Filed 6/24/26 P. v. Zayas CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B340963

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA112459)
v.

EFREN ZAYAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel J. Lowenthal, Judge. Affirmed.
Mark S. Smith, 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 Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
 Efren Zayas appeals from a judgment of conviction after a
jury found him guilty of second degree murder (Pen. Code, § 187,
subd. (a))1 and found true that he personally used a firearm
(§ 12022.53, subd. (b)). On appeal, Zayas contends:
(1) insufficient evidence supports his conviction for murder;
(2) the court erred in admitting a police officer’s testimony;
(3) the prosecutor committed misconduct; (4) defense counsel
provided ineffective assistance of counsel; (5) the cumulative
effect of these errors was prejudicial; (6) there was a violation of
the Racial Justice Act; and (7) the court abused its discretion by
denying Zayas’s motion to dismiss his prior strike conviction
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497
and section 1385. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Evidence at Trial2
1. Overview
On October 11, 2018, at around 11:00 p.m., Ricardo Torres,
who was a member of the West Side Wilmas gang and went by

1 Undesignated statutory references are to the Penal Code.
2 Zayas’s opening brief includes a section titled “Statement of
Facts,” but the section only includes procedural history. Nowhere
in the brief did Zayas include a summary of the facts of the
underlying conviction. A defendant’s opening brief must
“[p]rovide a summary of the significant facts.” (Cal. Rules of
Court, rule 8.204(a)(2)(C); see id., rule 8.360(a) [except for
reasons not pertinent here, briefs in criminal cases “must comply
as nearly as possible” with civil rules on briefing]; Slone v. El
Centro Regional Medical Center (2024) 106 Cal.App.5th 1160,
1173 [“In every appeal, the appellant has the duty to fairly

2
the moniker “Hefty,” was shot to death inside his car. His car
was stopped near Foc’sle Bar, a “known gang hangout” located on
the border between territories controlled by two rival gangs:
West Side Wilmas and East Side Wilmas. Zayas and codefendant
Eduardo Carrillo3 were members of East Side Wilmas.
Surveillance video footage from Foc’scle Bar showed Zayas
and Carrillo near Torres’s car when four muzzle flashes erupted
inside the car. Zayas and Carrillo then fled together in the same
getaway car. Desiree Campos, who was present at Foc’scle Bar,
saw someone who looked like Zayas approach Torres’s car with a
gun in his hand; moments later, she heard gunshots. Torres died
at the scene.
2. Police investigation
At 11:15 p.m. on October 11, 2018, police officers with the
Los Angeles Police Department (LAPD) arrived at the Foc’sle

summarize all of the facts.”].) “ ‘Further, the burden to provide a
fair summary of the evidence “grows with the complexity of the
record.” ’ ” (Slone, at p. 1173.) “A reviewing court will not
independently review the record to make up for appellant’s
failure to carry his burden.” (Id. at p. 1174.) Zayas’s record on
appeal is about 2,000 pages long, and his failure to provide a
summary of the facts forfeits his claims on appeal. (See id. at
p. 1175 [appellant’s failure to include a proper statement of facts
in opening brief forfeited contentions]; Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1247 [same].) Nonetheless, we exercise
our discretion to consider the merits. (People v. McCullough
(2013) 56 Cal.4th 589, 593 [“neither forfeiture nor application of
the forfeiture rule is automatic,” and appellate courts have
discretion to review otherwise forfeited challenges].)
3 At some point before trial, the People dismissed the charges
against Carrillo.

3
Bar. They found a car with its front passenger window nearly all
the way down and with Torres slumped in the driver’s seat.
Officers collected five discharged cartridge casings from
inside the car. The casings had the same headstamp, indicating
they were all fired from a .40 caliber firearm. The location of the
casings showed the gun was inside the car when it was fired.
An autopsy later disclosed that Torres died of multiple
gunshot wounds. He had a total of six gunshot wounds: one to
the back of his head; three to his right shoulder; one to his
abdomen; and one to his left hand. There was stippling present
on Torres’s body, which signified the end of the gun was close to
his body, “likely a couple inches away,” when fired. Torres also
had five bullets in his body that all came from the same firearm.
3. Surveillance video
Surveillance video from both inside and outside Foc’sle Bar
captured relevant events, and the People played the video for the
jury. The video showed that on October 11, 2018, at 9:40 p.m.,4
an SUV parked near Foc’sle Bar. Three individuals got out of the
car, walked toward the bar, and went inside. One of the
individuals wore a black T-shirt with a “big white square in the
front of the shirt.” Both LAPD Detective Matthew Maffei and
Officer Andrew Martinez identified that person as Zayas. Zayas
and the two other individuals stayed inside the bar for a few
minutes. The three left the bar and drove away in the SUV.

4 The time stamp on the video was 10:03 p.m., but it was 23
minutes fast. We will refer to the actual, adjusted times.

4
 Approximately 30 minutes later, the same SUV returned
and parked near the bar.5 Zayas and another individual, later
identified as Carrillo, approached the bar. They walked past the
front door of the bar and toward the area where Torres was later
shot. They then returned to the bar and went inside.
At 10:44 p.m., Zayas approached a woman, later identified
as Campos, and she lit his cigarette before they separated. At
10:59 p.m., Zayas approached Campos again and motioned his
head in the direction of the door. Zayas then exited the bar,
followed by Campos. While they were outside, they lit each
other’s cigarettes. At the same moment, a car, later identified as
Torres’s car, drove through the intersection near the bar. Zayas
“motion[ed] in a backwards manner” toward Campos with his
right arm, and Campos stepped backward.
At 11:00 p.m., Zayas walked toward Torres’s car. For a
couple of seconds, Campos faced Zayas before she headed back to
the bar. Torres’s car made a U-turn and stopped at a point that
was shrouded in darkness on the video. Zayas disappeared into
the darkness as he continued to walk toward Torres’s car.
Seconds later, Carrillo exited the bar and walked toward Torres’s
car until his image similarly disappeared into the darkness.
At 11:01 p.m., the surveillance video showed that “where …
Torres’s vehicle had come to rest … four muzzle flashes c[ame]
from that vehicle.” A few seconds later, Carrillo was visible next
to an electrical box on the sidewalk near Torres’s car. The
distance between the electrical box and the passenger window of
Torres’s car was 28 feet. Carrillo then walked back to the bar,

5 Maffei and Martinez identified the driver as Jesse
Hernandez.

5
went inside, walked out the back exit, and made his way to the
parked SUV. Zayas also walked back to the bar, passed the
entrance, and walked down the sidewalk to the same SUV.6 At
11:02 p.m., the SUV drove away.
4. Campos’s statements
The parties stipulated that Campos died on January 22,
2022, of an accidental drug overdose, and her death was not
related to this case. The court deemed Campos unavailable, and
the parties read to the jury her testimony from a prior hearing.
Campos testified that, on the night of the shooting, she
went to Foc’sle Bar. She “was drunk,” “doing drugs,” and had
been “up for three or four days.” At some point, Campos went
outside, and a man who was outside lit her cigarette. When the
prosecutor asked her what the man did after lighting her
cigarette, Campos testified that she could not remember.
Campos denied that she ever saw Torres, whom she knew as
“Hefty,” drive by.
The prosecutor then played recordings from Campos’s
interviews with Maffei on May 30 and July 25, 2019. On May 30,
2019, Campos told Maffei that she went to Foc’sle Bar on
October 11, 2018, and saw “a crowd” of four or five “gang
members.” She could sense that the crowd was “up to something”
bad.
Campos told Maffei that she went outside, and one of men
from the crowd followed her and lit her cigarette. Campos said

6 While Zayas walked toward the SUV, a car drove by and
someone inside the car fired gunshots in the direction of Zayas.
Zayas fell to the floor, got up, and continued to make his way to
the SUV. At trial, the People did not admit any further evidence
regarding this drive-by shooting.

6
the man did not have any tattoos, but she “wasn’t really paying
attention.” The man said, “ ‘I don’t think you should be out here
right now.’ ” At some point later, Campos saw “Hefty” pull up in
a car, make a U-turn, and “s[i]t there” in his car. The man who
lit Campos’s cigarette pointed a gun at Hefty and “cocked” it,
then put the gun down and walked up to Hefty’s car. Within
seconds, Campos heard four or five gunshots, but she did not see
who pulled the trigger. Campos saw only “one guy walking up” to
Hefty’s car.
On July 25, 2019, Maffei showed Campos numbered
photographs of six different people. He asked her if she saw the
person who lit her cigarette, had a gun in his hand, and walked
toward Hefty’s car. Campos said, “It kind of looks like No. 2,”
and, “Yeah, but then also No. 4.” Zayas was depicted in
photograph number 4.
At the hearing, after the prosecutor played the recordings,
the prosecutor asked Campos, “ ‘[H]aving heard that, what
happened October 11, 2018?” Campos responded, “I’m not going
to lie. I wasn’t sure if it was a gun or not.” During cross-
examination, Campos stated that the person who lit her cigarette
did not have any tattoos. Campos acknowledged that she could
see that Zayas had tattoos on his arms as he sat at the defense
table.
5. Zayas’s arrest and jail phone call
On July 24, 2019, the police arrested Zayas and informed
him of the charges against him. A few days later, Zayas made a
phone call from jail, stating, “I’m moving forward. Beat this case
and ... get the fuck out and start balling again. I ain’t trippin’.
[¶] But this time I’ma do it right, man. I ain’t gonna do it all
sloppy. I got a little sloppy.”

7
B. Charges, Jury Verdict, Motion for New Trial, and
Sentencing
The People charged Zayas with murder (§ 187, subd. (a),
count 1), shooting at an occupied vehicle (§ 246, count 2), and an
unrelated count of being a felon in possession of a firearm
(§ 29800, subd. (a)(1), count 3). As to counts 1 and 2, the People
alleged several firearm allegations (§ 12022.53, subds. (b), (c), (d)
& (e)(1)). For all counts, the People alleged a gang enhancement
(§ 186.22, subd. (b)). The People further alleged that Zayas had
one prior serious or violent felony subject to the Three Strikes
law (§§ 667, subds. (b)-(j), 1170.12).
Zayas’s first trial ended in a mistrial due to a hung jury (11
to 1, guilty to not guilty). Before the second trial, Zayas pleaded
no contest to count 3, possession of a firearm by a felon.
The second jury found Zayas guilty of second degree
murder (§ 187, subd. (a)) and found true that he personally used
a firearm (§ 12022.53, subd. (b)), but found not true that he
personally and intentionally discharged a firearm within the
meaning of section 12022.53, subdivisions (c) and (d). The jury
hung on count 2, shooting at an occupied vehicle. The court
declared a mistrial on count 2 and dismissed it.
In a bifurcated proceeding, the court dismissed the gang
allegation on the People’s motion. The court also found true the
allegation that Zayas had a prior strike conviction (§§ 667, subds.
(b)-(j), 1170.12, subd. (b)).
The court sentenced Zayas to 30 years to life, consisting of
15 years to life on the murder count, doubled under the Three
Strikes law. For the firearm count, the court imposed and stayed
one-third the middle term. The court also stayed the sentence on
the firearm allegation.

8
 Zayas timely appealed.

DISCUSSION

A. Substantial Evidence Supports the Conviction for Second
Degree Murder
Zayas contends there is insufficient evidence supporting his
second degree murder conviction based on a theory of aiding and
abetting express malice murder. We disagree.
1. Applicable law and standard of review
“Second degree murder is an unlawful killing with malice
aforethought, but without the premeditation or deliberation
required for first degree murder. [Citation.] Malice may be
express or implied. [Citation.] Malice is express when a
defendant intends to kill and implied when a defendant
consciously disregards danger to human life.” (In re Ferrell
(2023) 14 Cal.5th 593, 600; see People v. Knoller (2007) 41 Cal.4th
139, 143, 151, 156-157; People v. Gudiel (2024) 107 Cal.App.5th
848, 859.)
“ ‘[A] person who aids and abets a crime is guilty of that
crime even if someone else committed some or all of the criminal
acts.’ ” (People v. Hin (2025) 17 Cal.5th 401, 455.) “[A]ider and
abettor liability requires proof in three distinct areas: (a) the
direct perpetrator’s actus reus—a crime committed by the direct
perpetrator, (b) the aider and abettor’s mens rea—knowledge of
the direct perpetrator’s unlawful intent and an intent to assist in
achieving those unlawful ends, and (c) the aider and abettor’s
actus reus—conduct by the aider and abettor that in fact assists
the achievement of the crime.” (People v. Perez (2005) 35 Cal.4th
1219, 1225; accord, Hin, at p. 455; People v. Diaz (2026)
118 Cal.App.5th 545, 557.) “ ‘ “When the offense charged is a

9
specific intent crime, the accomplice must ‘share the specific
intent of the perpetrator.’ ” ’ ” (In re Lopez (2023) 14 Cal.5th 562,
585.) Thus, to be guilty of directly aiding and abetting express
malice murder, the aider and abettor must share the direct
perpetrator’s intent to kill. (Id. at pp. 585, 587.)
“ ‘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.)
We do not “ ‘ “reweigh the evidence, evaluate the credibility
of witnesses, or resolve evidentiary conflicts.” [Citation.] The
[judgment] should “be upheld if ... supported by substantial
evidence, even though substantial evidence to the contrary also
exists and the [fact finder] might have reached a different result
had it believed other evidence.” ’ ” (People v. Helzer (2024)
15 Cal.5th 622, 646; see People v. Bolin (1998) 18 Cal.4th 297,
331 [reversal for lack of substantial evidence “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction]’ ”].)

10
 2. Substantial evidence supported the conviction
Zayas argues there is insufficient evidence that he shared
Carrillo’s intent to kill and that his acts assisted Carrillo in
committing the murder. He specifically claims that “there was no
evidence” of the following: that he “provided a weapon” to
Carrillo, “pointed out the victim,” knew Torres was in the vehicle,
“yelled encouragement toward the shooter,” or “harbored any
malice” toward Torres.
By pointing to evidence that would support a contrary
conclusion, Zayas misconstrues the substantial evidence standard
of review. (See People v. Ortiz (2012) 208 Cal.App.4th 1354,
1379.) A defendant “does not show the evidence is insufficient by
citing only his own evidence, or by arguing about what evidence
is not in the record, or by portraying the evidence that is in the
record in the light most favorable to himself.” (People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Rather, under the
substantial evidence test, “ ‘we accept reasonable inferences in
support of the judgment and do not consider whether contrary
inferences may be made from the evidence.’ ” (People v.
Cunningham (2016) 244 Cal.App.4th 1049, 1056; see People v.
Cuevas (1995) 12 Cal.4th 252, 261 [“The focus of the substantial
evidence test is on the whole record of evidence presented to the
trier of fact, rather than on ‘ “isolated bits of evidence” ’ ”].)
Reviewing the evidence in the light most favorable to the
judgment, we conclude there was sufficient evidence to support
Zayas’s conviction. “ ‘Among the factors which may be considered
in making the determination of aiding and abetting are: presence
at the scene of the crime, companionship, and conduct before and
after the offense.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015,
1054 (Nguyen).) The trial evidence establishes all these factors.

11
 Starting with companionship, a reasonable trier of fact
could conclude that Zayas and Carrillo were companions who
shared a common purpose. They were both members of the East
Side Wilmas gang and arrived in rival gang territory together.
They walked together past the front door of Foc’sle Bar, toward
the area where Torres was later shot, and into the bar. At some
point later, they both left the bar and approached Torres, a rival
gang member. After the shooting, they fled together in the same
getaway car. Zayas thus “did not independently happen by the
scene of the crime”—he and Carrillo took concerted steps
together. (People v. Campbell (1994) 25 Cal.App.4th 402, 409
[substantial evidence of aiding and abetting where defendant and
shooter together walked by the victims, decided to return to
victims, and approached victims].) “Their concerted action
reasonably implies a common purpose” to kill. (Ibid.; see Nguyen,
supra, 61 Cal.4th at p. 1055 [“Although ‘gang evidence standing
alone cannot prove a defendant is an aider and abettor to a
crime,’ ” it can strengthen inferences “arising from other evidence
specific to defendant’s role in the crime at issue”].)
Moreover, Zayas was present during every stage of the
shooting. Although Zayas’s “ ‘ “mere presence alone at the scene
of the crime is not sufficient to make [him] a participant,” ’ ” his
presence “ ‘ “may be [a] circumstance[ ] that can be considered by
the jury with the other evidence in passing on his guilt or
innocence.” ’ ” (Nguyen, supra, 61 Cal.4th at p. 1055.)
Zayas’s conduct before and after the shooting also supports
an inference of aiding and abetting. Before the shooting, Zayas
went inside the bar and stayed for “just a few minutes.” When he
returned 34 minutes later with Carrillo, Zayas and Carrillo first
walked past the area where the shooting would occur. A juror

12
could reasonably conclude from Zayas’s initial conduct that he
was surveilling the scene. (See People v. Sedillo (2015)
235 Cal.App.4th 1037, 1066 [“the car drove by with both [shooter]
and defendant before the shooting, implying they were
surveilling” the home where victim was shot].) Later, when
Zayas was outside the bar with Campos, Zayas told Campos, “ ‘I
don’t think you should be out here.’ ” Zayas’s warning to Campos
suggests that Zayas was aware of the impending shooting and
acted to facilitate it by clearing the area of potential witnesses.
Further, Campos told the police that Zayas pointed a gun at
Torres and then walked toward Torres’s car. By using a gun,
Zayas “considered the possibility of a violent encounter.” (People
v. Lee (2011) 51 Cal.4th 620, 636 [evidence defendant brought a
loaded handgun “makes it ‘ “reasonable to infer that he
considered the possibility of homicide from the outset” ’ ”].)
After the shooting, Zayas did nothing to help Torres and
fled the scene with Carrillo. (People v. Lara (2017) 9 Cal.App.5th
296, 322 [flight is relevant to whether a defendant aided and
abetted the commission of the crime]; see also People v. Bonilla
(2007) 41 Cal.4th 313, 329 [flight and failure to call for assistance
imply consciousness of guilt].) Further, after Zayas was arrested
and charged with Torres’s murder, he said, “ ‘I got a little
sloppy,’ ” from which the jury could infer he was admitting his
involvement in the murder. Taken as a whole, the record
contains substantial evidence from which the jury could have
found beyond a reasonable doubt that Zayas knew of and shared
Carrillo’s intent to kill Torres and acted to further the shooting.

13
C. The Court Did Not Err in Admitting Detective Maffei’s
Testimony
Zayas contends Maffei’s testimony “was almost entirely
inadmissible.” In particular, he claims Maffei improperly
(1) identified Zayas on the surveillance video, (2) opined about
the shooter’s location, and (3) testified as an improper “overview
witness” by summarizing the prosecution’s case instead of
providing first-hand observations.7
Zayas acknowledges his trial counsel failed to object to
Maffei’s testimony during trial. By failing to object, Zayas
forfeited his claims on appeal. (Evid. Code, § 353; People v.
Flinner (2020) 10 Cal.5th 686, 726 [“it is still generally the case
that a defendant forfeits an argument on appeal where he fails to
object at all to the evidence in the trial court”]; People v. Partida
(2005) 37 Cal.4th 428, 433-434 [“ ‘ “defendant’s failure to make a
timely and specific objection” on the ground asserted on appeal
makes that ground not cognizable’ ”].) Even assuming Zayas did
not forfeit his claims, his arguments also fail on the merits.
1. Identification of Zayas in the video
Zayas argues the trial court erred when it allowed Maffei to
identify him as the person shown on the surveillance video from

7 In Zayas’s opening brief, one of his headings alleges that
Maffei improperly opined about muzzle flashes. However, Zayas
did not otherwise discuss the issue, and we deem that argument
forfeited. (See People v. Benson (2025) 110 Cal.App.5th 1068,
1078, fn. 2 [“ ‘ “[T]o demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record.” [Citation.] “We are not
obliged to make other arguments for [appellant] [citation], nor
are we obliged to speculate about which issues counsel intend to
raise.” ’ ”].)

14
Foc’sle Bar because Maffei was “unable to identify [him] without
help from third parties” and did not know what he looked like
“prior to [his] arrest.”
During Maffei’s testimony, the prosecutor played a portion
of the surveillance video from Foc’sle Bar. As the video played,
she asked Maffei whether he could identify two people in the
video. Maffei said he could identify Zayas and Carrillo and
pointed to what each person was wearing. The prosecutor also
asked Maffei, “And from watching the video, were you able to
make any identifications, just you, yourself?” Maffei testified
that he could identify Carrillo in the video, but he had to use
“other resources” to identify Zayas.
Maffei specifically explained that he reached out to
Martinez for assistance because Martinez was familiar with the
area surrounding Foc’sle bar and had conducted a traffic stop of
Carrillo in June 2018, a few months before the murder. Maffei
showed Martinez a clip of the surveillance video “to see if he
could identify anybody that was involved in that traffic stop, or
who may be friends with Carrillo.” Martinez was able to identify
Zayas because Zayas was present with Carrillo at the June 2018
traffic stop. Maffei also reviewed the body-worn camera footage
from Martinez’s traffic stop and “was able to look at that video,
and for [himself], also determined that [Zayas] was the person in
the video.” Later in his testimony, Maffei stated that he had
personal contact with Zayas: he interacted with Zayas during his
arrest in July 2019, nine months after the murder, and spoke to
Zayas “at length.”
A lay witness may offer opinion testimony if it is
“[r]ationally based on the perception of the witness” and
“[h]elpful to a clear understanding of [the witness’s] testimony.”

15
(Evid. Code, § 800.) “ ‘[T]he identity of a person is a proper
subject of nonexpert opinion,’ ” and “Court of Appeal decisions
have long upheld admission of testimony identifying defendants
in surveillance footage or photographs.” (People v. Leon (2015)
61 Cal.4th 569, 601 (Leon).)
Historically, courts have identified “two predicates for the
admissibility of lay opinion testimony as to the identity of
persons depicted in surveillance photographs [or video].” (People
v. Mixon (1982) 129 Cal.App.3d 118, 128.) First, the witness
must “testify from personal knowledge of the defendant’s
appearance at or before the time the [video] was taken.” (Ibid.)
Second, the witness’s testimony must “aid the trier of fact in
determining the crucial identity issue.”8 (Ibid.)
However, recent cases have extended the scope of the first
predicate. As relevant here, a witness need not have been
personally familiar with the defendant prior to the crime to make
an identification from surveillance video. (Leon, supra,
61 Cal.4th at p. 601 [it was proper for detective to identify
defendant in surveillance video based on detective’s testimony
that he first saw defendant when he was arrested, he
subsequently spent two hours with defendant, and he “was ‘very’
familiar with defendant’s appearance”].) Further, under certain
circumstances, a witness may properly identify a defendant in a
surveillance video even if that witness had no personal
knowledge of the defendant. (People v. Larkins (2011)
199 Cal.App.4th 1059, 1067-1068 [loss prevention officer was
properly allowed to identify defendant in a surveillance video

8 Zayas challenges only the first predicate—whether Maffei
had adequate knowledge of his appearance.

16
because the officer had watched 20 to 30 other videos showing the
defendant, “during which time [the officer] could observe such
distinguishing characteristics as defendant’s posture, gait and
body movements”].)
“Questions about the extent of [the witness’s] familiarity
with [a] defendant’s appearance [go] to the weight, not the
admissibility, of [the witness’s] testimony.” (Leon, supra,
61 Cal.4th at p. 601.) We review a trial court’s ruling to admit a
lay identification opinion for abuse of discretion. (Id. at p. 600.)
The court did not abuse its discretion in admitting Maffei’s
testimony. Although Maffei initially relied on Martinez to
identify Zayas in the video, Maffei subsequently conducted his
own independent assessment. Maffei reviewed Martinez’s body-
worn camera footage, wherein Zayas is undisputably identified.
Maffei was therefore “sufficiently familiar” with Zayas’s
appearance “to later identify him in the same or another
medium.” (People v. Larkins, supra, 199 Cal.App.4th at p. 1068
[“One can be sufficiently familiar with a person by seeing photos
of him to later identify him in the same or another medium. We
do not doubt that a starstruck young lady who has seen pictures
of Justin Bieber in magazines could easily identify him were she
to see him on a video, on television or in person.”].)
Also, Maffei later acquired personal knowledge of Zayas’s
appearance during Zayas’s arrest. It “is a distinction without a
difference” that Maffei did not have personal contact with Zayas
before the murder. (Leon, supra, 61 Cal.4th at p. 601.) Taken
together, Maffei had two sources of familiarity with Zayas’s
appearance: videos and a personal encounter. Any questions
regarding Maffei’s familiarity with Zayas “went to the weight, not
the admissibility, of his testimony.” (Ibid.) And “because the

17
surveillance video was played for the jury, jurors could make up
their own minds about whether the person shown was
defendant.” (Ibid.) The court thus did not abuse its discretion.9
2. Opinion about the shooter’s location
Zayas contends the trial court erred when it allowed Maffei
to testify about the location of the shooter because Maffei’s
opinion was inadmissible expert opinion. We disagree and
conclude Maffei’s opinion was admissible as lay opinion
testimony.

9 Zayas also briefly argues that Maffei improperly identified
Campos, Hernandez, and Salvador Garibay from the surveillance
video. Zayas claims Maffei “never met” Campos. Zayas is
incorrect. Maffei met Campos in person on two different
occasions and interviewed her both times. During the interview,
Campos admitted that she was “ ‘on the video.’ ” Thus, the court
did not abuse its discretion. (See Leon, supra, 61 Cal.4th at
p. 601.)
As to Hernandez and Garibay, Maffei identified Hernandez
as the driver of the SUV getaway car and Garibay as one of the
passengers, but Maffei did not explain how he was able to
identify them. Even assuming it was error to admit this
testimony (had there been a timely objection), Zayas has failed to
demonstrate a reasonable probability the jury would have
reached a more favorable verdict if the trial court had excluded
the testimony. (See People v. DeHoyos (2013) 57 Cal.4th 79, 131
[applying state law standard claim of erroneous admission of
opinion testimony].) The identity of Hernandez and Garibay did
not add anything substantive to the prosecutor’s case. Indeed,
the prosecutor did not emphasize their identities in opening or
closing argument. Had the prosecutor referred to them as “the
driver” and “the passenger” of the SUV, the result would have
been the same.

18
 Maffei testified that, sometime after the shooting, he took
measurements of the sidewalk where the shooting occurred.
Specifically, he measured the length between two points: the
electrical box on the sidewalk and the area where the passenger
window of Torres’s car would have been. To determine where the
window of Torres’s car would have been, Maffei looked at a
photograph from the crime scene. In the photograph, Torres’s car
was in front of a “block wall.” Maffei counted the blocks on the
wall to conclude the opening of the window was “four blocks”
over. He then measured from that point to the electrical box,
concluding the distance was 28 feet.
Expert and lay opinion play “very different role[s]” and are
“subject to different rules of admissibility.” (People v. Chapple
(2006) 138 Cal.App.4th 540, 547 (Chapple).) A properly qualified
expert may offer an opinion, based on his or her “special
knowledge, skill, experience training, [or] education,” that is
“[r]elated to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of
fact.” (Evid. Code, § 801, subds. (a), (b); see Chapple, at p. 546.)
“ ‘Expert opinion is not admissible if it consists of inferences and
conclusions which can be drawn as easily and intelligently by the
trier of fact as by the witness.’ ” (Chapple, at pp. 546-547.)
“[T]he purpose of expert testimony, to provide an opinion beyond
common experience, dictates that the witness possess uncommon,
specialized knowledge.” (Id. at p. 547.)
In contrast, a lay witness can testify in the form of an
opinion if the opinion is both “[r]ationally based on the perception
of the witness” and “[h]elpful to a clear understanding of [the
witness’s] testimony.” (Evid. Code, § 800.) “ ‘ “Lay opinion
testimony is admissible where no particular scientific knowledge

19
is required.” ’ ” (Chapple, supra, 138 Cal.App.4th at p. 547.) “For
example, testimony that another person was intoxicated [citation]
or angry [citation] or driving a motor vehicle at an excessive
speed” is admissible as lay opinion. (Ibid.) “[U]nlike an expert
opinion, the subject matter of lay opinion is ‘one of such common
knowledge that men of ordinary education could reach a
conclusion as intelligently as the witness,’ and requires no
specialized background.” (Ibid.) On appeal, a court’s admission
of lay opinion testimony is reviewed for abuse of discretion.
(People v. Thompson (2010) 49 Cal.4th 79, 128.)
Zayas argues that Maffei “purport[ed] to use some sort of
scientific method to identify the exact location of the shooter,”
and Maffei’s testimony was admitted without proper foundation
as an expert. But Maffei did not apply any sort of scientific
expertise to reach his conclusion that the distance between the
electrical box on the sidewalk and Torres’s passenger window was
28 feet. Instead, his opinion was rationally based on his personal
observation of a photograph from the crime scene. Maffei looked
at the photograph, identified visual markers, and measured from
those markers. (See People v. Lewis (2008) 43 Cal.4th 415, 504,
disapproved on another ground in People v. Black (2014) 58
Cal.4th 912, 919 [detective’s testimony that the shotgun shells
exhibited strike marks, indicating a failed attempt to fire, was
rationally based on his visual perception of the shells].) The
subject of his opinion—the location of the window and the
distance between the window and the electrical box—was also not
so far “beyond the common experience” that expert testimony was
required. (See People v. Helm (1907) 152 Cal. 532, 547,
disapproved on another ground in People v. Edwards (1912)
163 Cal. 752, 756 [it is “well-settled … that a person may give his

20
opinion on the question of identity, or his judgment of size,
weight, color, quantity, distance, and time, matters of opinion
open to all men of ordinary information”].)
Zayas also questions the strength of Maffei’s testimony. He
argues, “The witness never measured the height of the curb or
the driveway the vehicle was parked on. The witness never
determined the height of the defendants. … How does [Maffei]
know if the vehicle rolled forward or was put in reverse?” Zayas’s
argument is misplaced because it relates to the weight of the
evidence, not the admissibility. Because Maffei properly testified
as a lay witness, the court did not abuse its discretion in
admitting Maffei’s testimony.
3. Overview witness
Zayas argues Maffei acted as an improper “overview
witness” because he summarized the prosecution’s case instead of
offering his first-hand observations. He relies on People v.
Rouston (2024) 99 Cal.App.5th 997 (Rouston), the only California
case to address the issue.
In Rouston, the defendant made the same argument about
a detective who had testified in the case. (Rouston, supra,
99 Cal.App.5th at p. 1014.) To support his argument, the
defendant cited “federal case law, where the circuit courts have
defined an overview witness as ‘a government agent who testifies
in a criminal matter as the prosecution’s first witness (or at least
as one of its earliest witnesses) and provides an overview of the
prosecution’s case to come.’ ” (Ibid., citing United States v. Brown
(1st Cir. 2012) 669 F.3d 10, 24.) “Federal courts have described
this type of testimony as ‘inherently problematic’ because ‘(1) the
jury could be influenced by statements of facts and credibility
determinations not in evidence; (2) later testimony could be

21
different from what the overview witness assumed; and (3) the
jury may place greater weight on evidence that they perceive has
the imprimatur of the government.’ ” (Rouston, at pp. 1014-1015;
see United States v. Agramonte-Quezada (1st Cir. 2022) 30 F.4th
1, 19 [“ ‘Testimony by a law enforcement agent constitutes
impermissible “overview” testimony when it effectively opines
that a defendant is guilty “based on the totality of information
gathered” in the agent’s investigation, rather than relaying the
agent’s first-hand experiences and observations.’ ”].) An overview
witness “ ‘who testif[ies] at the end of the government’s case
instead of the beginning,’ similarly creates ‘the possibility that
the credibility of the summary witness may be substituted for the
credibility of the evidence summarized.’ ” (Rouston, at p. 1015.)
The court in Rouston noted that the detective’s testimony
“was problematic for the same reasons as that of an overview
witness.” (Rouston, supra, 99 Cal.App.5th at p. 1015.) The
detective “was called to the stand several times to summarize or
opine on the testimony of other prosecution witnesses.” (Id. at
p. 1005.) As the court explained, the problem with his summary
testimony was that “[t]he jury likely placed significant weight on
the statements of the lead detective in the case summarizing the
testimony of the other witnesses, and possibly substituted the
credibility of [the detective] for that of the percipient witnesses.”
(Id. at p. 1015.)
Zayas does not cite to the record where Maffei allegedly
acted as an overview witness. He has thus forfeited his
argument. (See People v. Hoyt (2020) 8 Cal.5th 892, 939 (Hoyt)
[“by failing to support his appellate arguments with record
citations, defendant has forfeited any claim of error on appeal”];
People v. Weber (2013) 217 Cal.App.4th 1041, 1055 [defendant

22
forfeited an argument by failing to provide a record citation for a
statement he claimed occurred during the trial]; People v.
Mendoza (1986) 183 Cal.App.3d 390, 398 [“ ‘[A] point suggested
on appeal cannot be considered where the brief fails ... to point
out the page of the record where the alleged error is supposed to
have occurred.’ ”].)
Even if Zayas had not forfeited it, his contention is
meritless. It appears Zayas challenges only instances where
Maffei described what occurred in the surveillance video from
Foc’sle Bar. This was not improper overview witness testimony.
Maffei did not summarize the testimony of other witnesses;
rather, he summarized what he saw on the video. Maffei testified
that he spent “[s]everal hours” watching the video “in order to put
pieces together.” Maffei told the jury the duration of the time
lapses in the video, what people were doing, and what cars were
doing. Maffei did not testify as an overview witness.

D. Zayas Has Not Shown Any Prosecutorial Misconduct
Zayas contends the prosecutor engaged in prejudicial
misconduct by improperly describing Campos, mischaracterizing
the evidence, and misstating the law. At trial, Zayas did not
object on these grounds. “ ‘ “As a general rule a defendant may
not complain on appeal of prosecutorial misconduct unless in a
timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.” ’ ” (People v. Beck and
Cruz (2019) 8 Cal.5th 548, 657.) “ ‘The lack of a timely objection
and request for admonition will be excused only if either would
have been futile or if an admonition would not have cured the
harm.’ ” (Hoyt, supra, 8 Cal.5th at pp. 942-943; accord, People v.
Powell (2018) 6 Cal.5th 136, 171.) Zayas does not contend his

23
failure to object should be excused; thus, we conclude he forfeited
his contentions on appeal. In any event, they also fail on the
merits.
1. Applicable law and standard of review
“ ‘ “ ‘A prosecutor’s misconduct violates the Fourteenth
Amendment to the United States Constitution when it “infects
the trial with such unfairness as to make the conviction a denial
of due process.” [Citations.] In other words, the misconduct must
be “of sufficient significance to result in the denial of the
defendant’s right to a fair trial.” [Citation.] A prosecutor’s
misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves “the use of
deceptive or reprehensible methods to attempt to persuade either
the court or the jury.” ’ ” ’ ” (Hoyt, supra, 8 Cal.5th at p. 943.)
“ ‘When attacking the prosecutor’s remarks to the jury, the
defendant must show’ that in the context of the whole argument
and the instructions there was ‘ “a reasonable likelihood the jury
understood or applied the complained-of comments in an
improper or erroneous manner.” ’ ” (People v. Silveria and Travis
(2020) 10 Cal.5th 195, 306.) “Although we generally review
claims of prosecutorial error for an abuse of discretion [citation],
we independently examine what the law is [citation] and
‘objective[ly]’ examine how a ‘reasonable juror’ would likely
interpret the prosecutor’s remarks [citations], bearing in mind
that ‘ “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. Collins (2021)
65 Cal.App.5th 333, 340.)

24
 2. The prosecutor’s statement about Campos
Zayas challenges the prosecutor’s description of Campos in
her opening statement. The prosecutor told the jury, “I’ve
mentioned you will hear more about … Campos. So, at a prior
proceeding, she testified. Unfortunately, she has since passed
away. Nothing related to this case. She died of a drug overdose.”
Zayas contends the prosecutor “knew (or at least should have
known) with an absolute certainty that no Court would have
possibly allowed that testimony in front of the jury.” Zayas does
not present any cogent argument or cite to any legal authority for
his contention; therefore, we conclude his contention is forfeited.
(See People v. Williams (1997) 16 Cal.4th 153, 206 [“Points
‘perfunctorily asserted without argument in support’ are not
properly raised.”]; People v. Hardy (1992) 2 Cal.4th 86, 150
[defendant forfeited an argument by failing to “expand on the
issue with either argument or citation to relevant authority”];
People v. Lewis (2025) 111 Cal.App.5th 1078, 1098 [“absence of
cogent legal argument” forfeits the issue on appeal]; People v.
Ramirez (2024) 104 Cal.App.5th 315, 329-330 [defendant forfeited
an argument by not citing “any relevant legal authority to
support this claim” or “develop[ing] a cogent legal argument”].)
In any event, the contention lacks merit. “ ‘[R]emarks
made in an opening statement cannot be charged as misconduct
unless the evidence referred to by the prosecutor “was ‘so
patently inadmissible as to charge the prosecutor with knowledge
that it could never be admitted.’ ” ’ ” (People v. Dykes (2009)
46 Cal.4th 731, 762.) We cannot say the evidence here about
Campos’s unavailability “ ‘ “was ‘so patently inadmissible.’ ” ’ ”
(Ibid.) There is no evidence that the prosecutor told the jury
incorrect information. Indeed, the parties later stipulated that

25
Campos was unavailable to testify because she died of a drug
overdose. Further, the prosecutor was entitled to explain why
Campos was unavailable to prevent the jury from drawing a
negative inference from her failure to testify. (See People v.
Lopez (1999) 71 Cal.App.4th 1550, 1554 [jurors may draw a
negative inference when a witness refuses to testify and has no
right to do so].) Thus, the prosecutor did not commit misconduct
in the opening statement.
3. The prosecutor’s alleged mischaracterizations of
evidence
Zayas contends the prosecutor mischaracterized evidence
during closing arguments. The prosecutor told the jury to watch
the surveillance video from Foc’sle Bar and look at Zayas’s “right
pocket” as he walked toward the getaway car. The prosecutor
continued: “There is a black object in the pocket, and I’m going to
ask you to take a look.” The prosecutor also told the jury to
watch Campos in the video. The prosecutor argued, “She was in
the doorway. She was able to see when [Zayas] pulled out the
gun and started walking” toward Torres. The prosecutor also
argued that during Campos’s interview, Campos “put the gun in
[Zayas’s] hand,” and she was focused on the gun, not whether had
tattoos.
Zayas claims that the prosecutor committed misconduct
when she argued that the video showed Zayas had a “black
object” in his hand, that Campos saw Zayas with a gun in his
hand, and that Campos was only focused on the gun. Zayas
contends it was misconduct because “[t]here was literally not a
single word of testimony” supporting the prosecutor’s arguments.
We disagree.

26
 “It is misconduct for a prosecuting attorney to argue beyond
the record by stating facts not in evidence. [Citations.] An
advocate who does so is essentially offering unsworn testimony
not subject to cross-examination. [Citation.] ‘However, the
prosecution “enjoys wide latitude in commenting on the evidence,
including the reasonable inferences and deductions that can be
drawn therefrom.” ’ ” (People v. Nadey (2024) 16 Cal.5th 102, 188
(Nadey).)
The video evidence from Foc’sle Bar captured Zayas’s
clothing and showed Zayas walking toward the getaway car. The
prosecutor thus had “ ‘ “wide latitude” ’ ” to remark on this state
of evidence and make inferences about Zayas’s clothing. (Nadey,
supra, 16 Cal.5th at p. 188.) Indeed, defense counsel conceded
during closing argument that the jury would “see things that
[they] think might be something in multiple people’s pockets.”
Thus, the prosecutor’s statement about a “black object” in his
pocket was a fair comment on the evidence.
Additionally, given the testimony and video evidence, the
prosecutor’s comments about Campos were proper. Campos told
Maffei that Zayas looked like the man who walked toward
Torres’s car with a gun in his hand. Campos also said she
“wasn’t really paying attention” to whether the man had tattoos.
The video footage was consistent with Campos’s statements in
that it showed her outside the bar, “facing the direction that …
Zayas [wa]s walking.” Based on this evidence, it was reasonable
for the prosecutor to infer that Campos saw Zayas with a gun in
his hand and was only focused on the gun. (See People v.
Seumanu (2015) 61 Cal.4th 1293, 1342 [the prosecutor “ ‘has the
right to fully state [her] views as to what the evidence shows and
to urge whatever conclusions [she] deems proper’ ”].) Zayas “may

27
not complain on appeal if the reasoning is faulty or the
conclusions are illogical because these are matters for the jury to
determine.” (Ibid.)
4. The prosecutor’s statements of law
Zayas contends the prosecutor misstated the law on aiding
and abetting during closing argument because she failed to tell
the jury “that a specific intent to kill must be present.”
Specifically, Zayas claims the prosecutor committed misconduct
when she said, “ ‘Aiding and abetting is just helping somebody to
commit the crime.’ ” Zayas also challenges the prosecutor’s
analogies to sports.
During closing argument, the prosecutor stated, “A
defendant aids and abets if the defendant knows the shooter’s
unlawful purpose and aids, facilitates, promotes, encourages, or
instigates the shooter’s commission of the crime. Basically, helps
him to commit the crime. … Aiding and abetting is just helping
somebody commit the crime.” The prosecutor then analogized
aiding and abetting to basketball, baseball, and football. In her
basketball comparison, the prosecutor said that “the person who
… scores … gets some sort of stats for it, but so does the person
who assists. The person who throws the ball to the one who then
shoots actually gets their stats as well, because they’ve assisted
the shooter in making the basket.” The prosecutor made similar
arguments for baseball and football, concluding, “It’s all the
same. It’s about helping someone, helping them to do or commit
the crime or to score the goal, or whatever it may be.”
During rebuttal, the prosecutor discussed the instructions,
stating, “The aiding and abetting instruction, you have that. It’s
going to be [CALCRIM No.] 401, that’s the instruction.” The
prosecutor also told the jury that “you don’t have to agree on the

28
theory of liability. You don’t have to agree on that, but you do
have to agree that he had that intent to kill, whether it was in
helping … Carrillo … or being an aider and abettor.”
“ ‘[I]t is improper for the prosecutor to misstate the law
generally.’ ” (People v. Cortez (2016) 63 Cal.4th 101, 130.) “But a
prosecutor is allowed to vigorously argue the case and is afforded
‘significant leeway’ in discussing the facts and the law in closing
argument.” (People v. Azcona (2020) 58 Cal.App.5th 504, 516.)
“Thus, ‘comments drawn from common experience, history, or
literature’ are generally permissible [citation], as are quotations
from books or other sources presented for illustrative purposes.”
(Nadey, supra, 16 Cal.5th at p. 188.)
We need not decide whether the prosecutor’s comments
were misstatements of the law because Zayas has failed to show a
“ ‘ “reasonable likelihood” ’ ” the jury understood or applied the
prosecutor’s remarks in an improper manner. (People v. Silveria
and Travis, supra, 10 Cal.5th at p. 306.) The prosecutor’s
challenged comments were brief, and the prosecutor referred the
jury to the instruction (CALCRIM 401) on aiding and abetting.
The prosecutor also ultimately told the jury that they had “to
agree that [Zayas] had [the] intent to kill.”
In addition, there is no dispute that the trial court
accurately instructed the jury on the law of aiding and abetting.
Moreover, the trial court instructed the jury, “If you believe that
the lawyers’ comments on the law conflict with the instructions,
you must follow my instructions.” We must presume jurors
followed that instruction. (People v. Centeno (2014) 60 Cal.4th
659, 676 [“ ‘When argument runs counter to instructions given a
jury, we will ordinarily conclude that the jury followed the latter
and disregarded the former, for “[w]e presume that jurors treat

29
the court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.” ’ ”].) Accordingly, we conclude Zayas failed
to meet his burden of proving prosecutorial misconduct. (See
People v. Potts (2019) 6 Cal.5th 1012, 1037-1038 [where the
prosecutor’s challenged remarks “were brief” and referred jurors
to the court’s instructions, and the court correctly instructed the
jury, it was “not reasonably likely the jury construed the remarks
in an objectionable fashion, nor that ‘the jury understood the
instructions to allow conviction based on’ inadequate proof”];
People v. Cortez (2016) 63 Cal.4th 101, 133-134 [“no reasonable
likelihood” the jury misconstrued or misapplied the prosecutor’s
challenged remarks where the comments “were brief and
constituted a tiny, isolated part of the prosecution’s argument,”
the prosecutor referred jurors to the jury instruction, and the
court properly instructed on the law].)

E. Defense Counsel Did Not Provide Ineffective Assistance of
Counsel
Zayas condemns the quality of defense counsel’s opening
statement and closing argument. He argues counsel was
incompetent because he conceded that Zayas was present at the
crime scene, that the flashes on the surveillance video were
muzzle flashes (as opposed to glitches on the surveillance video),
and that Campos was a drug addict who made contradictory
statements and later died of an overdose. We reject the
arguments.
1. Applicable law and standard of review
“ ‘ “To establish ineffective assistance of counsel, a
defendant must show that (1) counsel’s representation fell below
an objective standard of reasonableness under prevailing

30
professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to
the defendant. [Citation.] ‘A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.’ ” ’ ” (People v. Rices (2017) 4 Cal.5th 49, 80; accord,
People v. Johnson (2016) 62 Cal.4th 600, 653; In re Roberts (2003)
29 Cal.4th 726, 744-745; see Strickland v. Washington (1984)
466 U.S. 668, 694.)
“ ‘Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel
[citation], and there is a “strong presumption that counsel’s
conduct falls within the wide range of professional assistance.” ’
[Citations.] ‘[W]e accord great deference to counsel’s tactical
decisions’ [citation], and we have explained that ‘courts should
not second-guess reasonable, if difficult, tactical decisions in the
harsh light of hindsight.’ ” (People v. Weaver (2001) 26 Cal.4th
876, 925-926; accord, People v. Ledesma (2006) 39 Cal.4th 641,
746.) Accordingly, to prevail on a claim that counsel’s
performance fell below an objective standard of reasonableness, a
defendant must show “counsel had ‘ “ ‘no rational tactical
purpose’ ” ’ for an action or omission.” (People v. Mickel (2016)
2 Cal.5th 181, 198.) “ ‘ “ ‘[If] the record on appeal sheds no light
on why counsel acted or failed to act in the manner challenged[,]
. . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory
explanation,’ the claim on appeal must be rejected.” ’ ” (People v.
Carrasco (2014) 59 Cal.4th 924, 982.)

31
 2. Defense counsel was not deficient
During opening statement, defense counsel told the jury
that video from Foc’sle Bar would show Carrillo and Zayas
walked toward Torres’s car before there were gunshots. Counsel
also stated the jury would hear evidence that Campos “was in the
middle of a three-day drug bender” on the night of the shooting
and later died from an overdose.
During his closing argument, defense counsel argued that
Zayas was “not guilty” of murder because he was not the shooter
and did not aid and abet the shooting. Counsel conceded that
Zayas was at Foc’sle Bar on the night of the shooting and walked
toward Torres’s car “right before the muzzle flashes.” But,
counsel argued, Zayas’s mere presence at the scene was not
enough to convict him. Counsel pointed to the “lack of hard
evidence” of guilt, including the lack of “usable forensic evidence,
such as DNA or prints.” Counsel also argued that the video was
“not clear,” the video did not show a gun, and Carrillo was “the
more likely shooter.” In discussing Campos, counsel
acknowledged that Campos testified Zayas “had a gun,” but
counsel argued that Campos “said contradictory things,” was high
when she testified, was an addict who died of an overdose, and
was not “a reliable source.”
Defense counsel does not necessarily render ineffective
assistance of counsel by conceding various facts or even degrees
of guilt.10 (Yarborough v. Gentry (2003) 540 U.S. 1, 9 [concession

10 Zayas also claims defense counsel violated his Sixth
Amendment right of autonomy over the defense under McCoy v.
Louisiana (2018) 584 U.S. 414. “Because a client’s autonomy, not
counsel’s competence, is in issue,” the “ineffective-assistance-of-

32
that defendant was a “ ‘bad person, lousy drug addict, stinking
thief, jail bird’ ” was not an unreasonable because “[b]y candidly
acknowledging his client’s shortcomings, counsel might have
built credibility with the jury and persuaded it to focus on the
relevant issues in the case”]; People v. Samayoa (1997) 15 Cal.4th

counsel jurisprudence” does not apply to such a claim. (Id. at
p. 426.) Rather, to demonstrate error under McCoy, the
defendant must show defense counsel conceded the defendant’s
guilt and the concession was over the defendant’s “intransigent
and unambiguous objection.” (Id. at p. 420; see People v. Chhuon
(June 1, 2026, S105403) __ Cal.5th __ [2026 WL 1530451, *12-14
[McCoy violation where counsel conceded guilt for second degree
murder despite defendant’s “express wish to maintain his
innocence”]; People v. Bloom (2022) 12 Cal.5th 1008, 1015 [same
where counsel conceded guilt for two of three murder counts
despite defendant’s objection]; People v. Flores (2019)
34 Cal.App.5th 270, 280-283 [same where counsel conceded actus
reus of crime despite defendant’s objection].) If the defendant
makes such a showing, the error is structural. (Chhuon, at p. __
[2026 WL 1530451, *14]; McCoy, at p. 427.) Zayas failed to make
either showing. Counsel conceded various facts, not guilt or
elements of the crime. Also, there is no evidence that Zayas
objected to counsel’s strategy. The record contains a declaration
from Zayas stating, “I did not give my trial counsel permission to
implicate me at the scene.” This is not evidence of an active,
express objection. (Cf. Chhuon, at p. __ [2026 WL 1530451, *11]
[after closing arguments, defendant wrote a letter to the judge
saying he told his lawyer “ ‘not to claim any guilt on my behalf
which he failed to do’ ”]; Bloom, at p. 1036 [defendant “made
known his discontent … numerous times” at pretrial hearings;
there was “nothing genuinely ambiguous about his expressed
desire to maintain innocence”]; Flores, at p. 280 [defendant made
“express and unambiguous” objection during pretrial
proceedings].)

33
795, 846-847 [concession that defendant was guilty of first degree
murder under a felony-murder theory was not unreasonable
where evidence was overwhelming and “defense counsel
reasonably may have determined that the only viable theory of
defense was that defendant had lacked the intent to kill,” an
element that was required for each of the three alleged special
circumstances]; People v. Freeman (1994) 8 Cal.4th 450, 498
[“Recognizing the importance of maintaining credibility before
the jury, we have repeatedly rejected claims that counsel was
ineffective in conceding various degrees of guilt.”]; People v.
McPeters (1992) 2 Cal.4th 1148, 1186-1187, superseded by statute
on another ground as stated in Verdin v. Superior Court (2008)
43 Cal.4th 1096, 1106 [concession that defendant was present at
the crime scene was not unreasonable where the evidence was
strong and counsel had “to make the best of a bad situation”].)
Where the incriminating evidence is strong and counsel offers
“some other choice in the defendant’s favor,” an ineffective
assistance claim may be rejected. (People v. Hart (1999)
20 Cal.4th 546, 631.)
Zayas has failed to overcome the strong presumption that
counsel’s strategy fell within “the wide range of reasonable
professional assistance.” (Strickland v. Washington, supra,
466 U.S. at p. 689.) There are reasonable tactical explanations
for why counsel made concessions regarding Zayas’s presence, the
muzzle flashes, and Campos.
First, there was strong evidence that Zayas was present at
the scene. Both Maffei and Martinez identified Zayas in the
surveillance video from Foc’sle Bar. Campos said Zayas looked
like the person who lit her cigarette, pointed a gun at Torres, and
walked toward Torres’s car. Further, Zayas’s jail phone call,

34
where he said, “I got a little sloppy,” suggested he was involved in
the crime and had made mistakes. Given this evidence, it was
not unreasonable for counsel to concede Zayas’s presence. (See
McPeters, supra, 2 Cal.4th at pp. 1186-1187 [where eyewitnesses
and other evidence placed defendant at the scene, counsel was
not deficient for conceding defendant’s presence].) That’s because
“candor may be the most effective tool available to counsel.”
(People v. Mayfield (1993) 5 Cal.4th 142, 177.) By candidly
conceding Zayas’s presence, defense counsel may have built
credibility with the jury and persuaded it to focus on his other
arguments. (See Yarborough v. Gentry, supra, 540 U.S. at pp. 9-
10 [“ ‘[I]f you make certain concessions showing that you are
earnestly in search of the truth, then your comments on matters
that are in dispute will be received without the usual
apprehension surrounding the remarks of an advocate.’ ”]; People
v. Mitcham (1992) 1 Cal.4th 1027, 1060-1061 [“good trial tactics
often demand complete candor with the jury, and ... in light of the
weight of the evidence incriminating a defendant, an attorney
may be more realistic and effective by avoiding sweeping
declarations of his or her client’s innocence”].)
Second, there was also strong evidence that the flashing
lights near Torres’s car seen in the surveillance video were
gunfire. Maffei testified that, based on his familiarity with
firearms, the flashing lights were muzzle flashes. Daniel Rubin,
a LAPD criminalist, similarly testified. Additionally, forensic
evidence demonstrated the shooting occurred very close to
Torres’s car. Based on the weight of the evidence, it was not
unreasonable for counsel to concede the flashes were gunfire and
focus his argument on the lack of evidence Zayas was the shooter.
(See People v. Hart, supra, 20 Cal.4th at p. 631 [“In view of the

35
evidence presented against defendant, trial counsel reasonably
could have concluded that challenging the evidence more
vigorously in his argument risked alienating the jury and
perhaps lessening his odds of success”]; People v. Mitcham, supra,
1 Cal.4th at p. 1060 [by conceding intent, counsel was able to
focus his defense on other arguments].)
Lastly, regarding defense counsel’s remarks about Campos
being a drug addict, Zayas contends counsel’s strategy was
ineffective because Campos’s testimony “completely exonerated”
him. He is incorrect. Campos was the only eyewitness to the
murder, and her testimony was damaging to Zayas’s case.
Campos testified that on the night of the shooting, she stepped
outside Foc’sle Bar for a cigarette and a man standing outside
who “look[ed] like” Zayas lit it for her. The man told Campos, “ ‘I
don’t think you should be out here right now,’ ” which indicated
he knew something bad was going to happen. According to
Campos, after he made that statement, the man approached
Torres’s car parked nearby, at which point the man pointed a gun
at Torres, “cocked” the gun, put the gun down, and then walked
up to Torres’s car. Within seconds, Campos heard four or five
gunshots. Given Campos’s incriminating testimony, it was
reasonable for counsel to highlight her drug history and
inconsistent statements. Counsel’s strategy conceivably could
have persuaded the jury to disregard her testimony because her
conduct tended to cast doubt on her credibility. (See Evid. Code,
§ 780 [in determining the credibility of a witness, jury may
consider any matter that has a tendency in reason to prove or
disprove the truthfulness of her testimony, including “[t]he extent
of [her] capacity to perceive, to recollect, or to communicate any

36
matter about which [she] testifies” and “[a] statement made by
[her] that is inconsistent”].)
Far from there being no possible satisfactory explanation
for defense counsel’s conduct (People v. Carrasco, supra,
59 Cal.4th at p. 982), there were obvious tactical reasons counsel
made the concessions regarding Zayas’s presence, the muzzle
flashes, and Campos. Zayas failed to demonstrate ineffective
assistance of counsel.

F. There Was No Cumulative Error
Zayas argues the cumulative effect of the claimed errors
was prejudicial and deprived him of a fair trial. “Cumulative
error is present when the combined effect of the trial court’s
errors is prejudicial or harmful to the defendant.” (People v.
Capers (2019) 7 Cal.5th 989, 1017.) “We have either found no
error or, in those instances where error has been ... assumed, no
prejudice. Thus, there is no prejudice to accumulate.” (People v.
Williams (2015) 61 Cal.4th 1244, 1291.)

G. The Trial Court Did Not Err in Denying Zayas’s Motion
Under the Racial Justice Act
1. Relevant proceedings
After the jury returned its verdict, Zayas filed a motion for
a new trial alleging, among other issues, a violation of the Racial
Justice Act (RJA, § 745). In his motion, Zayas did not cite the
RJA, identify which category of conduct occurred, or attach any
supporting documents, making it difficult to discern his specific
argument. It appears he relied on the trial testimony of Martinez
to argue that a particular traffic stop “was a completely illegal
search and seizure” and was “violative of every RJA.” Martinez
testified about two traffic stops—one in June 2018 and another in

37
December 2018. It is not clear from Zayas’s motion which stop he
challenged.
Relevant here, Martinez testified that after he reviewed the
surveillance video from Foc’sle Bar, he was able to identify
Carrillo and Zayas. He was familiar with them because he
encountered them during a traffic stop on June 13, 2018. There
was no further testimony about the details of the June 2018
traffic stop.
Martinez also testified that in December 2018, two months
after the murder, he was looking for cars “that were connected to
any criminal activity.” He stopped a car for a traffic violation and
noticed that the car “matched the vehicle in this case.” He took
pictures of the car and the driver, whom he identified as
Hernandez. There were no passengers in the car. Later,
Martinez determined that Hernandez was in the surveillance
video from Foc’sle Bar by comparing photos from the traffic stop
with the video.
Based on this testimony, Zayas argued in his motion for a
new trial that “Officer Martinez pulled over the vehicle for the
specific purpose of further investigation concerning the shooting
of Mr. Torres. [¶] There was no probable cause to search or
photograph the occupants. This was a completely illegal search
and seizure that far exceeded the time necessary to issue a ticket
or citation. Pulling over Hispanic men who drive an
unremarkable vehicle to investigate is violative of every RJA and
the Constitution.”
The People opposed the motion. They argued that Zayas’s
allegations failed to make a prima facie showing of a violation of

38
the RJA.11 In particular, they argued that Zayas “was not
present at the traffic stop” of Hernandez, and Zayas could not
“bring an RJA claim on behalf of another individual.”
Additionally, they argued Zayas “fail[ed] to articulate facts to
support any bias or animas towards [Zayas] because of his race,
ethnicity or national origin.”
Zayas filed a reply clarifying that his claim was based on
section 745, subdivision (a)(1). He argued that “[t]he fact that
[he] was not driving the vehicle does not preclude him from
making a claim that the stop was pretextual or that the officers’
actions toward [him] following the stop violated the Act.” He also
cited the 2023 and 2024 reports from the California Racial and
Identity Profiling Advisory Board (RIPA) to demonstrate that
“ ‘Hispanic/Latine(x)’ individuals represented a higher proportion
of stopped individuals than their relative proportion of the
weighted California residential population.”
At the hearing on the RJA motion, the trial court asked
defense counsel to clarify which traffic stop he was challenging.
Defense counsel stated that he was challenging the June 2018
traffic stop of Carrillo because “[i]t was a racially motivated stop.”
Counsel did not call any witnesses or offer any new evidence at
the hearing.
The trial court found Zayas failed to make a prima facie
showing there was a violation of the RJA. The court ruled that
besides the RIPA statistical reports, there was no “specific
evidence to further [Zayas’s] argument.”

11 They also argued that the motion was untimely. The
People do not raise that argument again on appeal.

39
 2. Applicable law and standard of review
“ ‘[T]he RJA prohibits the state from seeking or obtaining a
criminal conviction, or seeking, obtaining, or imposing a
sentence, on the basis of race, ethnicity, or national origin.’ ”
(People v. Chhuon (June 1, 2026, S105403) __ Cal.5th __ [2026
WL 1530451, *33]; see People v. Demolle (June 1, 2026, S159120)
__ Cal.5th __ [2026 WL 1530658, *46]; § 745, subd. (a).) It
specifies four categories of conduct, any one of which, if proven by
a preponderance of the evidence, establishes a violation. (§ 745,
subd. (a)(1)-(4).) The first of those categories is relevant here.
Specifically, a violation exists when “(1) [t]he judge, an attorney
in the case, a law enforcement officer involved in the case, an
expert witness, or juror exhibited bias or animus towards the
defendant because of the defendant’s race, ethnicity, or national
origin.” (Id., subd. (a)(1).)
“When a defendant files a motion in the trial court alleging
a violation of the Racial Justice Act, the first step is for the trial
court to determine whether the defendant has made ‘a prima
facie showing of a violation.’ [Citation.] The statute specifically
defines ‘ “[p]rima facie showing” ’ to mean ‘that the defendant
produces facts that, if true, establish that there is a substantial
likelihood that a violation of subdivision (a) occurred.’ [Citation.]
The statute further states that ‘a “substantial likelihood”
requires more than a mere possibility, but less than a standard of
more likely than not.’ [Citation.] Moreover, ‘a defendant seeking
relief under the [RJA] must state fully and with particularity the
facts on which relief is sought, and include copies of reasonably
available documentary evidence supporting the claim. The court
should accept the truth of the defendant’s allegations, including
expert evidence and statistics, unless the allegations are

40
conclusory, unsupported by the evidence presented in support of
the claim, or demonstrably contradicted by the court’s own
records. ... [T]he court should not make credibility
determinations at the prima facie stage.’ ” (Jackson v. Superior
Court (2025) 109 Cal.App.5th 372, 381 (Jackson); see Mosby v.
Superior Court (2024) 99 Cal.App.5th 106, 131; Finley v. Superior
Court (2023) 95 Cal.App.5th 12, 23.)
“Once a defendant makes a prima facie showing, the trial
court proceeds to determine whether the defendant has met ‘the
burden of proving a violation of subdivision (a) [of section 745] by
a preponderance of the evidence.’ [Citation.] The applicable
remedies are set forth in subdivision (e) of section 745.”
(Jackson, supra, 109 Cal.App.5th at pp. 381-382; see § 745, subd.
(c)(2); People v. Bankston (June 1, 2026, S044739) __ Cal.5th __
[2026 WL 1530539, *37].) “In an appeal from a trial court ruling
that a defendant failed to make a prima facie showing of [an
RJA] violation, we apply a de novo standard of review.” (Jackson,
at p. 382.)
3. Zayas did not make a prima facie showing under
section 745
Like his argument in the trial court, Zayas’s argument on
appeal is difficult to discern. While the first half of his argument
falls under a heading related to the RJA, the second half of his
argument starts eight pages later, under an unrelated heading,
and in the middle of an entirely different argument. (See Cal.
Rules of Court, rule 8.204(a)(1)(B) [briefs must state each point
under a separate heading and support each point with
argument].)
To the extent Zayas alleges that Martinez’s June 2018
traffic stop of Carrillo exhibited bias toward him, we agree with

41
the trial court that he failed to make a prima facie case. A
defendant seeking relief under the RJA must “include copies of
reasonably available documentary evidence supporting the
claim.” (Finley v. Superior Court, supra, 95 Cal.App.5th at p. 23;
see Jackson, supra, 109 Cal.App.5th at p. 372.) Zayas supported
his claim with citations to RIPA reports and the trial record.
Accepting the truth of the RIPA reports, they demonstrate that in
California “Hispanic/Latine(x) individuals were overrepresented
in stops.” But the trial record is devoid of any evidence regarding
the June 2018 traffic stop of Carrillo. For example, there is no
evidence regarding why Carrillo was stopped or what occurred
during or after the stop. (Cf. Jackson, supra, 109 Cal.App.5th at
pp. 386-388 [defendant made prima facie showing after
submitting both statistical evidence and evidence concerning the
traffic stop itself].) Because Zayas’s allegations are conclusory
and unsupported by the evidence, he failed to make a prima facie
showing. (See ibid. [“statistical evidence alone would not be
sufficient to show … officers’ stop and search of [defendant] was
the product of racial bias”].)
To the extent Zayas contends Martinez’s December 2018
traffic stop of Hernandez exhibited bias toward him, the claim
lacks merit. The trial testimony shows Martinez pulled over
Hernandez for a traffic violation, and there was no one else in the
car. “Notably, the RJA’s relevant provisions prohibit bias or
animus ‘towards the defendant because of the defendant’s race,
ethnicity, or national origin.’ ” (People v. Chhuon, supra,
__ Cal.5th at p. __ [2026 WL 1530451, *34], citing § 745, subd.
(a)(1).) “In other words, the RJA’s relevant provisions do not
encompass bias or animus directed towards persons other than
the defendant.” (Ibid.) Zayas has neither explained nor put forth

42
any evidence showing how Martinez’s traffic stop of Hernandez
exhibited bias or animus toward Zayas. Thus, Zayas has failed to
make a prima facie case for relief under the RJA.

H. The Trial Court Did Not Abuse Its Discretion by Refusing
To Strike Zayas’s Prior Conviction Allegation
The final section of Zayas’s brief is 18 pages long, and the
heading states: “Alternatively, Mr. Zayas is Entitled to
Resentencing for His Conviction Based Upon the Court’s Failure
to Strike Mr. Zayas’ Prior Felony Conviction Under Pen. Code
Section 1385.” Based on this heading, it appears Zayas is
challenging the trial court’s denial of his motion to dismiss his
prior strike conviction under People v. Superior Court (Romero),
supra, 13 Cal.4th 497 and section 1385. However, the 18-page
section includes, at most, one page of legal authority supporting
Zayas’s argument. The remaining 17 pages include citations to
various sentencing laws that are relevant neither to Zayas’s
purported argument nor to the facts of his case. For example,
Zayas devotes several pages to the law and legislative history
surrounding one-year enhancements under section 667.5,
subdivision (b), even though Zayas’s sentence does not include
such an enhancement.
Further, nowhere in the 18-page section does Zayas support
the point made in the heading with any argument or citations to
the record. (See Cal. Rules of Court, rule 8.204(a)(1)(B), (C)
[every brief must “[s]tate each point under a separate heading or
subheading summarizing the point, and support each point by
argument and, if possible, by citation of authority” and citation to
the record].) The only part resembling an argument is where
Zayas states, “Here, several of the circumstances listed in
[section] 1385, subdivision (c)(2) apply to … Zayas. Specifically,

43
application of the enhancement would result in a discriminatory
racial impact [(§ 1385, subd. (c)(2)(A))]; the application of an
enhancement resulted in a sentence of over 20 years [(§ 1385,
subd. (c)(2)(c))]; the enhancement was based on a prior conviction
that was over five years old [§ 1385, subd. (c)(2)(H))].” But the
new section 1385 provisions regarding dismissal of enhancements
under subdivision (c) do not apply to strike offenses. (People v.
Walker (2024) 16 Cal.5th 1024, 1029, fn. 2 [“section 1385,
subdivision (c), by its terms, only applies to enhancements and
not the Three Strikes law, which is an alternative sentencing
scheme”]; accord People v. Burke (2023) 89 Cal.App.5th 237, 243-
244 [“The plain language of subdivision (c) of section 1385 applies
only to an ‘enhancement,’ and the Three Strikes law is not an
enhancement”]; People v. Olay (2023) 98 Cal.App.5th 60, 69.)
When a defendant claims the trial court abused its
discretion by declining to strike a prior conviction allegation, the
burden is on the defendant “ ‘ “to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367,
376-377.) Here, Zayas claimed in the section heading that the
trial court abused its discretion, but he failed to support his claim
with any cogent argument or citation to the record. Providing
only “[a] brief, conclusory allegation” with no “substantial
argument or citation to authority” to support his contention
“constitutes a waiver of the point on appeal.” (People v. Roberto
V. (2001) 93 Cal.App.4th 1350, 1364, fn. 6; see Multani v. Witkin
& Neal (2013) 215 Cal.App.4th 1428, 1458 [“ ‘Mere suggestions of

44
error without supporting argument or authority ... do not
properly present grounds for appellate review.’ [Citation.]
‘Hence, conclusory claims of error will fail.’ ”]; In re S.C. (2006)
138 Cal.App.4th 396, 408 [When a point is asserted without
argument and authority for the proposition, “ ‘it is deemed to be
without foundation and requires no discussion by the reviewing
court.’ ”].) Accordingly, we treat as forfeited Zayas’s claim that
the court abused its discretion during sentencing, and we
presume the trial court acted properly when it sentenced Zayas
under the Three Strikes law.

DISPOSITION

The judgment is affirmed.

STONE, J.
We concur:

SEGAL, Acting P. J.

FEUER, J.

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