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Filed 6/28/23 P. v. Keosengthong 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

ANDREW KEOSENGTHONG,

Defendant and Appellant.

 D080818

 (Super. Ct. No. SCD288926)

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

Laura H. Parsky, Judge. Affirmed.
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John L. Staley, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Defendant Andrew Keosengthong appeals after a jury convicted him of 

robbery. (Pen. Code, § 211.1) He then admitted the truth of allegations that 

he had two prior serious or violent felony convictions. The trial court 

imposed, inter alia, a sentence of 25 years to life pursuant to the Three 

Strikes law. (§§ 667, subds. (b)-(i), 1170.12, 668.) 

His appointed counsel filed a brief pursuant to Anders v. California

(1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 

(Wende), which raised no arguable issues but asked us to independently 

review the record for reversible error. We granted Keosengthong an 

opportunity to file a supplemental brief on his own behalf, but he did not do 

so. After independently reviewing the entire record (People v. Kelly (2006) 40 

Cal.4th 106, 119), we find no arguable appellate issues and affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 28, 2020, Borie Ann Ma was working as a “banker” at an 

illegal gambling den in San Diego. At the start of her shift, she was given 

$1,000 in cash to pay winning customers and keys to access the gambling 

machines and remove cash from them. The gambling den’s video surveillance 

camera recorded the events that occurred that day.

Keosengthong and two other men, known to Ma as “Little Brownie” and 

“Drago,” entered the gambling den together. She did not know 

1 All statutory references are to the Penal Code unless otherwise 

specified.
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Keosengthong. After a while, the three men approached Ma. Drago said,

“[T]hey owe him money.” Keosengthong told Ma to give him the “bank roll 

quietly and no one will get hurt.” Ma saw Keosengthong’s right hand holding 

a black object in his right pants pocket, which object she believed could have 

been the handle of a gun.

Ma gave the men the money she had in her purse. Complying with 

their request, she also opened up the gambling machines, removed cash from 

them, and gave it to the three men. At one point, Keosengthong “snatched” 

the money that she was holding from her hand. In total, the men took about 

$900 to $1,000 in cash from her.

After the men left, Ma called the gambling den’s owner to inform her of 

the incident. Shortly thereafter, the owner’s husband or boyfriend arrived at 

the gambling den. Ma apparently told him that the men were “strapped,” 

which she understood to mean they had a gun.

About one month later, San Diego Police Department Detective Chris 

Tews interviewed Ma during his investigation of the incident. He made an 

audio recording of the interview. Ma told him that Keosengthong held a gun 

at his right side. During the incident, she saw the handle of the gun and was 

afraid she was going to be shot. She told Tews that she was scared and 

shaking during the incident. She opened the gambling machines and gave 

the three men the money from the machines because she was afraid that she 

was going to get hurt.

An amended complaint, which was later stipulated to be deemed the 

information, charged Keosengthong and the other two men with one count of 

robbery in violation of section 211. It also alleged that Keosengthong: (1) was 

ineligible for probation under section 1203, subdivision (e)(4); (2) had a 
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serious felony prior conviction within the meaning of sections 667, 

subdivision (a)(1), 668, and 1192.7, subdivision (c); and (3) had two prior 

serious or violent felony convictions or juvenile adjudications within the 

meaning of sections 667, subdivisions (b) through (i), 1170.12, and 668.

At trial, Ma and Tews testified and the trial court admitted into

evidence the video recording of the incident, photographs from the recording, 

and the audio recording of Tews’s interview of Ma. In particular, Ma testified

that she was smoking methamphetamine during the incident and that it 

makes her paranoid. She admitted that she had been granted immunity for 

her drug use and conduct at the gambling den so that she could testify fully 

about the incident. She described the people and events shown on the video 

recording (which was played in full for the jury) and in the photographs. She 

testified that she was scared Keosengthong would hurt her if she did not do 

what the three men told her to do. She gave the men the money in her purse 

and from the gambling machines because she was afraid. On crossexamination, Ma testified that she never saw an entire gun, but saw only a 

black object in Keosengthong’s pocket that looked like the handle of a gun. 

Nevertheless, the black object in his pocket caused her to be scared. 

Afterward, she did not report the incident to police.

Tews testified that during his interview with Ma, she told him that 

Keosengthong held a gun at his right side and his left hand reached for the 

money she held in her hand. In a photograph from the video recording, Tews 

identified the trigger guard of a gun shown in Keosengthong’s right pocket. 

He also testified regarding certain text messages found on Keosengthong’s 

phone after the incident (e.g., he still owed his “connect [i.e., drug dealer or 

someone to whom he owed money] five bills” and “[t]hat’s why we did what 
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we did really, to pay bills” and “I’m take the pistol with me, cuz . . . just in 

case”).

After hearing closing arguments of counsel and the trial court’s 

instructions, the jury found Keosengthong guilty of robbery. During the 

bifurcated portion of the trial regarding the related allegations, 

Keosengthong admitted the truth of the allegations and, on that basis, the 

court found them to be true. Keosengthong’s motion for new trial, on grounds 

of insufficient evidence, was denied.

A probation report recommended that Keosengthong be sentenced to 

prison for 30 years to life. Keosengthong filed a Romero2 request that the 

court exercise its discretion pursuant to section 1385, subdivision (a), to 

dismiss one of the two prior serious or violent felony conviction allegations 

(§§ 667, subds. (b)-(i), 1170.12, 668); defense counsel also submitted a

statement in mitigation. A confidential psychological evaluation of 

Keosengthong was also prepared and submitted to the court.

At the July 22, 2022 sentencing hearing, the court first denied 

Keosengthong’s Romero motion. It then refused to order probation and 

imposed a sentence of 25 years to life on the robbery conviction pursuant to 

the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, 668) and a consecutive

five-year term for the serious felony prior conviction allegation (§§ 667, subd. 

(a)(1), 668, 1192.7, subd. (c)), but then struck that five-year term pursuant to 

section 1385. It granted Keosengthong a total of 618 days of credit toward 

his sentence. The court also imposed the following fines and fees: (1) a 

$10,000 restitution fine pursuant to section 1202.4, subdivision (b); (2) a

$10,000 parole revocation fine pursuant to section 1202.45, suspended unless 

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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parole is revoked; (3) a $40 court operations assessment (§ 1465.8); (4) a $30 

criminal conviction assessment (Gov. Code, § 70373); (5) a $41 theft fine

(§ 1202.5); and (6) victim restitution to Ma (§ 1202.4, subd. (f)), in an amount 

to be determined later.3 

DISCUSSION

Appointed counsel filed a brief summarizing the factual record and 

proceedings in the trial court. He presents no argument for reversal, but 

asks us to independently review the entire record for reversible error in 

accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 

738. In his brief, counsel identified the following issues that might arguably 

support the appeal: (1) whether there is sufficient evidence to support 

Keosengthong’s conviction of robbery; and (2) whether the trial court abused 

its discretion by denying his request to dismiss one of the two prior serious or 

violent felony conviction allegations.

Our review of the entire record pursuant to Wende, supra, 25 Cal.3d 

436 and Anders, supra, 386 U.S. 738, including the issues identified by 

appellate counsel, has disclosed no reasonably arguable appellate issue. We 

briefly discuss the two possible issues identified by counsel.

Regarding the sufficiency of the evidence, we conclude that there is 

more than substantial evidence to support the robbery conviction. Section 

3 Keosengthong did not argue, much less request a hearing on, any 

purported inability to pay those fines and fees. Also at the July 22, 2022 

hearing, pursuant to a stipulation between the People and Keosengthong, the 

trial court sentenced him in a separate criminal case (San Diego County 

Superior Court case No. SCD287930) to a term of 32 months for his 

conviction for possession of an assault weapon (§ 30605, subd. (a)), to run 

consecutive to the sentence of 25 years to life imposed in this case. Any 

challenge to the judgment and sentence in that case is not part of this appeal.
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211 provides that “robbery” is the “felonious taking of personal property in 

the possession of another, from his person or immediate presence, and 

against his will, accomplished by means of force or fear.” Based on our 

review of the record, including the evidence discussed above, we conclude 

there is substantial evidence to support the jury’s findings on the elements of 

robbery (i.e., that Keosengthong took personal property, namely cash, that 

was not his own, that the property was in the possession of Ma, that he took 

it from Ma or her immediate presence, that he took it from Ma against her 

will, that he used force or fear to take the property from her, and that when 

he used force or fear to take the property from Ma, he intended to deprive her 

of it permanently). (See, e.g., CALCRIM No. 1600; People v. Merritt (2017) 2 

Cal.5th 819, 824; People v. Jackson (2016) 1 Cal.5th 269, 343.) 

Regarding Keosengthong’s Romero motion to dismiss one of the two 

prior serious or violent felony conviction allegations, we conclude that the 

court did not abuse its discretion under section 1385, subdivision (a) by 

denying his request. The court could reasonably conclude, as the People 

argued in opposition below, that Keosengthong’s actions during the robbery, 

his background and long criminal history (i.e., 10 felony convictions or 

juvenile adjudications over 24 years), and his detention at a California Youth 

Authority facility, state imprisonment, or post-custody supervision during 

most of those 24 years, all weighed against granting the motion. At his 

sentencing, the court noted, in particular, that Keosengthong “has an 

extensive criminal history with consistent convictions for possession or use of 

firearms and other weapons, and he has spent extremely limited time out of 

custody since his 1999 strike conviction. It seems, looking roughly at the 

years and the parole revocations, that it is perhaps only [two] years out of 

custody, but certainly less than [five] years total over that 22[-]year period of 
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time.” Based on the record, the court reasonably concluded that 

Keosengthong “falls squarely within the spirit of the [T]hree [S]trikes [L]aw.” 

(See, e.g., People v. Carmony (2004) 33 Cal.4th 367, 378; People v. Anderson

(2019) 42 Cal.App.5th 780, 786.) 

In sum, our review of the entire record pursuant to Wende, supra, 25 

Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues identified by 

appellate counsel, has disclosed no reasonably arguable appellate issue. 

Keosengthong has been adequately represented by counsel in this appeal.

DISPOSITION

The judgment is affirmed.
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DATO, J.

WE CONCUR:

O'ROURKE, Acting P. J.

KELETY, J.