Filed 9/28/26 P. v. Jackson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B342996
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA491422)
v.
WILLIAM LEO JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ray G. Jurado, Judge. Affirmed as
modified.
Micah Reyner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant William Leo Jackson was convicted of two
counts of attempted murder, one count of shooting at an occupied
vehicle, and one count of possession of a firearm by a felon. The
trial court sentenced Jackson to an aggregate state prison term of
78 years to life.
On appeal, Jackson contests the sufficiency of the evidence
supporting the jury’s findings that (1) he specifically intended to
kill one of the two attempted murder victims, and (2) he
perpetrated both attempted murders with deliberation and
premeditation. Jackson further contends his trial attorney
rendered ineffective assistance by failing to (1) introduce evidence
of a negative gunshot residue (GSR) test result for a sweatshirt
Jackson was wearing when the police arrested him, and (2) object
to a portion of the prosecutor’s closing argument in which he
invoked the kill zone theory of attempted murder liability and
purportedly referred to facts not in evidence.
Jackson’s challenges to the sufficiency of the evidence fail
because the jury reasonably could have inferred (1) Jackson knew
a former romantic partner who recently ended her relationship
with him was in the front passenger seat of the vehicle he
targeted with his firearm, (2) he was aware someone else was
driving that car, and (3) he had several motives for killing the
driver, including his desire to prevent the driver from reporting
the shooting to the police. Next, Jackson fails to demonstrate his
trial counsel’s failure to present evidence of the negative GSR
test result prejudiced him. In addition, Jackson does not
establish his trial attorney rendered deficient performance by
failing to object to the prosecutor’s closing argument, given that
the trial court did not bar the People from relying on the kill zone
theory, Jackson fails to show the theory is inapplicable, and the
2
prosecutor’s remarks constituted fair commentary on the
evidence. Lastly, we strike certain stayed sentencing
enhancements because the parties agree the jury did not find
them true. We affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND1
We summarize only those facts relevant to this appeal.
1. The first amended information
On March 29, 2023, the People filed the first amended
information, charging Jackson with two counts of attempted
willful, deliberate, and premeditated murder, in violation of
Penal Code2 sections 664 and 187 (counts 1 and 2); one count of
shooting at an occupied vehicle, in violation of section 246
(count 3), and one count of possession of a firearm by a felon, in
violation of section 29800, subdivision (a)(1) (count 4).
1 In describing the trial evidence and the procedural
history of this case, we rely in part on admissions from the
parties’ briefing and assertions made by the Attorney General
that Jackson does not dispute in his reply brief. (See Association
for Los Angeles Deputy Sheriffs v. County of Los Angeles (2023)
94 Cal.App.5th 764, 772, fn. 2, 773–774 [employing this
approach].)
2 Undesignated statutory citations are to the Penal Code.
3
2. A summary of the People’s trial evidence3
In November 2020, Whitney J. ended her romantic
relationship with Jackson that had lasted nearly five years.4
On an evening in November 2020, Whitney went to her
friend’s (R.B.’s) workplace so that R.B. could drive Whitney to
meet a male friend of Whitney’s. R.B. drove Whitney in R.B.’s
dark-colored Kia; Whitney sat in the front passenger seat of the
vehicle. After R.B. and Whitney arrived at the intersection of
54th Street and Crenshaw Boulevard in Los Angeles, Whitney
opened the passenger door of the Kia and a silver or gray Infiniti
pulled up to the Kia.5 A bearded man inside the Infiniti who was
wearing a gray hooded sweatshirt and a mask then fired
approximately five gunshots into the driver’s side of the Kia.
R.B. put the Kia in reverse and backed the car up on
Crenshaw Boulevard. The shooter continued to fire at the Kia
after R.B. began to drive away. R.B. then drove the Kia south on
Crenshaw Boulevard and eventually arrived at a hospital,
whereas the Infiniti drove east on 54th Street. Whitney had been
shot in the buttocks and required emergency surgery. The
bullets had struck R.B.’s right breast, face, and abdomen.
3 We describe evidence relevant to Jackson’s claims of
error in greater detail in our Discussion, post.
4 To protect the victims’ privacy, we identify one of them
by her first name and last initial (Whitney J.) and the other
victim by her initials (R.B.). (Cal. Rules of Court, rule 8.90(b)(4).)
5 Whereas Jackson identifies this vehicle brand as
“Infinity” in his briefing, the Attorney General refers to the brand
as “Infiniti.” This discrepancy has no impact on our resolution of
the instant appeal.
4
Los Angeles Police Department (LAPD) Officer Kurt
Lockwood was investigating a burglary reported at an apartment
building at 54th Street and Crenshaw Boulevard when he heard
gunshots and observed the shooting. Officer Lockwood radioed a
description of the Infiniti to other officers in the vicinity.
Police officers later stopped an Infiniti matching that
description at 78th Street and Western Avenue. They arrested
Jackson, who was the sole occupant of the Infiniti and was
wearing a gray hooded sweatshirt. A 9-millimeter shell casing
was found between the front passenger seat and the door.
Expended shell casings found at the scene of the shooting were
fired from the same gun as the shell casing found in Jackson’s
car. Although a black face mask was discovered in the Infiniti,
the police did not find a gun in the vehicle.
3. The jury’s verdict, the trial court’s sentence, and
Jackson’s notice of appeal
The jury convicted Jackson on all four counts and found
true the allegation he committed the attempted murders
willfully, deliberately, and with premeditation.
On December 18, 2024, the trial court sentenced Jackson to
a total state prison term of 78 years to life. Jackson timely
appealed from the judgment.
DISCUSSION
A. We Reject Jackson’s Challenges to the Sufficiency of
the Evidence
In reviewing a challenge to the sufficiency of the evidence,
we examine the “ ‘ “ ‘record in the light most favorable to the
judgment’ ” to determine whether it discloses substantial
5
evidence — “ ‘evidence that is reasonable, credible, and of solid
value’ ” — “ ‘from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” [Citation.]’ . . . .
[Citation.]” (People v. Barrett (2025) 17 Cal.5th 897, 964
(Barrett).) We “ ‘ “ ‘presume[ ] in support of the judgment the
existence of every fact the jury could reasonably have deduced
from the evidence[ ]’ ” [citation]’ ” and do not “ ‘resolve credibility
issues or evidentiary conflicts’ ” or “ ‘inquire whether the evidence
might “ ‘ “ ‘be reasonably reconciled with the defendant’s
innocence.’ ” ’ ” [Citation.]’ . . . [Citation.]” (Ibid.)
Under the substantial evidence standard, “we must begin
with the presumption that the evidence . . . was sufficient, and
the defendant bears the burden of convincing us otherwise. To
meet that burden, it is not enough for the defendant to simply
contend, ‘without a statement or analysis of the evidence, . . . that
the evidence is insufficient . . . .’ [Citation.] Rather, he must
affirmatively demonstrate that the evidence is insufficient.” (See
People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
“ ‘Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.’ [Citation.]” (See People v.
Richee (2025) 111 Cal.App.5th 281, 293.) “Because the doctrine of
transferred intent does not apply to attempted murder, . . . ‘ “the
defendant must intend to kill the alleged victim, not someone
else.” ’ [Citation.]” (Ibid.) Furthermore, a finding that a
defendant acted with premeditation and deliberation “ ‘ “requires
more than a showing of intent to kill; the [defendant] must . . .
carefully weigh[ ] the considerations for and against a choice to
kill before he or she completes the acts” ’ ” giving rise to liability
6
for attempted murder. (See People v. Serrano (2024)
100 Cal.App.5th 1324, 1333–1334 (Serrano).)
Jackson raises two challenges to the sufficiency of the
evidence supporting his convictions for attempted murder:
(1) “The prosecution did not present substantial evidence that
would have allowed a rational jury to find beyond a reasonable
doubt that [Jackson] specifically intended to kill R[.B., which is]
an essential element of the attempted murder charge”; and
(2) the People did not offer sufficient evidence that Jackson
committed the attempted murders of R.B. and Whitney J. with
premeditation and deliberation.
1. Jackson does not show the record lacks
sufficient evidence that he specifically
intended to kill R.B.
Jackson does not maintain the record lacks substantial
evidence that he was the shooter or that he intended to kill
Whitney J. Instead, he argues, “[The] jury received no evidence
that [Jackson] knew who R[.B.] was, that he knew she was in the
Kia, or where she was seated inside that [vehicle]”; “R[.B.] did not
know who [Jackson] was on the night of the shooting”; and “[t]he
Kia’s windows were so heavily tinted that [a police officer who
witnessed the shooting,] Officer Lockwood[,] could not see inside.”
Jackson maintains “the record lacks substantial evidence to
support a rational finding beyond a reasonable doubt that
[Jackson] was shooting at R[.B.] or . . . even knew she was
present at the scene.”
As a preliminary matter, we note Jackson does not direct
us to any evidence that before the night of the shooting, Jackson
knew the Kia belonged to one of Whitney’s friends. Indeed, as we
noted above, Jackson acknowledges the trial evidence showed
7
R.B. “did not know who [Jackson] was at the time of the
shooting.”
We agree with the Attorney General that the jury could
reasonably have inferred that for Jackson to have determined
Whitney J. was in a vehicle that Jackson had never seen before
(i.e., R.B.’s Kia), he had to have either (1) seen Whitney get into
the vehicle that evening, or (2) otherwise observed that she was
in the front passenger seat of the Kia.6 Further, there is no
dispute the record contains evidence that Jackson “fired ‘about
seven shots at the driver’s side door and window . . . .’ ”
Additionally, in an interview with police, R.B. indicated the
shooter continued to fire at the Kia after R.B. began driving
away.
Given these circumstances, the jury reasonably could have
deduced (1) Jackson knew that Whitney J. was in the front
passenger seat of the Kia and someone else was driving the
vehicle,7 (2) Jackson fired multiple shots at the driver’s side of
the Kia, and (3) he continued firing at the car even after R.B.
attempted to flee. That Jackson repeatedly fired into the driver’s
side of the Kia when he was aware Whitney was in the passenger
6 As for the latter possibility that Jackson at some point
prior to the shooting saw Whitney in the Kia, Jackson does not
dispute the Attorney General’s assertion “[t]he windshield of
[R.B.’s] car was not tinted . . . .” (See Reygoza v. Superior Court
(1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal case in which
the Court of Appeal assumed that an assertion made by the
respondent was correct because the “defendant did not dispute
[the] respondent’s claim in his reply”].)
7 We note Jackson does not argue there is any evidence
that the Kia was a self-driving vehicle.
8
seat supports the conclusion he intended to kill the driver, and
his decision to continue to fire at the Kia as R.B. tried to drive off
suggests Jackson did not want either Whitney or the driver of the
Kia to escape. Further, because there is substantial evidence
Jackson knew Whitney was in the Kia and another person was
driving it, he had at least two motives for killing the driver:
(1) to prevent that individual from moving Whitney to a place of
safety, thereby ensuring he achieved his objective of slaying
Whitney, and (2) to preclude the driver from surviving and
relaying information to the police that could lead to Jackson’s
apprehension.8
For the foregoing reasons, we conclude Jackson has not
demonstrated the record lacks substantial evidence that he
specifically intended to kill R.B.
2. Jackson fails to establish the jury’s finding the
attempted murders were premeditated and
deliberate is unsupported by substantial
evidence
In assessing whether Jackson perpetrated the attempted
murders with premeditation and deliberation, we bear in mind
that “ ‘ “ ‘cold, calculated judgment may be arrived at quickly,’ ” ’ ”
and that “ ‘ “ ‘the express requirement for a concurrence of
deliberation and premeditation excludes . . . those [attempted
murders] . . . which are the result of mere unconsidered or rash
impulse hastily executed.’ ” [Citation.]’ [Citations.]” (See
Serrano, supra, 100 Cal.App.5th at pp. 1333–1334.) Courts have
“ ‘ “identified three categories of evidence relevant to resolving
8 In fact, R.B. did provide a description of the shooter to
the police.
9
the issue of premeditation and deliberation: planning activity,
motive, and manner of killing.” [Citation.] “However, these
factors are not exclusive, nor are they invariably determinative.”
[Citation.] “ ‘[They are] simply intended to guide an appellate
court’s assessment whether the evidence supports an inference
that the [attempted murder] occurred as the result of preexisting
reflection rather than unconsidered or rash impulse. [Citation.]’ ”
[Citation.]’ [Citation.]” (See id. at p. 1334.)
Jackson argues, “[T]he record does not show whether he
planned to arrive at the scene of the shooting, whether he paused
to think before [the] shooting, or whether he weighed the
consequences of his actions.” He further contends, “[T]he record
here does not show whether . . . [Jackson] arrived at the scene of
the shooting randomly or through some sort of undiscovered
plan.” Yet, Jackson acknowledges in his briefing there is
evidence that R.B.’s windows were so darkly tinted that one could
not see inside the Kia from the driver’s side of the car. That
evidence undercuts Jackson’s apparent claim he may not have
been following R.B.’s Kia prior to the shooting but had, by
happenstance, driven his vehicle next to R.B.’s Kia, looked over,
saw Whitney J. was in the vehicle, and opened fire. Put
differently, the evidence that Jackson fired at the Kia without
being able to see into the cabin of the vehicle suggests he knew
beforehand that Whitney was in there, which inference in turn
supports the conclusion Jackson had followed the vehicle prior to
shooting at it.
Furthermore, the jury heard evidence that (1) Whitney J.
ended her relationship with Jackson in November 2020, and (2) a
day or two before the shooting, Whitney dumped garbage
throughout Jackson’s apartment and left him a voicemail or text
10
message accusing him of infidelity. Jackson thus had a motive to
kill Whitney. Likewise, there is substantial evidence Jackson
had at least two motives to kill R.B., that is, to prevent R.B. from
bringing Whitney to a place of safety and ensure R.B. could not
report the shooting to the police. (Discussion, part A.1, ante.)
Based on this evidence that Jackson followed the Kia and
had motives to kill R.B. and Whitney J., a rational factfinder
could conclude Jackson formed his intention to kill R.B. and
Whitney after having reflected on that course of action rather
than as an unconsidered and rash impulse, meaning that he did
so with premeditation and deliberation.
B. Jackson’s Claims of Ineffective Assistance of Counsel
Fail
“ ‘An ineffective assistance claim has two components: A
[defendant] must show that counsel’s performance was deficient,
and that the deficiency prejudiced the defense.’ [Citations.]” (In
re Gay (2020) 8 Cal.5th 1059, 1073 (Gay).)
As for the first component of an ineffective assistance
claim, “ ‘a [defendant] must demonstrate that counsel’s
representation “fell below an objective standard of
reasonableness,” ’ as measured by ‘ “prevailing professional
norms.” ’ [Citation.]” (Gay, supra, 8 Cal.5th at p. 1073.) “[W]e
‘must apply a “strong presumption” that counsel’s representation
was within the “wide range” of reasonable professional
assistance.’ [Citation.]” (In re Friend (2022) 76 Cal.App.5th 623,
635 (Friend).)
To satisfy the second component, the defendant “must
demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
11
to undermine confidence in the outcome.’ [Citations.] Where . . .
counsel’s performance has been shown to be deficient in multiple
respects, we . . . . consider the cumulative impact of the errors on
the fairness of the trial.” (See Gay, supra, 8 Cal.5th at pp. 1086–
1087.)
Jackson argues his trial counsel rendered ineffective
assistance by failing to: (1) present evidence that Jackson’s
sweatshirt tested negative for GSR and “corresponding expert
testimony that such a negative test [result] was highly
exculpatory” (boldface & some capitalization omitted), and
(2) object to the prosecutor’s “improper statements regarding kill
zone liability and facts not in evidence during closing argument”
(boldface & some capitalization omitted). Jackson fails to show
his attorney’s failure to present evidence of the negative GSR test
result and related expert testimony prejudiced him. (Discussion,
part B.1, post.) Jackson also does not demonstrate defense
counsel rendered deficient performance by failing to object to
remarks made by the prosecutor during closing argument.
(Discussion, part B.2, post.) In light of these conclusions, we
reject Jackson’s contention the “cumulative effect of the
ineffective assistance of counsel . . . should . . . result in reversal.”
(Boldface & some capitalization omitted.)
1. Jackson does not demonstrate he was
prejudiced by his trial counsel’s failure to
present the negative GSR test result and expert
testimony explaining that result
Jackson was wearing a gray hooded sweatshirt when police
arrested him. Before trial, the defense requested that the
sweatshirt be tested for GSR. Although the LAPD initially
denied this request, the agency ultimately tested the sweatshirt
12
and was unable to find GSR on this article of clothing. This
disclaimer was included with the negative test result: “[N]o
witness from L.A.P.D. S.I.D. will testify to these results, because
the science is not well established on the testing of objects other
than hands.” Jackson’s trial counsel did not introduce the
LAPD’s report into evidence or present expert testimony
interpreting this negative test result.
Jackson argues, “Not presenting the negative GSR test for
[Jackson’s] shirt, and corresponding expert [testimony]
explaining the exculpatory nature of the negative test, fell below
the . . . standard for effective representation because that un-
presented evidence strongly indicated [Jackson] was not the
shooter.” Further, according to Jackson, because the police failed
to retrieve the firearm used in the shooting, there is “a
reasonable likelihood” that introduction of the negative GSR test
result and expert testimony thereon would have caused “at least
one juror [to] have a reasonable doubt of [Jackson’s] guilt on all
counts.” As we explain below, Jackson does not show prejudice
from his counsel’s failure to introduce evidence concerning the
negative GSR test result.
After the jury convicted Jackson, he moved for a new trial
and filed a motion claiming his trial attorney rendered ineffective
assistance. In support of these motions, Jackson offered the
testimony of Bryan Burnett, who attested, inter alia, he was “one
hundred per cent certain” GSR would have been found on
Jackson’s sweatshirt if he was the shooter. In rejecting this
testimony, the trial court noted that Burnett “could not cite any
studies contradicting” “the LAPD’s gunshot residue lab
report[’s] . . . [statement] that the lack of gunshot [residue] on
[Jackson’s] sweatshirt was possibly an unreliable result, or a
13
false negative . . . .” The court also observed that Burnett “did
not do any research regarding what scientific studies might or
might not support the lab report’s conclusion.”
Additionally, the trial court found Burnett was not a
credible witness because “his testimony reflected [he] . . . was ill-
prepared, quick to come to baseless opinions, too willing to rely
on inaccurate information if those inaccuracies benefitted
[Jackson], [and] inconsistent on matters both important and
meaningless . . . .” The court noted, for instance, that Burnett
“testified with certainty that it was Officer Lockwood who
allegedly planted a casing in [Jackson’s] vehicle[ ] because [the
defense’s audiovisual expert] told [Burnett] that the body worn
video supposedly showing the planting of the casing in
[Jackson’s] car belonged to Officer Lockwood,” even though the
body worn video belonged to a different officer and the footage
“does not appear to show th[e] officer placing or dropping
anything inside [Jackson’s] car.”
Jackson does not contest the trial court’s description of
Burnett’s testimony. Indeed, Jackson concedes “effective counsel”
may have elected not to “call[ ] Burnett to testify at trial.”
Jackson apparently contends his trial attorney should have called
a different expert witness to “explain[ the] exculpatory import” of
the “negative GSR test . . . .” Jackson does not, however, identify
an alternative expert witness who could have provided such
testimony. Instead, Jackson cites a bulletin from the California
Department of Justice, Bureau of Forensic Services that he
claims shows the Bureau will test clothing for the presence of
GSR if hand samples are not available and there is a reasonable
expectation that the clothing was worn during the shooting
14
incident and had not been laundered.9 He claims this bulletin
shows that “testing clothing for GSR was scientifically viable.”
As an initial matter, Jackson does not seek judicial notice
of this bulletin from the California Department of Justice,
Bureau of Forensic Sciences or explain why he believes we may
consider this extra-record evidence.10 In any event, even if this
bulletin were properly before us and it stood for the proposition
that GSR testing of clothing may be scientifically viable in
certain circumstances (e.g., perhaps the presence of GSR could
show a firearm was discharged near the article of clothing),
Jackson does not argue cogently this bulletin establishes the
absence of GSR on clothing is exculpatory.
In his reply brief, Jackson argues: “[I]ndependent of . . .
Burnett’s testimony, logic dictates that if [Jackson] was the
shooter, he would have had GSR on his clothing. The shooter
fired multiple rounds from inside of a car. [Citation.] A[n LAPD
o]fficer was able to track [Jackson’s] Infinity almost immediately
after the shooting occurred to the point where [Jackson] was
stopped and arrested. [Citation.] There is no realistic possibility
that [Jackson] washed his sweatshirt in between the shooting
and his arrest. In such a scenario, it is highly exculpatory that
[Jackson’s] sweatshirt was negative for GSR.”
Elsewhere in his briefing, Jackson appears to acknowledge
that an expert is needed to “explain[ ] the [supposed] exculpatory
9 In his opening brief, Jackson directs us to the version of
the bulletin that was released in August 2023, whereas in his
reply he cites a revised version that was released in June 2026.
10 (See People v. Gams (1997) 52 Cal.App.4th 147, 155
[“ ‘Appellate jurisdiction is limited to the four corners of the
record on appeal . . . .’ ”].)
15
nature of the negative test . . . .” (See also Evid. Code, § 801,
subd. (a) [indicating that expert opinion is proper on “a subject
that is sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact”].) Consequently, we find
unavailing Jackson’s assertion that “logic dictates” “he would
have had GSR on his clothing” if he was the shooter.
In sum, Jackson does not show there is a reasonable
probability that the outcome of the trial would have been
different if his counsel had presented the negative GSR test
result and expert testimony elaborating on that report. In light
of our conclusion that Jackson has not shown prejudice, we do not
decide whether trial counsel rendered deficient performance in
failing to introduce such evidence. (Gay, supra, 8 Cal.5th at
p. 1073 [noting that deficient performance and prejudice are
essential elements of an ineffective assistance claim].)
2. We reject Jackson’s claim that his trial counsel
rendered deficient performance by failing to
object to the prosecutor’s invocation of the kill
zone theory and the prosecutor’s supposed
reference to facts not in evidence
Jackson raises an ineffective assistance claim based on his
trial counsel’s failure to object to a portion of the People’s closing
argument in which the prosecutor described the shooting.
Specifically, Jackson asserts his attorney should have objected to
the closing argument on the grounds the prosecutor (1) contended
16
the jury should convict Jackson based on the kill zone theory,11
which was “inapplicable and not part of the jury instructions”;
and (2) stated facts not in evidence. For the reasons set forth
below, this claim of ineffective assistance fails.
First, Jackson maintains the prosecutor misstated the law
because (1) the trial court rejected the kill zone theory of liability
and (2) that theory was inapplicable “because it was unclear
whether the shooter knew more than one person was present in
the Kia.” The record belies both of Jackson’s claims.
The reporter’s transcript reveals the trial court denied the
prosecutor’s request to issue the kill zone instruction provided in
CALCRIM No. 600 because (1) a bench note provides the
instruction is not required,12 and (2) the court was displeased the
prosecution had not requested this “complex” instruction during
the jury instruction conference but had instead belatedly made
the request the following day. In declining to issue the kill zone
instruction in CALCRIM No. 600, the court acknowledged the
prosecutor had expressed his intention to argue that Jackson was
liable for attempted murder under the kill zone theory. The court
did not rule that the kill zone theory was inapplicable or direct
11 Under the kill zone theory, “a defendant may . . . be
liable for attempted murder” of individuals other than the
defendant’s primary target if “ ‘ “the nature and scope of the
[defendant’s] attack . . . are such that [a factfinder] can conclude
the [defendant] intended to [kill] the primary victim by [killing]
everyone in that victim’s vicinity.” ’ . . . . [Citation.]” (See People
v. Mumin (2023) 15 Cal.5th 176, 191–192.)
12 (See also People v. Medina (2019) 33 Cal.App.5th 146,
154 [“The kill zone theory ‘is not a legal doctrine requiring special
jury instructions’ but rather ‘is simply a reasonable inference the
jury may draw in a given case.’ ”].)
17
the prosecutor not to argue that theory to the jury. Accordingly,
we reject Jackson’s assertion that the trial court determined the
kill zone theory was “inappropriate.”
As for whether Jackson knew more than one person was in
the Kia, the jury reasonably could have inferred Jackson was
aware that Whitney J. was in the front passenger seat and
someone else was driving the vehicle. (See Discussion, part A.1,
ante [discussing the evidence from which the jury could
reasonably have inferred (1) Jackson was aware the Kia had two
occupants and (2) he continued to fire at the vehicle after R.B.
attempted to flee, and noting Jackson does not argue there is
evidence the Kia was a self-driving car].) Further, Jackson
acknowledges the trial evidence showed Whitney opened the
passenger door to the Kia before the first shots were fired at the
vehicle. Jackson does not argue he was unable to see from his
vehicle that the passenger door to the Kia was open, and, because
the trial evidence showed Jackson pulled his vehicle up to the Kia
before he opened fire (see Factual & Procedural Background,
part A, ante), one could reasonably infer he was close to the
vehicle at that time. Therefore, we find unpersuasive Jackson’s
assertion “it was unclear whether the shooter knew more than
one person was present in the Kia.” Jackson’s failure to present
any other argument showing the kill zone theory does not apply
is fatal to his claim that defense counsel rendered deficient
performance by failing to object to the prosecution’s invocation of
that theory. (See Gay, supra, 8 Cal.5th at p. 1073 [holding the
defendant has the burden of showing deficient performance];
Friend, supra, 76 Cal.App.5th at p. 635 [noting that a reviewing
court “ ‘appl[ies] a “strong presumption” that counsel’s
representation’ ” was not deficient].)
18
Lastly, Jackson argues that the prosecutor referred to facts
not in evidence by remarking during closing argument that
Jackson had information that two people were in the Kia and
Jackson saw Whitney J. starting to get out of the car. In light of
the evidence discussed above from which the jury could
reasonably infer that (1) Jackson was aware two people were in
the Kia, (2) Whitney was in the front passenger seat, and
(3) Whitney opened the passenger door just before the first shots
were fired, the prosecutor’s arguments to that effect were a fair
commentary on the evidence. Jackson thus fails to demonstrate
defense counsel was ineffective because he failed to object on the
ground the prosecutor stated facts not in evidence. (See Barrett,
supra, 17 Cal.5th at p. 1035 [“ ‘ “Prosecuting attorneys are
allowed ‘a wide range of descriptive comment’ and their ‘ “
‘argument may be vigorous as long as it amounts to fair comment
on the evidence, which can include reasonable inferences, or
deductions to be drawn therefrom.’ ” ’ ”].)
C. We Strike Certain Enhancements the Trial Court
Imposed on Counts 2, 3, and 4
In their appellate briefing, the parties agree that the trial
court erred in imposing and staying enhancements under
section 12022.7, subdivision (e) on counts 2, 3, and 4, and under
section 12022.7, subdivision (a) on count 2, because the jury
did not find those allegations true. In keeping with the parties’
concessions, we strike these four enhancements. (See Williams v.
Superior Court (1964) 226 Cal.App.2d 666, 674 [“ ‘An express
concession or assertion in a brief is frequently treated as an
admission of a legal or factual point, controlling in the disposition
of the case.’ ”].)
19
DISPOSITION
The judgment is modified as follows: We strike the
enhancements imposed (1) on count 2 pursuant to Penal Code
section 12022.7, subdivisions (a) and (e); and (2) on counts 3
and 4 pursuant to section 12022.7, subdivision (e). As modified,
the judgment is affirmed.
Upon the issuance of our remittitur, the trial court is
directed to prepare a corrected minute order reflecting the
modifications set forth above, amend the abstract of judgment
accordingly, and send a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation.
The clerk of the court is directed to send a copy of the opinion and
remittitur to the Department of Corrections and Rehabilitation.
(See Cal. Rules of Court, rule 8.272(d)(2).)
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
M. KIM, J.
20