Filed 6/24/26 P. v. McCoy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F088827
Plaintiff and Respondent,
(Super. Ct. No. F21906019)
v.

LEJON MARQUIS MCCOY, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T.
Fain, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Dina Petrushenko and Ivan
P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
Lejon Marquis McCoy (appellant) shot and killed Rafael Llamas. As appellant
left the scene on foot, he stopped and pointed the same firearm at Marco S., who had just
witnessed the shooting. Appellant pulled the trigger, but the firearm did not discharge.
A jury convicted appellant of second degree murder (Pen. Code, §§ 187, subd. (a),
189, subd (b); count 1)1 with an enhancement for the personal and intentional discharge
of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and assault with
a firearm (§ 245, subd. (a)(2); count 2) with an enhancement for the personal use of a
firearm (§ 12022.5, subd. (a)). The trial court sentenced appellant to 40 years to life plus
five years in state prison.
On appeal, appellant challenges several portions of the prosecutor’s closing
argument and contends defense counsel was ineffective for failing to object. We reject
these claims. We agree, however, that the conviction on count 2 must be reversed for
insufficient evidence. The evidence showed the firearm was unloaded or inoperable at
the time of the alleged assault, and the prosecution presented no evidence that appellant
nevertheless had the “present ability[] to commit a violent injury on the person of
another” with the firearm. (§§ 240, 245, subd. (a)(2).) We reverse count 2, vacate
appellant’s sentence, and remand the matter for resentencing. In all other respects, we
affirm.
BACKGROUND
I. Testimony of Marco S.
In July 2021, Llamas lived in an encampment of unhoused persons near downtown
Fresno, colloquially known as “Tent City.” Marco S. lived at a residence near the
encampment with his sister, who was married to Llamas but separated from him. At his

1 All further statutory references are to the Penal Code unless otherwise indicated.

2.
sister’s request, Marco regularly went to Tent City to bring food to Llamas. Marco also
worked with an organization that delivered food to unhoused persons in the encampment.
On July 16, 2021, Marco S. walked from his residence to the county jail to pick up
someone who was expected to be released from custody that day. His route to the jail
took him through Tent City. After discovering the person would not be released as
expected, Marco walked home alone.
Marco S. testified that he reached an alley leading toward Tent City around
7:45 p.m. It was still light outside. While walking through the alley, he heard footsteps
behind him. Marco turned and saw appellant, whom he knew as “Diddy,” walking
quickly behind him. Appellant was holding a handgun behind his back and wore a T-
shirt over his head, covering his hair and neck but leaving his face visible from chin to
forehead.
Appellant proceeded past Marco S. and continued toward Llamas’s tent. When
appellant was about 40 feet from the tent, Marco heard appellant call out, “Paisa.”2
Appellant then raised the gun and fired a single shot at Llamas but did not hit him.
Llamas tried to run, but appellant followed and fired several more shots from about three
feet away. Llamas was hit multiple times and fell to the ground.
After the shooting, appellant quickly returned up the alley from which he had
come. Marco S., who was still in the alley, attempted to duck behind an abandoned car.
As appellant walked past him, he stopped briefly, extended his arm and pointed the gun
at Marco from a distance of about 12 feet. Marco heard a sound “like a click,” but the
gun did not fire. Marco testified it appeared that appellant pulled the trigger but noted
that he was looking at appellant’s face. Appellant then continued up the alley.

2 The court-certified Spanish interpreter explained that “paisa” is a Mexican slang
term that can mean “paisano,” referring to a person from the same country or land, and
can also refer to someone from Mexico as opposed to someone born in the United States.
The lead detective assigned to appellant’s case further testified that “paisa” can be
derogatory depending on how it is used.

3.
 Marco S. testified on cross-examination that he believed the gun did not discharge
when appellant pointed it at him and pulled the trigger because appellant had run out of
bullets while shooting Llamas. On redirect, he clarified that he heard gunshots during the
shooting of Llamas but did not hear the “click” until appellant was in front of him.
After appellant left the area, Marco S. ran to Llamas and found he was still alive.
No one at Tent City would let Marco use a cell phone to call for help, so he ran back to
his residence, about two blocks away, to get his own phone. After discovering his cell
phone battery was dead, he ran back to Tent City and found a pedestrian who allowed
him to use her phone to call the police. He remained in the area and spoke with
responding officers, and he was interviewed by detectives later that night.
Marco S. testified he had seen appellant in Tent City earlier that month, when
Marco went there to sell watermelons left over from a party. While inside another
person’s tent, Marco saw appellant showing a gun to someone else. Marco explained that
he recognized appellant because, about six years earlier, he had allowed appellant and
another unhoused person to stay in his apartment for a week at a friend’s request. Marco
did not closely examine the gun and could not say whether it was the same firearm used
in the shooting.
Marco S. initially did not identify appellant as the shooter when detectives
interviewed him on the night of the shooting. He explained that he was scared and did
not want to be labeled a “snitch.” The next day, Marco contacted detectives and
identified appellant, explaining that “it’s family,” and he “couldn’t stay quiet.” Two days
later, he provided additional information, telling detectives he had seen appellant and his
girlfriend in a Honda sedan with a broken rear window covered in plastic.
Four days after the shooting, Marco S. viewed a blind sequential photographic
lineup containing six individuals, including appellant. Marco identified appellant as the
shooter, telling the administering detective he was 80 to 90 percent certain. At trial,

4.
Marco clarified that he recognized appellant in the photograph and was “very sure it was
him,” but “didn’t want to make a mistake either.”
II. Law Enforcement Response and Initial Investigation.
Officers were dispatched to Tent City on the night of the shooting at 7:49 p.m.
They located Llamas’s body on the ground between two tents. Officers observed gunshot
wounds and blood pooling around the body and were unable to detect a pulse. Seven
expended nine-millimeter cartridge casings were found near the body. An autopsy
revealed Llamas suffered multiple gunshot wounds. The fatal wound was a gunshot to
his lower chest that perforated his heart and left lung.
Three days after the shooting, detectives located a car parked near Tent City that
matched Marco S.’s description of the car associated with appellant and his girlfriend: a
Honda sedan with a broken rear window covered in plastic. Later that day, surveilling
officers observed appellant get into the front passenger’s seat carrying an ice chest. J.O.,
appellant’s girlfriend, sat in the driver’s seat, and two other individuals sat in the back
seat. Officers followed the car and conducted a traffic stop. During a search of the car,
officers found a cell phone bearing the name “Diddy” and an ice chest marked “Diddy’s
Blood.” Officers also recovered an unloaded magazine for a nine-millimeter handgun.
III. Appellant’s Law Enforcement Interview.
After the traffic stop, appellant and J.O. agreed to accompany detectives to the
police station to be interviewed. A recording of appellant’s interview was admitted into
evidence and played for the jury.
Appellant stated he had been in a relationship with J.O. for more than four years.
At the time, he was unhoused, often slept in J.O.’s car, and regularly visited his
grandmother near Tent City. He also claimed the magazine found in the car was his,
stating he had purchased it from someone and intended to resell it for a profit.
Appellant gave the following account of his whereabouts on the day of the
shooting. Around 2:00 p.m., he was with J.O. at the Poverello House, a charitable

5.
organization and shelter for the unhoused located approximately one mile north of Tent
City. Around 4:00 p.m., appellant and J.O. argued, and appellant walked alone to his
grandmother’s house. J.O. arrived there in her car around 5:30 p.m. Around 7:00 p.m.,
appellant and J.O. returned to the Poverello House, then left for the grocery store to buy
milk. On the way, appellant got into a heated argument with someone on the street, so
appellant and J.O. went instead to a friend’s house. Later, they returned to the Poverello
House and spent the night at an apartment belonging to “Mama Cat.”
Appellant stated he heard about the shooting on the news. Although he had seen
Llamas around before, appellant said he did not know Llamas’s name. Appellant claimed
he was at the Poverello House when the shooting occurred and did not hear the shots.
Detectives told appellant, as a ruse, that surveillance video showed him running
from the shooting scene toward his grandmother’s house shortly after the shooting.
Appellant then changed his account, claiming he had gone near Tent City to meet his
cousin, who was bringing him a pipe. He stated he heard gunshots and ran back to his
grandmother’s house. Appellant denied shooting Llamas, and he was released at the
conclusion of the interview.
IV. Appellant’s Arrest and Recovery of the Murder Weapon.
Eight days after the shooting, officers were dispatched to an area near the
Poverello House in response to a reported domestic violence disturbance. Upon arrival,
the officers observed appellant standing a few feet from a shopping cart. A group of
other unhoused individuals was on the sidewalk at least 15 feet away. As the officers
approached, appellant moved toward the shopping cart. One officer saw appellant reach
into the cart with a dark object in his hand and appear to place it inside. Appellant then
walked over to the others on the sidewalk. The officers searched the cart and recovered a
nine-millimeter Glock handgun. Neither the gun nor the magazine contained any
ammunition.

6.
 Appellant was placed under arrest. He denied possessing the gun and claimed he
had been trying to hide a pipe in the shopping cart. Officers searched in and around the
cart but found no pipe. A methamphetamine pipe was instead found on appellant’s
person during a search incident to arrest.
The prosecution’s firearm examiner test-fired the Glock handgun and compared
the test-fired casings to the seven casings recovered from the shooting scene. Based on
her microscopic examination of striations on the casings, the examiner opined that all
seven casings recovered from the scene were fired from that handgun.
I. V. Defense Evidence.
J.O. testified that she was in a dating relationship with appellant.3 They were
unhoused and slept in various places, including a tent encampment near the Poverello
House, and inside her car. She acknowledged that appellant went by the nickname
“Diddy.” Appellant’s grandmother lived near Tent City, approximately a five-minute
walk from the Poverello House, and appellant and J.O. visited her home often.
J.O. further testified that she and appellant were parked near Tent City listening to
music on the night of the shooting. Around 6:30 p.m., appellant left on foot without
telling her where he was going, which J.O. said he often did. J.O. went looking for him
and found him at his grandmother’s house about eight to 10 minutes later. It was still
light outside when she found him. According to J.O., appellant had gone there to
refrigerate some food. Afterward, they argued for a few minutes and then went to Mama
Cat’s apartment, which was at the Poverello House.
Appellant’s aunt, B.N., testified that she arrived at appellant’s grandmother’s
house around 3:00 p.m. on the day of the shooting. Appellant was making sandwiches
when she arrived. According to B.N., appellant later slept on the couch and left the house

3 J.O. was called as a witness by both the prosecution and the defense.

7.
sometime after dark, although she was unsure of the time. She learned of appellant’s
arrest two to three weeks later.
The prosecution called a defense investigator who spoke with B.N. approximately
two years after the shooting. The investigator testified that B.N. reported arriving at
appellant’s grandmother’s house around 3:00 p.m. on the day of the shooting, and that
appellant left approximately two and a half hours later.
A psychologist retained by the defense testified as an expert in memory and
eyewitness identification. He discussed factors that may affect witness recollection and
identification reliability, including the manner in which a photographic lineup is
administered.
DISCUSSION
I. Appellant’s Conviction for Assault with a Firearm Must Be Reversed for
Insufficient Evidence.
Appellant challenges the sufficiency of the evidence to sustain his conviction for
assault with a firearm. (§ 245, subd. (a)(2); count 2.) He contends the evidence
established the firearm was unloaded or inoperable when he pointed it at Marco S. and
pulled the trigger, and thus, he lacked the “present ability” to apply force with a firearm.
(§ 240; see CALCRIM No. 875.) We agree.4
A. Additional background.
The jury was instructed on the elements of assault with a firearm with CALCRIM
No. 875. As to the present ability element, the instruction required the jury to find:

4 Because we conclude substantial evidence did not support the present ability
element, we do not reach appellant’s additional claim that the evidence failed to establish
another element of assault with a firearm: that he committed “ ‘an act with a firearm that
by its nature would directly and probably result in the application of force to a person.’ ”
(CALCRIM No. 875.)

8.
“When [appellant] acted, he had the present ability to apply force with a firearm to a
person.”5
During closing argument, the prosecutor contended appellant assaulted Marco S.
with a firearm by pointing a gun at him and pulling the trigger. Addressing the present
ability element, the prosecutor argued: “[W]e don’t know if it was a malfunction of the
gun or whether he was out of bullets at the time. Either way, that element is still met. If
you believe it’s malfunction, still met. If you think he’s out of bullets, that element is still
met.”6 Defense counsel did not address the elements of assault with a firearm in closing
argument, focusing instead on identity and alibi.
B. Applicable law – assault with a firearm and the present ability element.
Section 245, subdivision (a)(2), criminalizes the commission of an “assault upon
the person of another with a firearm.” “Assault” is defined by statute as “an unlawful
attempt, coupled with a present ability, to commit a violent injury on the person of
another.” (§ 240.)
Assault is a “general intent crime.” (People v. Williams (2001) 26 Cal.4th 779,
788.) It requires proof that the defendant “ ‘willfully committed an act that by its nature
will probably and directly result in injury to another.’ ” (Id. at p. 782.) Further, the
defendant must have been “aware of the facts that would lead a reasonable person to
realize that a battery would directly, naturally and probably result.” (Id. at p. 788.)

5 Our reversal of count 2 for insufficient evidence makes it unnecessary to decide
appellant’s claim that the trial court had a sua sponte duty to instruct the jury that present
ability requires the “ ‘physical means’ ” to apply force.
6 In a separate claim, appellant contends this argument was a misstatement of the
law, and that defense counsel was ineffective for failing to object. In light of our
discussion of the present ability element below, the prosecutor’s assertion that it was
immaterial whether appellant’s gun was unloaded or inoperable appears inconsistent with
applicable law. However, because we reverse count 2 for insufficient evidence, we need
not address this claim further.

9.
 The actus reus of assault is the “present ability[] to commit a violent injury on the
person of another.” (§ 240, see People v. Chance (2008) 44 Cal.4th 1164, 1172
(Chance).) It is the “action enabling [a defendant] to inflict a present injury.” (Chance,
at p. 1172.) “The present ability element … is satisfied when ‘a defendant has attained
the means and location to strike immediately.’ ” (Id. at pp. 1167–1168; accord, People v.
Licas (2007) 41 Cal.4th 362, 370.) “In this context, however, ‘immediately’ does not
mean ‘instantaneously.’ It simply means that the defendant must have the ability to
inflict injury on the present occasion … even if the defendant is several steps away from
actually inflicting injury.” (Id. at p. 1168, fn. omitted.)
As a general rule, a defendant cannot commit assault with a firearm using an
unloaded or inoperable weapon, unless the firearm is used as a club or bludgeon. (People
v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3; People v. Mosqueda (1970) 5 Cal.App.3d
540, 544; People v. Ranson (1974) 40 Cal.App.3d 317, 321 (Ranson); People v. Fain
(1983) 34 Cal.3d 350, 357, fn. 6; People v. Valdez (1985) 175 Cal.App.3d 103, 110–111;
People v. Wolcott (1983) 34 Cal.3d 92, 102; People v. Orr (1974) 43 Cal.App.3d 666,
672.) The reason is straightforward: absent the means to fire the weapon, the defendant
lacks the “present ability to commit a violent injury on the person threatened, in the
manner in which the injury is attempted to be committed.” (People v. Sylva (1904)
143 Cal. 62, 64; accord, People v. Lee Kong (1892) 95 Cal. 666, 669 [“it cannot be said
that a person with an unloaded gun would have the present ability to inflict an injury
upon another many yards distant”]; Mosqueda, supra, 5 Cal.App.3d at p. 544 [person
pointing an unloaded gun at another has “ ‘no present ability to commit a violent
injury’ ”]; Valdez, supra, 175 Cal.App.3d at p. 112 [assault defendant with an unloaded
gun lacks “personal means to inflict” injury]; see also Chance, supra, 44 Cal.4th at
p. 1173, fn. 11 [“as the unloaded gun cases demonstrate, the defendant must have an
actual, not merely apparent, ability to inflict injury”].)

10.
 This rule, however, is not categorical. (People v. Lattin (2024) 107 Cal.App.5th
596, 612 (Lattin) [there is no “brightline-rule” requiring a loaded firearm].) Consistent
with Chance’s explanation that present ability requires only “ ‘the ability to inflict injury
on the present occasion,’ ” courts have recognized that an unloaded or inoperable firearm
may support assault liability where the evidence establishes the defendant had the means
to load and/or render it operable immediately. (Lattin, at p. 620; Ranson, supra,
40 Cal.App.3d at p. 321.)
Lattin provides a useful illustration of present ability despite an unloaded firearm.
There, the defendant pointed a shotgun at several people, then unsuccessfully attempted
to flee in a friend’s car. (Lattin, supra, 107 Cal.App.5th at pp. 602–605.) Responding
officers searched the car and located the shotgun in the trunk. (Id. at p. 607.) The
shotgun was unloaded, but three shotgun shells were discovered in the cupholder of the
car. (Ibid.) A firearms expert testified that a person competent and familiar with the
shotgun could load it and make it ready to fire within seconds. (Id. at p. 608.)
The Court of Appeal held this evidence was sufficient to establish present ability.
(Lattin, supra, 107 Cal.App.5th at p. 621.) The court explained that, even assuming the
shotgun was unloaded when the defendant pointed it at the victims, the jury could
reasonably have concluded that he “had ammunition readily available and was capable of
loading and racking the shotgun ‘immediately.’ ” (Id. at pp. 622–623.) The evidence
also showed the defendant was familiar with the weapon, having “racked and pumped it”
on several occasions. (Id. at p. 623.)
Ranson likewise illustrates that present ability may exist even where the firearm
temporarily malfunctions. The defendant in Ranson aimed a rifle at a police car.
(Ranson, supra, 40 Cal.App.3d at p. 319.) After he was subdued, officers discovered
there was no round in the chamber of his rifle because a cartridge in the magazine had
jammed. (Id. at pp. 319–320.) The court nonetheless concluded sufficient evidence
supported the present ability element. (Id. at p. 321) It emphasized the “unique fact

11.
situation” before it: the rifle was “definitely loaded and operable,” the top cartridge had
jammed, and the evidence supported an inference that the defendant knew how to remove
and rapidly reinsert the clip. (Ibid.)
In sum, these authorities show there is no per se requirement that a firearm be
loaded and operable to establish present ability. But when the firearm is unloaded or
temporarily incapable of firing, the evidence must show that the defendant had the
immediate means to load it or otherwise render it capable of discharge.
C. Standard of review.
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, 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.] We determine ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’
[Citation.] This determination ‘presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.’ ” (People v. Cardenas
(2025) 18 Cal.5th 797, 821.)
D. Substantial evidence did not support the jury’s finding that appellant had
the present ability to apply force with a firearm.
Marco S. testified that appellant pointed the gun at him and pulled the trigger, but
the gun did not discharge. The only reasonable inference is that the firearm was not
capable of firing at that operative moment. The prosecutor conceded the point in
substance, telling the jury, “[W]e don’t know if it was a malfunction of the gun or
whether he was out of bullets at the time.” But while the precise reason the gun failed to
fire remained unclear, the critical fact was not: when appellant pulled the trigger, the gun
did not work. Whether appellant had exhausted the ammunition while shooting Llamas,

12.
the gun had jammed or malfunctioned, or some other condition prevented it from firing,
the record contains no evidence that appellant had the immediate ability to discharge the
weapon. Because the evidence did not show appellant’s conduct was “coupled with a
present ability[] to commit a violent injury on the person of another,” the element was not
satisfied. (§ 240.)
Respondent acknowledges that the jury could reasonably have inferred appellant
ran out of ammunition while shooting Llamas but maintains the jury also could have
drawn several alternative inferences supporting guilt. We find no substantial evidentiary
support for those alternatives.
First, respondent claims the jury could reasonably have inferred present ability
because appellant had just used the firearm to shoot and kill Llamas. But the relevant
inquiry is whether appellant had the present ability to inflict injury at the time of the
alleged assault on Marco S. The prior shooting does not overcome the affirmative
evidence that, when appellant later pointed the gun at Marco and pulled the trigger, the
gun did not fire.
Respondent next argues the jury could have concluded the gun remained loaded
and operable, but that appellant pointed it at Marco S. “only as a warning.” The record
does not support such a finding. Marco testified appellant did more than point the gun;
he pulled the trigger. That testimony foreclosed respondent’s proposed inference.
Lastly, respondent asserts that even if the jury found the gun was unloaded or
malfunctioning, it could have inferred that appellant had the ability to reload the gun or
correct the malfunction quickly because he had demonstrated “proficiency” with the
weapon in killing Llamas. The record contains no evidence supporting those inferences.
Unlike in Lattin, there was no evidence appellant possessed or had immediate access to
additional ammunition. No unspent ammunition was found at the scene, on appellant
during either police contact, or in the firearm when officers recovered it from the
shopping cart. Nor was there testimony establishing how quickly the firearm could have

13.
been reloaded. And unlike in Ranson, the record contains no evidence identifying the
nature of any possible malfunction or explaining what steps would have been necessary
to render the firearm capable of firing. On this record, respondent’s proposed inferences
rest on conjecture, not substantial evidence.
In reaching this conclusion, we are mindful of the highly deferential standard of
review, under which we draw all reasonable inferences in favor of the judgment. Even
so, given the affirmative evidence that the firearm was unloaded or inoperable during the
alleged assault, it was incumbent upon the prosecution to present evidence from which
the jury could reasonably infer appellant nevertheless had the immediate ability to
discharge it. The record contains no such evidence.
Accordingly, the conviction on count 2 must be reversed for insufficient evidence,
and double jeopardy bars retrial on that charge. (See Lockhart v. Nelson (1988) 488 U.S.
33, 39.) The associated firearm enhancement (§ 12022.5, subd. (a)) necessarily falls with
the conviction.7 We vacate appellant’s sentence and remand the matter for resentencing.8
II. Defense Counsel Was Not Ineffective for Failing to Object to the Prosecutor’s
Challenged Comments During Closing Argument.
Appellant raises several claims of prosecutorial misconduct based on the
prosecutor’s closing argument. He asserts the prosecutor misstated the testimony of J.O.,
misstated the law by suggesting that a defendant cannot rely on inconsistent defense
theories, and erroneously argued that the testimony of alibi witnesses must match.

7 Appellant separately contends, and respondent agrees, that the firearm
enhancement attached to count 2 must be vacated because it was not alleged in the
information. We need not reach that pleading issue. Because count 2 must be reversed
for insufficient evidence, the attached enhancement must be vacated as well.
8 A full resentencing is appropriate when part of a sentence is stricken on review.
This permits the trial court to exercise its sentencing discretion in light of the changed
circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893.) We express no opinion
regarding how the trial court should exercise its sentencing discretion upon remand.

14.
Although appellant concedes no objection was raised below, he contends defense
counsel’s failure to object amounted to ineffective assistance. We reject each claim.
A. Standard of Review.
Prosecutorial misconduct occurs when “ ‘[a] prosecutor … uses deceptive or
reprehensible methods to persuade the jury.” (People v. Parson (2008) 44 Cal.4th 332,
359; see People v. Fayed (2020) 9 Cal.5th 147, 204 [“It is prosecutorial misconduct to
misstate the law”].) “When a claim of misconduct is based on the prosecutor’s comments
before the jury, … ‘ “the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.” ’ ”
(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) “ ‘In conducting this inquiry,
we “do not lightly infer” that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements.’ ” (People v. Centeno (2014)
60 Cal.4th 659, 667.)
“To preserve a claim of prosecutorial misconduct for appeal, a defendant must
make a timely and specific objection and ask the trial court to admonish the jury to
disregard the improper argument.” (People v. Gonzales and Soliz, supra, 52 Cal.4th at
p. 305.) Appellant concedes defense counsel did not object to the alleged misconduct but
contends defense counsel’s failure to object constituted ineffective assistance.
To prevail on an ineffective assistance of counsel claim, the claimant must
establish counsel’s performance fell below an objective standard of reasonableness, and
that prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687–
688.) “Prejudice is shown when there is 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 to undermine confidence in the
outcome.’ ” (People v. Jennings (1991) 53 Cal.3d 334, 357.) The claimant has the
burden of showing both deficient performance and resulting prejudice. (People v. Lucas
(1995) 12 Cal.4th 415, 436.)

15.
 B. Alleged misstatement of J.O.’s testimony.
Appellant first contends the prosecutor committed misconduct by misstating J.O.’s
testimony concerning appellant’s whereabouts on the night of the shooting.
As summarized above, J.O. testified that appellant left on foot around “6:30-ish”
while they were parked near Tent City listening to music. She later found him at his
grandmother’s house, where he had gone to refrigerate some food. J.O. estimated that it
took “about” eight to 10 minutes to find him, and agreed it was “probably” around 6:40
p.m. when she did so. She then testified that she and appellant argued briefly before
going from his grandmother’s house to Mama Cat’s apartment.
J.O. also addressed the relevant timeframe in a recorded statement to law
enforcement, which was admitted into evidence and played for the jury. J.O. did not
recall what time she and appellant parked near Tent City but stated they “were sitting
there for a while.” Around 6:00 p.m., appellant took a speaker from the back of the car,
charged it, played loud music, and then went to mingle with people in the area before
disappearing from her sight. J.O. stated she was concerned appellant might be with
another woman, but she remained in the car for “a long time,” which she estimated was
about 30 minutes, before she “finally decide[d] to go look for [him].” She asked people
in the area whether they had seen appellant, then drove around looking for him until she
found him at his grandmother’s house.
During closing argument, the prosecutor commented on J.O’s alibi testimony as
follows:

“Now [J.O.], she could not narrow down the time that she had
regained contact with [appellant]. Recall that they were playing music.
They were near Tent City, that type of thing. She said that [appellant] takes
off. She’s worried he’s talking to another girl. She goes looking for him;
right?

“She says [appellant] left her at about 6:00 p.m., but she couldn’t
narrow down the time frame of when she saw him again; right?”
Later, during rebuttal, the prosecutor stated:

16.
 “So what did [J.O.] say?· They were hanging out all day…. They
were hanging out all day, listening to music. He bailed at six o’clock to go
talk to another girl, she thought; right? Then she can’t tell you when she
found him again.”
Appellant contends the prosecutor’s statements that J.O. could not “narrow down”
or “tell you” when she next saw appellant misstated the record. He argues J.O. did testify
that she found appellant at his grandmother’s house around 6:40 p.m., a point he
characterizes as critical because it was approximately one hour before the shooting.
Appellant further argues counsel was ineffective for failing to object because the defense
at trial was identity and alibi, and the prosecutor’s alleged misstatement both undermined
J.O.’s alibi testimony and recast it as inculpatory evidence placing appellant at the
shooting scene.
“Although prosecutors have wide latitude to draw inferences from the evidence
presented at trial, mischaracterizing the evidence is misconduct. [Citations.] A
prosecutor’s ‘vigorous’ presentation of facts favorable to his or her side ‘does not excuse
either deliberate or mistaken misstatements of fact.’ ” (People v. Hill (1998) 17 Cal.4th
800, 823.)
The record does not support appellant’s characterization of the prosecutor’s
argument. The prosecutor did not deny that J.O. gave some account of when she next
saw appellant after he left their car. Instead, the prosecutor argued that J.O.’s account did
not provide a reliable alibi because the timeframe she described was equivocal and vague.
That argument was supported by the record. At trial, J.O. testified appellant left around
“6:30-ish” and agreed she “probably” found him around 6:40 p.m. But in her law
enforcement interview, she was less precise, stating only that appellant retrieved a
speaker around 6:00 p.m. and that she decided to look for him about 30 minutes after he
left the area. Her description of the surrounding events, including appellant charging the
speaker before leaving, and her later efforts to locate him by asking bystanders and
driving around, permitted the prosecutor to argue that the timeframe was broader and less
certain than appellant claims.
17.
 “A prosecutor is given wide latitude to vigorously argue his or her case and to
make fair comment upon the evidence, including reasonable inferences or deductions that
may be drawn from the evidence.” (People v. Ledesma (2006) 39 Cal.4th 641, 726.) We
conclude the prosecutor’s argument fell within that latitude. Given the ambiguities in
J.O.’s testimony and its inconsistencies with her prior statement, the prosecutor could
fairly argue that J.O. was unable to “narrow down” when she next saw appellant. The
argument permissibly addressed both the substance of J.O.’s testimony and her
credibility. Accordingly, the prosecutor did not misstate the evidence, and counsel was
not ineffective for failing to raise a meritless objection. (See People v. Ochoa (1998)
19 Cal.4th 353, 463.)
C. Comments regarding inconsistent defense theories.
Defense counsel’s closing argument centered almost exclusively on identity and
alibi. Near the end of the argument, counsel briefly addressed malice aforethought, while
making clear the defense theory was that appellant was not the shooter: “I’ll discuss with
you briefly malice aforethought, but I’m not going to spend an awful lot of time with that,
ladies and gentlemen. Quite candidly, we submit, [appellant] did not commit the act.”
Soon after, counsel argued there was “no malice aforethought” because there was no
evidence of a motive or conflict between appellant and Llamas.
At the start of rebuttal, the prosecutor stated:

“My argument is going to be limited to responding to what [defense
counsel] has submitted to you in terms of argument.

“And because of that, I’m confused. Was it not him? Or did we not
prove intent? Can’t have it both ways.

“So the argument about circumstantial evidence proving intent of
[appellant]? Well, if there is an alibi, he didn’t do it. Why are we talking
about the intent? Again, you can’t have it both ways.

“I submit to you that pointing a gun, firing once, pausing, re-aiming
and then firing six more times is circumstantial evidence of intent in this
case.”

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The prosecutor then turned to appellant’s alibi and identity defense.
Appellant claims the prosecutor misstated the law by asserting he “can’t have it
both ways,” because a criminal defendant is permitted to advance inconsistent or
alternative theories of defense. According to appellant, the argument improperly
suggested he was required to choose between his identity/alibi defense and his challenge
to the malice element, and thus, contesting malice amounted to a tacit concession that he
was the shooter. Appellant also maintains the prosecutor’s one “way” framing implied
that appellant bore the burden of proving his alibi, rather than simply identifying
evidence that could raise a reasonable doubt as to identity.
A criminal defendant may rely on inconsistent defenses. (People v. Atchison
(1978) 22 Cal.3d 181, 183; People v. Sedeno (1974) 10 Cal.3d 703, 720, overruled on
another ground by People v. Breverman (1998) 19 Cal.4th 142, 149.) But appellant
identifies no California authority addressing whether, or under what circumstances, a
prosecutor may comment on the inconsistency between alternative defense theories, and
we are aware of none. Appellant instead relies on State v. Tahah (2015) 302 Kan. 783,
791, where the prosecutor made a similar, but more extensive, argument that a murder
defendant “ ‘cannot have it both ways’ ” by denying he was the shooter while also
arguing he lacked the intent to kill.9 The Kansas Supreme Court held the argument
misstated the law because the defendant was “entitled to offer factually inconsistent
defenses to the jury,” but concluded the error was harmless. (Id. at p. 791.)

9 The challenged argument in State v. Talah was considerably more elaborate than
the brief comment at issue here: “ ‘Aristotle, the great philosopher, wrote extensively on
logic. He concluded that two contradictory statements cannot coexist in the truth. In a
layman’s terms, you cannot have it both ways. The Defendant cannot claim, on one
hand, he was not there and did not pull the trigger and kill [the victim], at that same time
claim that if he was there, it was unintentional and reckless. [¶] … [¶] An example
would be J.F.K.’s assassination. Lee Harvey Oswald, like him saying I was not there on
the sixth floor of the depository, of the Texas book depository, and did not pull the
trigger. But, if I was, it was all just accidental or reckless, not intentional.’ ” (State v.
Tahah, supra, 302 Kan. at pp. 790–791.)

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 Here, we need not determine whether the prosecutor’s argument amounted to a
misstatement of California law because, even assuming counsel should have objected,
appellant has not shown prejudice. The challenged statements must be considered in the
context of the argument as a whole. (People v. Cole (2004) 33 Cal.4th 1158, 1203.) The
prosecutor was responding to defense counsel’s brief argument that the evidence failed to
establish malice. Although the prosecutor noted the tension between that assertion and
the identity and alibi theory counsel had just emphasized, he did not argue appellant was
legally barred from advancing inconsistent defense theories or that one theory necessarily
defeated the other. The prosecutor’s point—captured by his rhetorical question, “why are
we talking about intent?”—was that counsel’s malice argument had little force because
the defense had focused almost entirely on identity and alibi, and because the
circumstances of the shooting overwhelmingly established the intent to kill.
Viewed in context, there is no reasonable likelihood the jury understood the
prosecutor’s “can’t have it both ways” comments in the manner appellant claims. The
prosecutor did not suggest appellant had to elect a defense, tacitly admitted he was the
shooter, or bore the burden of proving his alibi. His comments were plainly directed at
counsel’s alternative malice theory and served as a transition back to the defense’s
principal theory that appellant was not the shooter.
The jury instructions further undermine any claim of prejudice. The court
instructed the jury that the prosecution bore the burden of proving each element beyond a
reasonable doubt (CALCRIM No. 220), including that appellant was present and
committed the charged crimes (CALCRIM No. 3400). The court also instructed the jury
to follow the law as stated by the court, even if an attorney’s comments conflicted with
the instructions (CALCRIM No. 200). We presume the jury followed those instructions,
and nothing in this record suggests the prosecutor’s brief comments caused the jury to
disregard or misapply them. (See People v. Meneses (2019) 41 Cal.App.5th 63, 75;
People v. Morales (2001) 25 Cal.4th 34, 47.) Thus, to the extent the “can’t have it both

20.
ways” comments were objectionable, appellant has not shown a reasonable probability
the result would have been different had counsel objected. (See People v. Jennings,
supra, 53 Cal.3d at p. 357.) We therefore reject the claim.10
D. Comments regarding inconsistent alibi testimony.
In rebuttal, the prosecutor addressed the alibi testimony of J.O. and B.N. as
follows:

“And, you know, the funny thing about an alibi is when you have
two people that are giving an alibi, your timing should matchup. Don’t you
think?

“So what did [J.O.] say? They were hanging out all day. He wasn’t
at [his grandmother’s] house taking a nap. They were hanging out all day,
listening to music. He bailed at six o’clock to go talk to another girl, she
thought; right? Then she can’t tell you when she found him again.

“[B.N.] says, oh, no, I got home at 3:15, and he was asleep for at
least two and a half hours. Well, that puts you at 5:45. So were you
listening to music, or were you sleeping at the house? Your alibis are lies.”
Appellant contends the prosecutor misstated the law by arguing, in substance, that
inconsistent alibi witnesses “cancel each other out.” He asserts the argument was
improper because conflicting evidence may itself give rise to reasonable doubt. In
appellant’s view, the prosecutor’s comments suggested he was “bound” by his alibi
witnesses’ testimony and bore the burden of presenting only consistent alibi evidence.
We disagree. The prosecutor did not state or suggest that inconsistent alibi
testimony was legally incapable of creating reasonable doubt. Rather, the prosecutor
permissibly attacked the credibility of the alibi witnesses based on the evidence. A
“prosecutor is entitled to comment on the credibility of witnesses based on the evidence
adduced at trial.” (People v. Thomas (1992) 2 Cal.4th 489, 529) “[H]arsh and colorful

10 Because we conclude appellant was not prejudiced by counsel’s failure to object to
the alleged misconduct, we also reject his related claim that counsel’s failure amounted to
the “withdrawal of a potentially meritorious defense … requiring per se reversal of the
judgment.” (People v. Diggs (1986) 177 Cal.App.3d 958, 971.)

21.
attacks on the credibility of opposing witnesses are permissible” so long as they are
reasonably warranted by the evidence. (People v. Arias (1996) 13 Cal.4th 92, 162, italics
omitted; see People v. Edelbacher (1989) 47 Cal.3d 983, 1030 [prosecutor may refer to
testimony as “ ‘lies’ ” if based on inferences drawn from the evidence].)
As the prosecutor pointed out, J.O.’s and B.N.’s accounts of appellant’s
whereabouts on the day of the murder were factually irreconcilable. That conflict
necessarily undermined the credibility of at least one of them, if not both. The prosecutor
was therefore entitled to argue the jury should reject both accounts. The challenged
comments were not a misstatement of law, but a permissible attack on the weight and
credibility of the alibi testimony. Accordingly, counsel was not ineffective for failing to
object, and this claim is without merit.
DISPOSITION
Appellant’s conviction on count 2 is reversed for insufficient evidence. The
associated use of a firearm enhancement on count 2 is vacated. Appellant’s sentence is
vacated and the matter is remanded for resentencing. In all other respects, the judgment
is affirmed.

LEVY, Acting P. J.
WE CONCUR:

SNAUFFER, J.

DESANTOS, J.

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