People v. Huynh

Filed 6/22/21
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076559

Plaintiff and Respondent,

v. (Super. Ct. No. SCD250551)

PHONG THANH HUYNH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Amalia L. Meza, Judge. Reversed.

Jill M. Klein, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
Rogers, Christopher Beesley and Lise S. Jacobson, Deputy Attorneys
General, for Plaintiff and Respondent.
This is the second appeal in this case involving defendant Phong Thanh
Huynh. In our previous decision, we reversed defendant’s conviction in
People v. Huynh (Feb. 24, 2017, D067777) [nonpub. opn.] (Huynh I).
Defendant was retried on the same charges in 2019. The jury found him
guilty of murdering Nghia Pham by means of discharging a firearm from a

moving vehicle (Pen. Code,1 §§ 187, subd. (a) & 189), and found true that
defendant personally discharged a firearm during the commission of this
offense, causing death (§ 12022.53, subd. (d)). On September 13, 2019, the
court sentenced defendant to a term of 25-years-to life in prison for the
murder, and a consecutive term of 25-years-to-life for the enhancement of
discharging a firearm.
On appeal, defendant contends the court erroneously admitted evidence
that he was a member and the leader of, or had authority in, a gang called
Thien Dang. He asserts the gang evidence was not relevant because Thien
Dang was not a criminal street gang. Further, he contends that there was no
evidence that criminal activity was a primary activity of Thien Dang or any
member of Thien Dang had ever committed any crime; and that Thien Dang
was merely a group of Vietnamese men who gathered to drink, eat, and
socialize.
Defendant’s central position is that identifying Thien Dang as a street
gang was highly inflammatory and the error was compounded by a
hypothetical question posed to the People’s gang expert. As we explain, we
agree with defendant. Reversed.

1 Further statutory references are to the Penal Code unless otherwise
specified.
2
 FACTUAL BACKGROUND2
On or about February 5, 2000, 16-year-old Pham was at the Luc Huyen
Cam pool hall in East San Diego (pool hall), with 20-year-old Huy Lai, Tien
Thanh Nguyen, and 18-year-old Thuy Nguyen. Lai, Tien Thanh Nguyen, and
Thuy Nguyen were documented members of the V-Boys criminal street

gang.3
Another group at the pool hall was composed of Long Tran, Bao Huynh,
and Bao’s younger brother Tai Huynh. Neither of these three individuals nor
Pham were associated with any criminal street gang.
Another individual in the pool hall, Calvin An Le, was a documented
member of the Asian Warrior criminal street gang in San Jose. Le and a
fellow Asian Warrior member had come to San Diego to avoid being arrested
for a shooting committed in San Jose.
While playing pool, Pham accidentally bumped into Bao Huynh or hit
him with his cue stick. He apologized and Bao Huynh accepted his apology.
When Pham hit Bao Huynh a second time, Bao Huynh walked up to Thuy
Nguyen and blew smoke in his face. Thuy Nguyen in response punched Bao
Huynh. The two groups of men started fighting. Lai, Bao Huynh and Le
were injured in the scuffle.
Bao Huynh received the most serious injuries from the fight. Tai
Huynh took his older brother to the hospital for a head injury, where he
received stitches. Tai Huynh said his brother had been “beat up really bad.”

2 This summary is primarily derived from Huynh I, supra, D067777.

3 Because many of the individuals share the same last names, we will
refer to them using their full names where necessary to avoid confusion.
3
Le’s hand was injured and possibly broken. Defendant, who was in the cafe
section of the pool hall, saw the fight but was not involved.
Either that night, or a few days later, Tien Thanh Nguyen drove Thuy
Nguyen and Pham to a coffee shop located in the San Diego Vietnamese
community. Bao Huynh, Tai Huynh, and Long Tran were in the coffee shop
parking lot. Bao Huynh’s group went over to Tien Thanh Nguyen’s car and
repeatedly kicked and dented it. In response, Tien Thanh Nguyen and Thuy
Nguyen grabbed machetes from Tien Nguyen’s car and chased away the men
from Bao Huynh’s group.
Pham Murder
Several days after the machete incident, defendant was at a party on
Van Dyke Street in East San Diego with his friends including Long Tran, Bao
Huynh, Tai Huynh, and Quan Nguyen. Quan Nguyen was a close friend of
Bao Huynh and Tai Huynh. He also was somewhat friendly with defendant.
Defendant asked Quan Nguyen to drive him to watch street racing in
Mira Mesa. When they could not find any racing, defendant asked Quan
Nguyen to drive him to the house of “Angel,” Lai’s girlfriend. Angel had been
at the pool hall with Lai and had to be home by her curfew. Lai was still
playing pool so he asked Pham to take her home in his car.
Although Quan Nguyen had been to Angel’s home many times before,
defendant had never been there. Quan Nguyen parked by Angel’s house.
Within minutes of parking outside Angel’s house, a car drove up. Angel got
out of the car and Pham got into the driver’s seat. As she exited the car
Angel saw a car parked across the street with its headlights on. Pham, now
driving Lai’s car, headed back to the pool hall. Defendant instructed Quan
Nguyen to follow Lai’s car.

4
 At speeds of 60 to 65 miles per hour, Quan Nguyen and defendant
followed Pham south on I-15. Just past the split with the 163 freeway,
defendant told Quan Nguyen to change lanes and drive up next to the car
Pham was driving. Quan Nguyen accelerated and pulled alongside the other
car. Defendant pulled out a semiautomatic gun, rolled down his window and
shot directly into the driver’s side window of the car, shattering the glass.
Defendant fired two or three more shots while Quan Nguyen slowed down.
Defendant told Quan Nguyen to speed up and fired at least three more times
at the car as Quan Nguyen drove past it. Quan Nguyen saw in his rearview
mirror that Lai’s car slowed, veered to the right, and ran into a guardrail.
At defendant’s direction, Quan Nguyen took the next freeway exit.
Defendant told Quan Nguyen not to tell anyone about the shooting. Quan
Nguyen drove to his apartment where defendant got out and ran across the
parking lot to a car that had been parked behind them at Angel’s house.
Long Tran got out of the second car, made a short phone call from Quan
Nguyen’s apartment, and left. The next day defendant again warned Quan
Nguyen not to tell anyone about the shooting. Quan Nguyen felt threatened
and afraid.
Pham was dead by the time paramedics transported him to a trauma
center. He was shot in the head with a .380 caliber bullet. A pathologist
stated that Pham would have immediately lost consciousness. Seven .380-
caliber shell casings were found on the freeway where Pham had been shot.
All had been fired from the same firearm. A bullet recovered from Pham’s
head matched a bullet recovered from the driver-side door panel.
A few weeks later, defendant and Quy Tran were at a restaurant when
Tien Thanh Nguyen and two others entered. Defendant told Quy Tran that
Lai and Tien Thanh Nguyen were the men who had beat up his cousin,

5
meaning Bao Huynh. Defendant walked up to Tien Thanh Nguyen and
angrily said something to the effect of “[Y]ou was the one who was chasing
me with the knife or whatever, over at Giot Dang coffee shop. So whoever
chasing me over there, I gotta kill them,” “One down, one to go,” and “You’re
going to be the next victim.” The owner of the restaurant told Tien Thanh
Nguyen and Lai to leave the restaurant or he would shoot them. After they
left, defendant said that they had beaten his cousin and that he “took one of
‘em go down and I’m going to get one more.”
Sometime after the murder, Tien Thanh Nguyen, Lai, and Thuy
Nguyen were at the Giot Dang coffee shop. Bao Huynh, his younger brother
Tai, and Long Tran aggressively entered the shop. A melee broke out among
the two groups and they argued and threw chairs at each other. The
manager told everyone to leave. Although defendant was not present at the
fight, after Bao Huynh, his brother Tai and Long Tran left, defendant came
in and said to Thuy Nguyen, “one drop, one to go.”
About a year and a half after the murder, in June 2001 Le’s friend and
fellow gang member Voung Nguyen were arrested on warrants for a shooting
in San Jose and a burglary in San Diego. Voung Nguyen asked to speak with
Asian Gang expert Detective Michael Gallivan. Voung Nguyen admitted to
the detective that he had committed violent crimes on behalf of Asian
Warriors. He said that when he arrived in San Diego, defendant found him a
place to stay with a V-Boy gang member. Defendant visited frequently and
became close friends with Voung Nguyen. After he told defendant about a
San Jose shooting that he and Le had committed, defendant admitted to
Voung Nguyen and Le that he had shot Pham on the freeway after following
Pham from a coffee shop to Mira Mesa and back. Defendant told Voung
Nguyen he used a .380 caliber firearm and shot at Pham six to eight times.

6
Voung Nguyen said that defendant told him that he committed the shooting
in retaliation for the pool hall fight involving his cousins Bao Huynh and Tai
Huynh.
Gang Evidence
Detective Gallivan testified as an expert on San Diego Asian gangs. He
identified Lai, Tien Thanh Nguyen, Thuy Nguyen, Hieu Do, and Dong
Nguyen as documented members of the V-Boys criminal street gang. He
testified that Le and Voung Nguyen were documented members of the Asian
Warriors, a criminal street gang in San Jose.
Gallivan further testified that defendant, Bao Huynh, Tai Huynh, Long
Tran, Quan Nguyen and Quy Tran were not documented criminal street gang
members, and that Pham also had not been a gang member. In his
testimony, Gallivan defined “associate” as a term of art in gang culture,
meaning to be involved in criminal activities with gang members as well as
spending time with them. He stated that defendant was neither a gang
member nor an “associate” of a gang within that meaning of the term.
Gallivan had not heard of Thien Dang before this investigation and did not
know if it was a gang.
Gallivan explained that in the culture of criminal street gangs, respect
was of utmost importance, and gang members tended to respond to a
disrespectful act with overwhelming, disproportional violence, which was a
part of the gangs’ code of conduct. He added a gang member would react far
more violently than would an ordinary person to an act deemed disrespectful.
DISCUSSION
Defendant contends the trial court prejudicially erred in allowing
admission of evidence and argument that defendant was a member and
leader of a gang, Thien Dang, to show intent and motive. He asserts that

7
there was no evidence Thien Dang was a criminal street gang or that its
members engaged in any criminal activity; and that evidence defendant
belonged to a gang, which did not have the culture and habits of a criminal
street gang, had no relevance to the issues at trial and therefore, its
admission was inflammatory and prejudicial error.
Defendant separately contends the trial court erred in permitting the
People to elicit improper expert opinion testimony in response to a

hypothetical question that was not based on facts in the record.4
A. Proceedings Below
1. Prior Appeal
As noted, in Huynh I we reversed defendant’s conviction because the
trial court had excluded information that the V–Boys and Asian Warriors
were both criminal street gangs, and that Lai, Thuy Nguyen, Tien Thanh

Nguyen, and Do were documented members of V-Boys,5 and that Voung
Nguyen and Le were documented members of the Asian Warriors. We
concluded the evidence would tend to show that Pham spent time with the V-
Boys and would undercut Voung Nguyen’s testimony that defendant
confessed to killing a friend of the V-Boys while visiting Voung Nguyen at
Do’s “crash pad” for V-Boys. (Huynh I, supra, D067777, at pp. 27–31.)

4 Because we reverse on these issues, we offer no opinion on defendant’s
other claims of error, including admission of evidence that defendant sold a
gun to a gang member, and the court gave a faulty jury instruction.

5 Dong Nguyen, another documented V-Boy member, did not testify at
the first trial. Evidence of defendant’s sale of a firearm to Dong Nguyen was
excluded at that trial. (See Huynh I, supra, D067777.)
8
 2. Pretrial Motions in this Case
On retrial, defense counsel filed a motion in limine requesting that
gang evidence about the prosecution witnesses be admitted. In support, he
said that “gangs have a code of conduct that focuses on respect and
retaliation.” Counsel intended to argue that Voung Nguyen and/or Le, both
Asian Warrior members, shot Pham in retaliation against the V-boys for the
injuries suffered by Le and Bao Nguyen at the pool hall.
Defense counsel also moved to prohibit evidence that defendant was in
a gang. Defense counsel asked for an offer of proof and a hearing before
admission of any evidence that defendant was a gang member. Defense
counsel argued Thien Dang was a drinking club and there was no evidence it
was a criminal street gang. The People responded that it was a criminal
street gang and defendant was associated with Thien Dang at the time of the
murder. The People argued this gang evidence should be admitted to show
defendant’s motive and intent.
The evidence was proffered to show that defendant associated with
gang members, to rebut defendant’s evidence that he attended a technical
college and spent his time with friends from the college. In ruling to admit
the gang evidence, the court stated, “One of the reasons the case was
reversed [in Huynh I] was because gang evidence should have come in. Both
sides agree gang evidence is going to come in and it permeates everything.
[¶] . . . [¶] I think that would not be fair if I allow one side to introduce a lot of
gang evidence and the other side, I say no, you can’t go there. [¶] So what’s
good for the goose is good for the gander. Both sides can get into gangs . . . .
Out of fairness.”

9
 3. Thien Dang
The only evidence that defendant belonged to a gang came from Tien
Thanh Nguyen’s first police interview on May 31, 2000, with Detective
Steven McDonald, a general homicide detective unfamiliar with San Diego
Asian gangs. When talking about the pool hall fight, Tien Thanh Nguyen
said one of those fighting against him was from San Jose and spent time with

an East San Diego group called Thien Dang.6 Tien Thanh Nguyen said he
heard a rumor that local Thien Dang gang members killed Pham. He stated
that when he drove to the Giot Dang coffee shop, the “whole gang” was
waiting there, including Bao Nguyen and his brother Tai. They surrounded
his car, and kicked and dented it. Tien Thanh Nguyen mentioned “a guy”
who was the head of the Thien Dang gang, or had authority in the gang, who
was not present at the pool hall fight, but who, along with others, had kicked
Tien Thanh Nguyen’s car in the coffee shop parking lot. Tien Thanh Nguyen
said he forgot the man’s name but would recognize a photo of him. McDonald
however, then had no photos to show Tien Thanh Nguyen.
McDonald testified that six years later, he showed Tien Thanh Nguyen
a photo lineup that included defendant. Tien Thanh Nguyen identified
defendant as the person at Giot Dang to whom he was referring, saying, “I
know him from [the] coffee shop and pool [hall].”
Tien Thanh Nguyen said in his two subsequent interviews and at trial
that Thien Dang was not a gang but either a group of Vietnamese men who
gathered to drink and socialize or the place where they gathered. Additional

6 It was the translator, a police community service officer, who first used
the word “gang.” Tien Thanh Nguyen mentioned a “group called Thien
Dang,” and said, “[It’s] called, like a band, a band.” The translator asked, “A
gang?” to which Tien Thanh Nguyen responded, “A gang . . . .”
10
witnesses also testified that Thien Dang was a group of Vietnamese men or
the place where they gathered to drink and socialize.
Neither the homicide detective nor the Asian gang expert Detective
Gallivan had heard of either defendant or Thien Dang before this
investigation. Gallivan testified that he did not know every gang, however,
especially in the Asian communities where the gangs tended to make an
effort to be inconspicuous.
4. The Hypothetical Question
Defendant separately complains about a hypothetical question to the
People’s gang expert that also suggested defendant was a gang member.
Defendant contends the following question posed by the prosecutor to gang
expert Gallivan was not supported by facts in evidence:
“Hypothetically, if you had someone who was on the fringe,
let’s say in the street-gang world hanging out with known
gang members, providing weapons to known gang
members, or at least a weapon and that person was chased
by a machete after he kicked a car from an earlier dispute
that had happened where one of his friends was hit over his
head and hospitalized for a gash to the back of his head, in
a situation where someone is sort of dabbling in the world
of gangs or even a gang member, would that, in your
experience, provide a motive for murder?”

Defense counsel objected. The court overruled the objection and
Gallivan responded as follows:
“Well, people in the gang world, depending on what the
disrespect is, it could be a shooting, you know, somebody—
one gang rolls on another gang and shoots. That is going to
be challenged. There is going to be another shooting.
That’s just the way it is.

“There’s an instance where a gang member will disrespect
another gang member’s girlfriend. That’s going to be
challenged—there’s going to be some type of retaliation.

11
 Each one of those types of disrespect is going to have its
own level of violence.

“You know when they—one gang will come in, and they’ll
tag somebody else’s territory. If I’m a V-Boy member and I
go into Asian Crip territory and I write ‘V-Boys’ on a school
wall or somewhere, they may come back and they may tag
your territory. They may do a shooting. It all depends on
who’s in the leadership role and what their level of violence
is.

“I can’t sit here and tell you there’s an absolute of how
somebody’s going to challenge somebody, but I think—and
based on what I’ve seen—we’ve had shootings, as I
mentioned just over disrespect of a girlfriend, drive-by
shootings. Something like this where you got a fight. A
young man gets his head basically split open, scars on his
back—back of his head and the top of his head, fights at a
cafe where you get chased by a machete and you’re getting
chased by a gang member who you fought with before,
there’s going to be a—more than likely, there’s going to be
some type of violence, and it’s probably going to be at a
higher level.”

5. The Prosecutor Relied on the Gang Evidence in Arguing to the
Jury

Consistent with the gang evidence and hypothetical, the prosecutor
started and ended his opening statement to the jury with, “Welcome to the
world of gangs.” He repeated this thematic phrase nine times through his
opening statement.
In closing argument, the prosecutor contended that defendant killed
Pham in response to being chased by V-Boy members with machetes. The
murder, he contended, was consistent with the culture and habit of gang
members to respond to a humiliation with overwhelming and deadly force.
The prosecutor added, “Thien Dang exists. They may not be the gang that

12
Tien Thanh [Nguyen] thought it was, but it’s a group, they exist, and the
defendant is part of it. . . . This is an older group of guys who hang out and

commit crime.[7] Sounds a lot like a gang to me.”(22 RT 6731)!
The prosecutor continued, “[Defendant’s] a killer. He’s a killer who
likes to provide guns to gang members, who likes to chase down cars when
his friend’s being beat up and had no problem retaliating a couple days after
they disrespected him because that is the world he was living in.” The
prosecutor in rebuttal concluded by stating, “Welcome to the world of gangs
where a young man was taken from us far too early and far too young an age
because [defendant] got chased with a machete.”
B. Guiding Principles and Analysis
Our courts have long recognized the potentially prejudicial effect of
gang membership. Our high court has advised that “gang-related evidence
‘creates a risk the jury will improperly infer the defendant has a criminal
disposition’ and that such evidence should therefore ‘be carefully scrutinized
by trial courts.’ ” (People v. Mendez (2019) 7 Cal.5th 680, 691; People v. Flores
(2020) 9 Cal.5th 371, 402 (Flores).) “The risk of injecting undue prejudice is
particularly high in cases where the prosecution has not charged a gang
enhancement and the probative value of the gang evidence is minimal.”
(Flores, at p. 402; People v. Hernandez (2004) 33 Cal.4th 1040, 1049
(Hernandez); People v. Cardenas (1982) 31 Cal.3d 897, 904–905 (Cardenas).)
“ ‘Gang evidence is admissible if it is logically relevant to some material
issue in the case other than character evidence, is not more prejudicial than
probative, and is not cumulative. [Citations.]’ ” (People v. Coneal (2019) 41
Cal.App.5th 951, 964 (Coneal).) “ ‘Gang evidence is relevant and admissible

7 There was no evidence that any “members” of Thien Dang committed
crimes (separate and apart from the instant case).
13
when the very reason for the underlying crime, that is the motive, is gang
related. [Citation.]’ ” (People v. Memory (2010) 182 Cal.App.4th 835, 858
(Memory).) Common gang motives include “criminal activity against a rival
[citation] or a suspected rival [citation]; a battle over gang territory [citation];
retaliation for a prior attack upon a gang member [citation]; intimidation
preceded by gang signs and identification; or bolstering one’s reputation
within the gang [citation].” (Id. at pp. 858–859.)
Gang evidence is inadmissible if introduced only to “ ‘ “show a
defendant’s criminal disposition or bad character as a means of creating an
inference the defendant committed the charged offense. [Citations.]”
[Citations.] . . . Even if gang evidence is relevant, it may have a highly
inflammatory impact on the jury. Thus, “trial courts should carefully
scrutinize such evidence before admitting it.” ’ [Citation.] ‘A trial court's
admission of evidence, including gang testimony, is reviewed for abuse of
discretion.’ [Citation.]” (Coneal, supra, 41 Cal.App.5th at p. 964.)
Admission of gang evidence not relevant to the facts at trial was found
to be reversible error in Memory, supra, 182 Cal.App.4th at page 859 and in
People v. Albarran (2007) 149 Cal.App.4th 214, 223 (Albarran). We discuss
these cases post in conjunction with the facts of this case.
Regarding the second claim of error, an expert witness may offer
opinion testimony if the subject matter is “sufficiently beyond common
experience” such that the expert’s opinion “would assist the trier of fact.”
(Evid. Code, § 801, subd. (a).) In general, “ ‘[t]he subject matter of the culture
and habits of criminal street gangs . . . meets this criterion.’ ” (People v. Vang
(2011) 52 Cal.4th 1038, 1044 (Vang).) Evidence of the “significance of
disrespect in the gang culture” (Flores, supra, 9 Cal.5th at p. 397) and the
“concept of payback within gang culture” (People v. Martinez (2003) 113

14
Cal.App.4th 400, 413) have been found relevant to show motive and intent in
murders committed for the benefit of a gang.
A gang expert can offer an opinion based on a hypothetical situation if
the facts within the hypothetical are supported by the evidence at trial.
(Vang, supra, 52 Cal.4th at pp. 1045–1046.)
1. Evidence that Defendant Was a Member of Thien Dang
A criminal street gang is an “ongoing organization, association, or
group of three or more persons, whether formal or informal, having as one of
its primary activities the commission of one or more of [enumerated felonies]
having a common name or common identifying sign or symbol, and whose
members individually or collectively engage in, or have engaged in, [two or
more enumerated felonies].” (§ 186.22, subds. (e) & (f); People v. Prunty
(2015) 62 Cal.4th 59, 67.)
Here, there was no evidence that Thien Dang was a criminal street
gang; nor was there any evidence that committing crimes was one of its
primary activities or that any of its members had committed any crimes, with
the exception of defendant’s crimes at issue here. Rather, the evidence
established that Thien Dang was a place or a group of Vietnamese men who
gathered to socialize and drink. Merely because Tien Thanh Nguyen, when
prompted by an interpreter, at one point stated Thien Dang was a criminal
street gang did not make it so. Yet, throughout the trial Thien Dang was
treated as a criminal street gang. And, as noted ante, the prosecutor without
foundation continually attributed the culture and habits of members of a
criminal street gang to defendant.
Moreover, we note no gang allegations were charged here, making the
risk of injecting undue prejudice particularly high. (See Flores, supra, 9
Cal.5th at p. 402; Hernandez, supra, 33 Cal.4th at p. 1049; Cardenas, supra,

15
31 Cal.3d at pp. 904–905.) The crimes also bore little indicia of typical gang
crimes. (See Albarran, supra, 149 Cal.App.4th at p. 227 [gang evidence
unduly prejudicial when nothing inherent in crime suggested gang motive].)
The fights at the pool hall and at the Giot Dang coffee shop did not include
any signs of gang rivalry. Defendant and the group aligned with him—Bao
Huynh, Tai Huynh and Long Tran—were not gang members. No gang colors,
signs, shouts, or announcements were reported. There was no dispute over
territory. Tagging was not mentioned. The victim was not a gang member,
although he was friendly with a group of gang members and he was driving a
gang member’s car on the night of the murder.
The People’s gang expert testified to the culture and habit of criminal
street gang members to retaliate to acts of disrespect with extreme and
disproportional violence for the purpose of showing motive for the murder.
We conclude this testimony was irrelevant to defendant because he was
neither a member nor associate of a criminal street gang.
As noted, imputing criminal street gang culture to a gang that did not
engage in criminal activities was found to be reversible error in People v.
Memory, supra, 182 Cal.App.4th at page 859. In that case, the defendants
belonged to an “outlaw motorcycle club” that was not a criminal street gang.
The court allowed the prosecutor great latitude in questioning members of
the motorcycle club about affiliations with the Hell’s Angels and the club’s
practices of fighting when challenged, not backing down, and carrying knives.
(Id. at pp. 852–853.)
The Memory court concluded that error occurred because there was no
evidence of such club practices. (Memory, supra, 182 Cal.App.4th at pp. 852–
853.) “Although couched in terms of motive and intent, the People offered
evidence of the [motorcycle club] attempting to show [the] defendants had a

16
criminal disposition to fight with deadly force when confronted, but there was
no evidence of this disposition. . . . [T]here was no testimony that [the]
defendants had a disposition to fight with deadly force when confronted.”
(Ibid.) The Memory court reversed the convictions, finding that “the
motorcycle gang evidence was particularly inflammatory in showing [the
defendants’] propensity for violence” and thus, that a miscarriage of justice
resulted. (Id. at pp. 864–865.)
Similarly, in Albarran, supra, 149 Cal.App.4th 214, the defendant was
a documented member of a criminal street gang but there was no direct
evidence of gang enhancements and nothing inherent in the crimes that
suggested any specific gang motive. (Id. at p. 227.) The Albarran court
concluded that the probative value of the gang expert evidence regarding the
defendant’s possible motive of gaining respect was slim and was outweighed
by the prejudice of gang evidence that was extremely inflammatory and had
no connection to the crimes (id. at pp. 227–228); and that the “paramount
function of this evidence was to show [the defendant’s] criminal disposition.”
(Id. at p. 228.)
Turning to the instant case, we conclude the trial court erred in
treating Thien Dang as equivalent to V-Boys, the latter of which is a
recognized criminal street gang. The two groups were not equivalent because
there was no evidence that Thien Dang was a criminal street gang. Without
the fundamental link of Thien Dang being a criminal street gang, evidence of
defendant’s membership in Thien Dang was not relevant to his motive or
intent. Instead, the evidence was inflammatory by implying to the jury that
defendant had a disposition or character for using overwhelming violence in
retaliation for disrespect, with no foundational support. (See Memory, supra,
182 Cal.App.4th at p. 859; Albarran, supra, 149 Cal.App.4th at p. 223.) We

17
thus conclude the trial court abused its discretion in admitting evidence that
defendant was a member and leader of a gang called Thien Dang.
2. Gang Expert Evidence
We conclude the hypothetical posed to the gang expert, summarized
ante, was improper because the evidence did not support the facts of the
hypothetical that defendant was “on the fringe, let’s say in the street-gang
world hanging out with known gang members, . . . sort of dabbling in the
world of gangs or even a gang member.” The expert instead unambiguously
testified that defendant was neither a gang member nor an associate of a
gang. Evidence that defendant was a member of a noncriminal gang did not
show that he was on the fringe of criminal street gangs, dabbling in the world
of gangs or even a gang member or associate, as the term “gang” was used
throughout the trial, i.e. that a “gang” is a criminal street gang.
Defendant knew and spent time with admitted gang members, because
gang members and non-gang members socialized together within the
Vietnamese community at the coffee shops and pool halls of East San Diego.
The gang expert confirmed that gang and non-gang members congregated at
these locations. Merely because defendant lived or socialized in an area with
gang members and knew or spent time with gang members in his community
was insufficient to support the hypothetical fact that he was on the “fringe . .
. in the street-gang world” or “dabbl[ed] in the world of gangs.”
Defendant’s frequent companions—Bao Huynh, Tai Huynh, and Tran
Long—were also not gang members. Defendant was friendly with Voung
Nguyen, a documented criminal street gang member, but friendship with a
criminal street gang member cannot support an inference that defendant
committed crimes with him or otherwise acted as a gang member. Similarly,
his acquaintance with Do and Dong Nguyen, both V-Boys, did not show that

18
he committed crimes with them or that he shot Pham, a good friend of V-Boy
members. The hypothetical did not track the evidence adduced at trial,
which showed no connection between defendant and a criminal street gang
that would cause defendant to respond to injuries and insults with murder.
Without evidence that defendant committed crimes with Voung
Nguyen, Do, and Dong Nguyen, the hypothetical was impermissibly based on

guilt by association.8 “There is no place in our system of justice for the
notion of guilt by association or guilt for the acts of others.” (People v.
Arredondo (2018) 21 Cal.App.5th 493, 504; People v. Sedillo (2015) 235
Cal.App.4th 1037, 1062 [guilt by association offends state constitutional
principles].)
The expert’s response to the hypothetical further supports the finding
that the question was not based on the evidence. The expert responded to the
hypothetical question by talking about criminal street gang members, not
friends of gang members. His answer assumed—as the question implied—
that the hypothetical person was a member or associate of a criminal street
gang, not that the hypothetical person lived or socialized in an area rife with
criminal street gang members. Gallivan had no expertise in people who were
friendly with community members who were gang members, but who were
not themselves committing crimes or otherwise trying to emulate gang
members.
In our view, the habits and culture of young men who socialize widely,
including with gang members, is not a matter “beyond common experience
[such] that the opinion of an expert would assist the trier of fact.” (Evid.
Code, § 801, subd. (a); Vang, supra, 52 Cal.4th at p. 1044.) Through years of

8 The prosecutor compounded this error in his opening statement, stating
“birds of a feather stick together.”
19
investigation, gang experts have learned of specific habits and culture of
criminal street gang members that are beyond common experience—such as
responding to an insult to a girlfriend with murder. If a defendant is not a
member of group that exists for the purpose of committing felonies and whose
members have committed felonies, however, an expert cannot opine on the
defendant’s motive, intent, disposition, or character. The culture and habits
of criminal street gang members were not relevant to defendant’s motive and
intent because defendant did not belong to a criminal street gang, did not
have a history of violence, and did not associate with other gang members
within the meaning of committing crimes with gang members.
Because Gallivan testified that defendant had no documented
association with a criminal street gang, the hypothetical question to the
expert was improper and was not supported by the evidence. It was error to
permit this question to be posed to the gang expert.
C. Prejudice
Evidentiary errors are usually assessed under the state miscarriage-of-
justice standard because they do not implicate federal constitutional rights.
(Memory, supra, 182 Cal.App.4th at p. 862; People v. Watson (1956) 46 Cal.2d
818, 836.) The Albarran court concluded, however, that when there are no
permissible inferences the jury can draw from gang evidence, admission of
the evidence can be so inflammatory as to violate federal due process.
(Albarran, supra, 149 Cal.App.4th at p. 229; see People v. Carter (2003) 30
Cal.4th 1166, 1194 [evidence of defendant’s gang membership, although
relevant to motive or identity, creates a risk the jury will improperly infer
defendant has a criminal disposition and is therefore guilty of the charged
offense].)

20
 The Albarran court added: “To prove a deprivation of federal due
process rights, [the defendant] must satisfy a high constitutional standard to
show that the erroneous admission of evidence resulted in an unfair trial.
‘Only if there are no permissible inferences the jury may draw from the
evidence can its admission violate due process. Even then, the evidence must
“be of such quality as necessarily prevents a fair trial.” [Citation.] Only
under such circumstances can it be inferred that the jury must have used the
evidence for an improper purpose.’ [Citation.] ‘The dispositive issue is . . .
whether the trial court committed an error which rendered the trial “so
‘arbitrary and fundamentally unfair’ that it violated federal due process.”
[Citations.]’ [Citation.]” (Albarran, supra, 149 Cal.App.4th at pp. 229–230.)
Here, when the People’s gang expert testified that all Asian gangs were
extremely violent, he tagged defendant with the character or disposition for
using overwhelming violence in retaliation for disrespectful actions, with no
basis in fact. This was squarely within the legal definition of prejudice: it is
evidence of little evidentiary impact that evokes an emotional bias. (See
People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) “ ‘In other words,
evidence should be excluded as unduly prejudicial when it is of such nature
as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but
to reward or punish one side because of the jurors’ emotional reaction. In
such a circumstance, the evidence is unduly prejudicial because of the
substantial likelihood the jury will use it for an illegitimate purpose.’
[Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 439.)
Disproportionally extreme violence for the humiliation of being chased
with a machete was the centerpiece of the People’s case against defendant.
Evidence of motive and intent were minimal absent the gang evidence.

21
Defendant was not involved in the fight at the pool hall. Being chased by
Tien Thanh Nguyen and Thuy Nguyen with machetes might have been
humiliating or frightening, but it would not lead the ordinary person to
retaliate by murdering Pham. By all accounts, Pham was present at the
machete incident but did not threaten defendant. And, although Pham was
driving Lai’s car, Lai was not present at the machete incident. Motive is not
an element of murder, to be sure, but here the opening statement and closing
argument of the prosecutor were centered on “the world of gangs” where
Pham was murdered “because [defendant] got chased with a machete.” There
is an overwhelming likelihood that the jury used evidence of defendant’s
membership in Thien Dang for an illegitimate purpose.
We conclude the Albarran criteria provides meaningful guidance here
and supports a finding defendant was deprived of due process of law. The
Attorney General argues that admission of evidence of Thien Dang did not
violate due process because “the jury could permissibly infer from the gang
evidence that [defendant] was in a gang or immersed in the gang culture and
that he shot [Pham] because [Pham] and his gang member friends
disrespected [defendant] and his fellow Thien Dang members.” But this is
exactly what the jury could not permissibly infer, because there was no
evidence that the purpose of Thien Dang was to commit felonies or that
members of Thien Dang committed criminal acts. Nor was there evidence
that defendant was a member of or associated with a criminal street gang or
wanted to join a criminal street gang.
It was arbitrary and fundamentally unfair to defendant to present
evidence that defendant reacted with extreme violence to the machete
incident, and that, because he allegedly was a gang member, he had the

22
motive and intent to shoot Pham in retaliation for being chased with
machetes by friends of Pham.
When a defendant has been deprived of federal due process, reversal is
required unless the State can prove beyond a reasonable doubt that the error
did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18,
24; Albarran, supra, 149 Cal.App.4th at p. 229.) Irrelevant, inflammatory
evidence that defendant was a gang member contributed to the verdict here.
As such, we conclude defendant’s murder conviction and the jury’s true
finding that he personally discharged a firearm during the commission of this
offense must be reversed.
In reaching our decision, we are not unaware of the difficulty faced by
the trial court in the instant case, as it admitted all the gang evidence as a
result of our previous decision in Huynh I, where we reversed defendant’s
conviction because the court had excluded certain gang evidence sought to be
admitted by defendant. On remand, instead of an “all” (i.e., the instant case)
or “nothing” (i.e., Huynh I) approach to the admission of such evidence, the
trial court as the gatekeeper of the evidence may appropriately limit the
admission of gang evidence as relevant to the issues raised by the parties and
in accordance with the dictates of this decision.

23
 DISPOSITION
The judgment is reversed.

BENKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.

24