People v. Garcia CA2/3

Filed 11/17/22 P. v. Garcia CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a).
This opinion has not been certified for publication or ordered published for purposes of rule
8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B311562

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA442346
v.

JOSUE GARCIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Sharon Fleming, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy
Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

A jury convicted Josue Garcia of one count of first degree
murder (Pen. Code,1 § 187, subd. (a); count 1), four counts of
willful, deliberate and premeditated attempted murder
(§ 664/187; counts 2–5), one count of criminal threats (§ 422,
subd. (a); count 6), and one count of shooting at an occupied
vehicle (§ 246; count 7). The jury also found true gang and gang-
related firearm allegations. (§ 186.22, subd. (b)(1); § 12022.53,
subd. (e).)
We reverse the gang and gang-related firearm allegations
and vacate Garcia’s sentence. On remand, the People may retry
the allegations under the amendments to section 186.22. We
otherwise affirm the judgment.

PROCEDURAL BACKGROUND

Garcia and his codefendant Luis Ramos were charged by an
amended information dated August 19, 2019. In count 1, the
amended information charged Garcia and Ramos with the
murder of Edwin Jurado (§ 187, subd. (a)). In counts 2 through 5,
the amended information charged Garcia and Ramos with the
attempted premeditated murder of Jose Delgado, Pablo Delgado,
Sr., Pablo Delgado, Jr., and Christian Diaz (§ 664/187, subd. (a)).
As to these five counts, the amended information included a
gang/gun special allegation (§ 12022.53, subds. (d), (e)(1)). In
count 6, the amended information charged Garcia with making
criminal threats (§ 422, subd. (a)) against Alexious Buck. In count
7, Garcia was charged with shooting at an occupied vehicle (§246)

1 All undesignated statutory references are to the Penal Code.

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with additional special gun use allegations, including one
pursuant to section 12022.53, subdivision (d) that Garcia
personally discharged a firearm into an occupied vehicle causing
great bodily injury.
The amended information further alleged that the offenses
were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C) as to counts 1–5 and 7; § 186.22,
subd. (b)(1)(B) as to count 6). For count 7, it was also alleged that
the gang activity was carried out with the intent to promote,
further, and assist in criminal conduct by a gang (§ 186.22,
subd. (b)(4)).
The jury returned verdicts convicting Garcia of all counts
and finding true all alleged enhancements.
On count 1, Garcia was sentenced to 50 years to life,
comprising 25 years to life for first degree murder plus 25 years
to life for principal firearm use with a gang allegation
(§ 12022.53, subds. (d) & (e)(1)). On counts 2 through 5, Garcia
was sentenced to 40 years to life for each count, comprising 15
years to life for the attempted premeditated murder plus 25 years
to life for personal/principal firearm use with gang allegation
(§ 12022.53, subds. (d) & (e)(1)). The court ordered the term for
counts 3 through 5 to run concurrent to each other, and
consecutive to count 2. On count 6, Garcia was sentenced to seven
years, consisting of two years calculated as the mid-term for the
section 422 offense plus five years for the gang enhancement.
Finally, on count 7, the court imposed a 25 years to life sentence
and stayed the sentence pursuant to section 654. Garcia was
given 1,927 days of actual credit.

3
 Garcia timely appealed.2

FACTUAL BACKGROUND

1. The Murder and Attempted Murder Counts
In the early morning hours of September 28, 2013, Edwin
Jurado was at a nightclub in Los Angeles, El Cafetal. Jurado was
drunk and became involved in a dispute with approximately six
members of the Park View clique of the MS-133 gang. After
Jurado struck one of the female gang members, a security guard
detained Jurado and walked the gang members out of the club.
As they left the club, one of the gang members said that they
planned “to pop the guy out.” Jurado was a member of the rival
18th Street gang.
The MS-13 gang members headed from the club to a nearby
apartment or “trap house” where they sold drugs, kept guns, and
socialized. There, they discussed the incident at the club and
decided to “go give a lesson to somebody that had disrespected
them.” Among those at the apartment were Garcia (also called
Hyper); Ramos, a senior member of the Park View clique; Ramos’
girlfriend, Dina Padilla; and Carlos Gonzalez (also called Husky),
another member of the Park View clique. Garcia, Ramos, and
Gonzalez each took a gun from a stash spot in the bathroom of
the apartment before leaving. Garcia took a .38 revolver, Ramos
took a semi-automatic gun, and Gonzalez took a small handgun.
Shortly after 2:00 a.m., they and other MS-13 members drove to

2Ramos’ conviction was affirmed by this court in People v. Ramos
(May 14, 2021, B304855) [nonpub. opn.].)
3 MS-13 refers to La Mara Salvatrucha gang.

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the area of the nightclub. They parked in an area without
surveillance cameras and waited for Jurado to approach.
Before leaving the apartment, Ramos had instructed
Padilla to remain behind with two other women, including a Park
View clique member called La Morena. However, La Morena
persuaded Padilla to drive her back to El Cafetal. They found
Jurado walking nearby and La Morena jumped out of the car and
struck Jurado, knocking him to the ground. Ramos instructed the
driver of their car to drop them off a block away and Garcia,
Ramos, and Gonzalez ran to where La Morena and Jurado were.
Garcia, Ramos, and other MS-13 gang members started to hit
and kick Jurado. Jurado was also shot three times.
Pablo Delgado, Jr. was driving his father, Jose Delgado, his
uncle, Pablo Delgado, Sr., and his uncle’s friend, Christian Diaz,
home after a Dodgers game when they witnessed the attack and
saw that the victim was not defending himself. They decided to
help the victim and stopped their car nearby. Diaz jumped out of
the car and immediately saw an armed man approaching. Jose
Delgado, who was sitting in the front passenger seat, attempted
to get out as well but Garcia kicked the door closed. Garcia then
fired into the car from the passenger side of the vehicle. Delgado,
Jr. and Gonzalez heard two or three shots. Padilla heard more
than five but less than 10 shots before she fled the scene. One
bullet went through the open front passenger-side window of
Delgado, Jr.’s car and shattered the driver’s side window, while
another struck the frame of the front passenger side door.
Another bullet struck Diaz in the arm. Delgado, Jr. sped away
before realizing that Diaz was no longer in the car. Diaz ran to a
nearby metro station and was assisted by the security guards
there.

5
 Garcia, Ramos, and Gonzalez then ran back to their car.
They drove past Jurado’s body to confirm that he was dead before
returning to the apartment. Jurado’s cause of death was multiple
gunshot wounds to the abdomen and chest. The two bullets
recovered from Jurado’s body were .38 or .357 caliber and were
fired from the same weapon as another .38 or .357 caliber bullet
recovered from the scene.
2. The Criminal Threats Count
On July 3, 2014, Alexious Buck noticed Garcia and another
Hispanic man entering the gate to her sister’s apartment
complex. When Buck asked if they needed anything, the men
swore at her and grew belligerent. The men left but returned five
minutes later with a gun. Garcia put the gun to Buck’s head and
the other man asked if she was ready to die. After Buck told
them, “Do what you have to do,” the men called her a racial slur
and walked away. Buck called the police and reported where she
observed the two men heading. She also informed them that she
had seen the two men throw hand signs that made her believe
they were part of a gang. Police apprehended Garcia inside a
nearby apartment building.

DISCUSSION

Garcia contends that his attempted murder convictions
must be overturned on two grounds. First, Garcia argues that the
evidence is insufficient to support four convictions of willful,
deliberate, and premeditated attempted murder. He asserts that
the evidence supports that he fired only three bullets at the car
driven by Delgado, Jr. and, therefore, there is insufficient
evidence to support a determination that he intended to kill all
four passengers. Garcia also argues that the attack on the car

6
was a “rash impulse hastily executed” and that the evidence does
not support that his actions were premeditated and deliberate.
Second, Garcia contends that the prosecutor misstated the law or
made appeals to the passion and prejudice of the jury on five
separate occasions during closing argument, and that,
independently or cumulatively, these arguments resulted in
prejudice, requiring reversal of the attempted murder
convictions.
We conclude that the evidence was sufficient to support
four convictions for attempted murder and that the attempted
murders were willful, deliberate, and premeditated. We further
hold that any prosecutorial errors, together or singly, were not
prejudicial and do not require the reversal of the attempted
murder convictions.
Garcia also contends, and the Attorney General agrees,
that the amendments made to section 186.22 pursuant to
Assembly Bill No. 333 (AB 333) are retroactive and that the proof
of the gang allegations offered at trial does not satisfy the
requirements of section 186.22 as amended. The Attorney
General also concedes that the gang-related firearm allegations
found true must be vacated for insufficient evidence. We accept
these concessions and reverse these true findings. They may be
retried on remand.
Finally, Garcia contends that the failure to bifurcate the
gang allegations pursuant to newly enacted section 1109, which
was added pursuant to AB 333, requires that we reverse the
judgment in its entirety. The Attorney General argues that
section 1109 does not apply retroactively and that the failure to
bifurcate the gang allegations was harmless in this case. Even
assuming retroactivity, we conclude that it is not reasonably

7
probable that Garcia was prejudiced by any failure to bifurcate
the gang allegations.
1. Sufficiency of the Evidence Supporting the
Attempted Murder Convictions
1.1. Standard of Review
In assessing the sufficiency of the evidence to support a
conviction, “we review the whole record to determine whether any
rational trier of fact could have found the essential elements of
the crime or special circumstances beyond a reasonable doubt.
[Citation.] 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. [Citation.] 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
have deduced from the evidence. [Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence. [Citation.]’
[Citation.] A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support” ’ the jury’s verdict.
[Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357; see
also Jackson v. Virginia (1979) 443 U.S. 307; People v. Perez

8
(1992) 2 Cal.4th 1117, 1124; People v. Snow (2003) 30 Cal.4th 43,
66.)
1.2. Sufficient evidence supports Garcia’s
conviction for four counts of attempted
murder.
Garcia contends that evidence was insufficient to support
his conviction for four counts of attempted murder where the
physical evidence supports that only three bullets were fired at
the Delgados and Diaz. We conclude that the evidence was
sufficient to support all four convictions.
“[A]ttempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (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.] . . . 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.]” ’ [Citation.]” (Ibid.) “[T]he act of
purposefully firing a lethal weapon at another human being at
close range, without legal excuse, generally gives rise to an
inference that the shooter acted with express malice. That the
shooter had no particular motive for shooting the victim is not
dispositive, although again, where motive is shown, such
evidence will usually be probative of proof of intent to kill. Nor is
the circumstance that the bullet misses its mark or fails to prove
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.]” (Id. at p. 742.)

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 In Smith, the defendant shot into a vehicle containing his
ex-girlfriend, who sat in the driver’s seat, and her baby, who was
in a car seat directly behind her. (Smith, supra, 37 Cal.4th at
p. 742.) The trajectory of the bullet showed “that it was fired from
a position directly behind the car.” (Id. at p. 743.) Though it
“missed both the baby and the mother by a matter of inches[,] it
shattered the rear windshield, passed through the mother’s
headrest, and lodged in the driver’s side door.” (Ibid.) The
Supreme Court observed that, “in order for the jury to convict
defendant of the attempted murder of the baby, it had to find,
beyond a reasonable doubt, that he acted with intent to kill that
victim, i.e., that he purposefully shot into the vehicle with ‘a
deliberate intent to unlawfully take away [the baby’s] life’
[citation] or knowledge that his act of shooting into the vehicle
would, ‘ “ ‘to a substantial certainty,’ ” ’ result in the baby’s death.
[Citation.]” (Ibid.) It concluded that these requirements were
met, as the defendant’s “very act of discharging a firearm into the
car from close range and narrowly missing both mother and baby
could itself support such an inference.” (Id. at p. 744.)
Our high court further rejected the defendant’s contention
that a single bullet could not support two convictions for
attempted murder because this was not a “kill zone” case.4 The
court explained that the “ ‘kill zone’ theory does not preclude a

4“[A] shooter may be convicted of multiple counts of attempted murder
on a ‘kill zone’ theory where the evidence establishes that the shooter
used lethal force designed and intended to kill everyone in an area
around the targeted victim (i.e., the ‘kill zone’) as the means of
accomplishing the killing of that victim.” (Smith, supra, 37 Cal.4th at
pp. 745–746.) The kill zone theory is discussed in more depth infra in
Section 2.3.

10
conclusion that defendant’s act of firing a single bullet at [his ex-
girlfriend] and her baby, both of whom were in his direct line of
fire, can support two convictions of attempted murder under the
totality of the circumstances shown by the evidence.” (Smith,
supra, 37 Cal.4th at p. 745.) The court concluded that a kill zone
rationale did not control in this case and that the defendant’s
arguments relied on “the incorrect assumption that a shooter who
fires a single bullet at two victims who are both, one behind the
other, directly in his line of fire, cannot, as a matter of law, be
found to have acted with express malice toward both victims.”
(Id. at p. 746.)
More recently, in People v. Canizales (2019) 7 Cal.5th 591
(Canizales), the Supreme Court discussed Smith, stating the
defendant there “was properly convicted of two counts of
attempted murder for having fired at close range a single bullet
at a former girlfriend seated in the front seat of her car and the
infant who was in a car seat immediately behind her, both of
whom were in his direct line of fire.” (Id. at p. 603.) The court
reiterated the sufficiency of the evidence in Smith to establish an
intent to kill: “evidence that the defendant discharged a lethal
firearm at two victims who were seated directly in his line of fire
supported an inference that he acted with intent to kill both
victims.” (Id. at p. 608.)
Turning to the facts present here, there is evidence that
Garcia discharged a lethal firearm at two victims in the same
direct line of fire, as well as firing at least two additional shots.
The evidence supports that Garcia, who was armed with a
revolver, approached the passenger side of the car and kicked the
front passenger door closed when Jose Delgado tried to exit the
vehicle, indicating that he was in very close range when he

11
opened fire. Padilla heard more than five but less than 10 shots,
whereas Delgado, Jr. and Gonzalez heard three shots. Garcia
shot through the open passenger side window, shattering the
driver side window, while both Delgado, Jr. and his father were
seated in the front row of the car. Garcia fired another shot that
hit the front passenger door frame. Garcia also fired a shot that
struck Diaz, who had exited the vehicle.
Even assuming that certain of the shots that Padilla heard
were fired at Jurado and not at the Delgados and Diaz, the
evidence supports a reasonable inference that Garcia intended to
kill all four passengers of the car with the three bullets fired.
Garcia fired at close range at two people in the same line of fire
and fired at least two other bullets at or near the car, including
the one that hit Diaz.
This case is therefore distinguishable from those cases in
which defendants were convicted of multiple counts of attempted
murder based on shots fired in the general vicinity of certain of
the alleged attempted murder victims. In People v. Perez (2010)
50 Cal.4th 222, the defendant fired a shot from a slowly moving
vehicle approximately 60 feet away, striking an officer. (Id. at
p. 226.) Six other officers and one carjacking victim were also in
the parking lot where the shooting took place. The carjacking
victim was standing next to the officer who was shot, while the
six other officers stood between two and 15 feet away from the
injured officer. (Id. at p. 227.) The Supreme Court concluded that
the evidence was “sufficient to support defendant’s conviction of
one count of premeditated attempted murder of a peace officer,”
but was “insufficient to sustain defendant’s convictions of the
remaining seven counts of attempted murder.” (Id. at p. 230.)
Unlike in Smith, where the single bullet was fired at close range

12
and both the mother and child were in the direct line of fire, “the
evidence [was] insufficient to establish that defendant acted with
the intent to kill two or more individuals by firing the single shot
at the group of seven officers and a civilian.” (Id. at p. 233.)
In People v. Virgo (2013) 222 Cal.App.4th 788, the
defendant was a parolee at large who engaged in a shootout with
officers who surrounded the house where he was staying. (Id. at
pp. 792–796.) The defendant was convicted of 10 counts of
attempted murder, one for each of the officers outside his home.
(Id. at p. 797.) The court observed that, “to affirm each of
defendant’s 10 convictions of attempted murder, we search the
record for substantial evidence indicating defendant committed a
direct but ineffectual act toward killing each officer. We look to
see if he fired at each of the 10 victims in a manner that could
have killed them had defendant’s aim been more on target.” (Id.
at p. 799.) The court concluded that evidence was only sufficient
to support five convictions for attempted murder. The defendant
fired four to seven shots at one group of four officers taking cover
behind a car, which was sufficient to convict the defendant of
attempting to murder each of those officers. (Ibid.) Another group
of three officers who had taken cover at the northwest corner of
the house testified that only one bullet had been shot in their
direction, which was sufficient to support only one conviction for
attempted murder. (Ibid.) There was no evidence that the
remaining three officers had been fired at. (Id. at p. 800.)
There was no evidence in Perez or Virgo that two
individuals were in the same direct line of fire of any of the
defendants’ shots. Moreover, unlike in those cases, Garcia did not
fire at a dispersed group of individuals. Rather, the four
passengers were clustered in or just outside of the car, and two of

13
the passengers were in the same direct line of fire. Based on our
review of the record in its entirety, we conclude that a rational
trier of fact could have concluded beyond a reasonable doubt that
Garcia harbored an intent to kill each of the four passengers.
1.3. Sufficient evidence supports that the
attempted murders were willful, deliberate
and premeditated.
Garcia also contends that there is insufficient evidence to
support that the attempted murders were willful, deliberate, and
premeditated, citing testimony from Diaz and Delgado, Jr.
supporting that the events transpired quickly. Garcia therefore
contends that there was insufficient time to form a preconceived
design to attempt to kill the people in the car. We hold that the
evidence was sufficient to support the jury’s conclusion.
“[U]nlike murder, attempted murder is not divided into
degrees. The prosecution, though, can seek a special finding that
the attempted murder was willful, deliberate, and premeditated,
for purposes of a sentencing enhancement.” (People v. Mejia
(2012) 211 Cal.App.4th 586, 605; see § 664, subd. (a); People v.
Sedillo (2015) 235 Cal.App.4th 1037, 1049 [“attempted murder is
not a lesser included offense of attempted premeditated murder,
but premeditation constitutes a penalty provision that prescribes
an increase in punishment”].) “ ‘In this context, “premeditated”
means “considered beforehand,” and “deliberate” means “formed
or arrived at or determined upon as a result of careful thought
and weighing of considerations for and against the proposed
course of action.” ’ ” (People v. Jurado (2006) 38 Cal.4th 72, 118.)
“ ‘ “Premeditation and deliberation can occur in a brief interval.
‘The test is not time, but reflection. “Thoughts may follow each
other with great rapidity and cold, calculated judgment may be

14
arrived at quickly.” ’ ” ’ ” (People v. Solomon (2010) 49 Cal.4th
792, 812.)
“In People v. Anderson [(1968) 70 Cal.2d 15, 26] (Anderson),
[the Supreme Court] identified ‘three basic categories’ of evidence
[it] has generally found sufficient to sustain a finding of
premeditation and deliberation: (1) planning activity, or ‘facts
about how and what defendant did prior to the actual killing
which show that the defendant was engaged in activity directed
toward, and explicable as intended to result in, the killing’; (2)
motive, or ‘facts about the defendant’s prior relationship and/or
conduct with the victim from which the jury could reasonably
infer a “motive” to kill the victim’; and (3) manner of killing, or
‘facts about the nature of the killing from which the jury could
infer that the manner of killing was so particular and exacting
that the defendant must have intentionally killed according to a
“preconceived design” to take his victim’s life in a particular way
for a “reason”. . . .’ [Citation.]” (People v. Morales (2020) 10
Cal.5th 76, 88–89.) The Anderson factors also apply to whether
an attempted murder was deliberate and premeditated. (People v.
Lenart (2004) 32 Cal.4th 1107, 1127–1128.) “In the years since
Anderson, ‘ “[the Supreme Court] ha[s] emphasized that its
guidelines are descriptive and neither normative nor exhaustive,
and that reviewing courts need not accord them any particular
weight.” ’ [Citation.]” (Morales, at p. 89.) Further, “the Supreme
Court has described the various Anderson categories in the
disjunctive, inserting an ‘or’ in the series . . . .” (People v. Nazeri
(2010) 187 Cal.App.4th 1101, 1113.)
Applying these standards and viewing the evidence in the
light most favorable to the prosecution, there was sufficient
evidence of all three Anderson factors. Contrary to Garcia’s

15
contention, the record provides a reasonable inference of motive
as to the attempted murders. A car unknown to the MS-13 gang
members arrived at the scene and an individual got out. The jury
could have reasonably inferred that Garcia believed that other
members of the 18th Street gang had arrived to assist Jurado,
and that his desire for retribution against Jurado would extend to
other members of MS-13’s rival gang. Alternatively, the jury
could have inferred that Garcia wanted to eliminate any potential
witnesses to the murder of Jurado. (See, e.g., People v. Thomas
(1992) 2 Cal.4th 489, 518 [jury could “have found a ‘ “plausible
motive” ’ for [victim’s] murder in defendant’s need to eliminate a
witness to his crimes”].)
The fact that Garcia was armed with a gun reflects
evidence of planning activity. (See, e.g., People v. Ramos (2004)
121 Cal.App.4th 1194, 1208 [gang member armed himself before
attending party, showing a “willingness to take immediate lethal
action” if need arose].) Even if the planning related to Jurado in
the first instance, the jury could reasonably infer that Garcia was
prepared to use the gun against any rival gang members or
potential witnesses he and the other MS-13 members
encountered while retaliating against Jurado.
Finally, although the incident arose unexpectedly, the
manner of the attempted killing is indicative of premeditation
and deliberation. Garcia did not shoot blindly from a distance.
Rather, the evidence supports that Garcia ran over to the car and
kicked one of the doors closed to prevent a passenger from getting
out before firing multiple shots at the passengers of the vehicle
from close range. (See, e.g., People v. Sanchez (2001) 26 Cal.4th
834, 849 [premeditation established in gang context even though
time between seeing victim and actual shooting was brief]; People

16
v. Francisco (1994) 22 Cal.App.4th 1180, 1192 [manner of killing
supported premeditation and deliberation where shooter’s “car
was only about five feet from the victim when the shooting
started” and he fired multiple shots].)
In sum, our review of the three Anderson factors—
planning, motive, and manner of killing—supports that there is
sufficient evidence that the attempted murders were willful,
deliberate, and premeditated.
2. Prosecutorial Misconduct
2.1. Standard of Review
“We review claims of prosecutorial misconduct pursuant to
a settled standard. ‘Under California law, a prosecutor commits
reversible misconduct if he or she makes use of “deceptive or
reprehensible methods” when attempting to persuade either the
trial court or the jury, and it is reasonably probable that without
such misconduct, an outcome more favorable to the defendant
would have resulted. [Citation.] Under the federal Constitution,
conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights—such as a comment
upon the defendant’s invocation of the right to remain silent—but
is otherwise worthy of condemnation, is not a constitutional
violation unless the challenged action “ ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’ ” ’ [Citations.] In addition, ‘ “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. [Citation.]” ’ [Citation.]
Objection may be excused if it would have been futile or an

17
admonition would not have cured the harm.” (People v. Dykes
(2009) 46 Cal.4th 731, 760 (Dykes).)
“It is considered misconduct to misstate the law to the jury,
and bad faith is not required. [Citation.] 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.
[Citations.]” (People v. Azcona (2020) 58 Cal.App.5th 504, 516
(Azcona).) Prosecutors also have wide latitude to comment on the
state of the evidence and draw reasonable inferences or
deductions. (People v. Martinez (2010) 47 Cal.4th 911, 957.)
“ ‘Whether the inferences the prosecutor draws are reasonable is
for the jury to decide.’ ” (People v. Wilson (2005) 36 Cal.4th 309,
337.) “ ‘[W]e “do not lightly infer” that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (People v. Centeno (2014) 60 Cal.4th
659, 667.)
2.2. Yellow Light Analogy
Garcia contends that the prosecutor misstated the law of
willful and deliberate premeditation by analogizing the required
process to the decision of whether to go through a yellow light. He
asserts that the prosecutor’s arguments improperly minimized
the required elements of premeditation and deliberation and
reduced the prosecution’s burden of proof. He argues that his
attempted murder convictions “must therefore be reduced to
second degree attempted murder.”5 We conclude that there was

5The offense of “second degree attempted murder” does not exist;
unlike murder, attempted murder is not divided into degrees. (See
People v. Favor (2012) 54 Cal.4th 868, 876.) We understand Garcia’s

18
no misconduct. Even if we assumed error, Garcia has failed to
demonstrate prejudice resulting from the prosecutor’s analogy.
2.2.1. Additional Facts
The court instructed the jury on deliberate and willful
premeditation in connection with both murder and attempted
murder. With respect to attempted murder, the court instructed
the jury: “The defendant acted willfully if he intended to kill
when he acted. [¶] The defendant deliberated if he carefully
weighed the consequences for and against his choice, and
knowing the consequences, decided to kill. [¶] The defendant
acted with premeditation if he decided to kill before completing
the acts of attempted murder. [¶] The attempted murder was
done willfully and with deliberation and premeditation if either
the defendant or a co-participant or both of them acted with that
state of mind. [¶] The length of time the person spends
considering whether to kill does not alone determine whether the
attempted killing is deliberate and premeditated. [¶] The amount
of time required for deliberation and premeditation may vary
from person to person and according to the circumstances. [¶] A
decision to kill made rashly, impulsively, or without careful
consideration of the choice and its consequences is not deliberate
and premeditated. [¶] On the other hand, a cold, calculated
decision to kill can be reached quickly. [¶] The test is the extent
of reflection, not the length of time. [¶] The People have the
burden of proving this allegation beyond a reasonable doubt. If

argument to be that his convictions must be reduced to attempted
unpremeditated murder.

19
the People have not met this burden, you must find this
allegation has not been proved.”
The court also instructed the jury: “You must follow the law
as I explain it to you, even if you disagree with it. If you believe
that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions.”
During her closing argument, the prosecutor discussed the
facts of the case at length before turning to the law, including the
difference between first degree murder and second degree murder
and the requirement that first degree murder must be willful,
deliberate, and premediated. The prosecutor went on to state: “So
let’s put that into some context. This analogy is a good—sums up
how quickly somebody can reach premeditation and deliberation.
When you are driving down the street and you are going—
approaching a traffic light and that light turns yellow, you have
to make a very quick decision. Are you going to gun it and get
through that intersection? Or are you going to brake and stop for
what will become the red light? It is a split-second decision. But
that thoughtfulness and quick, rapid decision is sufficient for
premeditation and deliberation.”
The prosecutor also showed the jury a slide listing other
factors that might go into a decision to go through a yellow light,
including: “How fast am I going? [¶] Can I stop in time or is it
safer to pass through the intersection? [¶] Is the street wet? [¶] Is
cross traffic starting to cross? [¶] Are pedestrians entering the
crosswalk?” The slide further stated: “That split second decision
involved: [¶] DELIBERATION – Is it safer to enter or to stop? [¶]
PREMEDITATION – Weighing beforehand.” The prosecutor did
not read the contents of the slide out loud. Defense counsel made
no objections.

20
 2.2.2. Analysis
Notwithstanding the lack of objections, Garcia argues that
we should address his contention that prosecutorial error
requires that the finding of premeditation be reversed as to his
attempted murder convictions.6 If we find the issue was waived
by failure to object, he contends that he received ineffective
assistance of counsel. We conclude that the issue was waived, as
Garcia has failed to establish that an objection or admonition
would have been futile. (Dykes, supra, 46 Cal.4th at p. 760.)
However, we exercise our discretion to address the claim on the
merits to eliminate the need to address Garcia’s alternative
ineffective assistance of counsel claim. (See In re Victor L. (2010)
182 Cal.App.4th 902, 928.)
Garcia argues that the prosecutor misstated the law
because her “oral argument made no mention of taking multiple
factors into account, instead contending that it was simply a
matter of ‘gunning’ the car, or stopping.” Garcia concedes that the
prosecutor’s PowerPoint included several additional factors that
one might consider, but argues that the prosecutor failed to
mention them or put them into context. Garcia also argues that
the prosecutor’s argument was misleading because it failed “to
acknowledge the very significant difference between deciding
whether to stop at a yellow light and making a willful, deliberate
and premeditated decision to kill.”
We disagree. The context of the slide accompanying the
prosecutor’s argument concerning the yellow light analogy was
clear. Even if her oral argument understated the necessary level

6Garcia does not argue that the first degree murder conviction should
be reversed.

21
of deliberation, the prosecutor’s overall presentation of the
analogy (i.e., also taking into account the contents of the slide)
conveyed a decision-making process reflecting premeditation and
deliberation consistent with the court’s instruction.
The prosecutor’s overall presentation of the analogy was
very similar to yellow light analogies that have been found
proper. In People v. Avila (2009) 46 Cal.4th 680, 715 (Avila), the
Supreme Court rejected the defendant’s contention that the
prosecutor had argued “that ‘the “cold, calculated” judgment of
murder is the equivalent of deciding whether to stop at a yellow
light or proceed through the intersection.’ Rather, the prosecutor
used the example of assessing one’s distance from a traffic light,
and the location of surrounding vehicles, when it appears the
light will soon turn yellow and then red, and then determining
based on this information whether to proceed through the
intersection when the light does turn yellow, as an example of a
‘quick judgment’ that is nonetheless ‘cold’ and ‘calculated.’ He
then immediately said, ‘Deciding to and moving forward with the
decision to kill is similar, but I’m not going to say in any way it’s
the same. There’s great dire consequences that have a difference
here.’ ” The court therefore concluded that the prosecutor had not
engaged in any misconduct. (Ibid.)
In People v. Son (2020) 56 Cal.App.5th 689, 698 (Son), the
prosecutor stated during closing argument: “ ‘Rarely do people
who kill have a good enough reason for what they did. This [i.e.,
premeditation] isn’t my motive or what I think would be a good
idea. It’s simply a consideration of consequences and actions. And
that the decision to kill is made during the course of killing, if not
wholly before. [¶] Some examples of this are the difference
between shooting someone a single time and pulling the trigger a

22
second time. [¶] The decision a person makes when approaching a
yellow light as it may be likely to phase red. A weighing of
consequences. Am I going to make it? Am I going to be involved
in an accident? Am I going to get a ticket? I look to the left. I look
to the right. And I go for it.’ ”
The court in Son found no error in the yellow-light example
provided. The court explained that, “[a]t least in the way the
prosecutor framed it, if someone were to go through the decision-
making process the prosecutor described, the decision to proceed
through the intersection would be premeditated.” (Son, supra,
56 Cal.App.5th at p. 699.) The court rejected defendant’s
contention, based on Avila, “that it is improper to analogize
premeditation to a yellow light unless it is accompanied by the
caveat that going through a yellow light is less serious than
murder.” (Id. at p. 699.) The court in Son explained that “[t]he
only thing the Avila court said was that the prosecutor did not
argue that going through a yellow light is the ‘equivalent’ of
murder,” and noted that “[t]he prosecutor in our case did not
draw such an equivalence either. It was obviously an analogy.”
(Id. at pp. 699–700.)
In Azcona, supra, 58 Cal.App.5th 504, 516, the prosecutor
similarly argued: “ ‘Everybody here has traveled into an
intersection . . . where the light turns yellow. Okay? When you
travel into that intersection and that light turns yellow and
you’re going to make a decision to go through that light, [. . .]
what are the two things you look for? Cars and cops. That’s what
you’re going to look for. And then if you decide to go through,
you’ve looked, you’ve thought about it. Are there cars? Are there
cops? Happens to everybody. Common sense. [¶] So when you do
that, you have deliberate[d], you thought about it before you’ve

23
done it. What are the consequences? I could hit a car, a cop could
catch me. You’ve deliberated it. And then when you went through
the light, you premeditated before you went ahead and went
through that light. You deliberated and premeditated it. It’s as
simple as that.” The court found “no fault with the analogies used
here” and noted that “the Supreme Court found nothing wrong
with essentially the same yellow light analogy in [Avila].” (Ibid.)
The defendant, like the defendant in Son, argued that “the
prosecutor’s argument here trivialized the concept of
premeditated murder compared to Avila, where the prosecutor
expressly acknowledged that ‘ “[d]eciding to and moving forward
with the decision to kill” ’ was not the same, since it involves
‘ “great dire consequences.” ’ ” (Ibid.) The court found “no
suggestion that the decision to kill someone is no more
consequential than deciding to drive through a yellow light . . .
Rather, the prosecutor’s point was that the time required for
premeditation is no greater than the time needed to make those
other (far less consequential) decisions.” (Id. at p. 517.)
Like the courts in Son and Azcona, we reject the contention
that the prosecutor acted improperly by failing to expressly state
that going through a yellow light is less serious than
premeditated and deliberate murder. The prosecutor did not
suggest that two acts were equivalent; rather, she made clear
that the yellow light example was an “analogy” intended to
“sum[ ] up how quickly somebody can reach premeditation and
deliberation.” Thus, as in the above cases, the yellow light
analogy was used to illustrate how a premeditated and deliberate
decision to kill could happen quickly, but that premeditation and
deliberation nevertheless require at least some degree of
weighing the consequences. This analogy accurately reflects the

24
law in that a defendant can quickly make a deliberate,
premeditated decision to kill. (People v. Solomon, supra, 49
Cal.4th at p. 812 [“ ‘ “Premeditation and deliberation can occur in
a brief interval” ’ ”].) We therefore conclude that it was not
reasonably probable that the jury was misled by this argument.
Even if we assumed error, Garcia has failed to show
prejudice. He has not shown there is a reasonable probability
that the result of the proceeding would have been more favorable
to him but for counsel’s failure to object. The jury was correctly
instructed on the concept of premeditation and deliberation in
connection with both murder and attempted murder. The jury
was also instructed that, if the attorneys’ comments on the law
conflicted with the trial court’s instructions, they must follow the
law as the trial court explained it to them. “ ‘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 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.” [Citation.]’ ” (People v. Centeno, supra, 60
Cal.4th at p. 676.)
2.3. Kill Zone
Garcia contends that the prosecutor’s invocation of the kill
zone theory in her closing argument constituted a misstatement
of law and improperly circumvented the requirement that the
jury find intent as to each of the four alleged murder victims.
Although we agree that the prosecutor made a minor
misstatement of law and that the kill zone theory is inapplicable
under the facts of this case, we conclude that it is not reasonably

25
probable that any error committed by the prosecutor was
prejudicial.
2.3.1. Additional Facts
With respect to attempted murder, the court instructed the
jury, in relevant part: “The defendant is charged in counts two
through five with attempted murder. To prove that the defendant
is guilty of attempted murder, the People must prove that,
number one, the defendant took at least one direct but ineffective
step toward killing another person; and number two, the
defendant intended to kill that person.”
During her closing argument, the prosecutor argued with
respect to attempted murder: “When Hyper opened fire on that
car and shot at that car at least three times, does it matter which
of the victims he intended to strike? [¶] Why is he shooting at an
occupied car with one of those windows down? Obviously to try to
strike and shoot the occupants of that car. [¶] Does it matter if he
wanted to hit the front passenger or if he wanted to hit the driver
or if he wanted to hit the rear passenger? No, because his intent
is to the entire car. So everyone in that car is part of his intent to
kill. [¶] Kind of like if you decide you want to kill this pilot of this
plane and you put a bomb on the plane that he is flying; you’ve
also basically — your intent to kill is going to transfer to all of the
passengers on that plane.” Defense counsel did not object.
2.3.2. Analysis
Despite the absence of an objection, we again elect to
address Garcia’s claim on the merits to eliminate the need to
address his alternative argument premised on ineffective
assistance of counsel.

26
 “[T]he kill zone theory for establishing the specific intent to
kill required for conviction of attempted murder may properly be
applied only when a jury concludes: (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. Taken together, such evidence will
support a finding that the defendant harbored the requisite
specific intent to kill both the primary target and everyone within
the zone of fatal harm.” (Canizales, supra, 7 Cal.5th at p. 607.) In
other words, “[w]hen the kill zone theory is used to support an
inference that the defendant concurrently intended to kill a
nontargeted victim . . . evidence of a primary target is required.”
(Id. at p. 608.)
The court properly declined to instruct the jury on the kill
zone theory, as there was no evidence to support that Garcia had
a primary target in Delgado, Jr.’s car. (See also People v.
Cardenas (2020) 53 Cal.App.5th 102, 113 [“[T]he Supreme Court
has repeatedly explained that a kill zone instruction is never
required.”].) The court also fully instructed the jury concerning
the elements of attempted murder, including that an element of
that crime is that the defendant harbored the specific intent to
unlawfully kill another human being. The jury was not instructed
that it could find Garcia guilty of the attempted murder of one
person based on a finding that he intended to kill a different

27
person. The instructions given by the court were correct and
unambiguous.
Although the jury was instructed with the correct law,
Garcia argues that he was prejudiced by the prosecutor’s
purported misstatement of the law regarding the kill zone theory.
As a preliminary matter, only the analogy to a bomb on a plane—
the final sentence of the portion of the prosecutor’s argument
identified by Garcia—appears to invoke the kill zone theory,
though the prosecutor never refers to the theory by name. In the
preceding sentences, the prosecutor appears to assert that, by
firing repeatedly at the car at close range, Garcia demonstrated
an intent to kill everyone in the car and did not need to have the
intent to kill a specific individual among them. Separate and
apart from the kill zone theory, our Supreme Court has
recognized that “a person who intends to kill can be guilty of
attempted murder even if the person has no specific target in
mind. An indiscriminate would-be killer is just as culpable as one
who targets a specific person.” (People v. Stone (2009) 46 Cal.4th
131, 140 (Stone).)7 The court explained that where a defendant
sprays bullets at an occupied house, “simply to kill everyone who
happened to be present, without any primary target,” the
defendant may be convicted of attempted murder. (Ibid.) The

7 Garcia argues that that the kill zone theory does not depend on the
defendant intending to kill an identifiable primary target, citing Stone.
However, in Canizales, the Supreme Court rejected this precise
argument and explained that the court in Stone “was not referring to
the kill zone theory” when it made the observation that a specific
target is not required to convict a defendant of attempted murder.
(Canizales, supra, 7 Cal.5th at p. 608; see also People v.
McCloud (2012) 211 Cal.App.4th 788, 802, fn. 6 [the kill zone theory
and the Stone theory “are mutually exclusive”].)

28
Supreme Court observed “difficulties can arise . . . regarding how
many attempted murder convictions are permissible” in such
circumstances and cited Smith as an example of a case
addressing how many convictions a shooting can support. (Ibid.)
As discussed above, the evidence supports that Garcia fired at
least three shots at the car at close range, including at two
individuals in the same direct line of fire. Thus, under Stone and
Smith, there was sufficient evidence of intent to kill all four
individuals. We find no misstatement of law with respect to this
portion of the argument.
Turning to the prosecutor’s reference to the kill zone
theory, the plane bombing example is consistent with the
description of the theory in Canizales. The example identified a
primary target (the pilot), the type and extent of force the
defendant used (a bomb) support an inference is that the
defendant intended to create a zone of fatal harm, and the alleged
attempted murder victims (the passengers of the plane) were
within that zone of harm. (See Canizales, supra, 7 Cal.5th at
p. 607.) However, the prosecutor incorrectly characterized the
defendant’s intent to kill the pilot as “transfer[ring]” to the
passengers. “[T]he doctrine of transferred intent does not apply to
attempted murder.” (People v. Bland (2002) 28 Cal.4th 313, 331.)
A “defendant may be convicted of the attempted murders of any
within the kill zone, although on a concurrent, not transferred,
intent theory.” (Ibid.)
In evaluating the degree of prejudice arising from a
prosecutor’s misstatements of the law, courts may look to (1)
whether the misstatements were fleeting or pervasive (People v.
Cortez (2016) 63 Cal.4th 101, 133–134; People v. Otero (2012) 210
Cal.App.4th 865, 873); (2) whether the evidence of the

29
defendant’s guilt on the issue affected by the misstatement was
close or overwhelming (People v. Fayed (2020) 9 Cal.5th 147, 205;
Otero, at pp. 873–874; People v. Bryden (1998) 63 Cal.App.4th
159, 182); (3) whether other jury instructions obviated the effect
of the error (Otero, at p. 873); and (4) whether the jury made
other findings that necessarily indicate that the error had no
effect (People v. Forrest (2017) 7 Cal.App.5th 1074, 1086).
Here, the prosecutor’s misstatement of law was fleeting.
Moreover, although the prosecutor used the term “transfer,” her
example was in every other way consistent with a theory of
concurrent intent. She did not argue, for example, that shooting a
bullet with the intent to kill Person A and accidentally missing
and shooting Person B is sufficient to support an intent to kill
Person B. Moreover, to the extent that the prosecutor’s argument
suggested that intent to kill could be transferred, it was not
supported by the court’s instructions, which we presume the jury
followed. Thus, even though Garcia’s guilt as to all four counts of
attempted murder was not overwhelming,8 it is not reasonably

8 Garcia cites the jury’s request for a readback of Padilla’s testimony
concerning the shooting at the car driven by Delgado, Jr. as supporting
that the kill zone argument was prejudicial. Although a jury’s
questions during deliberations can be instructive in assessing
prejudice, a request for readback is not dispositive. (Canizales, supra, 7
Cal.5th at p. 617.) The request for readback here does support that the
jury was focused on the issue of attempted murder. However, the
readback request here is not as instructive on the jury’s mindset as the
request in Canizales. There, the jury asked for testimony from one of
the alleged murder victims “to the effect that ‘[t]hey weren’t shooting
at me.’ ” (Ibid.) The alleged murder victim had testified, “ ‘To be
honest, I don’t feel he was shooting at me . . . . But he was shooting our
way.’ ” (Ibid.) Thus, both the request and the testimony read back to
the jury went directly to the issue of whether the defendant had intent

30
probable that a result more favorable to Garcia would have been
reached without the the prosecutor’s passing reference to a
transfer of intent.
Although Garcia frames his argument as being based on
the prosecutor’s misstatement of the law, Garcia’s argument also
seems to be that the prosecutor argued the kill zone theory in a
case where it does not fit the facts, thus potentially misleading
the jury. We agree that the analogy is an uneasy fit. The theory
set forth in Stone and the kill zone theory are similar only in that
both permit a fact finder to infer an intent to kill individuals who
were not necessarily individually targeted by the defendant,
based on the force used by the defendant. (See Canizales, supra, 7
Cal.5th at pp. 608–609.) Other than this high-level similarity, the
plane bombing analogy is not pertinent. As we have stated, there
was no evidence of a primary target in this case. Moreover, a
revolver certainly does not have the same force or destructive
power as a bomb. (Cf. People v. Perez, supra, 50 Cal.4th at p. 232
[kill-zone theory was inapplicable because shooting a single
bullet was “not the equivalent of using an explosive device with
intent to kill everyone in the area of the blast, or spraying a
crowd with automatic weapon fire, a means likewise calculated to
kill everyone fired upon”].)
After Canizales, where a trial court has instructed the jury
on the kill zone theory in the absence of the necessary
evidentiary support, appellate courts have generally found

to kill that specific victim. Although we agree that the request here
may suggest that the jury did not find the evidence supporting the four
counts of attempted murder to be overwhelming, it does not compel the
conclusion that there was a reasonable probability of a more favorable
result in the absence of the argument.

31
prejudicial error. (See, e.g., In re Lisea (2022) 73 Cal.App.5th
1041, 1056.) However, there is a significant difference between a
court instructing a jury on a theory of law that does not fit the
facts of the case and a prosecutor briefly arguing such a theory in
her closing argument. “[A]lthough pertinent to the prejudice
calculation, the arguments of counsel ‘are not to be judged as
having the same force as an instruction from the court.’ ” (Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 586 (conc. opn. of
Arabian, J.), quoting Boyde v. California (1990) 494 U.S. 370,
384–385.) The prosecutor here raised a hypothetical crime that
she asserted was “kind of like” the circumstances present in this
case. Unlike principles of law presented by the court, “[t]he jury
was free to accept or reject that argument.” (People v. Dennis
(1998) 17 Cal.4th 468, 548.) In light of the prosecutor’s wide
latitude to comment on the state of the evidence (People v.
Martinez, supra, 47 Cal.4th at p. 957), and to “ ‘ “vigorously argue
[her] case” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 819), and
given the brevity of the prosecutor’s argument concerning the kill
zone theory, we are not persuaded that the prosecutor committed
prejudicial error in arguing the analogy.
The circumstances present here are also distinguishable
from those present in People v. Anzalone (2006) 141 Cal.App.4th
380, a case where, as here, the court did not instruct the jury on
the kill zone theory but the prosecutor raised the theory in
closing argument. In Anzalone, the defendant was prevented
from stealing a car by the owner of the car, Che Love, and Love’s
three friends. The defendant returned to the scene in his own car
and fired a shot at Love, which hit Love’s car just above his head,
and a second shot at the trunk of Love’s car, behind which Love’s
friends were taking cover. (Id. at p. 384.) The prosecutor argued

32
that the evidence supported four convictions for attempted
murder even though only two bullets were fired, stating: “Here is
the way the law says it is. Something called the zone of danger.
Anytime someone is within the zone of danger, whether it be one,
two, three or twenty people, somebody indiscriminately shoots
towards a crowd of people, everything in that zone of danger
qualifies.” (Id. at p. 391.) The court in Anzalone concluded that
the prosecutor’s argument concerning zone of danger was
erroneous and misleading, as the prosecutor “did not explain
what constitutes a ‘zone of danger’ or how such a zone relates to
the element of intent” and “did not tell the jury that the zone is
defined by the nature and the scope of the attack and that the
attack must reasonably allow the inference that defendant
intended to kill some primary victim by killing everyone in that
primary victim’s vicinity.” (Id. at p. 392.) Although “the trial
court did not err in the manner in which it instructed the jury
concerning attempted murder,” the court of appeal concluded that
“the prosecutor committed error when he misstated the law
relevant to the definition of attempted murder.” (Id. at p. 393.)
The court of appeal concluded that defense counsel had provided
ineffective assistance when he failed to object to the prosecutor’s
argument concerning the kill zone theory. (Id. at p. 395.)
Although inapposite, the hypothetical presented by the
prosecutor in this case was largely a correct statement of the kill
zone theory. In contrast, in a case with closer facts than those
present here, the prosecutor in Anzalone suggested that the law
provides that anyone within a vague zone of danger is an
attempted murder victim, regardless of how many bullets are
fired. Further, the prosecutor here did not purport to be

33
instructing the jury on a new point of law when she raised the
bombing analogy.
In conclusion, viewing the challenged comments in the
context of the prosecutor’s entire argument and the court’s
instructions, we find no reasonable likelihood the jury construed
or applied the prosecution’s challenged remarks in an
objectionable fashion, and therefore reject Garcia’s claim of
prosecutorial misconduct. We are also not persuaded that the
prosecutor’s brief misstatement of law violated defendant’s
federal constitutional right to due process, which would require
us to determine whether the claimed error was harmless beyond
a reasonable doubt. (See Chapman v. California (1967) 386 U.S.
18, 24.)
2.4. Greenlighting
Garcia contends that the prosecutor’s assertion in closing
argument that Garcia and Ramos would “green light” Gonzalez—
i.e., target him to be beaten or killed (See, e.g., People v. Arauz
(2012) 210 Cal.App.4th 1394, 1399, fn. 2; People v. Sisneros
(2009) 174 Cal.App.4th 142, 148)— for testifying against them
was prejudicial and that defense counsel’s failure to request an
admonition should be excused because it would have been futile.
We conclude that an admonition would not have been futile. Even
if we reached the merits, we would conclude that it is not
reasonably probable that Garcia would have obtained a better
outcome without the prosecutor’s reference to green lighting.
2.4.1. Additional Facts
As discussed above, Gonzalez participated in the murder of
Jurado and the attempted murders of the Delgados and Diaz. In
the months after the murder and attempted murder, Gonzalez

34
spent more time with the Park View clique and learned about
more things they had done. He decided to leave the city to get
away from MS-13 and then left the state. In 2016, officers
investigating the incident outside El Cafetal located Gonzalez in
Utah. He decided to cooperate with officers and ultimately
reached a plea agreement with the Los Angeles District
Attorney’s Office. Pursuant to this agreement, in exchange for his
truthful testimony in this and another case, Gonzalez’s sentence
will be reduced from 25 years to life (second degree murder plus a
ten-year gang enhancement) to 13 years determinate
(manslaughter plus a 10 year gang enhancement). At trial,
Gonzalez testified that he believed his life and the lives of his
family were in danger because of his decision to testify. He stated
that MS-13 often retaliates against family members and will kill
a person who testifies against the gang if possible.
Los Angeles Police Department Officer Tomas Perez, a
gang expert, similarly testified that MS-13 harbors the view that
people who cooperate with law enforcement will be retaliated
against. He stated that the mindset of “snitches get stitches” is
“how MS-13 perceives people who cooperate with the court
system and police.”
The court instructed the jury that it could not rely on
evidence of gang activity to establish that Garcia “is a person of
bad character or that he has a disposition to commit crimes.” The
court also instructed the jury that the attorney’s statements were
not evidence.
In her closing argument, when discussing the risks
Gonzalez took in testifying against members of MS-13, the
prosecutor stated: “That still remains to be seen how [the plea
agreement] will pan out for him; he had to come in here under

35
oath in a courtroom in front of you jurors and answer my
questions under oath. And then he had to face these two
defendants, these two MS-13 gang members. He has to face them
and you better believe they are looking at him and green lighting
him.” Defense counsel objected to the reference to greenlighting
and the objection was sustained, but no admonition was
requested.
2.4.2. Analysis
As discussed above, a defendant may not complain on
appeal of prosecutorial misconduct unless the defendant made a
timely objection and requested that the jury be admonished to
disregard the impropriety. This requirement is excused only if an
objection would have been futile or an admonition would not have
cured the harm. (Dykes, supra, 46 Cal.4th at p. 760.)
Garcia argues that an admonition would have been futile
because “the damage was done when the prosecutor accused
[Garcia] and his co-defendant of plotting retaliation against
Husky Gonzalez for his testimony against them” and that “no
admonition ‘would have unrung this particular bell,’ ” citing
People v. Johnson (1981) 121 Cal.App.3d 94, 104. “The ritual
incantation that an exception applies is not enough.” (People v.
Panah (2005) 35 Cal.4th 395, 462.) A defendant must identify
evidence in the record to support the assertion that an
admonition is futile. (Id. at p. 463.) Garcia has failed to do so.
The circumstances in People v. Johnson, supra, 121
Cal.App.3d 94 are also distinguishable. There, the prosecutor
claimed that the victim would have denied making an extortion
demand to the defendant through his friend, despite there being
no evidence that she would have done so, and stated that he had
personally investigated the matter and believed that the

36
defendant’s friend had told “an outright lie.” (Id. at p. 102.) The
court concluded that the prosecutor had not merely offered an
interpretation of the testimony, but had instead asserted that he
had direct, personal knowledge based on their conversation that
the defendant’s friend was lying. (Id. at pp. 102–103.)
Here, the prosecutor did not represent to the jury that she
personally believed that Gonzalez was telling the truth, or that
she knew, based on her own investigation, that the defendants
had put a green light on Gonzalez. Based on Gonzalez’s and
Officer Perez’s testimony, the prosecutor could properly raise the
inference that the defendants or other members of MS-13 might
seek to injure or kill Gonzalez for his cooperation with law
enforcement. Although it may have been improper for the
prosecutor to suggest that the defendants had or definitely would
do so, we are not persuaded that an instruction could not have
ameliorated any harm arising from this statement. Thus, the
claim of prosecutorial misconduct as to this statement was not
preserved.
Even if we addressed this issue, we would not find it to be
prejudicial. This assertion was made in the context of discussing
Gonzalez’s credibility and the prosecutor made no further
reference to green lighting in her closing argument, which
comprises over 60 pages in the reporter’s transcript. The court
also instructed the jury that the attorney’s statements were not
evidence and that it could not rely on evidence of gang activity to
establish that Garcia has a predisposition to commit crime. In
light of these instructions, it was not reasonably probable that
the jury would convict Garcia based on his membership in a gang
known to violently retaliate against those who testify against it,

37
rather than a determination that he was guilty of the charged
offenses.
2.5. Comment on Buck’s 911 Call
Garcia contends that the prosecutor’s argument asking why
Buck should not have called the police after she was threatened
was improper because “[t]here was no suggestion that Ms. Buck
did anything wrong by calling, or had no right to call the police”
and that “the jurors would have taken this argument as urging
them to take action against the defendants as a general way to
fight back against community gang violence.” We find no error.
2.5.1. Additional Facts
In her closing argument, while summarizing the evidence
supporting the charge of a criminal threat against Buck, the
prosecutor argued: “And she called 911 because why should the
community have to put up with that kind of behavior? Everyone
just get[s] bullied again and again and let it go? And it’s—”
Defense counsel objected and the trial court overruled the
objection.
2.5.2. Analysis
“It is improper for the prosecutor to appeal to the passion
and prejudice of the jury in closing argument during the guilt
phase of trial.” (People v. Simington (1993) 19 Cal.App.4th 1374,
1378; see People v. Seumanu (2015) 61 Cal.4th 1293, 1342.) The
prosecutor’s statements did not run afoul of this rule.
The jurors could reasonably infer from the evidence that,
when Garcia put a gun to Buck’s head, he was attempting to
intimidate her and discourage her from interfering and speaking
out. To the extent the prosecutor was also urging the jurors to

38
take a stand against gang members who would seek to intimidate
victims from reporting misconduct, “the prosecutor’s comments
were tantamount to comparing the jury to ‘ “the conscience of the
community,” ’ a practice [the Supreme Court] ha[s] routinely
upheld as proper.” (People v. Holmes, McClain and Newborn
(2022) 12 Cal.5th 719, 789.) Indeed, the prosecutor’s comments
here appear less direct than those of the prosecutor in Holmes,
who “urge[d] the jury to solve the social problems of gangs and
violence by returning convictions,” which the Supreme Court
found to be acceptable. (Ibid.)
Even if the prosecutor’s arguments could be interpreted as
an improper appeal for sympathy or juror action, there is no
reasonable probability that a result more favorable to Garcia
would have been reached if the court had sustained the objection
and admonished the jury. Substantial evidence supports that
Garcia threatened Buck with a gun.
2.6. Headline
Finally, Garcia contends the prosecutor’s use of a headline
referencing violence in America in her closing slides and her
allusion to the impact of violence on the community generally
were improper appeals to the passion and prejudice of the jury.
We disagree and find no error.
2.6.1. Additional Facts
As the prosecutor drew near the end of her argument, she
reviewed the evidence of gang membership and gang violence
relevant to the gang allegations. She then argued: “Just to bring
this to a close, [the co-prosecutor] and I are prosecutors here in
the State of California, and specifically here in Los Angeles. We
work for the Los Angeles County District Attorney’s Office. And

39
this is a community. Lots of communities that are tired of gun
violence, tired of gang violence. I was looking at news headlines
recently and I saw this headline (indicating). What a sad state.
What a sad view of our community. And so, having heard the
evidence in this case and having heard the law that applies, we
are asking you to find the defendants—hold them accountable
and find them guilty. Thank you all for your time.”
The court dismissed the jurors for a 15-minute break. After
the jury left the courtroom, defense counsel objected to a slide the
prosecutor displayed during the closing portion of her argument
that included a headline reading, “Niger’s Government Asked the
U.S. to Arm Its Drones. People Aren’t Sure They Like the Idea. I
Know America, You Can Be Shot in Broad Daylight.” During an
extended colloquy with counsel, the court repeatedly questioned
the relevance of the headline to the case as it did not relate to
MS-13 in particular or gang violence generally. Despite
impassioned argument from counsel, the court overruled
defendant’s objections. After the jury returned to the courtroom,
and at defendant’s request, the prosecutor displayed the slide
briefly while the court admonished the jury as follows: “There is a
particular slide; it was utilized during the prosecutor’s argument.
It is irrelevant to the issues in this case, and I am instructing you
to disregard the information from that slide.” The court then
directed the prosecutor to take the slide off the screen, which she
did.
2.6.2. Analysis
We conclude that the prosecutor did not improperly appeal
to the passion and prejudice of the jury.
First, as discussed above, to the extent that the article and
the prosecutor’s accompanying argument was a call to the jury to

40
act as the conscience of the community, the Supreme Court has
upheld such arguments as proper. (People v. Holmes, McClain
and Newborn, supra, 12 Cal.5th at p. 789.) “ ‘It is also clear that
counsel during summation may state matters not in evidence, but
which are common knowledge or are illustrations drawn from
common experience, history or literature.’ ” (People v. Wharton
(1991) 53 Cal.3d 522, 567.) The prosecutor’s comment about
communities being tired of gun violence and gang violence relates
to the widely acknowledged gang violence problem in Los
Angeles, something surely within the general knowledge or
common experience of jurors residing in this city.
Second, with respect to the headline, the jury was
instructed to disregard the offending slide because it was
irrelevant. We presume the jury followed these instructions. (See,
e.g., Avila, supra, 46 Cal.4th at p. 719.)
Third, the prosecutor’s reference to the impact of violence
on the community and her display of the headline were brief and
unlikely to have influenced the jury to a significant degree. The
transcript suggests that the comments and display of the
headline lasted less than 30 seconds. Additionally, the
statements about community violence were de minimis. The
prosecutor’s lengthy closing argument focused on the evidence
and the charges. The portion to which defendant objects
comprises approximately one–half of one page in the transcript.
(See People v. Anderson (2018) 5 Cal.5th 372, 415 [noting that
“[t]o the extent the prosecutor’s language, ‘I believe with all my
heart,’ could be viewed as invoking his personal prestige or depth
of experience, the brief remark could not have been prejudicial”].)
Finally, even if the prosecutor’s brief commentary was
improper, there is no reasonable likelihood that the result would

41
have been different. (People v. Ayala (2000) 24 Cal.4th 243, 288.)
Substantial evidence supports the jury’s verdicts and it is
unlikely that the jurors would have focused on the headline,
given that even the court struggled to understand the connection
between the headline (relating to the use of armed drones in
Niger) and the case before it. Further, as discussed above, the
jury was instructed that the attorney’s statements were not
evidence. We presume the jury heeded this admonition. (People v.
Morales (2021) 5 Cal.4th 34, 47.)
2.7. Cumulative Effect
“Under the ‘cumulative error’ doctrine, errors that are
individually harmless may nevertheless have a cumulative effect
that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772,
fn. 32.) Garcia argues that the cumulative prejudicial effect of the
errors he has raised on appeal require reversal of the attempted
murder convictions and special allegations.
We conclude that any errors that did occur, whether viewed
singly or in combination, are insufficient to warrant reversal of
Garcia’s convictions. (See People v. Jenkins (2000) 22 Cal.4th 900,
1056; People v. Pride (1992) 3 Cal.4th 195, 269.)
3. AB 333’s amendments to section 186.22 apply
retroactively and require reversal of the gang
and gang-related firearm enhancements.
Effective January 1, 2022, AB 333 “amends section 186.22
to require proof of additional elements to establish a gang
enhancement.” (People v. Lopez (2021) 73 Cal.App.5th 327, 343.)
Specifically, AB 333 narrows the definition of “ ‘ “criminal street
gang” ’ ” to “ ‘an[y] ongoing organization, association, or group of
three or more persons, whether formal or informal, having as one

42
of its primary activities the commission of one or more
[enumerated criminal acts], having a common name or common
identifying sign or symbol, and whose members individually or
collectively engage in, or have engaged in, a pattern of criminal
gang activity.’ [Citation.]” (Lopez, at p. 344.)
AB 333 also “redefines ‘pattern of criminal gang activity’ to
require that the last of the predicate offenses ‘occurred within
three years of the prior offense and within three years of the date
the current offense is alleged to have been committed,’ and that
the predicate offenses ‘were committed on separate occasions or
by two or more members, the offenses commonly benefited a
criminal street gang, and the common benefit of the offenses is
more than reputational.’ [Citation.]” (People v. Lopez, supra, 73
Cal.App.5th at p. 345.) “In addition, the currently charged offense
cannot be used as a predicate offense under the amendments”
made by AB 333. (Ibid.)
Garcia contends, and the Attorney General agrees, that AB
333’s amendments to section 186.22 are retroactive to non-final
judgments. The Attorney General also concedes that the proof
offered at trial does not satisfy the requirements of AB 333. The
prosecution relied on Gonzalez’s conviction for his participation in
Jurado’s murder, one of the currently charged crimes, as a
predicate offense to establish a pattern of criminal activity.
Under section 186.22, subdivision (e)(2), that conviction can no
longer be used as a predicate offense for proof of the “pattern of
gang activity” required for a true finding on the enhancement.
The Attorney General agrees with Garcia that there was no
evidence that the prosecution’s other predicate offense commonly
benefited a criminal street gang in a way that was more than
reputational. Finally, the Attorney General concedes that the

43
gang-related firearm allegations found true in connection with
the gang enhancements must also be vacated for insufficient
evidence. (§ 12022.53, subd. (e)(1).)
We accept these concessions. “We therefore conclude that
the gang-related enhancement findings must be vacated and the
matter remanded to give the People the opportunity to prove the
applicability of the enhancements under the amendments to
section 186.22.” (People v. Lopez, supra, 73 Cal.App.5th at p. 346.)
We also vacate the section 12022.53, subdivision (e) gang-related
firearm enhancements. The allegations underlying those
enhancements may be retried on remand. (See People v. Sek
(2022) 74 Cal.App.5th 657, 669.)9
4. Garcia was not prejudiced by any failure to
bifurcate the gang allegations.
AB 333 also added section 1109, which requires that, if
requested by the defense, a gang enhancement charged under
section 186.22, subdivision (d) must be tried separately and only
after a defendant’s guilt of the underlying offense has been
established. Garcia contends that newly enacted section 1109
should be also applied retroactively and requires that we reverse
the judgment in its entirety. The Attorney General argues that,
in In re Estrada (1965) 63 Cal.2d 740, the California Supreme

9 Garcia also argued that the jury verdict and the abstract of judgment
incorrectly listed the gang enhancement alleged in connection with the
criminal threats charge as being pursuant to section 186.22,
subdivision (b)(1)(C), rather than subdivision (b)(1)(B). Although the
court correctly imposed the lesser five year sentence pursuant to
subdivision (b)(1)(B), Garcia asked that the abstract of judgment be
corrected to reflect an enhancement pursuant to subdivision (b)(1)(B).
Because the gang enhancements must be vacated, this request is moot.

44
Court held that, absent evidence to the contrary, the Legislature
intends amendments to statutes that reduce criminal
punishment to apply to all cases not yet final on the amendments’
operative date. Because section 1109 governs only trial procedure
and does not alter the substantive requirements of the gang
enhancement, the Attorney General argues that it does not
implicate the presumption of retroactivity set forth in Estrada
and applies prospectively only.
“The question of whether section 1109 applies retroactively
is the subject of a split of authority among the Courts of Appeal.”
(People v. Tran (2022) 13 Cal.5th 1169, 1239.) This Division is
among those that have held that section 1109 applies
prospectively only. (See People v. Perez (2022) 78 Cal.App.5th
192, 207.) However, the Supreme Court expressly declined to
resolve the split of authority in Tran because “any asserted error
in failing to bifurcate was harmless.” (Tran, at p. 1239.)
We need not address the retroactivity of section 1109 here
because, even assuming it applies retroactively, it is not
reasonably probable that Garcia was prejudiced by any failure to
bifurcate the gang allegations. (See People v. Tran, supra, 13
Cal.5th at p. 1240 [applying the People v. Watson (1956) 46
Cal.2d 818 standard for state-law error].) Gang evidence in this
case was highly relevant to the issues of motive and intent.
“[N]othing in Assembly Bill [No.] 333 limits the introduction of
gang evidence in a bifurcated proceeding where the gang
evidence is relevant to the underlying charges.” (People v. Ramos
(2022) 77 Cal.App.5th 1116, 1132.) Much of the gang evidence
would have been properly admitted, even in a bifurcated
proceeding, given its relevance to the substantive charges.
(People v. Hernandez (2004) 33 Cal.4th 1040, 1049–1050 [gang

45
evidence often relevant to and admissible regarding the charged
offense]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167–
1168 [gang evidence is relevant and admissible when the motive
is gang related; evidence related to gang membership not
insulated from general rules applicable to relevant evidence].) In
addition, the jury was instructed as to the limited purposes for
which it could consider the gang evidence, and we presume the
jury followed that instruction. (People v. Franklin (2016) 248
Cal.App.4th 938, 953.)
We conclude the failure to bifurcate the gang allegations
was not prejudicial and does not require reversal of the judgment
in its entirety. We also conclude that the failure to bifurcate did
not violate Garcia’s federal constitutional right to due process,
which would require us to determine whether the claimed error
was harmless beyond a reasonable doubt under Chapman v.
California, supra, 386 U.S. 18. Accordingly, any error in failing to
bifurcate the allegations was harmless.

46
 DISPOSITION

The true findings on the gang and gang-related firearm
allegations under section 186.22 and section 12022.53,
subdivision (e), are reversed and Garcia’s sentence is vacated.
The matter is remanded to provide the People an opportunity to
retry the allegations under the law as amended by Assembly Bill
No. 333. At the conclusion of any retrial on remand, or if the
People elect not to retry the allegations, the court shall
resentence Garcia in a manner consistent with this opinion. In all
other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

EGERTON, J.

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