People v. Dao CA2/5

Filed 10/5/20 P. v. Dao CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B298545

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA454112)
v.

VINH DAO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Robert J. Perry, Judge. Affirmed as modified.
Mark R. Feeser, 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, Assistant
Attorney General, Michael R. Johnsen and Kristen S. Inberg,
Deputy Attorneys General, for Plaintiff and Respondent.
 I. INTRODUCTION

Defendant and appellant Vinh Dao appeals his convictions
of two counts of first degree murder, for which he was sentenced
to consecutive terms of life without the possibility of parole. He
argues there was insufficient evidence of deliberation and
premeditation and the trial court erred in admitting evidence of
prior bad acts. He also argues he did not knowingly or
voluntarily stipulate to his prior manslaughter conviction, which
added five years to his sentence. Finally, he contends the
abstract of judgment must be amended to reflect the correct
amount of victim restitution.
We affirm the first degree murder convictions and order the
abstract of judgment modified to reflect the accurate amount of
victim restitution.

II. BACKGROUND

A. Defendant’s Return to Los Angeles

In January 2017, defendant moved back to Los Angeles
from Las Vegas because he was having problems with his ex-
girlfriend and their children. On January 20, 2017, his car broke
down and was towed and stored in Los Angeles. He contacted a
friend, who took him to a dinner party. Also present was victim
Tony Young, the newly-elected president of the Hop Sing Tong
Benevolent Association (Hop Sing). The dinner took place in
downtown Los Angeles at a local restaurant. Several other Hop
Sing members attended the dinner. During the evening, a waiter
moved a walking cane that defendant had brought with him,

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revealing five to six inches of a concealed knife. The dinner was
otherwise uneventful. Following dinner, Young gave defendant
money to help defendant retrieve his vehicle from the impound.
The amount apparently was insufficient, and defendant was
unable to get his car.

B. The Murders

One week later in the early afternoon of January 26, 2017,
defendant sat at a table and ordered food at Plum Tree Inn
restaurant in Chinatown (Plum Tree). A witness testified that
Plum Tree was “about 370 feet” from where Hop Sing was
located. Defendant later left Plum Tree without paying for his
food, and, on his way out, stole a decorative statue from the
restaurant.
At about the same time, victims Young and Kim Kong Yun
were playing Mahjong in the large hall-like room that was the
bottom floor of Hop Sing. Ten to 20 members and guests were in
the area. Defendant entered Hop Sing through the front door
carrying a bag. He walked to the back door where he placed the
statue stolen from Plum Tree.
Defendant approached Yun at the Mahjong table and
requested to stay overnight at Hop Sing. Yun, who had a
managerial role at Hop Sing, refused. Defendant loudly said to
Yun, “Fuck you mother. Fuck you.” An eyewitness said Yun also
rejected defendant’s effort to borrow a car. Yun accused
defendant of not returning another car he had already borrowed.
Defendant responded, “Fucking—fuck you . . . .” Defendant then
began talking loudly on his cellphone. Yun and Young both told
defendant to quiet down.

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 An eyewitness testified that Yun told defendant to leave.
Defendant refused and Yun repeated his request. According to
the witness, Yun began pushing defendant toward Hop Sing’s
front door. Yun pushed defendant “in a very rude way, meaning
he was insistent that he must leave.” At the door, Yun angrily
argued with defendant and told him to leave. Another
eyewitness testified that he did not see Yun push defendant. Still
another eyewitness testified that he did not see Yun or Young
push defendant—during the “whole encounter” “no one pushed
him.”
Yun and defendant continued to argue at the front door for
about a minute.1 Defendant then withdrew a knife from his
waistband or pocket, held it high, and stabbed Yun twice—once
on his left arm and once on the left side of his neck. The stab
wound to Yun’s neck was fatal.2 The wound traveled five inches
through Yun’s neck, fracturing Yun’s spinal cord and lacerating
his vertebral artery. As defendant attacked Yun, Young fled
toward a stairwell. Defendant then chased Young and stabbed
him seven times in his neck and chest, also fatally wounding
Young.
Defendant ran out Hop Sing’s back door and crashed into a
trash bin near a woman and her daughter. The woman saw
defendant holding a nine-inch-long, sheathed knife. Defendant
appeared to be bleeding and the knife was dripping blood. He
told the woman that he had cut himself and then ran toward a

1 One of the four eyewitnesses stated Young was arguing
with defendant as well.

2 This knife was not the same knife from the walking cane
seen at the earlier dinner party.

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nearby alley. Police observed a trail of blood in the direction
defendant ran. Along the path, police found a black, bloodstained
glove on a gate. The blood trail and blood on the glove contained
DNA consistent with defendant’s profile. None of the bloodstains
tested matched the DNA profiles of Yun or Young.
Later that day, defendant was treated at Huntington
Memorial Hospital for a left hand laceration. Defendant told
hospital staff he cut himself while playing with a knife.
Defendant left the hospital before his scheduled surgery.
The next day, police arrested defendant who was sitting on
a bench in Alhambra. On his person, police found a large knife,
with a six-and-a-half inch sheathed blade. Defendant’s backpack
contained a sheathed machete, paperwork from Huntington
Memorial Hospital dated January 26, 2017, two receipts from
Sprint at Radio Shack dated January 27, 2017, a Boost cell
phone, an iPhone, and a map covered in bloodstains. Testing
revealed the presence of blood on the sheath, backpack, map,
glove, and on defendant’s shoes and pants.

C. The Charges

The People charged defendant with two counts of murder in
violation of Penal Code section 187, subdivision (a)3—count 1 for
Young’s murder and count 2 for Yun’s murder. As to both counts,
the information alleged that defendant committed multiple
murders (§ 190.2, subd. (a)(3)), personally used a knife (§ 12022,
subd. (b)(2)), and had a prior conviction for voluntary
manslaughter, which qualified as both a strike conviction as

3 All subsequent statutory references are to the Penal Code
unless indicated otherwise.

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defined by the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)), and a serious felony (§ 667, subd. (a)(1)).
Defendant pleaded not guilty.

D. The Trial

On April 2, 2019, defendant’s jury trial commenced. The
People presented testimony from five eyewitnesses to the murder
and surrounding events, from police officers, and from the
medical examiner. Their testimony was consistent with the
events we have previously described. Over defendant’s objection,
the People presented Evidence Code section 1101, subdivision (b)
evidence of the following three prior bad acts to prove knowledge
or lack of mistake, premeditation, motive, intent, and common
plan or scheme.4

1. Bad Acts Evidence

The parties stipulated that defendant was convicted of
voluntary manslaughter and assault with a deadly weapon in
2002. Tam Tieu (a victim of the assault and the friend of the
deceased victim Hong La) and the coroner testified about the
incident. Following an argument inside a nightclub, defendant
and La fought outside. Defendant had a knife and stabbed La
four times, killing him; La was unarmed. Tieu ran as defendant

4 We address the People’s successful motion to admit this
evidence in the Discussion section below. Although the People
argued additional theories, the trial court instructed the jury that
it could consider the evidence to prove identity, motive, intent,
and common plan or scheme.

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said, “[A]nybody wants to join?” Defendant chased Tieu and cut
him on the back with the knife. Tieu was able to escape. His
injury did not require medical treatment.
The People also introduced testimony from S.A., plaintiff’s
ex-girlfriend and mother of his children. She testified that early
in their 10-year relationship, defendant told her that as a child,
his physical education class consisted of “training” “like if they
had to go to war or whatever, so they trained them in defense and
like how to pinpoint I guess—I don’t know how you put it—points
of fatality or whatever.” According to S.A., defendant carried
knives “most of the time,” ranging from a pocketknife to a
machete. In 2015, defendant threatened to slit her throat and
kill their children if she left him or did not let him see the
children. Defendant never actually used a knife against her or
the children. S.A. eventually obtained a protective order against
defendant, and they separated in 2014 or 2015.
The third incident came in through the testimony of a
delivery driver. On January 3, 2016, the driver was making a
stop at a convenience store in Las Vegas and heard two men
screaming in the parking lot. She watched defendant swing a
knife at the other man and then chase, and try to kick the man.
Defendant did not actually stab the man. By the time police
arrived, defendant was hugging the victim.

2. Defendant’s Testimony

Defendant was the only defense witness. He testified that
he was not responsible for Yun’s or Young’s death. Defendant
stated that as a child, he witnessed daily violence living in a
refugee camp in Hong Kong. When defendant was 13, he moved

7
to Los Angeles to live with his grandfather. His grandfather was
a Hop Sing member, and defendant joined in 1997.
After killing La in 2002, defendant turned himself in,
telling police he “shanked him with a knife,” and he was very
sorry. Defendant explained that La and as many as six other
individuals jumped him before the stabbing, causing defendant to
overreact based on his childhood experiences in the refugee camp.
Defendant denied chasing or cutting Tieu after fatally stabbing
La.
After his voluntary manslaughter conviction and time in
prison, defendant moved to Las Vegas, where he and S.A. started
a family. Defendant was no longer associated with Hop Sing.
Defendant denied that he routinely carried knives and denied
threatening S.A. or their children. He admitted he may have
been emotionally abusive toward S.A. Defendant and S.A.
eventually broke up, and by January 2017, the month of the
murders, defendant was in the process of moving back to
California.
As to the days leading up to the Yun and Young stabbings,
defendant testified that Young gave him $400, which was not
enough to get his vehicle out of impound. On January 26, 2017, a
part owner of Plum Tree told defendant to take a statue from the
restaurant and bring it to Hop Sing. He stated the waiter
permitted defendant to write his name on a piece of paper rather
than pay the bill because Plum Tree and Hop Sing were
affiliated.
Defendant testified that he went inside Hop Sing to find
Young, unconscious on a staircase, and Yun, on the ground in a
corner. Yun was still alive and appeared to be reaching out to
defendant. There was blood spatter everywhere.

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 Defendant testified that he considered performing first aid
until he noticed a man with a gun and another with a knife inside
Hop Sing. Two or three people came toward defendant and the
man with the knife attacked defendant, causing him to fall
backwards onto a table. Defendant grabbed the attacker’s hand,
and when the attacker tried to pull back the knife, defendant’s
hand was cut.
Defendant testified that he fled Hop Sing through a rear
door, telling bystanders to call 911 because there had been a
shooting. Defendant then ran through an alley toward Hill
Street. He found a glove, which he tried to use to control the
bleeding on his hand. The glove was too small, and he placed it
on a door handle so that someone might call 911. Fearing for his
life, defendant also purchased a knife and a machete from a shop
near Hop Sing. He said he did not seek help from police because
he was in shock. Defendant did not recall seeing the mother and
child outside Hop Sing and did not know how a bloody sheath
with DNA matching his profile ended up in that location.
Defendant stated he then took a bus to a hospital to
address his hand injury. He left the hospital against doctor’s
orders before his scheduled surgery because he wanted to find out
what happened to Young. Defendant purchased a new phone,
which he said was cheaper than reactivating his old phone that
had a dead battery.

3. The Jury’s Verdict

The jury found defendant guilty of both murders, found
both murders to be in the first degree, and found true the
allegations that defendant used a knife, committed multiple

9
murders, and had suffered a prior conviction for voluntary
manslaughter, a serious felony.

E. Sentencing

The trial court imposed consecutive terms of life without
the possibility of parole for each murder conviction based on the
multiple murder special circumstance enhancements. The court
imposed consecutive one-year determinate terms on each count
for the personal use of a deadly weapon. The court ordered
defendant to serve a consecutive five-year term for his prior
serious felony conviction. In aggregate, the court sentenced
defendant to a determinate term of seven years consecutive to
two consecutive terms of life without the possibility of parole.

III. DISCUSSION

A. First Degree Murder Convictions

1. Applicable Law

First degree murder requires both deliberation and
premeditation; second degree murder does not. (§§ 187, subd. (a),
189; People v. Nazeri (2010) 187 Cal.App.4th 1101, 1111
(Nazeri).) “A verdict of deliberate and premeditated first degree
murder requires more than a showing of intent to kill. [Citation.]
‘Deliberation’ refers to careful weighing of considerations in
forming a course of action; ‘premeditation’ means thought over in
advance. [Citations.] [Citation.] Premeditation and deliberation
can occur in a brief interval. The test is not time, but reflection.

10
Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly. [Citation.]
[Citations.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1069
(Mendoza) [some internal quotation marks omitted].)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our
Supreme Court identified three types of evidence that are useful
in determining whether there was sufficient evidence of
deliberation and premeditation—planning activity, preexisting
motive, and the manner of killing. (Mendoza, supra, 52 Cal.4th
at p. 1069.) “‘The Anderson factors, while helpful for purposes of
review, are not a sine qua non to finding first degree
premeditated murder, nor are they exclusive.’ [Citations.] Or as
[a court has] phrased it before, the factors do not impose ‘a
straightjacket on the manner in which premeditation can be
proven adequately at trial.’ [Citation.]” (People v. Williams
(2018) 23 Cal.App.5th 396, 410.)
Deliberation and premeditation do not require an extended
period of time. “‘The true test is not the duration of time as much
as it is the extent of the reflection.’” (People v. Cage (2015) 62
Cal.4th 256, 276.) Premeditation does not require cool, measured
planning. (Ibid.; Nazeri, supra, 187 Cal.App.4th at p. 1114.) An
intentional killing is deliberate and premeditated if it resulted
from “preexisting thought,” rather than “rash impulse.” (People
v. Stitely (2005) 35 Cal.4th 514, 543.)
Defendant contends there was insufficient evidence of
deliberation or premeditation as to either murder. We review the
record in the light most favorable to the judgment to determine
whether it contains substantial evidence from which a rational
trier of fact could find defendant guilty beyond a reasonable
doubt. (Mendoza, supra, 52 Cal.4th at pp. 1068–1069.)

11
 2. Yun’s Murder

Defendant argues that the evidence shows Yun’s murder
was a rash act, the result of provocation. Further, he argues that
the Anderson factors demonstrate that there was no deliberation
and premeditation. We disagree.
The Anderson and other factors supported the jury’s finding
that Yun’s murder was deliberate and premeditated. First,
defendant had a motive. Yun had refused defendant’s requests to
stay overnight at Hop Sing and to borrow a car, he had told
defendant to quiet down while defendant was speaking loudly on
his cell phone, and he had asked defendant to leave Hop Sing.
(See People v. Pensinger (1991) 52 Cal.3d 1210, 1238 [“the
incomprehensibility of the motive does not mean that the jury
could not reasonably infer that the defendant entertained and
acted on it”].)
Second, the manner in which defendant stabbed Yun
supported a finding of deliberation and premeditation.
Defendant stabbed Yun in the neck, a vital area, and S.A.
testified that defendant was trained as a child to pinpoint areas
of fatality on a person’s body. A stab wound to a vital area “‘is
indicative of a reasoned decision to kill.’” (People v. Lewis (2009)
46 Cal.4th 1255, 1293 [throat cutting is evidence of a reasoned
decision to kill]; People v. Paton (1967) 255 Cal.App.2d 347, 352
[“the fact that the wounds were not wild and unaimed but were
in the area of the chest and the heart” is evidence of deliberation
and premeditation]; People v. Halvorsen (2007) 42 Cal.4th 379,
422 [shooting the victim in the neck from within a few feet was a
“method of killing sufficiently ‘“particular and exacting”’ to
permit an inference that defendant was ‘acting according to a

12
preconceived design’ . . .”].) Further, defendant pulled the knife
out of his waistband or pocket and held it over his head before
killing Yun. The jury could have inferred, as the prosecutor
argued, that defendant continued to premeditate the killing
during this period of time.
Third, defendant’s stabbing of Yun was not an isolated
event. Defendant had a history of arming himself with a knife
and using or threatening to use the knife when angry. (See
People v. Solomon (2010) 49 Cal.4th 792, 815 [“‘the more often
one does something, the more likely that something was
intended, and even premeditated, rather than accidental or
spontaneous’”].) In 2001, defendant stabbed La to death, cut
Tieu, and was sent to prison. The jury reasonably could have
concluded that while incarcerated defendant had thought about
the adverse consequences of his criminal acts but, when released,
nevertheless decided to arm himself again with a knife and
resolve conflicts by stabbing those with whom he was angry. In
2015, he threatened to slit S.A.’s throat and kill their children if
she left him or did not let him see their children. In 2016,
defendant swung a knife at and chased a man he had argued
with at a convenience store parking lot in Las Vegas. In this
case, after stabbing Yun to death, defendant chased and fatally
stabbed Young.
In reaching our conclusion, we recognize that there was
ample evidence introduced at trial from which a trier of fact could
have concluded, as defendant argues, that the murder was a rash
and impulsive act resulting from provocation, and not the result
of deliberation and premeditation. For example, there was
testimony that Yun pushed defendant in a rude manner during
their argument, and that Young and others gathered by

13
defendant at the door. But the testimony that supports the
argument for provocation, and a reaction without reflection by
defendant, is contradicted by other testimony: for example,
witnesses within a few feet of defendant and the victims said that
they saw no pushing and even that there was no pushing. It was
the jury’s role, and it is not ours, to resolve such conflicts in the
evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181 [“In
deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts.
[Citation.] Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact.
[Citation.]”].) Here, defendant and the prosecution expressly
argued the issue of deliberation and premeditation to the jury,
drawing on the trial evidence noted above. We cannot say that
the jury did not have substantial evidence to support its verdict
that defendant deliberated and premeditated the killing of Yun
and to reject the argument in closing by defendant’s counsel that
defendant had been provoked by Yun pushing him, Young
following close behind, and both of them arguing with him.

3. Young’s Murder

Sufficient evidence also supported a finding of deliberation
and premeditation in Young’s murder. After murdering Yun at
the front door, defendant had time to reflect. He chose not to
leave through the nearby front door but to chase down Young
across the room as Young was heading toward a stairway at the
back of Hop Sing. A few moments earlier Young had asked
defendant to quiet down when defendant was speaking loudly on
his cell phone. What happened next was primarily a conflict

14
between Yun and defendant. Eyewitness testimony indicated
that Young attempted to dissolve tension between defendant and
Yun, immediately before defendant killed Yun.5 Following Yun’s
murder, defendant chased Young, who was by then across the
room. Although no one testified about the time between the
original encounter when defendant asked if he could stay at Hop
Sing and the Young killing, the jury could have reasonably found
that that it took more than a minute. This gave defendant plenty
of time to deliberate and premeditate the Young murder.
Defendant chose not to flee the scene to avoid apprehension
for the Yun murder, but instead decided to stab Young seven
times in the neck and chest. (See People v. Castillo (1997) 16
Cal.4th 1009, 1018 [evidence supported first degree premeditated
murder of second victim where defendant suddenly shot the first
victim, and then chased and fatally shot second victim]; People v.
Concha (2010) 182 Cal.App.4th 1072, 1090 [confronting, chasing,
cornering, and repeatedly stabbing the victim supports a finding
of premeditation and deliberation].) Thus, even if defendant had
not deliberated and premeditated Yun’s murder—and we
conclude that he did—“premeditation and deliberation could be
inferred when he killed again . . . in the same manner.” (People v.
Solomon, supra, 49 Cal.4th at p. 829; People v. Steele (2002) 27
Cal.4th 1230, 1244.)

5 We observe that three eyewitnesses indicated the arguing
took place between defendant and Yun, and Yun moved
defendant toward the front door. One witness stated that both
Yun and Young argued with defendant.

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B. Uncharged Bad Acts Evidence

Defendant contends the trial court erred when it
“permitted the prosecution to present highly prejudicial prior bad
acts evidence to prove identity, intent, motive, and a common
plan or scheme.” He asserts the prior acts were not sufficiently
similar to the charged offenses and had no relevance beyond
impermissible inferences about defendant’s propensity to commit
crimes with a knife.6

1. Relevant Proceedings

Before trial, the prosecution moved to admit evidence of
defendant’s 2001 voluntary manslaughter and assault with a
deadly weapon, the 2015 threats against S.A. and their children,
and the 2016 incident where defendant chased a man with a
knife in a parking lot. In their pretrial brief, the People argued
that, under Evidence Code section 1101, subdivision (b), the
voluntary manslaughter and 2016 assault were admissible to
prove identity and that all three prior bad acts were admissible to
prove intent, common plan, motive, and knowledge, and to negate
any claim of self-defense. Defendant filed an opposition asserting
the evidence was not probative and was unduly prejudicial.
The trial court heard argument on the motion. The People
asserted S.A.’s testimony was admissible to show premeditation

6 Defendant concedes that the prior acts all involved knives.
This alone is strong evidence of common plan or scheme. (See
People v. Lancaster (1957) 148 Cal.App.2d 187, 194 [multiple
instances of luring a victim to secluded place and use of a knife to
restrain victim during robbery show common scheme or plan].)

16
and intent, the 2016 assault was admissible to show intent, and
the 2001 manslaughter was admissible to prove common scheme
or plan, intent, and premeditation. The court ruled it would
admit the voluntary manslaughter to establish defendant’s
knowledge of what a knife can do and the lack of accident. The
court also found the incident relevant for the reasons the People
argued, i.e. common scheme or plan, intent, and premeditation.
The court permitted the People to introduce the parking lot
assault for intent, noting that intent evidence requires the “least
amount of similarity.” The court allowed into evidence S.A.’s
testimony but limited it to defendant’s use of and threats with
knives. The court excluded evidence of two other incidents the
prosecution had sought to present.
At the close of the trial, the court instructed the jury that if
the People proved by a preponderance of the evidence that
defendant committed (1) the voluntary manslaughter of La on
June 10, 2001, (2) a criminal threat against S.A. in April 2015,
and (3) an assault with a knife on an unidentified man in Las
Vegas on January 3, 2016, the jury may consider that evidence
for the limited purpose of deciding whether:
“Defendant was the person who committed the offenses
alleged against him in this case; or
“Defendant had a plan or scheme to commit the offenses
alleged in this case; or
“Defendant had a motive to commit the offenses alleged
against him in this case.”
The court directed the jury not to “conclude from this evidence
that defendant ha[d] a bad character or is disposed to commit
crimes.” The court instructed: “If you conclude that defendant
committed the uncharged acts, that conclusion is only one factor

17
to consider along with all the other evidence. It is not sufficient
by itself to prove that . . . defendant is guilty of the offenses
charged in this case. The People must still prove every charge
beyond a reasonable doubt.”

2. Applicable Law

Evidence of other crimes or bad acts is generally
inadmissible when offered to show a defendant’s criminal
disposition or propensity to commit the crime charged. (Evid.
Code, § 1101, subd. (a); People v. Robertson (2012) 208
Cal.App.4th 965, 989.) However, that evidence may be
admissible “when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . .) other than his or her
disposition to commit such an act.” (Evid. Code, § 1101, subd. (b);
People v. Foster (2010) 50 Cal.4th 1301, 1328 (Foster).) The
requisite degree of similarity differs depending on the purpose of
the evidence.
“The least degree of similarity (between the uncharged act
and the charged offense) is required in order to prove intent.
[Citation.] . . . In order to be admissible to prove intent, the
uncharged conduct must be sufficiently similar to support the
inference that the defendant probably harbor[ed] the same intent
in each instance.” (Foster, supra, 50 Cal.4th at p. 1328 [internal
quotation marks and citations omitted].)
When using the uncharged act to show knowledge, “the
degree of similarity required depends on the specific knowledge
at issue and whether the prior experience tends to prove the
knowledge [the] defendant is said to have had in mind at the time

18
of the crime.” (People v. Hendrix (2013) 214 Cal.App.4th 216,
241.) To “establish knowledge when that element is akin to
absence of mistake, the uncharged events must be sufficiently
similar to the circumstances of the charged offense to support the
inference that what defendant learned from the prior experience
provided the relevant knowledge in the current offense.” (Id. at
pp. 242–243.)
“A greater degree of similarity is required in order to prove
the existence of a common design or plan. . . . [E]vidence of
uncharged misconduct must demonstrate not merely a similarity
in the results, but such a concurrence of common features that
the various acts are naturally to be explained as caused by a
general plan of which they are individual manifestations.”
(Foster, supra, 50 Cal.4th at p. 1328 [internal quotation marks
and citations omitted].) “Evidence of a common design or plan
. . . is not used to prove the defendant’s intent or identity but
rather to prove that the defendant engaged in the conduct alleged
to constitute the charged offense.” (People v. Ewoldt (1994) 7
Cal.4th 380, 394 (Ewoldt).)
“The greatest degree of similarity is required for evidence of
uncharged misconduct to be relevant to prove identity . . . . [T]he
uncharged misconduct and the charged offense must share
common features that are sufficiently distinctive so as to support
the inference that the same person committed both acts. The
pattern and characteristics of the crimes must be so unusual and
distinctive as to be like a signature. The highly unusual and
distinctive nature of both the charged and [uncharged] offenses
virtually eliminates the possibility that anyone other than the
defendant committed the charged offense.” (Foster, supra, 50

19
Cal.4th at p. 1328 [internal quotation marks and citations
omitted].)
The admission of uncharged bad acts evidence is subject to
the balancing test under Evidence Code section 352. Relevant
evidence may be excluded if its probative value is substantially
outweighed by the possibility that it will “create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352; Foster, supra, 50
Cal.4th at p. 1328.) “Evidence is prejudicial within the meaning
of Evidence Code section 352 if it ‘“uniquely tends to evoke an
emotional bias against a party as an individual”’ [citations] or if it
would cause the jury to ‘“‘prejudg[e]’ a person or cause on the
basis of extraneous factors.”’” (People v. Cowan (2010) 50 Cal.4th
401, 475.)
Here, the trial court admitted three instances of prior
misconduct: the 2001 voluntary manslaughter, 2015 criminal
threats, and the 2016 assault with a deadly weapon to prove
knowledge or lack of mistake, premeditation, motive, intent, and
common plan or scheme, and instructed the jury on admission of
the evidence for the purpose of proving identity, common plan or
scheme, and motive.7 We review the court’s decision to admit or

7 The People point out that defendant does not allege
instructional error. The People nonetheless state that the trial
court misinstructed the jury: “Respondent agrees that the three
incidents of prior misconduct were not sufficiently similar to the
charged offenses to be admitted to prove identity, common plan
or scheme, or motive as the instruction provided. However, this
error was harmless as it is not reasonably probable [defendant]
would have obtained a more favorable result had the jury been
properly instructed.” We agree that any such error was

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exclude evidence for abuse of discretion. (People v. Mungia (2008)
44 Cal.4th 1101, 1130.)

3. 2001 Voluntary Manslaughter

The 2001 voluntary manslaughter and the 2017 charged
murders were relevant to defendant’s intent and lack of mistake.
That defendant had previously stabbed a victim, killing him, and
then chased a second victim and attacked him with a knife
demonstrated that when defendant stabbed Yun and Young he
did so with the intent to kill and not as a result of mistake.
The 2001 homicide and assault were more probative than
prejudicial. It was probative because the striking similarities
between the two incidents tended to show that defendant was the
killer. There was little likely prejudice because the 2001 attack
was not prone to inflame the passions of the jury. (Ewoldt, supra,
7 Cal.4th at p. 405 [“The testimony describing defendant’s
uncharged acts . . . was no stronger and no more inflammatory
than the testimony concerning the charged offenses. This
circumstance decreased the potential for prejudice, because it
was unlikely . . . that the jury’s passions were inflamed by the
evidence of defendant’s uncharged offenses”].) The earlier
incident involved the killing of one man, not two; defendant was
previously convicted of the lesser crime of voluntary
manslaughter; and he testified that the 2001 killing was in self-
defense. Nothing in the record suggested the 2001 crimes were
more heinous than the murders of Yun and Young. Although
defendant is correct that the 2001 crimes were somewhat remote,

harmless. As defendant does not argue instructional error, we do
not address this point further.

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when considered with the other bad acts that took place in 2015
and 2016, they showed a pattern of knife attacks, some of which
were fatal.

4. 2015 Criminal Threats

Defendant’s ex-girlfriend S.A. testified that defendant
routinely carried knives, told her he knew how to strike vital
parts of the body, and in 2015, had threatened to slice her throat
and kill their children. Two years later, defendant cut and
stabbed the throats of both Yun and Young with a knife he
carried on his person. S.A.’s testimony about defendant’s threat
of extreme violence, i.e. his intent to kill her by slashing her
throat and his intent to kill the children in response to her
leaving him, is probative of defendant’s intent in the present
killings. Her testimony also tended to defeat any claim by
defendant that he acted out of mistake. As to prejudice, threats
of violence, even as horrifically described by the girlfriend, are
not as inflammatory as the completed crimes for which defendant
was on trial.

5. 2016 Assault With a Deadly Weapon

Lastly, in both the charged murder of Young and the 2016
assault with a deadly weapon, defendant pursued a fleeing
victim, while brandishing a knife. His 2016 actions show that
defendant had, in the recent past, acted in a manner similar to
his actions in murdering Young. The 2016 assault is probative of
defendant’s intent to kill and lack of mistake. It also supports
the People’s premeditation theory of Young’s murder. Given that

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defendant had been in this victim-chasing situation before, a jury
could infer he contemplated killing Young before he stabbed him.
(See People v. Solomon, supra, 49 Cal.4th at p. 829 [inferring
premeditation where defendant acted repeatedly in same
manner].)
For reasons which we have given for the other Evidence
Code section 1101, subdivision (b) acts, the 2016 assault evidence
also survives defendant’s challenge under Evidence Code section
352.

C. Admission of Prior Manslaughter Conviction

Defendant contends the jury’s finding that defendant
suffered a prior conviction for voluntary manslaughter and the
corresponding five-year sentence enhancement must be reversed
because the trial court failed to advise defendant of his Boykin-
Tahl8 rights. It is undisputed that the court did not advise
defendant of his constitutional rights and sentencing
consequences of admitting his prior conviction prior to counsel’s
stipulation. We nonetheless conclude that under the totality of
the circumstances, defendant’s admission was voluntary and
intelligent.
In obtaining an admission to the truth of a prior conviction
that subjects a defendant to increased punishment, a trial court
must “inform the defendant of three constitutional rights—the
privilege against compulsory self-incrimination, the right to trial
by jury, and the right to confront one’s accusers—and solicit a
personal waiver of each.” (People v. Cross (2015) 61 Cal.4th 164,

8 Boykin v. Alabama (1969) 395 U.S. 238, 243–244 (Boykin);
In re Tahl (1969) 1 Cal.3d 122, 130–133 (Tahl).

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170 (Cross).) These are commonly referred to as Boykin-Tahl
advisements. (Id. at p. 179.) Our Supreme Court has established
a “‘judicially declared rule of criminal procedure’ that an accused,
before admitting a prior conviction allegation, must be advised of
the precise increase in the prison term that might be imposed,
the effect on parole eligibility, and the possibility of being
adjudged a habitual criminal.” (Id., at pp. 170–171, quoting In re
Yurko (1974) 10 Cal.3d 857, 864.)
In Cross, supra, 61 Cal.4th 164, the Supreme Court held
that where defendant was not advised of his rights when
stipulating to a prior, “the test for reversal is whether ‘the record
affirmatively shows that the [admission] is voluntary and
intelligent under the totality of the circumstances.’” (Id. at
p. 171; People v. Farwell (2018) 5 Cal.5th 295, 302.) In applying
the totality of the circumstances test, we review the whole record
and consider a defendant’s previous experience in the criminal
justice system, which is relevant to his knowledge and
sophistication concerning his legal rights. (Cross, supra, 61
Cal.4th at pp. 179–180.)
Here, defendant had extensive prior experience with the
criminal justice system and had previously pleaded guilty to
manslaughter in 2002. We may reasonably infer that defendant
was admonished of his rights prior to entering the guilty plea.
More fundamentally, defendant testified at trial to committing
the manslaughter that formed the basis of the prior conviction
allegation and to serving a prison sentence for it. Specifically,
defendant testified, “I have manslaughter in my priors.” He
stated that he “shanked” La, stabbed La four times, and killed
La. Defendant also testified he took a “deal . . . for assault with
[a] deadly weapon,” and that he went to prison after La’s death.

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 In sum, defendant admitted the prior manslaughter
conviction during his own testimony, rendering any defect in the
subsequent stipulation by counsel harmless. Defendant’s
admission of the manslaughter conviction and prison sentence
through counsel was knowing and intelligent given this record.

D. Victim Restitution

Defendant and the People agree that the abstract of
judgment incorrectly stated the amount of victim restitution
ordered by the trial court. The abstract of judgment reflects that
the court ordered defendant to pay $75,000 in victim restitution
under section 1202.4, subdivision (f). The court orally imposed a
victim restitution fine of $7,500. Accordingly, we order the
abstract of judgment modified to reflect a victim restitution fine
of $7,500. (See People v. Felix (2009) 172 Cal.App.4th 1618, 1631
[“the abstract of judgment must be corrected to reflect the trial
court’s oral pronouncement at sentencing”].)

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 IV. DISPOSITION

The judgment is affirmed. The abstract of judgment is
ordered modified to reflect a victim restitution fine of $7,500.
The clerk of the superior court is directed to prepare a modified
abstract of judgment and to forward it to the Department of
Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.

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