People v. Oliver CA2/5

Filed 7/1/21 P. v. Oliver CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B307225

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA091947)

v.

LARRY OLIVER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Hayden Zacky, Judge. Affirmed.
Robert L. Hernandez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithy, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
 A jury found Larry Oliver guilty of two counts of attempted
murder based on a drive-by shooting. He was also convicted of
several assault and firearm charges. On appeal, he raises two
claims of instructional error, and argues the trial court erred in
denying his motion for new trial based on ineffective assistance of
counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Confrontation and Shooting
On December 1, 2018, at around 4:00 p.m., gang member
and victim Irell McMillan entered an Auto Zone store in a strip
mall. Appellant, a member of a different gang, followed
McMillan and confronted him. McMillan knew appellant. When
appellant suggested the two “step outside,” McMillan told him if
he wanted to fight, they should do so inside the store. Appellant
left the store, and joined fellow gang member Brandon Burris on
the sidewalk. McMillan exited shortly thereafter, and saw
appellant taking off his sweatshirt as if preparing to fight.
McMillan quickly walked over to his car, a black Mercedes, and
drove away with a companion, victim Khariana Houston in the
front passenger seat.
After driving a few minutes, McMillan parked his car on
the street. He was sitting in his car with the engine still running
when he heard a loud sound. He looked in the rear-view mirror
and saw appellant “hanging out the window” of a car shooting at
him. A woman was driving, and appellant was in the passenger
seat. Appellant fired eight shots. McMillan drove off. Neither
McMillan nor Houston was injured.
2. The Arrests
A neighbor who called 911 reported hearing shots fired and
seeing a black Mercedes speed off. Ten minutes later, the police

2
pulled over McMillan in his black Mercedes. When an officer
instructed McMillan to put up his hands, McMillan said “I’m the
one that just got shot at!” There was a bullet hole in the trunk of
McMillan’s car. After finding a handgun in McMillan’s car, the
officers arrested him.1
During an interview at the police station, McMillan
identified appellant as the shooter from a six-pack photographic
line-up. McMillan said appellant shot at him from a dark four-
door car. Later that day, the police arrested appellant. Officers
recovered a loaded gun from appellant’s car that did not match
the caliber of the gun used in the shooting.
3. The Charges
Appellant was charged with two counts of attempted
murder (Pen. Code, §§ 664/187, subd. (a))2, two counts of assault
with a semiautomatic firearm (§ 245, subd. (b)), shooting at an
occupied motor vehicle (§ 246), possession of a firearm by a felon
(§ 29800, subd. (a)(1)), and unlawful possession of ammunition
(§ 30305, subd. (a)(1)).3 The information further alleged gang,
firearm, and prior prison term enhancements. He pled not guilty
and denied the enhancements.
4. Trial
Contrary to his earlier statements to police, at trial
McMillan testified that he did not know appellant and could not

1 The gun found in McMillan’s car had no connection to the
shooting.

2 All further undesignated statutory references are to the
Penal Code.

3 The trial court granted the prosecution’s motion to dismiss
a charge of carrying a loaded firearm (§ 25850, subd. (a)).

3
remember identifying him as the shooter. The prosecution
introduced into evidence the six-pack on which McMillan had
circled appellant’s photograph, as well as McMillan’s recorded
interview at the police station.
The prosecution also played several recordings of jail calls
made separately by appellant and McMillan. Four days after the
shooting, McMillan said on a call that he and appellant had been
put in a cell together, and appellant had said the shooting was a
“misunderstanding.” McMillan had responded to appellant, “I
can’t see myself coming to court. I damn sure ain’t gonna come
and say you did nothing. But me coming trying to help you? . . .
I’m not helping you shit.”
On a different phone call, appellant also discussed his
conversation with McMillan. Appellant said he was about to
“smash” McMillan, but McMillan said he “didn’t say nothing.”
Appellant said, “But [] how do they know everything?” On a
different call later that day, appellant said he told his lawyer to
talk to McMillan who would say that appellant was not the
shooter. Appellant hoped the prosecution would then “drop” his
charges.
The prosecution also showed the jury surveillance footage
from outside the Auto Zone store on the day of the shooting. In
the video, appellant is shown entering the Auto Zone store and
gesturing energetically. Appellant exited the store. He took off
his sweatshirt, paced the sidewalk, and continued gesticulating.
McMillan then left the store and walked rapidly toward his
Mercedes. Appellant and gang confederate Burris walked after
McMillan through the parking lot. Burris then retrieved an
object from his own car, a dark four-door sedan, and handed
appellant what an officer testified appeared to be a handgun.

4
Appellant tucked the item in his waistband. McMillan started
driving off, and appellant walked off screen toward an exit.
Burris drove his black sedan to the same exit and paused
briefly—the car was partially off screen when it paused. The
video did not depict the dark sedan following McMillan’s car or
the shooting.
5. Verdict and Sentencing
The jury convicted appellant of all counts, and found true
the gang and firearm allegations. The jury was unable to reach a
verdict as to whether the attempted murder of McMillan was
willful, deliberate or premeditated, and found that allegation not
true as to the attempted murder of Houston. The trial court
dismissed the prior prison term allegation.
Appellant was sentenced to 15 years to life for shooting at
an occupied motor vehicle. The court imposed but stayed
punishment on the assault counts. As to the remaining counts,
including the two attempted murder charges, the court imposed
concurrent sentences. Appellant timely appealed.
DISCUSSION
1. CALCRIM No. 315
Appellant argues the trial court erred in instructing the
jury with CALCRIM No. 315 on eyewitness identification
evidence. Among other factors, this instruction directs the jury to
consider “how certain” an eyewitness was when he or she “made
an identification.” Appellant contends the error violated his state
and federal constitutional right to due process, citing to case law
noting that scientific studies have found “a weak correlation
between witness certainty and accuracy . . . .” (See People v.
Sanchez (2016) 63 Cal.4th 411, 462.)

5
 Appellant acknowledges his counsel did not object to this
instruction in the trial court or request that the trial court modify
CALCRIM No. 315 to remove the challenged language. The
Attorney General argues appellant has forfeited this claim. (See
Sanchez, supra, 63 Cal.4th at p. 461 [“If defendant had wanted
the court to modify the [eyewitness identification] instruction, he
should have requested it. The trial court has no sua sponte duty
to do so.”]; see also People v. Rodriguez (2019) 40 Cal.App.5th
194, 199–200 [“Rodriguez argues CALCRIM No. 315 violates his
Fourteenth Amendment due process rights because it tells the
jury to consider eyewitness certainty. Rodriguez’s counsel did not
object at trial. This is forfeiture.”].)
Appellant asserts there was no forfeiture because it would
have been futile to object before the trial court. (See People v.
Gomez (2018) 6 Cal.5th 243, 286–287 [“Reviewing courts have
traditionally excused parties for failing to raise an issue at trial
where an objection would have been futile . . . .”].)
As of the time trial started on October 29, 2019, the
Supreme Court had upheld the inclusion of the certainty factor in
CALJIC No. 2.92, the predecessor to CALCRIM No. 315.4
(Sanchez, supra, 63 Cal.4th at p. 462; People v. Rangel (2016)
62 Cal.4th 1192, 1215 [no forfeiture where the governing law at
the time of trial “afforded scant grounds for objection.”].)
However, the question of the continued inclusion of the certainty
of eyewitness identification in CALCRIM No. 315 had been
pending in our Supreme Court for over a year prior to the start of

4 Although the Supreme Court analyzed CALJIC No. 2.92, it
cited to similar language used in CALCRIM No. 315. (See
Sanchez, supra, 63 Cal.4th at p. 461.)

6
trial. The issue remained pending throughout trial. (See People
v. Lemcke (June 21, 2018, G054241) [nonpub. opn.], review
granted Oct. 10, 2018, S250108.).) Under these circumstances,
we conclude that appellant forfeited the argument by not
objecting.5
2. Kill Zone Instruction
Appellant was found guilty of attempted murder of both
victims McMillan and Houston. As to Houston, appellant argues
that the attempted murder must be reversed because of error in
instructing on the kill zone theory of attempted murder.6 He
contends the trial court erred by giving CALCRIM 600 about the
kill zone theory because the instruction failed to specify the jury
had to find that Houston was located within the kill zone.

5 While this appeal was pending, the Supreme Court filed its
opinion in People v. Lemcke, holding that CALCRIM No. 315 did
not violate the defendant’s due process rights despite empirical
research showing that confidence in a witness identification is
generally not a reliable indicator of accuracy. (People v. Lemcke
(2021) 11 Cal.5th 644.) However, the Court recognized the risk
that the instruction “will prompt jurors to infer that an
eyewitness’s certainty in an identification is generally a reliable
indicator of accuracy.” (Id. at p. 669.) Accordingly, utilizing its
supervisory powers, the Court directed, except when a defendant
asks for the instruction, “trial courts to omit the certainty factor
from CALCRIM No. 315 until the Judicial Council has the
opportunity to consider how the language might be better worded
to minimize juror confusion on this point.” (Ibid.)

6 Appellant makes no similar argument as to victim
McMillan. It apparently is undisputed on appeal that appellant
intended to kill McMillan who was the target victim.

7
Appellant also contends the instruction was not supported by
substantial evidence.
A. The Law
Under California law, a perpetrator cannot be found guilty
of an attempt to commit a crime unless he or she intends to
commit the crime. “To prove the crime of attempted murder, the
prosecution must establish ‘the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing
the intended killing.’ [Citation.] When a single act is charged as
an attempt on the lives of two or more persons, the intent to kill
element must be examined independently as to each alleged
attempted murder victim; an intent to kill cannot be ‘transferred’
from one attempted murder victim to another under the
transferred intent doctrine. [Citation.]” (People v. Canizales
(2019) 7 Cal.5th 591, 602 (Canizales).)
California has embraced the concept “of a concurrent intent
to kill.” (Canizales, supra, 7 Cal.5th at p. 602.) “In some
situations, the defendant may intend to ensure harm to the
primary victim by harming everyone in the intended victim’s
vicinity – such as by an explosive device or a hail of bullets. In
such a case, the factfinder can infer that, whether or not the
defendant was successful in killing the intended victim, the
defendant concurrently intended to kill everyone in the victim’s
immediate vicinity to ensure the primary victim’s death. When
the defendant, in the attempt to kill an intended victim, chooses
a means of killing that creates a zone of harm around the victim,
the factfinder may reasonably infer that the defendant intended
to harm everyone in that zone.” (People v. Mariscal (2020)
47 Cal.App.5th 129, 137, citing Canizales, supra, at pp. 602–603.)

8
 “In determining the defendant’s intent to create a zone of
fatal harm and the scope of any such zone, the jury should
consider the circumstances of the offense, such as the type of
weapon used, the number of shots fired (where a firearm is used),
the distance between the defendant and the alleged victims, and
the proximity of the alleged victims to the primary target.
Evidence that a defendant who intends to kill a primary target
acted with only conscious disregard of the risk of serious injury or
death for those around a primary target does not satisfy the kill
zone theory.” (Canizales, supra, 7 Cal.5th at p. 607.) “[T]he kill
zone theory does not apply where ‘the defendant merely subjected
persons near the primary target to lethal risk. Rather, in a kill
zone case, the defendant has a primary target and reasons [that]
he cannot miss that intended target if he kills everyone in the
area in which the target is located. In the absence of such
evidence, the kill zone instruction should not be given.’ ” (Ibid.)
In Canizales, our Supreme Court cautioned that “there will
be relatively few cases” in which the kill zone theory will be
applicable and a kill zone instruction appropriate. (Canizales,
supra, 7 Cal.5th at p. 608.) Such an instruction is only
appropriate when there is evidence that: “(1) the circumstances
of the defendant’s attack on a primary target, including the type
and extent of force the defendant used, are such that the only
reasonable inference is that the defendant intended to create a
zone of fatal harm — that is, an area in which the defendant
intended to kill everyone present to ensure the primary target's
death — around the primary target; and (2) the alleged
attempted murder victim who was not the primary target was
located within that zone of harm.” (Id. at pp. 596–597.)

9
 B. The Instruction
In this case, the jury was instructed, without objection, with
a modified version of CALCIM No. 600: “A person may intend to
kill a specific victim or victims and at the same time intend to kill
everyone in a particular zone of harm or ‘kill zone.’ In order to
convict the defendant of the attempted murder of Khariana
Houston, the People must prove that the defendant not only
intended to kill Irell McMillan but also either intended to kill
Khariana Houston, or intended to kill everyone within the kill
zone. If you have a reasonable doubt whether the defendant
intended to kill Khariana Houston or intended to kill Irell
McMillan by killing everyone in the kill zone, then you must find
the defendant not guilty of the attempted murder of Khariana
Houston.”
During closing argument, the prosecutor addressed the kill
zone theory:
“So what factors do you have to consider? [¶] The type of
weapon used. The type of weapon used is a semi-automatic pistol
and can fire rapidly. [¶] The caliber of the round. He used -- I
believe it was a .40, which is a heavier impact. You can see the
size of the bullet hole in the trunk. It’s not a .22. A .22 smaller
caliber. It’s a heavier caliber weapon. [¶] The number of shots
fired were eight shots. If it was a ten-round magazine, he would
have almost emptied the magazine. [¶] The distance from the
shooter to the victim. You can see where the cars parked and
where that last white marker is on the street. And it’s probably
just less than a street width apart. A residential street width
apart. That was at the intersection -- that’s how close he got to
them. [¶] And then the proximity of the alleged victim to the
primary target. The prim[ary] target being Irell McMillan. How

10
close was Khariana to Irell McMillian at the time these eight
rounds were shot? One center console away. One center console
away in the front of a relatively small Mercedes four-door sedan.”
C. Forfeiture
Relying on Canizales, supra, 7 Cal.5th 591, appellant argues
the court should have instructed the jury that before it could
apply the kill zone theory, the jury first needed to find that
Houston was in the kill zone. Respondent contends that
appellant forfeited his claim of error by failing to object in the
trial court or request an alternate instruction. We agree with
respondent.
First of all, appellant concedes in his opening brief that
Canizales was filed before the trial in the present case. So,
appellant could have proposed a modified instruction based on
language in the Supreme Court opinion. Appellant also points to
the now-revised CALCRIM 600 instruction that was prompted by
language in Canizales. But, he does not contend that the
instruction as given was an incorrect statement of law. Nor did
Canizales: the defendant “asserts that CALCRIM No. 600, the
standard instruction on attempted murder that was given in the
case, does not adequately explain the kill zone theory. We agree
that, when a kill zone instruction is legally warranted and in fact
provided, the standard instruction should be revised to better
describe the contours and limits of the kill zone theory as we
have laid them out here.” (Canizales, supra, 7 Cal.5th at p. 609.)
The Supreme Court did not hold that it was error for the trial
court to have given CALCRIM No. 600, only that additional
language would better describe the kill zone rule.7 Generally, a

7 The court cited CALCRIM 600 on several occasions during
the opinion but did not disapprove the instruction. Specifically,

11
“ ‘ party may not complain on appeal that an instruction correct
in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying
or amplifying language.’ ” (People v. Samaniego (2009)
172 Cal.App.4th 1148, 1163, as modified (Apr. 16, 2009).)
As appellant did not object or ask the court to modify the
instruction, he has forfeited this claim. (See People v. Nguyen
(2015) 61 Cal.4th 1015, 1051 [if the instruction is incomplete,
defendant must request clarifying language].)
Appellant’s argument is also without merit. In reviewing a
purportedly erroneous jury instruction, we inquire as to whether
there is a reasonable likelihood the jury applied the challenged
instruction in a way that violates the Constitution. (People v.
Hajek and Vo (2014) 58 Cal.4th 1144, 1246, overruled on other
grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Here,
the trial court instructed the jury that it could find appellant
guilty of attempted murder only if it was shown that he “either
intend[ed] to kill” Houston “or intended to kill everyone within the
kill zone.” (Emphasis added.) As the court instructed the jury
that a victim had to be in the kill zone for the theory to apply,
there was no reasonable likelihood the jurors would have applied
the theory to Houston without also finding she was in the kill
zone.

the court stated: “[i]n light of our conclusion that the judgment
must be reversed because the evidence was insufficient to
support an instruction on the kill zone theory, we need not
address defendants’ constitutional challenge to CALCRIM
No. 600.” (Canizales, supra, 7 Cal.5th at p. 598.)

12
 D. The Instruction Was Supported by Substantial
Evidence
Appellant next argues the kill zone instruction was not
supported by substantial evidence. In determining whether
“there is sufficient evidence from which the jury could find that
the only reasonable inference is that the defendant intended to
kill (not merely to endanger or harm) everyone in the zone of
fatal harm,” we consider the circumstances surrounding the
shooting, including “the type of weapon used, the number of shots
fired (where a firearm is used), the distance between the
defendant and the alleged victims, and the proximity of the
alleged victims to the primary target.” (Canizales, supra,
7 Cal.5th at pp. 597, 607.)
Respondent argues the circumstances of the shooting here
support a reasonable inference appellant intended to kill
everyone in the zone of fatal harm around appellant’s primary
target, McMillan. Appellant used a firearm capable of firing
numerous shots rapidly, he fired eight times at McMillan’s car,
he fired the shots from less than a street’s width away, and
McMillian and Houston were in close proximity inside the car.
Appellant does not dispute there was substantial evidence
from which the jury could infer that McMillan was the primary
target in the shooting. (Canizales, supra, 7 Cal.5th at p. 609.)
Rather, he argues that other circumstances support a reasonable
inference he acted not with specific intent to kill everyone in the
car but with at most a conscious disregard of the risk Houston
might be injured or killed. He relies on the following evidence.
First, appellant fired shots from a handgun, not a high-powered
rifle. Second, he fired no more than eight shots. Third, the shots

13
were fired from a stationary car towards another car, not by a
pedestrian. Lastly, only one shot struck McMillan’s car.
The supporting authority on which appellant relies is
distinguishable. Appellant first cites to In re Rayford (2020)
50 Cal.App.5th 754 where the court found insufficient evidence
supported a kill zone instruction, and noted that the guns used
by the defendants were not “rapid-firing semiautomatic or
automatic weapons.” (Id. at p. 779.) Appellant relies on In re
Rayford for his argument that a handgun is less dangerous than
a “high-powered” firearm. Appellant ignores that he used a semi-
automatic handgun which was capable of firing rapidly, as
demonstrated by the flurry of bullets fired at the victims.
Appellant also cites to People v. Cardenas (2020)
53 Cal.App.5th 102. He argues that the Court of Appeal there
concluded the firing of 16 shots when the defendant was on foot
was insufficient evidence of a kill zone; here appellant fired seven
or eight rounds from a moving car. The number of bullets in
Cardenas was not central to that court’s analysis; rather, the
court focused on the distance between the primary target and
other victims, and between the shooters and victims. (Id. at
pp. 114–115.) In Cardenas, the attempted murder victims were
in a parking lot at least five feet away from the primary target.
Here, while appellant was firing at them from a residential
street’s width away, Houston was seated next to McMillan in a
car with the doors shut. (Ibid.)
Appellant also analogizes the circumstances of this
shooting to People v. Booker (2020) 58 Cal.App.5th 482 where the
defendant’s car “pulled up next to” the driver’s side of a
stationary car, and “a hand emerge[d] from the front passenger
window” and fired three to seven shots directly at the driver. (Id.

14
at p. 500.) The driver was struck twice in the head and once in
the arm. (Ibid.) He died from his injuries, however, a passenger
sitting next to him during the shooting was not injured. (Ibid.)
The Court of Appeal found insufficient evidence to support a kill
zone instruction, noting that only “the driver's side front window
of [the victim’s] car was shattered,” and there was no evidence
reflecting “a spray of bullets.” (Ibid.) Here, unlike Booker where
the shooter shot the victim “at close range,” appellant was a
residential street’s length away when he shot a spray of bullets
directed at the rear of the car carrying McMillan and Houston.
(Ibid.)
Finally, appellant’s argument that only one bullet struck
McMillan’s car does not diminish the sufficiency of the evidence.
The prosecution presented evidence that appellant was
inebriated, had bad eyesight, and fired the shots in the direction
of McMillan’s car. No evidence suggested that appellant was
aiming anywhere other than the car where McMillian and
Houston sat side by side. Using the instruction’s language, the
only reasonable inference supported by the record is that
appellant intended to create a kill zone in the car in order to kill
McMillan.
3. Denial of the New Trial Motion on Grounds of
Ineffective Assistance of Counsel
Appellant contends the trial court erred in denying his
motion for new trial based on ineffective assistance of his counsel
during closing argument.
A. Trial Court Proceedings
Prior to trial, appellant hired private counsel and the trial
court relieved the alternate public defender’s office as attorney of
record. After he was convicted, appellant substituted new private

15
counsel and moved for a new trial on the ground of ineffective
assistance of trial counsel. Appellant argued that trial counsel’s
closing argument was “grossly deficient” as counsel (1) did not
address principles in appellant’s favor such as the presumption of
innocence; (2) did not challenge “central elements of the
prosecution’s case” such as McMillan’s eyewitness identification;
(3) did not present the jury with an “alternative narrative that
would support a verdict of acquittal”; and (4) made claims that
were not supported by the evidence citing to counsel’s argument
that appellant was no longer a gang member.
In opposition, the prosecution argued that counsel’s
purported errors were not prejudicial given evidence of
appellant’s consciousness of guilt revealed through his recorded
jail calls, and circumstantial evidence that the shooting occurred
minutes after his confrontation with McMillan at the Auto Zone
store.
The court concluded that “certain aspects of [trial counsel’s]
performance are lacking,” but found appellant failed to
demonstrate prejudice. The court pointed to the videos which
showed that (1) appellant and McMillan had a verbal
confrontation in the Auto Zone store; (2) after leaving the store,
appellant “was posturing as if ready for a physical confrontation
with McMillan”; (3) appellant followed McMillan in the parking
lot, then received a handgun from Burris; (4) appellant then
walked to the end of the parking lot; and (5) Burris got into a car
matching the description of the car involved in the shooting and
drove to the end of the parking lot in the direction appellant had
been walking. The court concluded the videos showed that
appellant “was in possession of a gun in his waistband . . . and

16
went toward that black four door and the 9-1-1 call was made
within five, six minutes thereafter.” The court denied the motion.
B. The Law
“Although ineffective assistance of counsel is not among the
grounds enumerated for ordering a new trial under Penal Code
section 1181, motions alleging ineffective assistance are
permitted pursuant to ‘the constitutional duty of trial courts to
ensure that defendants be accorded due process of law.’ ” (People
v. Callahan (2004) 124 Cal.App.4th 198, 209.) We review orders
denying a motion for new trial on the ground of ineffective
assistance of counsel for an abuse of discretion. (Ibid.)
“ ‘[A] defendant claiming a violation of the federal
constitutional right to effective assistance of counsel must satisfy
a two-pronged showing: that counsel’s performance was deficient,
and that the defendant was prejudiced, that is, there is a
reasonable probability the outcome would have been different
were it not for the deficient performance.’ [Citations.]” (People v.
Woodruff (2018) 5 Cal.5th 697, 736.) A “court need not determine
whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged
deficiencies.” (Strickland v. Washington (1984) 466 U.S. 668,
697.) As we explain below, the trial acted within its discretion in
finding appellant suffered no prejudice from any deficiencies in
closing argument. That alone defeats the ineffective assistance of
counsel claim.
C. Lack of Prejudice
Appellant’s claim of prejudice is based on several asserted
evidentiary shortcomings that counsel failed to exploit in
argument. He disputes that the video footage provided strong
circumstantial evidence of his guilt, noting that the video “does

17
not actually show [him] getting into the black car” driven by
Burris. He further argues that McMillan’s identification of him
as the shooter was “suspect” because McMillan only saw the
shooter briefly in his rearview mirror while shots were fired. In
appellant’s view, that McMillan identified the driver as a woman
when Burris was driving the black car undermined the
prosecution’s theory of the case that Burris had driven the car
while appellant was shooting. Lastly, appellant argues the
prosecution’s case was weakened by McMillan’s trial testimony
that he did not know appellant and could not identify him in
court.
Appellant’s argument ignores the strong evidence of his
guilt, some direct and other circumstantial. The video footage
showed appellant following McMillan in the parking lot after an
altercation and before being given a gun by a fellow gang
member, and then leaving the mall shortly after McMillan. The
shooting occurred a few minutes later. The evidence of in person
and telephone conversations about McMillan and appellant
sharing a cell suggested McMillan did know appellant, and thus
was easily able to recognize him when he was “hanging out the
window” behind McMillan’s car. The jury was entitled to
disregard McMillian’s denial in the courtroom and his inability to
identify appellant at that time in favor of evidence to the
contrary. Appellant made incriminating statements in recorded
jail conversations. McMillan’s recorded conversations indicated a
reluctance to testify in court which explained his later disavowal
of his statements to the police.
Appellant bears the burden of establishing prejudice in his
ineffective assistance claim. We are satisfied there was no

18
reasonable probability that his counsel’s performance during
closing argument caused a different outcome at trial.
4. No Cumulative Error
Appellant contends his conviction must be reversed for
cumulative error. Because we have found no error, there is
nothing to accumulate. (People v. Reed (2018) 4 Cal.5th 989,
1018.)
DISPOSITION
The judgment is affirmed.

RUBIN, P. J.
WE CONCUR:

MOOR, J.

KIM, J.

19