People v. Mays CA2/3

Filed 6/8/21 P. v. Mays CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B302559

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA463973
v.

MARIEL MAYS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Lenore De Vita, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, A. Natasha Cortina and Lynne G. McGinnis, Deputy
Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

Defendant Mariel Mays was convicted of numerous gang
crimes stemming from four confrontations over the course of four
months. On appeal, he challenges the sufficiency of the evidence
to support his convictions for four counts and two enhancements,
contends the prosecutor committed misconduct in closing
argument, and argues two of his three felon-in-possession
convictions must be stricken because they were all part of the
same continuing offense. We agree with defendant that there is
no substantial evidence to support two of his convictions for
shooting from a motor vehicle.1 Likewise, the People concede, and
we agree, that two of the felon-in-possession convictions must be
stricken. We therefore reverse the convictions for counts 3 and 4,
vacate defendant’s sentence, and remand for resentencing with
directions to strike two of the felon-in-possession convictions. In
all other respects, we affirm.

PROCEDURAL BACKGROUND

By amended information dated April 30, 2019, defendant
was charged with three counts of attempted murder (Pen. Code,2
§ 664/187, subd. (a); counts 1, 9, 12); three counts of shooting
from a motor vehicle (§ 26100, subd. (c); counts 2–4); one count of

1 Because we hold that there is insufficient evidence to support the
convictions for counts 3 and 4, we do not address defendant’s
argument, which the People concede, that he cannot be sentenced for
firearm enhancements attached to those counts because they were not
alleged in the information. Nor do we address defendant’s claim that
he lacks the ability to pay court fees because he may raise the issue
upon resentencing.
2 All undesignated statutory references are to the Penal Code.

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assault with a semiautomatic firearm (§ 245, subd. (b); count 5);
and three counts of felon in possession of a firearm (§ 29800,
subd. (a)(1); counts 6, 11, 15).3 As to counts 1, 2, 9, and 12, the
information alleged that defendant personally used a firearm,
personally discharged a firearm, and personally discharged a
firearm causing great bodily injury (§ 12022.53, subds. (b), (c),
(d)); as to count 5, the information alleged defendant personally
used a firearm (§ 12022.5, subd. (a)); and as to all counts, the
information alleged defendant committed the offense for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The
information also alleged defendant had been convicted of
attempted robbery (§ 664/211) in 2012, which was alleged as a
strike prior (§§ 667, subd. (d), 1170.12, subd. (b)), a serious-felony
prior (§ 667, subd. (a)(1)), and a prison prior (§ 667.5, subd. (b)).
Defendant pled not guilty and denied the allegations.
After a bifurcated trial at which he did not testify, the jury
found the gang allegation attached to count 5 not true but
otherwise found defendant guilty as charged. While the jury
deliberated, defendant waived a jury trial on the prior conviction;
he later admitted it.
The court imposed an aggregate sentence of 291 years to
life. For the determinate sentence, the court selected count 5
(§ 245, subd. (b)) as the base term and imposed 21 years—the
mid-term of six years, doubled for the prior strike (§§ 667,
subd. (e)(1), 1170.12, subd. (c)(1)), plus four years for the firearm
allegation (§ 12022.5), and five years for the serious-felony prior
(§ 667, subd. (a)(1)). For each of counts 3 and 4 (§ 26100,

3Defendant was not held to answer on counts 7, 8, and 14. Counts 10
and 13 were dismissed under section 1385.

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subd. (c)), the court imposed a 20-year determinate term—the
mid-term of five years, doubled for the prior strike, plus five
years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), and
five years for the serious-felony prior—followed by an
indeterminate term of 25 years to life for an uncharged gun
enhancement, to run consecutively to count 5 and each other.
For the indeterminate sentence, the court imposed identical
sentences of 60 years to life for counts 1, 9, and 12 (§ 664/187,
subd. (a))—a life term with a 15-year minimum parole eligibility
period for the gang enhancement (§ 186.22, subd. (b)(5)), doubled
to 30 years for the prior strike (§§ 667, subd. (e)(1), 1170.12,
subd. (c)(1)), plus 25 years to life for the firearm enhancement
(§ 12022.53, subd. (d)), and five years for the serious-felony prior
(§ 667, subd. (a)(1))—to run consecutively.
The court stayed the sentences for counts 2, 6, 11, and 15
under section 654.

FACTUAL BACKGROUND

1. The Gang Milieu
This case involves five gangs with adjacent territories in
central Los Angeles that abut the 10 freeway and surround
several major north–south streets, including La Cienega Blvd.,
South La Brea Avenue, Crenshaw Blvd., and Western Avenue.
The westernmost gang, the Playboy Gangster Crips, claim
territory encompassed by the 10 freeway to the south, Pico Blvd.
to the north, Robertson Blvd. on the west, and La Cienega Blvd.
on the east. The northern half of that territory then extends east
along 18th Street to approximately Spaulding Avenue. They
share this northeastern section with the By Yourself Hustler
Crips, with whom they are allied.

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 Heading east, the next large gang territory belongs to the
School Yard Crips.4 Starting at Hauser Blvd. on the west, the
School Yard Crips’ territory extends along the 10 freeway in the
south and Venice Blvd. in the north to Crenshaw Blvd. in the
east. Defendant is a member of the School Yard Crips and is
heavily tattooed with words and images related to that gang.
At Crenshaw Blvd., the School Yard Crips’ territory abuts
territory shared by the Black P Stones and the Rollin’ 20s, both of
which are Bloods gangs. Rollin’ 20s territory is bisected by the 10
freeway. North of the freeway, their territorial borders are
Crenshaw Blvd. to the west, Wilton Place to the east, Pico Blvd.
to the north, and the 10 freeway to the south. The Rollin’ 20s
share that section of territory with the Black P Stones, one of
their gang allies. But south of the freeway, Rollin’ 20s territory is
much larger, extending south along Crenshaw Blvd. to Jefferson
Blvd. in the south, then east all the way to Hoover Street until
heading back north to the 10 freeway.
The School Yard Crips do not get along with either of their
territorial neighbors—the Playboy Gangster Crips and By
Yourself Hustler Crips to their west or the Rollin’ 20s Bloods to
their east.
2. Confrontation at Holiday Liquor Store (Counts 5 & 6)
Holiday Liquor Store is on West Adams Blvd. and La Brea
Avenue. The store is about a block south of School Yard Crips
territory.

4 The parties stipulated that the School Yard Crips are a criminal
street gang.

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 Surveillance video from September 16, 2017, shows
defendant and a man in a white shirt—identified only as John
Doe—inside the store. In the video, defendant removes what
appears to be a silver and black semiautomatic firearm from his
waistband, racks it, then chases Doe around the store.
3. Shooting at Hot Wings Cafe (Counts 1–4)
Hot Wings Cafe is on Melrose Avenue between La Brea
Avenue and N. Sycamore Avenue. Melrose runs east–west, and
Hot Wings Cafe is on the north side of the street. Across Melrose
to the south is a parking lot. The area isn’t claimed by any
particular gang.
At around 11:15 p.m. on October 14, 2017, defendant was
dining at Hot Wings Cafe with his girlfriend, Shantel Gray.5 At
11:23 p.m., three cars pulled into the parking lot across the street
and parked. Approximately seven people got out of the cars.
Among them were Michael James, Jason Greene, Ryan Beverly,
and Louis O’Neal, none of whom testified at trial. The group
talked for a while then headed across the street to Hot Wings
Cafe.
Greene and another man entered then walked over to the
table where defendant and Gray were sitting, hugged Gray, and
headed to the cash register at the back of the cafe before
returning, about 20 seconds later, to the group congregating
outside the entrance. Gray had gone to high school with one of
the men.
As Greene walked from the front door to the cash register
and back to the front door a second time, James entered and

5 Gray testified at trial pursuant to a plea agreement.

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headed toward the back of the cafe. When James passed
defendant’s table, the two men appeared to stare each other
down. James belongs to the Playboy Gangster Crips and sports
several tattoos related to that gang.
Soon thereafter, Greene headed outside and alerted the
rest of the group that someone was in the restaurant. About 30
seconds later, Greene returned and chatted with the security
guard inside the doorway as James headed back out. After about
a minute of hovering near the doorway, Greene headed to the
back of the cafe a third time.
Meanwhile, defendant, upset that Gray didn’t introduce
him to the men she’d hugged, left his table and went outside;
Gray and Greene followed soon after. Outside, defendant and
Gray stood to the left of the front door, towards N. Sycamore; he
was confronted by the larger group, which stood in a semicircle to
the right of the door. As the men argued, Gray heard gang-
related comments like “fuck School Yards” and “fuck butts.”
Defendant lifted his shirt to display a black and silver
semiautomatic firearm, asked what the group wanted to do, and
started backing up toward N. Sycamore with Gray.
At that point, about half of the group ran across Melrose;
O’Neal and Greene ran toward La Brea; and Beverly went back
inside Hot Wings. Surveillance video near the parking lot on the
south side of Melrose shows James running to the parking lot
and firing north across the street. James then jumped in his
mother’s BMW and drove away.6 A couple of other cars left in
quick succession.

6The parties stipulated that James is being prosecuted for attempted
murder based on this shooting.

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 Meanwhile, as James was shooting at them, defendant and
Gray had headed north down N. Sycamore and turned left into
the alley behind Hot Wings Cafe. They went to their car, which
was parked at an apartment complex behind the cafe.
Five bullet casings were later recovered between
N. Sycamore and the center of the parking lot. Police also
recovered a bullet embedded in the Hot Wings back door, which is
located in the alley off N. Sycamore.
Soon after the gunshots, as Hot Wings customers fled to the
back of the cafe, O’Neal reentered, laughing, followed by Greene.
O’Neal joked that the loud noises were caused by firecrackers.
Beverly, O’Neal, and Greene stood around laughing for a minute
or so, then headed back outside.
By this point, defendant and Gray had reached their car.
As they got in, defendant told Gray to duck. She lay down in the
back seat and kept her head down below the windows. Defendant
drove. Defendant turned left on La Brea and then left on Melrose.
He rolled down the window and fired two shots. Police observed
bullet impact marks at 7021 Melrose, several doors west of Hot
Wings Cafe.
The Hot Wings security guard told the manager to get the
keys to the front door, but before he could lock it, O’Neal
returned. Beverly, who had been shot in the leg, came in next.
When authorities arrived, Beverly was on the ground, scooting
backward, holding his leg, and writhing in pain. O’Neal was
standing over him.
4. Shooting at 27th Street & 7th Avenue (Counts 9 & 11)
Shortly before 12:30 p.m. on November 15, 2017, a car
pulled up outside of the Fame Apartments at 27th Street and
7th Avenue. Approximately seven black men between the ages of

8
18 and 25 were hanging out outside. The Fame Apartments are
known as a Bloods stronghold.
Gray was driving. She had passed the apartments earlier
on her way to drop off one of defendant’s friends. Defendant, the
passenger, told Gray to stop, got out of the car, and shot five or
six rounds. He hit Tiyon Cooper,7 who suffered gunshot wounds
to the hand and leg. Defendant ran back to the car and got in.
Gray drove off.
Eight .40-caliber casings were recovered from the scene.
Most were Smith & Wesson. Some were Winchester.
5. Shooting at LaSalle & Adams (Counts 12 & 15)
On December 4, 2017, Paul Larry Nelson, Jr. was walking
home from school on La Salle, just south of Adams. He was
carrying a Louis Vuitton backpack filled with school papers.
Nelson belongs to the Rollin’ 20s Bloods.
Defendant told Gray, who was driving a rental car, to
follow Nelson.8 At some point, defendant told Gray to stop the
car. Defendant exited from the passenger side, and asked Nelson
where he’s from. Nelson responded that he’s Bloods, but he
doesn’t bang. Defendant grabbed his waistband and yelled “fuck
Twinks.” Twinks is a derogatory term for members of the Rollin’
20s. Then defendant started shooting. When Nelson heard
gunshots, he dropped his backpack and ran. Nelson was shot in
the back and the leg.

7 Cooper did not testify at trial.
8Defendant’s mother sometimes rented cars for him to drive, and on
November 25, 2017, she rented a black Chevrolet Malibu from Hertz.

9
 LAPD Officer Luis Aceves was working in the area when he
heard three gunshots. As he looked to see where they were
coming from, he saw the shooter, later identified as defendant,
with a gun, chasing another person; he then heard two more
shots. Aceves yelled at defendant to stop, at which point
defendant ran to a car and opened the passenger side door.
Defendant turned back toward Aceves, still wielding the gun.
Aceves fired three rounds but missed. Aceves was using a
.45-caliber semiautomatic firearm.
Defendant, now carrying the Louis Vuitton bag, got back
into the car; the bag contained school work. The car sped south
on La Salle towards Jefferson.
Police recovered nine shell casings from the scene. LAPD
Criminalist Brian Reinarz testified that three of the casings came
from a .45-caliber firearm, which he determined to be Aceves’s
gun. The other six casings came from a .40-caliber firearm. All of
the .40-caliber casings were fired from the same weapon—a
different weapon than the one that fired the .45-caliber rounds.
The .40-caliber casings also matched casings recovered from the
November 15, 2017 shooting; they were fired from the same
firearm.
Reinarz was also asked to look at a projectile recovered
from the Hot Wings shooting. He determined that it was a .40-
caliber Smith & Wesson. Asked to look at a photo of defendant’s
gun, recovered from Gray’s phone, Reinarz identified the gun as a
.40-caliber Smith & Wesson.
Gray’s internet search history for the day after the shooting
revealed searches for shootings on December 4, 2017, near
LaSalle and Halldale. She also searched for Louis Vuitton
product codes in an effort to determine whether the bag was real.

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 On December 16, 2017, defendant’s mother returned the
Malibu to Hertz.

DISCUSSION

Defendant contends that the evidence is legally insufficient
to support his convictions for counts 1, 3, 4, and 5, the gun
allegation attached to count 5, and the gang allegation attached
to count 9, and that the prosecutor committed misconduct in
closing argument. Defendant also argues, and the People concede,
that the court must strike two of the three counts of possession of
a firearm by a felon because it is a continuing offense.
1. Substantial Evidence
A criminal defendant may not be convicted of any crime or
enhancement unless the prosecution proves every fact necessary
for conviction beyond a reasonable doubt. (U.S. Const., 5th &
14th Amends.; see Cal. Const., art. I, §§ 7, 15; In re Winship
(1970) 397 U.S. 358, 364; People v. Tenner (1993) 6 Cal.4th 559,
566.) “This cardinal principle of criminal jurisprudence” (Tenner,
at p. 566) is so fundamental to the American system of justice
that criminal defendants are always “afforded protection against
jury irrationality or error by the independent review of the
sufficiency of the evidence undertaken by the trial and appellate
courts.” (United States v. Powell (1984) 469 U.S. 57, 67.) Here,
defendant argues that there is insufficient evidence that he
intended to kill Beverly (count 1), that he shot at O’Neal or
Greene (counts 3 and 4), that he assaulted John Doe with a
semiautomatic firearm—or personally used a firearm in the
commission of that offense (count 5), or that he attempted to
murder Cooper for the benefit of a criminal street gang (count 9).
Although we agree with defendant that the evidence is legally

11
insufficient to support the convictions for counts 3 and 4, we
conclude there is substantial evidence to support the convictions
for the remaining counts and allegations.
1.1. Standard of Review
In assessing the sufficiency of the evidence to support a
conviction, we review the entire record to determine whether any
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th
47, 59–60 (Albillar).) “The record must disclose substantial
evidence to support the verdict—i.e., evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) In applying this
test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably deduce from the
evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Deference is not abdication, however, and substantial
evidence is not synonymous with any evidence. (People v.
Johnson (1980) 26 Cal.3d 557, 576–577.) “ ‘A decision supported
by a mere scintilla of evidence need not be affirmed on appeal.’
[Citation.] Although substantial evidence may consist of
inferences, those inferences must be products of logic and reason
and must be based on the evidence.” (In re James R. (2009) 176
Cal.App.4th 129, 135.) Similarly, we “may not ... ‘ “go beyond
inference and into the realm of speculation in order to find
support for a judgment.” ’ ” (People v. Franklin (2016) 248
Cal.App.4th 938, 947; People v. Waidla (2000) 22 Cal.4th 690, 735
[speculation is not evidence and cannot support a conviction].)
Evidence that merely raises a strong suspicion of guilt is

12
insufficient to support a conviction. (People v. Thompson (1980)
27 Cal.3d 303, 324.)
1.2. There is substantial evidence defendant intended
to kill Beverly.
Defendant contends there is insufficient evidence to
support his conviction for attempted murder because the
prosecution did not prove that he intended to kill Beverly.
Although the evidence of express malice is not overwhelming in
this case, we conclude that under the required standard of
review, a rational jury could have found intent to kill.
“ ‘The mental state required for [conviction of] attempted
murder has long differed from that required for murder itself.
Murder does not require intent to kill. Implied malice—a
conscious disregard for life—suffices. [Citation.]’ [Citation.] In
contrast, ‘[a]ttempted murder requires the specific intent to kill
and the commission of a direct but ineffectual act toward
accomplishing the intended killing.’ [Citations.]” (People v. Smith
(2005) 37 Cal.4th 733, 739 (Smith).)
“Intent to unlawfully kill and express malice are, in
essence, ‘one and the same.’ [Citation.]” (Smith, supra, 37 Cal.4th
at p. 739.) “To be guilty of attempted murder of” Beverly,
“defendant had to harbor express malice toward that victim.
[Citation.] Express malice requires a showing that the assailant
‘ “ ‘either desire[s] the result [i.e., death] or know[s], to a
substantial certainty, that the result will occur.’ [Citation.]” ’
[Citations.]” (Ibid.)
“The mental state for attempted murder is further
distinguished from the mental state required for murder in that
the doctrine of ‘transferred intent’ applies to murder but not
attempted murder. [Citation.] ‘In its classic form, the doctrine of

13
transferred intent applies when the defendant intends to kill one
person but mistakenly kills another. The intent to kill the
intended target is deemed to transfer to the unintended victim so
that the defendant is guilty of murder.’ [Citation.] In contrast,
the doctrine of transferred intent does not apply to attempted
murder: ‘To be guilty of attempted murder, the defendant must
intend to kill the alleged victim, not someone else.’ [Citation.]
Whether the defendant acted with specific intent to kill ‘must be
judged separately as to each alleged victim.’ [Citation.]” (Smith,
supra, 37 Cal.4th at pp. 739–740.)
Here, members of a rival gang hugged defendant’s
girlfriend, Gray. When defendant confronted them outside, they
said “fuck School Yards,” then shot at defendant as he backed
away. Defendant and Gray made it safely back to their car and
pulled onto La Brea—but instead of continuing south on La Brea
to go home, defendant opted to turn east onto Melrose.
Defendant then fired twice—and the physical evidence
showed that the shots were close together. One shot passed
through Beverly’s leg and hit the wall behind him; the other shot
was higher off the ground, near where Beverly’s torso would have
been. Beverly is a member of the Playboy Gangster Crips and has
several large, visible Playboy tattoos. He was part of the group
that challenged defendant outside Hot Wings. Later, defendant
bragged about the shooting to his brother.
In general, if a jury finds “defendant’s use of a lethal
weapon with lethal force [is] purposeful, an intent to kill [can] be
inferred, even if the act was done without advance consideration
and only to eliminate a momentary obstacle or annoyance.”
(People v. Arias (1996) 13 Cal.4th 92, 162.) “Nor is the
circumstance that the bullet misses its mark or fails to prove

14
lethal dispositive—the very act of firing a weapon ‘ “in a manner
that could have inflicted a mortal wound had the bullet been on
target” ’ is sufficient to support an inference of intent to kill.
[Citation.]” (Smith, supra, 37 Cal.4th at p. 742.) Further, “where
motive is shown, such evidence will usually be probative of intent
to kill.” (Ibid.) Taken together, this evidence was sufficient for the
jury to infer that defendant acted with express malice when he
shot Beverly.
1.3. There is no substantial evidence defendant shot
at O’Neal or Greene.
Defendant contends there is no substantial evidence to
support his convictions for shooting from a motor vehicle at
O’Neal (count 3) or Greene (count 4). Having reviewed the entire
written record and the exhibits in this matter, we agree.
To convict defendant of shooting from a motor vehicle, the
prosecution was required to prove:
◦ defendant willfully and maliciously shot a firearm
from a motor vehicle;
◦ defendant shot the firearm at another person who
was not in a motor vehicle; and
◦ defendant did not act in self-defense or in defense
of someone else.
(§ 26100, subd. (c); see CALCRIM No. 968.)
“ ‘[T]he act of shooting “at” a proscribed target’ ” is
committed either when the defendant shoots directly at the
target or “ ‘when the defendant shoots in such close proximity to
the target that he shows a conscious indifference to the probable
consequence that one or more bullets will strike the target or
persons in or around it. The defendant’s conscious indifference to

15
the probability that a shooting will achieve a particular result is
inferred from the nature and circumstances of his act.’
[Citation.]” (People v. Hernandez (2010) 181 Cal.App.4th 1494,
1501.) Here, there is no evidence that defendant shot in “close
proximity” to Greene or O’Neal because there is no evidence to
establish where Greene and O’Neal were standing in relation to
Beverly.9 Indeed, there is not even any evidence that Greene was
still nearby when the shooting happened.
The night of the shooting, Beverly, Greene, and O’Neal
arrived at Hot Wings as part of a larger group of six or seven
people. Eventually, the group headed outside, where defendant
and Gray followed them. Beverly’s group stood in a semicircle to
the right of the door—west, towards La Brea; defendant and
Gray stood to the left—east, towards N. Sycamore. After some
tense words, defendant flashed his gun and backed away towards
N. Sycamore. At that point, the skinnier guys ran across Melrose
to their cars and began firing at defendant and Gray. Beverly
returned to Hot Wings while the “bigger guys”—Greene and
O’Neal—ran west towards La Brea. After about a minute, O’Neal
returned to Hot Wings, followed by Greene. Beverly, Greene, and
O’Neal stood around joking for another minute, then headed back
outside.
Once they left the cafe, there is no evidence of where they
went or whether they stayed together. But just over a minute
after they left Hot Wings, more shots were fired. Greene never
returned to Hot Wings. Unlike Greene, O’Neal went back to Hot

9Although the People insist the men “were in a group with Ryan B.,”
they do not provide any record cites to support this proposition, and
our review has revealed none.

16
Wings after the second shooting—but he did not come back with
Beverly. Rather, the video shows him returning alone about 15
seconds after the shooting and at least 16 seconds before Beverly,
laughing and joking around. The Hot Wings security guard
testified that O’Neal joked that the gunshots were firecrackers;
he did not appear to be taking the incident seriously. But O’Neal
grew visibly shocked and somber when Beverly walked in with a
gunshot wound to the leg.
As discussed, there were bullet holes in the wall at 7021
Melrose, three doors west of Hot Wings Cafe, which support an
inference that Beverly was shot in the general area, but there is
no evidence about where Greene or O’Neal were when that
shooting happened. Greene had left the group at some point after
exiting Hot Wings following the first shooting, and, although
O’Neal returned, he came back on his own, well before Beverly,
with no apparent inkling that Beverly had been hit.
None of this evidence supports a conclusion that either
Greene or O’Neal was “in such close proximity” to Beverly that
we can infer defendant’s “conscious indifference to the probable
consequence that one or more bullets” would strike him. (People
v. Hernandez, supra, 181 Cal.App.4th at p. 1501.)
1.4. There is substantial evidence defendant had the
present ability to apply force with a
semiautomatic firearm at Holiday Liquor Store.
To prove defendant committed assault with a
semiautomatic firearm (§ 245, subd. (b)), the prosecution was
required to establish:
◦ defendant did an act with a semiautomatic
firearm that by its nature would directly and

17
 probably result in the application of force to a
person;
◦ defendant did the act willfully;
◦ when he acted, defendant was aware of facts that
would lead a reasonable person to realize that his
act by its nature would directly and probably
result in the application of force to someone; and
◦ when defendant acted, he had the present ability
to apply force with a semiautomatic firearm to a
person.
(§§ 240, 245, subds. (a)(1)–(3), (b); see CALCRIM No. 875.)
Defendant argues there is no substantial evidence he had the
present ability to apply force with a semiautomatic firearm
because there was insufficient evidence either that he used a
semiautomatic firearm or that it was loaded. He also argues
there is no substantial evidence he had the present ability to
apply force with a semiautomatic firearm to John Doe because he
pointed the item at the ground rather than at Doe. We disagree.
1.4.1. Semiautomatic Firearm
First, defendant argues there was insufficient evidence that
the item he pointed at John Doe was a semiautomatic firearm.
A firearm is any “device, designed to be used as a weapon,
from which is expelled through a barrel, a projectile by the force
of any explosion or other form of combustion.” (§ 16520, subd. (a).)
A semiautomatic pistol extracts a fired cartridge and chambers a
fresh cartridge with each single pull of the trigger. (§ 17140.)
Clearly, threatening someone with a toy gun or candy pistol does
not satisfy this element. (People v. Valdez (1985) 175 Cal.App.3d

18
103, 110–111.) Nor “do pellet guns or BB guns because, instead of
explosion or other combustion, they use the force of air pressure,
gas pressure, or spring action to expel a projectile. [Citation.]”
(People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435
(Monjaras).)
Despite this definition’s specificity, the prosecution may—
and usually does—use circumstantial evidence to prove that an
object is a firearm. (Monjaras, supra, 164 Cal.App.4th at
pp. 1435–1436.) “This is so because when faced with what
appears to be a gun, displayed with an explicit or implicit threat
to use it, few victims have the composure and opportunity to
closely examine the object; and in any event, victims often lack
expertise to tell whether it is a real firearm or an imitation.” (Id.
at p. 1436.) But the jury may make those inferences.
The video of the Holiday Liquor Store incident, which we
have reviewed, plainly shows defendant wielding a silver and
black item that appears to be a semiautomatic firearm. (See
Monjaras, supra, 164 Cal.App.4th at pp. 1434, 1436–1437
[finding substantial evidence an object was a firearm where
victim saw what looked like the handle of a pistol tucked into
defendant’s waistband when defendant lifted his shirt to display
the item while ordering her to turn over her purse].) The item
looks just like the firearm defendant is holding in the photos
taken from Gray’s phone, which Gray testified was used in the
third and fourth shootings. It also fits the appearance of the
firearm described by the security guard from Hot Wings, which
defendant displayed to rival gang members, then used to shoot
Beverly. As such, it was reasonable for the jury to infer the gun
in the video was the same semiautomatic firearm defendant had
used during the three shootings.

19
 1.4.2. Loaded Firearm
Second, defendant argues there is insufficient evidence that
the gun was loaded.
To satisfy the present-ability element of assault, the
defendant must have an actual, not merely apparent, ability to
inflict injury. (People v. Chance (2008) 44 Cal.4th 1164, 1172–
1173, fns. 7, 11 (Chance).) Thus, just as assault cannot be
committed with a toy gun, it cannot be committed with an
unloaded gun unless the gun is used as a bludgeon. (People v.
Rodriguez (1999) 20 Cal.4th 1, 11 & fn. 3.) As discussed, there
was sufficient evidence from which a reasonable jury could decide
defendant wielded a semiautomatic firearm. We conclude the jury
could also reasonably infer the gun was loaded.
As with the nature of the object, the prosecution may prove
this element using circumstantial evidence. Thus, a “defendant’s
statements and behavior while making an armed threat against a
victim may warrant a jury’s finding the weapon was loaded.”
(People v. Rodriguez, supra, 20 Cal.4th at p. 12 [defendant’s
threat, while pointing gun at victim’s chin, that he “ ‘could do to
you what I did to them’ ” supported an inference the gun was
loaded].) Here, the Holiday Liquor Store video clearly shows
defendant racking the firearm in his hand. The jury could
reasonably infer that defendant would not rack the firearm,
which advances a cartridge into the chamber for firing, unless the
weapon were loaded—and that he certainly would not do so in
another gang’s territory. (See id. at p. 11 [jury could infer
defendant gang member would not carry an unloaded gun in an
area with prevalent gang violence].)

20
 1.4.3. Present Ability to Inflict Injury
Third, defendant argues there was insufficient evidence he
had the present ability to inflict injury on Doe because he did not
point the gun directly at him.
The requirement that a defendant have the present ability
to inflict injury “is satisfied when ‘a defendant has attained the
means and location to strike immediately.’ [Citations.] 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.” (Chance, supra, 44 Cal.4th
at p. 1168; see id. at pp. 1171 [“Although temporal and spatial
considerations are relevant to a defendant’s ‘present ability’ ...
[citation], it is the ability to inflict injury on the present occasion
that is determinative, not whether injury will necessarily be the
instantaneous result of the defendant’s conduct.”], 1172 [“when a
defendant equips and positions himself to carry out a battery, he
has the ‘present ability’ required ... [citation] if he is capable of
inflicting injury on the given occasion, even if some steps remain
to be taken”].) Thus, a defendant may commit assault even if he
is “several steps away from actually inflicting injury, or if the
victim is in a protected position so that injury would not be
‘immediate,’ in the strictest sense of that term.” (Id. at p. 1168.)
Here, the evidence is unclear about exactly where
defendant was pointing the gun as he followed Doe around the
store. Regardless, even if defendant had to take additional steps
before he could fire at Doe, there was substantial evidence that
he had the present ability to do so. As defendant had already
chambered a round, all he had to do to shoot Doe was aim and
pull the trigger. Pointing the gun at the floor in Doe’s direction
was enough to satisfy this element. (See Chance, supra, 44

21
Cal.4th 1164 [defendant had present ability to inflict injury
where he would have had to turn around, point his gun at the
person standing behind him, and chamber a round before
shooting]; People v. Ranson (1974) 40 Cal.App.3d 317, 319–321
[substantial evidence of present ability to inflict injury where
defendant would have had to remove the clip from the rifle,
dislodge a jammed cartridge, reinsert the clip, chamber a round,
point the weapon, and pull the trigger], discussed with approval
in Chance, at pp. 1172–1173.)
Accordingly, we conclude there was substantial evidence to
support the conviction for count 5 and its related allegation.
1.5. Substantial evidence supports the gang
allegation attached to count 9.
Section 186.22, subdivision (b)(1), enhances the sentence of
“any person who is convicted of a felony committed for the benefit
of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members … .” The jury found this
enhancement true as to all counts except count 5. Defendant
contends the evidence was insufficient to support the finding for
count 9—the shooting at 27th Street & 7th Avenue.
Section 186.22, subdivision (b)(1), has two prongs—the
gang-related prong and the specific-intent prong—“both of which
must be established by the evidence. [Citation.]” (People v.
Franklin, supra, 248 Cal.App.4th at p. 948.) The first prong
requires the prosecution to prove that the underlying felony was
“gang-related,” that is, that the defendant committed the charged
offense “for the benefit of, at the direction of, or in association
with any criminal street gang.” (§ 186.22, subd. (b)(1); Albillar,
supra, 51 Cal.4th at p. 60.) It is undisputed that defendant was a

22
member of the School Yard Crips, and that the School Yard Crips
are a criminal street gang within the meaning of the statute. But
“[n]ot every crime committed by gang members is related to a
gang.” (Albillar, at p. 60.) Put another way, the charged offense
itself—not just the defendant—must be gang-related. Here, a
reasonable jury could have found the shooting was gang-related
even though there was no evidence that the victim belonged to a
rival gang or that defendant yelled his gang name or flashed
gang signs during the shooting.
On November 15, 2017, seven men, aged 18 to 25 were
hanging out near some apartments on 27th Street near
7th Avenue. The street is in Rollin’ 20s territory, and the
apartments are a well-known Rollin’ 20s hangout. Rollin’ 20s are
enemies of the School Yard Crips. Cell phone tracking data
showed that defendant and Gray drove east from School Yard
Crips territory to Rollin’ 20s territory, then immediately returned
to where they started. This supported an inference that Gray and
defendant went to the area for a specific purpose.
That the purpose was gang-related is supported by expert
testimony that committing crimes in a rival gang’s territory can
enhance the perpetrator’s reputation. (Albillar, supra, 51 Cal.4th
at p. 63 [“Expert opinion that particular criminal conduct
benefited a gang by enhancing its reputation for viciousness can
be sufficient to raise the inference that the conduct was
‘committed for the benefit of ... a[ ] criminal street gang’ within
the meaning of section 186.22[, subdivision] (b)(1).”]; but see
People v. Ramirez (2016) 244 Cal.App.4th 800, 819–820 [“purely
conclusory and factually unsupported opinions” that the charged
crimes are for the benefit of the gang because any violent crime
enhances the gang’s reputation is insufficient to support a gang

23
enhancement].) Here, defendant’s gang membership “was a major
part of his life, as attested to by the many Crips gang tattoos he
bore, and the fact that he had already committed a drive-by
shooting on behalf of the gang[,]”and would go on to commit
another gang-related shooting three weeks later, in the same
enemy territory, under similar circumstances. (People v.
Livingston (2012) 53 Cal.4th 1145, 1172.)
Finally, witnesses’ reluctance to testify supported an
inference that the shooting was gang-related. One eyewitness to
the shooting, who identified Gray as the driver, refused to come
to court even under subpoena. She appeared only after being
arrested and taken into custody. This behavior supported an
inference that she was afraid of retaliation. Likewise, a second
eyewitness denied talking to law enforcement until he was
confronted with a recording of his prior statement. He testified
that snitching can lead to physical violence.
The second prong of the enhancement “requires that a
defendant commit the gang-related felony ‘with the specific intent
to promote, further, or assist in any criminal conduct by gang
members.’ ” (Albillar, supra, 51 Cal.4th at p. 64; § 186.22, subd.
(b)(1).) Of course, “[r]arely is the perpetrator’s intent proven by
direct evidence; usually it must be inferred from the facts and
circumstances surrounding the case. [Citation.]” (People v. Perez
(2017) 18 Cal.App.5th 598, 607.) The circumstances here support
such an inference. Although defendant did not flash gang signs,
announce his gang, or commit the crime with other gang
members, his commission of a drive-by shooting in enemy
territory—a prototypical gang crime (People v. Livingston, supra,
53 Cal.4th at p. 1172)—when combined with the other evidence

24
discussed above, allowed the jury to conclude that he did so to
promote his gang.
2. Prosecutorial Misconduct
Defendant argues that the prosecutor unfairly commented
on the evidence during closing argument by decoding the gang
slang used in defendant’s phone call with his brother. In
particular, defendant objects to the prosecutor’s definition of the
word cracking as meaning shooting. Acknowledging that the
issue has been forfeited by his failure to object below, he argues
that defense counsel’s failure to object amounted to
constitutionally inadequate representation. We disagree.
2.1. Proceedings Below
During Gray’s testimony, the prosecution introduced two
phone conversations between defendant, Gray, and defendant’s
brother Montiel while Montiel was in prison. In the first phone
call, made three days after the Hot Wings shooting, defendant
bragged about the crime. He used gang slang to describe his
conduct.
During closing argument, the prosecutor argued:
If you recall, the detectives pulled prison calls.
Not—the defendant was not in prison; the
defendant was calling—or got called by his
brother who is currently in state prison. Those
calls are all recorded. During those calls, the
defendant is talking to his brother and it’s very—
I’ll admit to you, it’s very difficult to understand
and you may have to listen to it closely, but he
admits to the shooting at the Hot Wings Cafe and
exactly what happened. He says that they

25
 cracked on him and he cracked back. “Cracking”
being shooting.
But then what he does—and this is corroboration
of what [Gray] is telling you because [Gray] tells
you they went back around to the Hot Wings
Cafe. The last part he says—Male 2 is the
defendant—“Yeah, I pull—I pull off, bro. I pull
off. I pull up to the front, boom, boom, boom,
wham, wham, wham, and I got off.”
So what he’s talking about is they’re pulling out.
They’re getting out of there. He pulls to the front
of the Hot Wings Cafe and starts shooting. And
he described both the shooting before, when they
cracked on him, and when he comes back and
cracks on them. And it’s obvious he’s talking
about the Hot Wings Cafe thing because they
actually tell you the Hot Wings Cafe and the one
on Melrose during the call. What’s more, this call
was made days after the shooting at the Hot
Wings in October.
Defense counsel did not object.
2.2. Defense counsel did not provide constitutionally
defective representation.
“ ‘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. [Citation.]’ [Citation.] A failure to timely
object and request an admonition will be excused if doing either
would have been futile, or if an admonition would not have cured

26
the harm.” (People v. Linton (2013) 56 Cal.4th 1146, 1205.) Here,
defendant concedes he failed to object to the prosecutor’s
misstatement and to request an admonition. As such, the issue is
forfeited. Defendant contends, however, that defense counsel's
failure to object constituted ineffective assistance of counsel.
Under either the federal or state Constitution, the
“benchmark for judging any claim of ineffectiveness must be
whether counsel's conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as
having produced a just result.” (Strickland v. Washington (1984)
466 U.S. 668, 686 (Strickland).) To establish ineffective
assistance of counsel, defendant must satisfy two requirements.
(Id. at pp. 690–692.)
First, he must show his attorney’s conduct was “outside the
wide range of professionally competent assistance.” (Strickland,
supra, 466 U.S. at p. 690.) Then, he must demonstrate that the
deficient performance was prejudicial—i.e., there is a reasonable
probability that but for counsel's failings, the result of the
proceeding would have been different. (Id. at p. 694.) “It is not
sufficient to show the alleged errors may have had some
conceivable effect on the trial's outcome; the defendant must
demonstrate a ‘reasonable probability’ that absent the errors the
result would have been different.” (People v. Mesa (2006) 144
Cal.App.4th 1000, 1008.)
Claims of ineffectiveness must usually be “raised in a
petition for writ of habeas corpus [citation], where relevant facts
and circumstances not reflected in the record on appeal, such as
counsel's reasons for pursuing or not pursuing a particular trial
strategy, can be brought to light to inform” the inquiry. (People v.
Snow (2003) 30 Cal.4th 43, 111.) “There may be cases in which

27
trial counsel’s ineffectiveness is so apparent from the record that
appellate counsel will consider it advisable to raise the issue on
direct appeal. There may be instances, too, when obvious
deficiencies in representation will be addressed by an appellate
court sua sponte.” (Massaro v. United States (2003) 538 U.S. 500,
508.) But those cases are rare.
Typically, if “the record does not shed light on why counsel
acted or failed to act in the challenged manner, we must reject
the claim on appeal unless counsel was asked for and failed to
provide a satisfactory explanation, or there simply can be no
satisfactory explanation. [Citations.]” (People v. Scott (1997) 15
Cal.4th 1188, 1212.) These arguments should instead be raised
on collateral review. (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266–267.)
Although he acknowledges that prosecutors enjoy “wide
latitude in commenting on the evidence, including urging the jury
to make reasonable inference therefrom,” defendant argues that
the prosecutor testified as an unsworn expert by defining
cracking for the jury. (People v. Ellison (2011) 196 Cal.App.4th
1342, 1353.) To be sure, no witness had defined cracking, but the
witness testimony and the call itself provided enough context for
the jury to figure out the meaning of the term on its own.
In particular, defendant used the word cracking in the call
in close proximity both to various gunshot noises and to the word
blower, which Gray defined as a gun. For example, defendant
said, “I’m like, clack, clack and then I get low (inaudible) then I
get low and all that (inaudible). His tail come outside. I’m just—
I’m like, make a move. Make a move. I (inaudible) he running to
the car. I (inaudible) to the car, boom. The little nigga come back
and get cracking on me. Bak, bak, bak.” Similarly, later in the

28
call, defendant said, “Boom, but he cracked on me. I cracked
back. I cracked back (inaudible) boom, boom, boom.” In context,
the jury could reasonably infer that the sound effects “clack,
clack,” “bak, bak,” and “boom, boom” are gunshots, and that
cracking is another word for shooting. The prosecutor did not
commit misconduct by inviting the jury to make such an
inference.
“Defense counsel does not render ineffective assistance by
declining to raise meritless objections.” (People v. Ochoa (2011)
191 Cal.App.4th 664, 674, fn. 8.) Here, defense counsel may have
concluded that any objection would have been futile because the
prosecutor’s remarks invited the jury to draw a reasonable
inference from the evidence. Certainly, his failure to object was
not obviously deficient.
3. Two of the three felon-in-possession convictions must
be stricken.
Defendant contends that two of his three convictions for
felon in possession of a firearm (§ 29800, subd. (a)(1)) should be
stricken because the prosecution did not prove that he possessed
three separate weapons or that he relinquished possession of the
firearm between the three shootings. The People properly concede
the point, and we agree. (People v. Mason (2014) 232 Cal.App.4th
355 [felon in possession is a continuing offense].) We therefore
order the court to strike two of the three convictions upon
resentencing.
4. The sentencing minute order and abstract of judgment
are inaccurate.
In a criminal case, the oral pronouncement of a sentence
constitutes the judgment. (People v. Mesa (1975) 14 Cal.3d 466,

29
471.) “An abstract of judgment is not the judgment of conviction;
it does not control if different from the trial court’s oral judgment
and may not add to or modify the judgment it purports to digest
or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185;
Mesa, at p. 471 [to the extent a minute order diverges from the
sentencing proceedings it purports to memorialize, it is presumed
to be the product of clerical error].) Accordingly, courts may
correct clerical errors at any time, and appellate courts may order
correction of an abstract of judgment that does not accurately
reflect the oral pronouncement of sentence. (Mitchell, at pp. 185–
188.)
In this case, the reporter’s transcript of the August 27, 2019
sentencing hearing indicates that the court imposed $300 in
conviction assessments (Gov. Code, § 70373) and $400 in
operations assessments (§ 1465.8).10 But the minute order for
that date and the abstract of judgment based on that minute
order include not only those fees but also a $300 restitution fine
(§ 1202.4, subd. (b)) and a $300 parole revocation restitution fine
(§ 1202.45)—neither of which the court imposed.
Because the sentencing minute order and abstract of
judgment list fines the court did not impose, they must be
corrected to remove them. (See People v. Mitchell, supra, 26
Cal.4th at pp. 185–188 [discussing the importance of correcting
inaccurate abstracts of judgment on appeal].) We order the court
to do so upon remand.

10Because we are remanding this matter for resentencing, we do not
address defendant’s argument that he lacks the ability to pay these
fees under People v. Dueñas (2019) 30 Cal.App.5th 1157. He may raise
that issue upon resentencing.

30
 DISPOSITION

The sentence is vacated; counts 3 and 4 are reversed; and
the matter is remanded for resentencing. Upon remand, the court
shall enter a verdict of not guilty for counts 3 and 4, strike two of
the three convictions of felon in possession of a firearm (§ 29800,
subd. (a)(1)), and resentence defendant accordingly. In all other
respects, we affirm.
When resentencing defendant, the court should be mindful
that the five-year serious-felony prior (§ 667, subd. (a)(1)) may be
imposed only once for the determinate sentence. (See People v.
Sasser (2015) 61 Cal.4th 1.) The court is directed to correct the
prior sentencing minute order and abstract of judgment as noted
in section 4 of the discussion. The clerk of this court is directed to
send a copy of this opinion and the remittitur to the Department
of Corrections and Rehabilitation. (Cal. Rules of Court, rule
8.272(d)(2).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J. KALRA, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

31