Phommachanh to kill 

Thompson. He argues further that he would not have allowed Phommachanh

to drive away if this was his plan. We reject both assertions. The evidence 

showed Sirypangno talked with Phommachanh before Phommachanh left 

with Rattana, and again as Phommachanh was getting in the car to leave. 

Although there was no evidence of the precise content of their conversation as 

Phommachanh entered the car, for the reasons we have already discussed, a 

factfinder could reasonably infer from the events that followed that they were 

concocting a plan whereby Phommachanh would leave with the gun, don the 

bandana, and return with his facial features concealed in the hopes of 

avoiding detection for the planned shooting. 

Similarly, Sirypangno contends there is “no evidence” he asked 

Phommachanh to return to the party because he had formed the intent to kill 

in the few minutes Phommachanh was away, and that there is no evidence he 

spoke to Phommachanh about shooting Thompson after Phommachanh

returned. No such evidence is necessary, however, given our conclusion that 

the record supports the inference their plan had already been developed prior 

to Phommachanh leaving. 

Next, Sirypangno asserts that “[a] verbal dispute between a member of 

a street gang and someone like Thompson who was not a member of a street 
32

gang rarely results in the death of the non-gang member.” Sirypangno does 

not accompany this factual assertion with any citation to the record 

demonstrating that it has evidentiary support. We will not consider claims 

based on factual assertions that are not accompanied by citations to the 

record. (People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.) 

Sirypangno’s remaining arguments posit nonculpable inferences we 

might draw from certain witnesses’ testimony. That there might be evidence 

in the record to support inferences favoring his position is not material to our 

substantial evidence review. Provided that the factfinder’s decision is

supported by substantial evidence (as we have determined that it is), the fact

that a contrary finding is also supported is irrelevant. Stated differently, “ 

‘[w]here the circumstances reasonably justify the trier of fact’s findings,

a reviewing court’s conclusion the circumstances might also reasonably be

reconciled with a contrary finding does not warrant the judgment’s

reversal.’ ” (People v. Clark (2016) 63 Cal.4th 522, 626 (Clark).) 

Nor do we find Sirypangno’s arguments to be persuasive. He asserts

that if he intended to kill Thompson, he could have done so himself while

arguing with Thompson over the backyard fence. However, although

Sirypangno did not shoot Thompson at his earliest opportunity, it is inferable

from his and Phommachanh’s subsequent actions that both he and

Phommachanh nevertheless decided later to have Phommachanh shoot and

kill Thompson. (See Smith, supra, 37 Cal.4th at p. 741 [a defendant’s actions 

may serve as circumstantial evidence of intent].) That Sirypangno arguably 

could have killed Thompson sooner does not negate this inference. 

Sirypangno further asserts that Thompson was taller and heavier than

he; if the plan was to have Phommachanh shoot Thompson, this could have

been more logically and safely achieved by identifying Thompson and then
33

standing out of the way while Phommachanh shot him. However, this

position overlooks Detective Hatfield’s testimony about the importance of

respect within gang culture, and specifically Hatfield’s testimony that a gang

member who gets in a physical fight which then leads to a shooting would

gain respect from his gang, would benefit by showing his fellow gang

members “that he’s backing his own gang set,” and would be “elevated in . . .

stature within the gang itself.” A factfinder could reasonably infer

Sirypangno’s decision to physically attack Thompson in the leadup to the

shooting served this goal of earning respect within his gang, even if it was not

the most logical or safest course of action. 

Next, Sirypangno argues Phommachanh looked “scared” during the

shooting and was “shooting crazy,” and suggests Sirypangno therefore could

not have known Phommachanh intended to kill Thompson. His description of

Phommachanh’s demeanor is based on the testimony of Phommachanh’s

cousin Boualouang. However, Boualouang’s testimony about Phommachanh

“shooting crazy” was contradicted by E.N., who testified Phommachanh fired

the shots “at the victim” and agreed “the very first place that

[Phommachanh] pointed [the gun] was right at the victim when he fired[.]” 

(Italics added.) The trial court impliedly resolved this conflict by rejecting

Boualouang’s testimony in favor of E.N.’s description of Phommachanh’s

aiming of the gun directly at Thompson, from which a reasonable observer

could discern that Phommachanh intended to inflict Thompson with a fatal

wound. (See Young, supra, 34 Cal.4th at p. 1181 [“[r]esolution of conflicts 

and inconsistencies in the testimony is the exclusive province of the trier of 

fact” and “unless the testimony is physically impossible or inherently 

improbable, testimony of a single witness is sufficient to support a 

conviction”].) Further, we are not persuaded that “looking scared” while 
34

shooting at a victim is inconsistent with the shooter harboring an intent to 

kill that victim, nor did the trial court have to accept Boualouang’s 

characterization of Phommachanh’s facial expression. (See Stevens v. Parke, 

Davis & Co. (1973) 9 Cal.3d 51, 67–68 (Stevens) [“ ‘[T]he jury properly may 

reject part of the testimony of a witness, though not directly contradicted, 

and combine the accepted portions with bits of testimony or inferences from 

the testimony of other witnesses thus weaving a cloth of truth out of selected 

available material.’ ”]; accord People v. Fuiava (2012) 53 Cal.4th 622, 715, 

fn. 34 (Fuiava).) 

Similarly, Sirypangno cites Rattana’s testimony that he made 

statements like “oh, shit, oh, shit” in the car after the shooting, which he 

asserts is evidence he was shocked and surprised and therefore must not 

have foreseen the shooting. We disagree that these statements, even 

assuming they are properly interpreted as expressions of shock or surprise

(as opposed to a rush of adrenaline), are inconsistent with the conclusion that

before the shooting happened his intent was for Phommachanh to shoot 

Thompson. Further, the trial court was not required to accept Rattana’s 

testimony with respect to Sirypangno’s demeanor after the shooting. 

(Stevens, supra, 9 Cal.3d at pp. 67–68; Fuiava, supra, 53 Cal.4th 622, 715, 

fn. 34.) 

Next, Sirypangno contends the murder was out of proportion with the 

events leading up to it, and that this demonstrates he neither foresaw nor 

intended for Phommachanh to shoot and kill Thompson. However, courts 

have recognized that mere verbal altercations may be sufficient to motivate a 

murder. (People v. Lunafelix (1985) 168 Cal.App.3d 97, 102 [stating that the 

law does not require that a murderer “have a ‘rational’ motive for killing”; 

”[a]nger at the way the victim talked to him [citation] or any motive, ‘shallow 
35

and distorted but, to the perpetrator, genuine’ may be sufficient”].) Here, 

Detective Hatfield’s testimony established that perceived acts of disrespect 

against a gang member “will” result in violence, including a shooting, and 

that calling a gang member a “bitch” or telling him to “suck my dick” would 

be seen by a gang member as disrespectful. Further, the testimony of 

numerous witnesses who observed the events leading up to the murder 

showed that first Sirypangno and then Phommachanh were angered by 

Thompson’s words, and that the duo came up with a plan for retaliation that 

involved the gang assault and fatal shooting of Thompson. Thus, 

proportionate or not, the trial evidence sufficiently demonstrated that the 

murder was indeed the intended result of Sirypangno and Thompson’s earlier 

verbal altercation. 

Similarly, Sirypangno, relying on the probation report prepared for the 

purpose of Phommachanh’s sentencing in the underlying case, contends it 

shows Phommachanh’s criminal history before the murder did not include 

violent offenses, and that this shows he could not have foreseen that 

Phommachanh would commit a homicide. We are not persuaded. 

Phommachanh’s probation report was prepared after the jury trial in the 

underlying case. Sirypangno cites no evidence in the record demonstrating 

that at the time of the murder he was aware of Phommachanh’s prior 

criminal record. Moreover, we disagree with the proposition that a particular 

homicide is unforeseeable unless the perpetrator was previously convicted of 

a similar offense.

Sirypangno’s remaining points are equally unavailing. He points to 

testimony of E.N. to the effect that E.N. thought Phommachanh would only 

scare Thompson with the gun, not shoot him. He relies on Boualouang’s 

testimony that he overheard Sirypangno saying he “might freaking sock” 
36

Thompson, and Boualouang himself did not expect anything other than an 

ordinary fight. He further observes that he only pointed the gun at Farhan’s 

group during the backyard altercation and did not shoot. He argues this 

evidence supports the conclusion he did not anticipate or intend for 

Phommachanh to shoot Thompson, let alone kill him. Again, however, when 

we review a factfinder’s decision for substantial evidence, we determine only 

whether there is sufficient evidence of reasonable, credible, and of solid value

from which a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt. (See Vargas, supra, 84 Cal.App.5th at p. 951.) For the 

reasons we have already explained, we conclude the record does contain 

substantial evidence supporting the trial court’s determination that 

Sirypangno acted with the intent to kill in aiding and abetting the murder of 

Thompson. That the record might also contain evidence supportive of a 

different conclusion does not establish a basis for reversal. (Clark, supra, 63 

Cal.4th at p. 626 [“ ‘[w]here the circumstances reasonably justify the trier of

fact’s findings, a reviewing court’s conclusion the circumstances might also

reasonably be reconciled with a contrary finding does not warrant

the judgment’s reversal’ ”].) 

For all of these reasons, we reject Sirypangno’s substantial evidence

challenge and affirm the trial court’s order denying his petition for

resentencing under section 1172.6. 

III.

We Will Remand the Matter so the Trial Court Can Fully Comply with Our

Disposition in Sirypangno III

In Sirypangno III, we vacated Sirypangno’s attempted murder 

conviction and remanded the matter to the trial court with directions to allow 

the People to elect to retry Sirypangno on the attempted murder charge. Our 
37

disposition in that case further instructed the trial court that if the People 

did not elect to bring Sirypangno to trial on the attempted murder charge 

within the time prescribed by law, the trial court was to enter judgment 

reflecting vacatur of the attempted murder conviction and resentence 

Sirypangno accordingly. (See Sirypangno III, supra, D078705.) 

At the 2022 evidentiary hearing held with respect to Sirypangno’s 

section 1172.6 petition, the People elected to not retry Sirypangno on the 

attempted murder charge and the trial court granted the People’s motion to 

dismiss the charge. However, the record on appeal does not include an order 

or amended abstract of judgment reflecting vacatur of the attempted murder 

conviction or any subsequent resentencing on the remaining counts. Instead, 

the most recent abstract of judgment in the appellate record, which is dated 

April 17, 2019, shows that Sirypangno stands convicted of attempted murder 

and is serving a seven-year sentence for that conviction.

“[W]hen an appellate court remands a matter with directions governing 

the proceedings on remand, ‘ “those directions are binding on the trial court 

and must be followed.” ’ ” (People v. Ramirez (2019) 35 Cal.App.5th 55, 64.) 

In supplemental briefing, the parties agreed the trial court has not yet fully 

complied with our disposition in Sirypangno III. Accordingly, we will remand 

the case to the trial court with instructions to complete the actions necessary 

to do so.

DISPOSITION

The trial court’s order denying Sirypangno’s petition for resentencing is

affirmed. 

The matter is remanded to the trial court with instructions to complete

the following actions necessary to fully comply with our disposition in

Sirypangno III: (1) issue an order reflecting vacatur of the attempted murder
38

conviction, (2) resentence Sirypangno, and (3) issue an amended abstract of

judgment reflecting the vacatur of the attempted murder conviction and the

new sentence.

DO, J.

WE CONCUR:

McCONNELL, P. J.

BUCHANAN, J.