People v. Birdine CA2/2

Filed 12/11/20 P. v. Birdine CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B298724
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA087169)
v.
KENNY BIRDINE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Daniel B. Feldstern, Judge. Affirmed.
Laura Schaefer, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Marc A. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Kenny Birdine appeals the judgment entered following a
jury trial in which he was convicted of first degree premeditated
murder. (Pen. Code,1 § 187, subd. (a).) The jury found that
appellant personally discharged a firearm causing death
(§ 12022.53, subd. (d)) and that the crime was gang-related
(§ 186.22, subd. (b)(1)(C)).2 The trial court sentenced appellant to
50 years to life in state prison.
Appellant contends the trial court’s prejudicial error in
admitting evidence that appellant was arrested in possession of a
gun unrelated to the shooting requires reversal. We disagree and
affirm.
FACTUAL BACKGROUND
On August 20, 2016, appellant fatally shot Justin Lishey, a
rapper known as Kid Cali, at a party held on the grounds of a
large house in Granada Hills. The event had been advertised on
social media and was attended by two to three hundred people. It
started at 2:00 p.m., and was scheduled to end at 8:00 p.m. The
house was equipped with numerous exterior surveillance cameras
at the gates and throughout the grounds, which recorded the
entire party including the arrival and departure of the guests and
the shooting of Lishey.
Appellant arrived at the party around 7:40 p.m. Security
searched many of the guests before admitting them inside, and
appellant was among those patted down as he entered.
Another party guest, Steven Abramovich, arrived around
7:00 p.m. After walking around and listening to the music for a
1 Undesignated statutory references are to the Penal Code.
2Two counts of attempted murder charged in the amended
information were dismissed prior to the start of trial.
2
while, Abramovich got a drink and sat down on a retaining wall
near the basketball court. Sometime after 8:00 p.m., about five or
ten minutes after he had sat down, Abramovich saw a slim Black
male, later identified as appellant, emerge from the crowd and
yell something at Lishey as he approached. Lishey, who was
standing with a small group of people in a circle at the edge of the
basketball court with his back to appellant, turned toward the
sound. Appellant removed a gun from his waistband and fired
directly at Lishey, aiming at his chest. As Lishey fell backward
to the ground, appellant fired four more times, advancing toward
Lishey until he was standing directly over him. The party
erupted in chaos, and appellant ran into the crowd as the guests
rushed to the exits. A few people remained with Lishey as
Abramovich called 911. Before the shooting, Abramovich had not
observed any fighting or arguments nor had he seen Lishey
behave aggressively toward anyone. Investigators found no
evidence to indicate Lishey had a gun.
Lishey suffered four gunshot wounds, one of which was
fatal. He died shortly after the shooting. Five expended nine-
millimeter shell casings were recovered from the scene and
determined to have been fired from the same firearm.
At the time of the shooting, appellant was a 19-year-old
“young gangster” (YG) in the 92nd Street clique of the Inglewood
Family Bloods (IFB) gang, with the moniker Rampage or Lil’
Rampage. He had “Family First” tattooed prominently across his
chest, which signified both his membership in the gang and that
he had committed one or more crimes on the gang’s behalf.
Appellant also admitted his IFB membership on numerous
occasions going back to 2014, and he regularly associated with
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other IFB gang members, posing in numerous pictures with them
throwing gang signs with his hands.
One of appellant’s best friends, Kamal Key, with whom
appellant was seen on video entering the party before the
shooting, was also an IFB member featured in many of the photos
with other gang members. Akeem “2Much” Foreman, a senior
“original gangster” (OG) member of IFB arrived at the party after
appellant and provided appellant with the gun he used to shoot
Lishey. Several other IFB gang members, including a prominent
rapper, also attended the party. In the moments before the
shooting, the surveillance video showed appellant and Foreman
standing together on the basketball court. As appellant began to
make his way over to Lishey, the group around them disbursed in
the opposite direction and Foreman walked away from appellant
while looking over his shoulder. After the shooting, the
surveillance video showed appellant and Foreman meet on the
street in front of the house where appellant returned the murder
weapon to Foreman.
According to the prosecution’s gang expert, as an OG in the
IFB, Foreman was an older senior member in the gang’s
hierarchy who had the authority to give orders to junior gang
members, or YG’s, such as appellant. Because most individuals
joined the gang in ninth grade, by the age of 19 a YG would be a
well-established member of the gang. The gang expert further
explained that only a trusted junior gang member would be
permitted to socialize with an OG at a party, and a junior
member would not be tasked with a shooting unless the OG were
confident the junior member would carry it out. According to the
expert, guns are important tools for the gang, but difficult to
come by. As a result, when a firearm is acquired by the gang, it
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is released only to the most respected and trusted individuals
who will use it as directed by an OG.
One of the major rivals of the IFB is the Neighborhood
Crips, consisting of multiple cliques including the Rollin’ 90s or
the 9-0 Neighborhood Crips. These Blood and Crips gangs have
committed many violent crimes against one another, including
murder. According to the gang expert, shooting a rival gang
member is the ultimate act of loyalty to the gang, earning the
greatest respect within the gang. Appellant’s own father had
been a gang member who was killed in gang violence, and in his
contacts with police prior to the shooting, appellant often
expressed a hatred for the Neighborhood Crips. After the
shooting, appellant got several new prominent IFB tattoos,
including one that specifically referred to his hatred of the Rollin’
Neighborhood Crips gangs.
Following his arrest, appellant was interviewed by Los
Angeles police detectives on September 12, 2016, and a video
recording of the interview was played at trial.
Much of what appellant initially told the detectives was
directly contradicted by the surveillance video, and after being
confronted with portions of the video, appellant ultimately
admitted his role in the shooting. At some point during the
party, Lishey walked over to Foreman and identified himself as a
9-0 Crip. Foreman responded, “ ‘No. I’m not shaking your hand;
. . . I’m from Inglewood Family,’ ” and “ ‘I kill y’all niggas.’ ” A
“big argument” ensued, which was broken up, but later “they got
into it” again.
After seeing a portion of the surveillance video that showed
him with a gun in his hand, appellant claimed someone had
handed him a nine-millimeter gun only after the shooting. One
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of the detectives asked whether appellant had been scared that
night. Appellant responded that he had been afraid of Foreman,
who “talked me up to that shit. And I was drunk, you feel me?”
Appellant then explained that toward the end of the party,
Foreman handed him a gun and told him that Lishey and his
cohort were going to start shooting them at the end of the party.
Everything was suddenly happening fast, and when Lishey’s
group started to approach, appellant “just shot in the crowd.” At
first he insisted he fired only two or three times, and was not
aiming at anyone in particular. After the shooting, appellant
returned the gun to Foreman.
Estimating the number of Crips at the party at 30,
significantly outnumbering the Bloods, appellant said he had
been nervous about the Crips from the moment he arrived. There
had been “banging” “along with tension, arguing and drinking,”
but appellant was just drinking and having fun with the people
in his own group. Appellant insisted that he never intended to
shoot anyone, much less kill a person, even as he admitted firing
four or five times at Lishey as Lishey was backing away. He
asserted, “that’s not the type of person I am. I think it was just,
feel me, heat of the moment, and then, niggas handing me guns
and alcohol and shit.”
Appellant maintained that when Foreman handed him the
gun, he thought he was simply holding it for Foreman; it did not
even occur to him he would use it to shoot someone. But
appellant also claimed that Foreman “forced [him] to bust on that
nigga,” and “he kept it in [appellant’s] head the whole party” that
they were “about to get shot at, at the end of the party.”
Appellant said that when Foreman gave him the gun about five
minutes before the shooting, he put it on his hip. After waiting a
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few minutes, Foreman said, “ ‘Just bust, bust, bust,’ ” and
appellant started shooting. Appellant never looked to see
whether Lishey had a gun.
Three weeks later, appellant was arrested in possession of
a nine-millimeter gun. Appellant insisted that the gun in his
possession at his arrest was not the murder weapon. Although
both guns belonged to Foreman, Foreman had left the murder
weapon with someone else before flying to Arizona. Appellant
told the detectives he could get the gun by simply calling
Foreman and telling him, “hey, I need that nine.” As for the
other gun, appellant claimed that Foreman had given it to Key,
and it was in Key’s backpack in the car.
DISCUSSION
The Trial Court Did Not Abuse Its Discretion in
Admitting Evidence that Appellant Had a Gun in
His Possession When He Was Arrested a Few
Weeks After the Shooting
A. Relevant background
The prosecution presented evidence that at the time of his
arrest on September 10, 2016, appellant possessed a nine-
millimeter semiautomatic handgun with a 30-round clip of
ammunition. Although ballistics tests to determine whether it
was the same weapon used to kill Lishey were inconclusive, the
prosecution sought to admit the evidence that appellant was with
gang members and possessed a loaded gun to counter appellant’s
statements that he had been manipulated into committing the
shooting and had been afraid for his life. Appellant objected to
admission of the evidence on relevance grounds as well as under
Evidence Code sections 1101 and 352.
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Over appellant’s objections the trial court ruled the
evidence admissible. Specifically, the court determined the
evidence that appellant possessed a nine-millimeter gun three
weeks after the shooting was relevant to impeach appellant’s
statements minimizing his culpability with respect to possession
of the murder weapon and his state of mind in shooting Lishey.
Finding the evidence of appellant’s subsequent gun possession
was not inflammatory, the court concluded that any potential for
prejudice was substantially outweighed by the relevance and
probative value of the evidence. The court also overruled
appellant’s objection to the admission of appellant’s statements to
the detectives during his interview regarding the firearm in his
possession at his arrest.
The trial court instructed the jury that evidence appellant
possessed a gun at the time of his arrest could not be considered
as evidence of bad character, but could be considered in
determining the issues of intent to kill, premeditation, credibility,
and whether the shooting was gang-related.
B. The trial court did not abuse its discretion in
admitting the gun evidence on the basis of its finding that
the evidence was probative and relevant to issues other
than a propensity to possess and use guns
Appellant contends the evidence of his possession of a gun
at the time of his arrest should have been excluded because it
was probative only as inadmissible propensity evidence and
otherwise irrelevant to any disputed issue before the jury. We
disagree.
Evidence Code section 1101, subdivision (a) “ ‘expressly
prohibits the use of an uncharged offense if the only theory of
relevance is that the accused has a propensity (or disposition) to
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commit the crime charged and that this propensity is
circumstantial proof that the accused behaved accordingly on the
occasion of the charged offense.’ ” (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 406 (Bryant).) Although evidence
of the defendant’s commission of other crimes, civil wrongs or bad
acts is inadmissible to prove the defendant’s conduct on a
specified occasion, such evidence can be used to attack the
defendant’s credibility. (Evid. Code, § 1101, subd. (c); People v.
Kennedy (2005) 36 Cal.4th 595, 620 [limitations on the
admissibility of evidence of specific instances of misconduct “do
not apply to evidence offered to support or attack the credibility
of a witness”]; People v. Hawthorne (2009) 46 Cal.4th 67, 99
[“Unless precluded by statute, any evidence is admissible to
attack the credibility of a witness if it has a tendency in reason to
disprove the truthfulness of the witness’s testimony”].) Such
evidence may also be admitted to prove a material fact in dispute
such as motive, intent, preparation, plan, knowledge, or the
absence of mistake or accident. (Evid. Code, § 1101, subd. (b);
People v. Cage (2015) 62 Cal.4th 256, 273 (Cage); People v. Jones
(2013) 57 Cal.4th 899, 930.)
“ ‘Evidence Code section 210 defines “relevant evidence” as
“evidence . . . having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of
the action.” ’ ” (People v. Pearson (2013) 56 Cal.4th 393, 438
(Pearson).) If evidence of another instance of defendant’s
misconduct is relevant to prove some fact other than propensity,
the evidence may properly be admitted subject to a limiting
instruction upon request. (Bryant, supra, 60 Cal.4th at p. 406.)
We review the trial court’s ruling on the admissibility of such
evidence for abuse of discretion (Cage, supra, 62 Cal.4th at
9
p. 274; Bryant, at p. 405), reversing only where “ ‘it is shown
“ ‘the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.’ ” ’ ” (People v. Jones (2017) 3 Cal.5th 583,
609, quoting People v. Merriman (2014) 60 Cal.4th 1, 74.)
Here, the evidence that appellant possessed a firearm at
his arrest within three weeks of the homicide was relevant to
proving several disputed issues of fact other than appellant’s
disposition to possess and use guns.
First, the gun possession evidence was relevant to proving
the gang enhancement under section 186.22, subdivision (b)(1).
To establish that enhancement, the prosecution was required to
prove the killing of Lishey was “gang-related,” that is, it was
“(1) ‘committed for the benefit of, at the direction of, or in
association with any criminal street gang,’ and (2) ‘with the
specific intent to promote, further, or assist in any criminal
conduct by gang members.’ ” (People v. Rivera (2019) 7 Cal.5th
306, 331; People v. Livingston (2012) 53 Cal.4th 1145, 1170–
1171.) According to one of the defense theories the shooting was
not gang-related but was the culmination of a dispute over a
woman between Foreman and Lishey. The evidence that at the
time of his arrest three weeks after the killing appellant was with
an IFB member while armed with another nine-millimeter gun
belonging to Foreman tended to rebut this defense theory by
showing appellant’s ongoing support of the gang and his
relationship with one of its leaders. Moreover, appellant’s claims
that he knew the firearm in his possession at his arrest was a
different nine-millimeter gun than the one used in the shooting,
that he knew Foreman had entrusted that other nine-millimeter
gun to Key, and that he knew Foreman’s whereabouts, the
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probable location of the murder weapon, and could call Foreman
to get the gun for police underscore the relevance of the gun
evidence to the gang enhancement issue. As the prosecutor
argued, appellant’s continued involvement with Foreman after
the shooting and possession of his gun tended to show the
shooting had been part and parcel of appellant’s gang
involvement, and a way for appellant to demonstrate his fealty
and commitment to strengthening the gang.
The gun evidence was also relevant to establish appellant’s
intent to kill Lishey as well as to impeach appellant’s credibility
with respect to his exculpatory statements about carrying out the
shooting. The primary theory of the defense was that, having
been manipulated by Foreman, appellant acted in unreasonable
self-defense when he fired at Lishey, genuinely believing his life
was in imminent danger. During his recorded interview with
police, appellant also made numerous exculpatory statements in
an attempt to minimize his own responsibility for the killing.
Appellant repeatedly insisted that he never intended to shoot or
hurt anyone, much less kill Lishey, whom he did not even know.
But the fact that appellant had a loaded gun in his possession
just three weeks after killing Lishey directly undermined
appellant’s credibility in making those assertions.
Of course, “ ‘[e]vidence is relevant when no matter how
weak it is it tends to prove a disputed issue.’ ” (Pearson, supra,
56 Cal.4th at p. 438.) The gun evidence presented here was
certainly not dispositive on the issues of “gang-relatedness,”
intent to kill, or appellant’s credibility. It did, however, have
some tendency in reason to prove or disprove disputed facts
related to those issues, and was thus relevant. (Pearson, at
p. 438.) The trial court did not abuse its discretion in admitting
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the evidence of appellant’s possession of a firearm at the time of
his arrest.
C. The trial court properly determined that the gun
evidence was not inflammatory, nor was its presentation
confusing or lengthy, and its probative value outweighed
any possible prejudice
Even if uncharged acts evidence is relevant and otherwise
admissible, such evidence may nevertheless be excluded under
Evidence Code section 352 if its probative value is substantially
outweighed by the probability that its admission will require an
undue consumption of time, will confuse or mislead the jury, or it
is unduly inflammatory or poses a substantial risk of undue
prejudice. (Bryant, supra, 60 Cal.4th at p. 407; People v. Wang
(2020) 46 Cal.App.5th 1055, 1076.) The trial court in this case
did not abuse its discretion in determining that the gun evidence
was admissible under Evidence Code section 352.
Presentation of the evidence that appellant possessed a
loaded gun at the time of his arrest took very little time: The
testimony of the arresting officer was reported in six pages of
transcript, only two of which concerned the firearm. There was
also nothing confusing about the officer’s straightforward
account. He merely testified that, after seeing appellant in the
front passenger seat of the car reach into his waistband and
rummage in the backpack at his feet, the officer recovered a nine-
millimeter gun and 30 rounds of ammunition from the backpack.
And the evidence was not inflammatory. Given the gang
evidence and appellant’s own account of the murder⎯he shot a
complete stranger to death at a party while the man was backing
away, without even bothering to check if the victim was
armed⎯there was no substantial likelihood the jury would have
12
been inflamed upon hearing appellant had a gun a few weeks
after the shooting.
Admission of the gun evidence simply did not create a
substantial danger of undue prejudice. (Evid. Code, § 352, subd.
(b).) As our Supreme Court has repeatedly explained, “ ‘ “In
applying [Evidence Code] section 352, ‘prejudicial’ is not
synonymous with ‘damaging.’ ” ’ [Citation.] ‘ “ ‘[A]ll evidence
which tends to prove guilt is prejudicial or damaging to the
defendant’s case.’ ” ’ [Citation.] The ‘prejudice’ which section 352
seeks to avoid is that which ‘ “ ‘uniquely tends to evoke an
emotional bias against the defendant as an individual and which
has very little effect on the issues.’ ” ’ ” (Cage, supra, 62 Cal.4th at
p. 275; People v. Williams (2013) 58 Cal.4th 197, 270.)
Appellant contends that the gun evidence “was likely to
evoke an emotional bias, as it suggested appellant was a violent
person who possessed a loaded deadly weapon and reached for
the weapon as the police approached.”3 But as set forth above,
the gun evidence was relevant to several disputed issues of fact,
including the elements of the gang enhancement, appellant’s
intent to kill, and his credibility in explaining the mitigating
circumstances of the shooting in his interview with police, while
its probative value as propensity evidence was de minimus.
Indeed, in the face of abundant evidence of appellant’s immersion
in the gang lifestyle, his awareness of the deadly risks faced by
gang members, the loss of his own father to gang violence, and
3 The clear implication of the officer’s testimony is that
appellant sought to hide the weapon and distance himself from it
as the officer drew near to the car, not that he appeared ready to
use it as the officer approached.
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the new prominent gang tattoos he got after the shooting, it is
virtually inconceivable that evidence of appellant’s possession of
a gun three weeks after the killing would unduly prejudice him in
the eyes of the jury.
Finally, we note that the jury was given a limiting
instruction that appellant’s possession of a gun when he was
arrested could not be considered as evidence of bad character, but
could only be considered in determining the issues of intent to
kill, premeditation, credibility, and whether the shooting was
gang-related. In the absence of any indication to the contrary, we
presume the jury followed the court’s instruction. (See Cage,
supra, 62 Cal.4th at p. 275.)
In sum, we find no abuse of discretion in the trial court’s
admission of the challenged gun evidence under Evidence Code
section 1101 or section 352. For the same reasons, we reject
appellant’s federal constitutional claim that admission of the
evidence violated his due process rights. (People v. Thompson
(2016) 1 Cal.5th 1043, 1116 [a defendant’s constitutional rights
not impinged by the routine application of state evidentiary law].)
Having determined the evidence was relevant and properly
admitted to prove a fact of consequence, we find no violation of
appellant’s federal constitutional rights. (People v. Foster (2010)
50 Cal.4th 1301, 1335; People v. Benavides (2005) 35 Cal.4th 69,
96 [federal constitutional claim fails where the evidence was
properly admitted under state law].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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