Filed 12/8/14 P. v. Silva CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066141
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F11907044)
                   v.

ANTHONY SILVA,                                                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N.
Farris, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Appellant/defendant Anthony Silva confronted his former friend, Jerry Manning,
Jr. (Jerry Jr.), who was seated in his vehicle outside the Manning family’s home and fired
multiple gunshots at him, wounding him twice. Jerry Jr. stumbled into his house and told
his parents and brother that defendant shot him. Jerry Manning, Sr. (Jerry Sr.) went
outside and defendant shot him multiple times. Defendant went into the house and
attempted to fire a final shot at Jerry Jr.’s head, but he ran out of ammunition. He fled the
scene, and Jerry Jr.’s younger brother saw him running away. Gabrielle Vang (Vang),
defendant’s former girlfriend, later revealed that he spoke to her a few hours later and
said he did “something bad,” he “got into it” with Jerry Jr., and he asked her to provide
an alibi.
       After a jury trial, defendant was convicted as charged of count I, attempted murder
of Jerry Sr. (Pen. Code, §§ 664/187, subd. (a));1 count II, attempted murder of Jerry Jr.;
count III, malicious discharge of a firearm at an occupied vehicle (§ 246); and count IV,
second degree robbery of Jerry Jr. (§ 211), with enhancements for personal discharge of a
firearm causing great bodily injury to the victims (§ 12022.53, subd. (d)). Defendant was
sentenced to an aggregate term of 50 years to life plus eleven years four months.
       On appeal, defendant contends his defense attorney was prejudicially ineffective
based on the manner in which he conducted the direct examination of defendant’s trial
testimony and his closing argument. He also contends the prosecutor committed
prejudicial misconduct during rebuttal argument. He further argues there is insufficient
evidence to support his convictions based on conflicting evidence of his identity as the
perpetrator of the offenses.
       We will order correction of the abstract of judgment and otherwise affirm
defendant’s convictions.
                                             FACTS
       Defendant and Jerry Jr. attended Central High School together and were good
friends. After high school, they continued to hang out at each other’s homes and often
       1    All further statutory citations are to the Penal Code unless otherwise indicated.



                                                2.
did things together. Jerry Jr.’s parents, Jerry Sr. and Lezette Manning, and his brothers
Jerkobe and Jebril, also knew defendant.
       In 2011, however, Jerry Jr. and defendant had a falling out because of an incident
that occurred at a Denny’s restaurant. Around the same time, they had a confrontation
and physical fight at a gas station. Jerry Jr. got the best of defendant during the fight.
Jerry Jr. offered to shake hands with defendant but he refused.2
The Confrontation at the Mall
       In November 2011, on the day after Thanksgiving, Jerry Jr. was at Fashion Fair
Mall in Fresno with his brother, Jerkobe, and a friend. Defendant was at the mall with
Gabrielle Vang and some other friends. Vang knew Jerry Jr. from high school.
       Defendant and Jerry Jr. saw each other several times that day. Vang testified she
sensed the tension between Jerry Jr. and defendant, and they exchanged words. Jerry Jr.
testified defendant got into his “space” and nudged him. Jerry pushed him back. Jerry Jr.
believed defendant was trying to provoke him. In a loud voice, Jerry Jr. told Vang that
she was “talking to somebody [who] ain’t got no money. Talk to me.” Jerry Jr.
displayed a couple of $100 bills. Vang testified that Jerry Jr. showed disrespect toward
defendant when he showed him the money. Defendant held up his own cash, and he
appeared angry and embarrassed. Defendant told Jerry: “ ‘I want your head.…’ ” Jerry
Jr. believed defendant wanted to kill him. (RT 847) Vang testified defendant and Jerry
Jr. started to move toward each other when a mall officer appeared and escorted them
out.



       2  Jerry Jr., who was 22 years old at the time of trial, testified he had a felony
juvenile adjudication in 2005. He was arrested by the Fresno Police Department on
September 3, 2011, in an investigation which was still pending at the time of the shooting
in this case. On May 25, 2012, Jerry Jr. reported to the police that someone shot at his
vehicle while he was with his girlfriend. In the summer of 2012, his mother reported that
someone drove by their house and fired a shot in the air.


                                              3.
Defendant Robs and Shoots Jerry Jr.
       Around 5:00 p.m. on November 29, 2011, a few days after the mall encounter,
Jerry Jr. drove up to the house where he lived with his parents. His brother Jebril was
home on leave from the Marine Corps. His younger brother, Jerkobe, was not home from
school yet.
       Jerry Jr. testified he parked his Mercedes SUV at the front curb. He stayed in his
vehicle for a few minutes and used his cell phone. His mother opened the front door and
told him to come inside. He briefly went into the house and then he returned to his SUV
to use his cell phone. It was dark outside.
       As Jerry Jr. sat in the driver’s seat of his SUV, defendant walked up to his vehicle.
Jerry Jr. testified defendant was wearing a black sweater, he was not wearing a mask, and
he could clearly see his face.
       Defendant told Jerry Jr. through the closed window to open the driver’s door.
Defendant reached for the door handle with his left hand, and he pointed a gun at Jerry Jr.
in his right hand. Jerry Jr. opened the door and remained seated in the driver’s seat.
Defendant stepped closer to him and ordered him to turn over his cell phone and wallet.
Jerry complied. His wallet contained credit cards and $200 or $300 in cash.
       Jerry Jr. testified defendant told him: “ ‘You’re going to die tonight.’ ” Jerry Jr.
covered up to protect himself, and defendant started shooting at him. Jerry Jr. was still
sitting in the driver’s seat. Defendant was standing within the open driver’s door as he
fired multiple shots. Jerry Jr. was shot in the shoulder. He tried to get out of the car and
run away. Defendant kept shooting and Jerry Jr. was wounded in the stomach. Jerry Jr.
believed defendant fired six shots at him.
Jerry Jr. Gets into the House
       Jerry Sr., Lezette, and Jebril were inside the house. Jerry Sr. testified he heard
“maybe five, six shots, pow, pow, pow, pow, pow” being fired in the front yard. Lezette
heard the same sounds.

                                              4.
       At that time, Jerry Sr. was recovering from an injury. His leg was in a cast, and he
was using crutches. Jerry Sr. testified he grabbed his crutches and hopped to the front
door. Jerry Sr. and Lezette opened the door and saw Jerry Jr. in the front yard. He was
leaning over and holding his stomach. He had been shot, and he was bleeding.
       Jerry Jr. testified that after defendant fired the last shot at him, he ran to the front
door, got into his house, and he lay down in the hallway. Jerry Jr. testified he told his
mother that “they were shooting” at him. His mother asked who was shooting, and he
testified he told his mother that “Anthony Silva was shooting at me.” Jerry Jr. testified he
told his mother the gunman’s name just in case he “passed out or anything.”
       Jerry Sr. testified that Jerry Jr. told him: “ ‘He shot me in the stomach and in my
arm, Dad. He shot me.’ ” Jerry Sr. asked, “ ‘Who shot you son? Who?’ ” Jerry Jr.
replied, “ ‘Ant Silva.’ ”3
       Jerry Jr.’s parents testified they recognized defendant’s name because he had gone
to school with their sons and used to visit their house.
       Jebril testified he heard five or six gunshots and followed his father to the front
door. Jebril saw Jerry Jr. as he came into the house. Jebril testified Jerry Jr. said
“Anthony Silva” shot him.
       Jerry Sr. testified he pulled Jerry Jr. into the house and closed the door. Jerry Jr.
slumped against the wall. He raised his shirt and showed that he had been shot in the
abdomen and shoulder. Lezette ran to the hallway to get towels for the wounds.
Defendant Shoots Jerry Sr.
       Jerry Sr. testified he heard a car screeching away after Jerry Jr. was inside the
house. He thought it could be the gunman. He left Jerry Jr. in the house and hopped
outside because he wanted to get the car’s description or license plate.


       3   Jerry Jr. and his family apparently referred to defendant Anthony Silva as “Ant.”



                                               5.
       Jerry Sr. testified that as soon as he walked onto the front porch, defendant
emerged from the flower bed, where he had been hiding behind a tree. Defendant was
wearing a hoodie and a white mask, “like a panda face … with the black eyes, rings, or
something like that around.” Jerry Sr. testified he recognized defendant’s body structure
and build, and he could see defendant’s hair in dreadlock braids under the hoodie.
       Jerry Sr. testified he looked at defendant, and defendant raised his gun. Jerry Sr.
raised his right arm at defendant and gestured not to shoot. Defendant fired and Jerry Sr.
saw the muzzle-flash. Jerry Sr. was shot in the finger and left shoulder.
       Jerry Sr. fell off his crutches to the porch. He tried to crawl into the house and
managed to stand up. Jerry Sr. testified he again raised his hand and told defendant:
“Wait. Wait a minute, man. Don’t fire.” Defendant shot Jerry Sr. again, and he fell
down to his stomach. Jerry Sr. tried to get up, and defendant fired three shots into his
back. Jerry Sr. again tried to get into the house, and defendant fired another shot which
hit his clavicle.
       Jerry Sr. testified that as defendant shot him, defendant leaned down and he could
see a distinctive tattoo on defendant’s neck which was not covered by the hood or mask.
At trial, Jerry Sr. identified the tattoo on defendant’s neck as the one he saw while he was
being shot.
Defendant Walks into the House
       After Jerry Sr. suffered the multiple gunshots, he fell face down on the porch.
Defendant walked up to him, pointed the gun directly at his head, and fired another shot.
Jerry Sr. moved and the bullet grazed his head. Jerry Sr. groaned and was heavily
bleeding. Defendant stepped over Jerry Sr. and walked into the house. Jerry Sr. testified
defendant was still wearing a mask.
       Lezette testified she was walking toward the open front door with the towels for
Jerry Jr. when she heard more gunshots. She saw the gunman shoot Jerry Sr. on the
porch. Lezette testified the gunman was wearing a black hoodie over his head and a

                                             6.
mask on his face. The mask was white with black rings around the eyes, similar to the
mask from the movie “Scream.”
         Lezette testified she saw Jerry Sr. fall down, and the gunman stood at the threshold
of the front door. The gunman fired another shot at Jerry Sr.’s head, stepped over his
body, and walked into the house. Lezette testified that the gunman looked up and their
eyes met. Lezette was frightened that he was going to “kill us all.”
         Lezette testified she recognized the masked gunman was defendant. She knew
defendant had long dreadlocks at the time, which she could see under his mask. She also
recognized his short stature, the “demeanor of his body” from their past acquaintance,
and from their eye contact.
         Jerry Sr. saw Lezette in the hallway and shouted for her to get away. Lezette ran
into the bathroom, locked the door, and lay down on the floor.
Jebril Sees the Gunman
         Jebril testified he stayed in the front hallway with Jerry Jr. when his father went
outside to look for the screeching car. Jebril heard additional gunshots. He looked
through the open front door and saw the gunman shoot his father twice. Jebril testified
the gunman was wearing a black hooded sweatshirt, but the hood was down. The
gunman was also wearing a black and white beanie, with a mask rolled down to cover his
face. The mask’s eyeholes were white and looked like a skull, panda, or clown face.
Jebril saw the gunman’s dreadlocks or braids from under the mask.
         Jebril testified Jerry Jr. had already told him that defendant was the gunman.
When Jebril saw the gunman, he recognized defendant by his body size. “I could tell
completely who it was.… I’ve been knowing this guy for like seven years” because they
attended middle and high school together, and defendant had been to their house several
times.




                                               7.
Jebril Moves Jerry Jr. into the Kitchen
       As Jerry Sr. was being shot, Jebril and Jerry Jr. moved into the kitchen. They
heard more gunshots. They also heard their father yelling and moaning. Jebril’s initial
reaction was to reach for his service weapon, which he did not have. Instead, Jebril left
Jerry Jr. in the kitchen, ran to the garage, and grabbed a weapon which was stored there.
Defendant Confronts Jerry Jr. in the Kitchen
       Jerry Jr. testified he was lying on his back in the kitchen. He looked up and
defendant suddenly appeared. Defendant was not wearing a mask. Defendant put the
gun at Jerry Jr.’s head and said, “ ‘It’s over.’ ” Defendant pulled the trigger, there was a
click, and the gun did not fire. Jerry Jr. realized defendant was out of bullets. Defendant
ran out of the house.
       Jerry Sr. testified that as he was lying at the front door, he saw Jerry Jr. crawl into
the kitchen. Jerry Sr. saw defendant walk into the kitchen, and he heard defendant say:
“… I told you I was going to kill you.” Jerry Sr. testified he recognized defendant’s
voice from their prior contacts. Jerry Sr. thought he heard gunshots from the kitchen, and
then he saw defendant run out of the house.
       Jebril returned from the garage with a weapon, but defendant had already left.
Jebril not see defendant confront Jerry Jr. in the kitchen.
       Jerry Sr. testified that during the entire confrontation, he recognized defendant’s
body structure, height, weight, and the way he walked. Jerry Sr. recognized defendant’s
voice when he threatened Jerry Jr. in the kitchen.
Jerkobe Arrives Home
       Jerkobe testified he had been at basketball practice and took the bus home. He got
off the bus and was walking toward his house when he heard “pop, pop, pop, pop.” He
thought it sounded like gunshots but he did not realize something was happening at his
house. As he got closer to home, he saw Jerry Jr.’s SUV parked in front. No one was



                                              8.
near the vehicle, but the driver’s door was open and there were bullet holes in the
window.
       Jerkobe testified he ran toward his house. He saw two people running towards
him. They “jump[ed] in the middle of the street,” ran past him, and made disparaging
racial curses about African-Americans. Based on the nature of the curses, Jerboke
thought the men might have been Hispanic. At trial, Jerkobe testified one man was
wearing a black jacket and kept his hand in his pocket as if he had a gun. This man
seemed to be pulling a hood over his head. Jerkobe could see the man’s hair hanging out
of the hood, and his hair was in “dreads” or “twisties.” The other man was wearing a
white jacket and hoodie.
       When Jerkobe arrived home, he found his father and brother had been shot.
Jerkobe testified he asked Jerry Jr. what happened. Jerry Jr. replied: “ ‘Uh, Ant Silva
shot me.’ ” At trial, Jerboke testified he knew defendant, but claimed he did not
recognize defendant as one of the men running away from his house.
The 911 Call
       At 5:24 p.m., Jebril called 911 and reported two people had been shot. The 911
operator mistakenly assumed it was a drive-by shooting and asked for the description of
the car. Jebril responded, “[W]e don’t know what car,” and “I–I think I–I know who did
it,” and “[h]is name is … Anthony Silva.”
       The operator asked Jebril what happened. Jebril said: “He–he ran up to our house
and shot my brother and my dad,” and they needed an ambulance. When asked for more
details, Jebril said “he came in and he had a hat on.” Jebril said his father was shot in the
head and three times in the back. His brother was shot in the arm and stomach.
Statements at the House
       At approximately 5:30 p.m., Officers Warner and Fitzgerald responded to the
victims’ residence. Jerry Sr. was in the front hall and Jerry Jr. was in the living room.



                                             9.
They were bleeding from numerous gunshot wounds. The officers rendered emergency
aid until the paramedics arrived.
       Officer Fitzgerald asked Jerry Sr. what happened, but he was not able to speak.
Officer Warner asked Jerry Jr. who shot him. Jerry Jr. had difficulty breathing but he
replied, “ ‘Anthony Silva.’ ” Jerry Jr. was unable to respond to additional questions.
       Both victims were transported to the hospital, and their family remained at the
house and spoke to the officers. The officers testified that either Jebril or Jerkobe said
defendant was responsible because he had prior issues with Jerry Jr. Jebril testified he
told officers “exactly what happened as I seen it.” Jebril identified defendant as the
gunman and said that “Anthony Silva did this.” Lezette also spoke to Officer Fitzgerald
at the house. She explained that after Jerry Jr. was shot, he told her that “ ‘Ant did this,’ ”
and she believed he meant defendant.
The Investigation at the Scene
       An examination of Jerry Jr.’s SUV revealed four bullet holes through the driver’s
door window and one bullet hole in the driver’s door below the side mirror. There were
five bullet holes in the driver’s seat, a bullet strike on the driver’s side of the vehicle, two
bullet holes in the back seat, and a bullet hole through the rear passenger window.
       There were 11 expended .380-caliber cartridge casings recovered at the scene. Six
casings were on the ground near the driver’s side of the SUV. Three more casings were
on the front lawn, one casing was at the front door, and another casing was just inside the
doorway. There was a bullet strike on the side of the front door and another strike on an
exterior wall. There were bullet fragments in the hallway. All the expended casings
were stamped as Winchester .380-caliber automatic cartridges.
       Jerry Jr.’s wallet was found in a plastic bag in a trash can in the neighborhood. It
still contained his identification but the cash was gone. The plastic bag also contained




                                              10.
jeans and two white T-shirts. A black sweatshirt was also in the trash can; it did not have
a hood.4
The Witnesses’ Statements at the Hospital
       Detective Gebhardt interviewed Lezette, Jerbril, and Jerkobe at the hospital while
they waited for the victims to be treated. Lezette testified she fully cooperated with the
police and told Gebhardt that Jerry Jr. said “Ant Silva” was the gunman. Lezette said she
was familiar with defendant because he was Jerry Jr.’s former friend. Lezette said
defendant was wearing a hood over his head, a Halloween or “Scream” mask on his face,
he was short, and he had long dreadlocks that she could see from below the mask.5
       Jebril told Detective Gebhardt that after Jerry Jr. was shot, he said: “Ant Silva just
shot me.” Jebril said the gunman was wearing a black and white Halloween or skull
mask, but he saw long dreadlocks beneath the mask. Jebril identified defendant as the
gunman in a photographic lineup, and identified him at trial as the gunman.
       Jerkobe told Detective Gebhardt he saw two men running from his house, and he
recognized defendant was one of the men. Jerboke said defendant ran by him, made a
disparaging racial remark, and said he had just shot someone. Defendant was wearing a
black hooded sweatshirt, and had shoulder-length dreadlocks. Jerkobe said defendant
was putting a black and white mask in his pocket as he ran away. Jerkobe said the
second man was wearing a white, hooded sweatshirt. Jerkobe also told the police about
the fight between defendant and Jerry Jr. at the mall. Later that night, Jerkobe identified
defendant as the gunman from a photographic lineup.

       4The wallet contained a mixture of DNA, and the DNA did not belong to
defendant or Jerry Jr. There was no blood on the wallet or the clothing. A DNA analysis
was not performed on the clothing.
       5Later on the night of the shooting, Detective Gebhardt escorted Lezette back to
the neighborhood because possible suspects had been detained in the area; defendant was
not one of the suspects. He asked her to look at the suspects during an infield showup.
Lezette did not identify anyone as the gunman.


                                            11.
The Victims’ Injuries
       Jerry Sr. was shot six times. He suffered bilateral shoulder blade fractures, a large
contusion to his lungs, several broken ribs on the left posterior side, a puncture to the left
lung, a bullet fragment lodged near a large blood vessel in his neck, and a superficial
wound to his forehead. He did not have surgery for the gunshot wounds. He was left
with three bullets lodged in his back and one in his neck. He suffered nerve damage in
his left arm and continual back pain. He was in the hospital for nine or 10 days.
       Jerry Jr. was shot in the shoulder and stomach. One of the bullets lodged near the
left side of his heart. He also suffered a fractured rib and hip. The surgeons performed
open heart and abdominal surgery to repair his internal injuries. He was in the hospital
for two or three weeks.
The Victims’ Initial Statements at the Hospital
       Shortly after Jerry Sr. arrived at the hospital, Detective Gebhardt spoke to him in
the trauma unit. Jerry Sr. said he believed defendant shot him, but he also said he was
facing away from the gunman, he did not actually see defendant, and he was not able to
identify him.
       A couple of hours after the shooting, Officer Warner spoke to Jerry Sr. at the
hospital and asked what happened. Jerry Sr. said he did not know who shot him, he did
not provide a description, and he did not say he knew the gunman’s identity. Jerry Sr.
testified he did not tell the police that defendant was the gunman because he did not know
if he would survive or if Jerry Jr. was dead, and he wanted revenge and to “take care of it
myself.”
       On November 30, 2011, Detective Kazarian interviewed Jerry Sr. at the hospital.
Jerry Sr. said Jerry Jr. identified defendant as the gunman: “He said his son said the
person who shot him was Anthony Silva, and he said it with conviction. While saying
this, I noticed his eyes teared up and I could see tears running down” his face. Jerry Sr.
said he went outside when he heard screeching tires, and the gunman repeatedly shot him

                                             12.
and walked into the house. Jerry Sr. said the gunman was wearing a Halloween mask,
and he did not see his face. He did not mention a tattoo on the gunman’s neck. He did
not say that he recognized the gunman as defendant.
       Detective Kazarian spoke to Lezette at the hospital on the same day. She said that
Jerry Jr. told them that defendant shot him. Lezette told Kazarian about the incident
between defendant and her son at the mall.
       Also on November 30, 2011, Detective Kazarian briefly spoke to Jerry Jr. in the
Intensive Care Unit and asked if he knew the gunman’s identity. Jerry Jr. said the
gunman was wearing a mask, and “ ‘I thought it was Silva, but I’m not sure.’ ” Kazarian
asked Jerry Jr. if he recognized the gunman’s voice, and he said not really. Kazarian
believed Jerry Jr. was being evasive. He explained the seriousness of the situation and
advised Jerry Jr. that his parents had identified the gunman. Kazarian again asked Jerry
Jr. if he knew who shot him. Jerry Jr. nodded his head and said, “ ‘Ant Silva,’ ” and that
he recognized his voice. Kazarian showed Jerry Jr. a photographic lineup with
defendant’s picture. Jerry Jr. refused to identify anyone.
       At trial, Jerry Jr. testified he recognized defendant in the photographic lineup, but
he did not tell the officer because he wanted “to take it in my own hands and basically get
him myself. So I didn’t want the law involved.” Jerry Jr. testified he lied when he told
the police the gunman was wearing a mask because he “really wanted to get” defendant
himself, and he “didn’t really want the laws involved. I was really angry, because my
father was shot, and shot in the head, and just retaliation. I was ready to do that.”
The Victims Cooperate
       At some point during the victims’ hospitalization, Jerry Sr. testified he changed his
mind about taking revenge when he realized he had survived the traumatic experience.
He was concerned Jerry Jr. could be arrested or killed if he did something. Jerry Sr.
realized they were lucky to be alive and get a second chance. Jerry Sr. convinced Jerry



                                             13.
Jr. that they should cooperate with the police. He told Jerry Jr. that they should call the
detective, tell the truth, and just “clean it up.”
       Jerry Jr. testified his father convinced him to cooperate with the police because
they were blessed to have survived. Jerry Jr. was also concerned he might never see his
young son again if he took matters into his own hands.
       On December 2, 2011, Detective Kazarian interviewed Jerry Jr. at the hospital.
Jerry Jr. said he told his mother that defendant shot him. Jerry Jr. told Kazarian that he
used to be friends with defendant, but they had a falling out. He told Kazarian about the
fight with defendant at the gas station and the mall incident. Jerry Jr. identified defendant
from a photographic lineup, but he refused to sign the lineup card. He told Kazarian that
he wouldn’t sign the card because he was afraid of being killed as a snitch.
       On December 15, 2011, Jerry Jr. called Detective Kazarian from the hospital and
said he wanted to clarify his statement. When they met at the hospital, Jerry Jr. gave a
detailed account of the shooting: Defendant was the gunman, he was not wearing a mask
when he initially appeared in the front yard, and he identified defendant to his parents.
Jerry Jr. again identified defendant from the photographic lineup, and this time he signed
the lineup. He explained that he previously wanted to handle the situation himself, but he
realized he had a second chance, and he wanted defendant to be held accountable.
Defendant’s Activities After the Shooting
       Gabrielle Vang, defendant’s former girlfriend, testified for the prosecution. They
had been in a relationship for about two weeks before the shooting. Vang was present
during the confrontation at the mall between defendant and Jerry Jr. She had also known
Jerry Jr. in school. Vang testified their relationship ended shortly before the shooting
because she discovered defendant was also in a relationship with Perris Jackson.
       Vang testified that on the night of the shooting, defendant called her around 6:00
p.m. and said he wanted to meet her. They later met at her cousin’s apartment. Vang
testified defendant was shaken and crying. He told her: “ ‘I did something, but I can’t

                                               14.
tell you.’ ” About 15 minutes later, defendant and Vang left the apartment and went on
an errand. Defendant gave her a $100 bill to buy liquor and cigarettes. Vang saw even
more cash in defendant’s pocket.
       Vang and defendant returned to the apartment. Vang saw Facebook postings that
Jerry Jr. was either seriously injured or dead. Vang was shocked and remembered the
confrontation at the mall. When she told defendant about the postings, defendant said to
turn off her cell phone.
       Vang testified Perris Jackson arrived at the apartment. Vang again asked
defendant what happened. Defendant said that he did “something bad,” and the police
would be looking for him. Defendant told Jackson and Vang that he “got into it” with
Jerry Jr. He told Vang to tell the police he had been with her all day. Vang refused.
Vang testified people later threatened and accused her of being involved in the shootings.
The Cell Phone Photograph of the Gun
       On the evening of December 10, 2011, defendant was arrested at Jackson’s house.
After defendant was taken into custody, he called Jackson from jail and told her to get rid
of a cell phone. The investigators listened to defendant’s calls from jail, heard the
exchange about the cell phone, and immediately obtained a search warrant for it. The
officers contacted Jackson and recovered the cell phone from her possession.
       The officers found two photographs on the cell phone which showed a .380-
caliber semiautomatic handgun resting on the leg of an unknown person. The gun’s slide
was stamped “PA-63.”
       A firearms examiner testified the gun shown in the photographs was a “9 x 18
Makarov,” which commonly used .380-caliber cartridges. The gun used to shoot the
victims in this case was never recovered. However, the firearms examiner determined
the 11 Winchester cartridges recovered from the scene had been fired from the same
weapon. The cartridge walls were slightly swollen, which was consistent with being
fired from a Makarov.

                                            15.
                        DEFENDANT’S TRIAL TESTIMONY
       Defendant testified he did not shoot the victims and did not know who did it.
Defendant testified that on November 29, 2011, the day of the shooting, he was angry
with the woman who was the mother of his child because he learned she slept with his
cousin. He posted his feelings on Facebook at 7:09 p.m., 8:10 p.m., and 4:58 a.m.6 He
received numerous responses from friends who called him a hypocrite because he had
several girlfriends at the time. Defendant testified he had relationships with Gabrielle
Vang, Perris Jackson, and another woman, and they did not know about each other.
       Defendant testified he did not know Jerry Jr. had been shot until his cousin called
him that night. His cousin told him about the shooting, that Jerry Jr. was at the hospital,
and that Jerry Jr. thought defendant did it. Defendant testified he was surprised Jerry Jr.
would think he did it, and they used to be close friends. Defendant also testified they had
disagreements at the restaurant, gas station and the mall. Defendant testified they pushed
each other at the mall and flashed their cash at each other. Defendant tried to shake Jerry
Jr.’s hand, but he refused. Defendant no longer considered Jerry Jr. his friend. However,
defendant denied he threatened Jerry Jr., showed anger toward him, or said he wanted his
“head” during the mall incident.
       Defendant testified that shortly after hearing about the shooting, he received
threatening telephone calls from unidentified people using blocked numbers. They
accused him of shooting the victims and threatened to kill defendant, his family, and his
girlfriends.
       Defendant took the threats seriously. He called Vang and Jackson and asked them
to meet him. He did not tell them the reason. Vang and Jackson arrived separately at his
apartment. Vang did not ask why Jackson was there. Jackson was crying when she


       6
       On cross-examination, defendant conceded he used his cell phone to post on
Facebook, and there were no posts around 5:00 p.m., when the victims were shot.


                                            16.
arrived. Defendant told Vang about the threats, and she acted like she did not care and
kept posting on Facebook. Defendant told her to turn off her cell phone and listen to
what he was telling her about the threats. Defendant testified he never told Vang that he
shot Jerry Jr., that he did something bad, or asked her for an alibi. Defendant testified he
comforted Jackson, who was still crying, and Vang left the apartment.
       Defendant testified he spent the night with Jackson. Vang returned the next
morning and found Jackson was still there. Vang discovered his relationship with
Jackson, and that Jackson was pregnant with defendant’s child. Defendant testified Vang
was angry and she cursed him. Defendant testified Vang had no reason to dislike him
until she found out about his relationship with Jackson.
       Defendant testified he went to the police department with his mother on December
1, 2011, because he saw his name on “Crime Stoppers,” indicating he was responsible for
shooting the victims. He wanted to clear his name. He spoke to a female officer at the
front desk and showed his identification. The officer checked the computer and said he
just had a misdemeanor warrant from Santa Clara County, and he could call and clear it
up. Defendant asked to speak to someone about the shooting, explained his name was on
the television, and he was receiving threats. His mother insisted that he needed to talk to
someone to clear up the accusations.7 The officer said there were no outstanding arrest
warrants and there was no reason to talk to another officer.
       Defendant testified that at the time of the shooting, he sold marijuana, Ecstacy
pills, and liquor without a license. He knew the activities were illegal. Jackson helped
him with sales. Defendant testified Jackson’s cell phone contained photographs of his
inventory of drugs and alcohol, and his sales activities with other people. Jackson e-

       7On cross-examination, defendant testified he called Jackson from jail after he
was arrested and admitted Jackson passed along a message from his mother not to say
anything.



                                            17.
mailed the pictures to her friends to “promote” his drug and alcohol sales. Jackson’s cell
phone also had photographs of defendant and Jackson having sex. Defendant looked
through the cell phone before he was arrested, and he never saw any photographs of a
firearm. He testified he was not the person depicted in the photograph who was holding
the firearm.
       Defendant testified he was arrested at his cousin’s apartment. Jackson was there
when he was arrested. The police called Jackson’s cell phone and told him to walk out of
the apartment. Defendant testified it was “no secret” he lived at that apartment, and the
utility bills were in his name. His hair was in shoulder length dreadlocks when he was
arrested, and it had been in the same style for several weeks. Defendant gave his
narcotics to Jackson before he was arrested so the police would not find the drugs.
       Defendant testified he agreed to speak to Detective Castillo after he was arrested
because he wanted to clear his name. He told Castillo he went to the police department
and tried to clear his name. Defendant also said that he thought about cutting his hair so
he could visit Jerry Jr. at the hospital. He decided against it because of the threats, and he
did not want the police to think he cut his hair to avoid being identified. The officer told
him he was going to be placed in custody. Defendant was crying and confused and felt
there was no justice.
       Defendant testified he called Jackson from jail and told her he was being held. He
also told her to get rid of the cell phone because he thought the police had tapped it, and
he knew it had the photographs of his drug and liquor inventory. Defendant claimed he
never saw the cell phone photograph of the gun before he was arrested.
       Cross-Examination
       On cross-examination, the prosecutor focused on defendant’s prior friendship with
Jerry Jr. and his brothers, the conflicts between them at the restaurant, gas station, and the
mall, and whether he threatened Jerry Jr. at the mall. He also impeached defendant with



                                             18.
his prior inconsistent statements from his postarrest interview to Detective Castillo. The
prosecutor did not ask defendant about his narcotics sales.
       Defendant conceded he was close friends with Jebril, they ate lunch together every
day at school, and Jebril used to visit his house every day after school. The prosecutor
asked defendant whether Jebril identified him as the gunman. Defendant replied that
Jebril said the gunman wore a mask.
       Defendant admitted he told Detective Castillo he was with his cousin all day.
Defendant testified that he told Castillo he was thinking about cutting his hair to avoid
people who were threatening him so he wouldn’t get killed. He did not mean that he was
going to visit Jerry Jr. at the hospital. He was scared to visit him because of the threats.
                                        REBUTTAL
       Detective Kazarian testified he learned from Perris Jackson that defendant and his
mother went to the police department and tried to talk to an officer about the shooting.
Kazarian testified he could not find any record of defendant speaking to a duty officer or
records clerk in the lobby of the police department between November 29 and December
2, 2011. He was unable to obtain the lobby’s surveillance camera footage because it was
taped over when he learned about defendant’s alleged visit.
       Detective Castillo testified he conducted a tape-recorded interview with defendant
after he was arrested. Defendant said he knew his name was being “tossed around” in the
shooting. Defendant said he was “homeless” and moved from place to place. He had
smoked marijuana earlier in the day. Castillo did not ask defendant any questions about
narcotics sales.
       Defendant said he knew the Manning family, he used to be good friends with Jerry
Jr., and they had a falling out at the mall. Defendant said Jerry Jr. threatened to beat him
up. Defendant became emotional when he talked about his disagreement with Jerry Jr.,
and said “at least a dozen times” that he did not like Jerry Jr. anymore.



                                             19.
       Detective Castillo testified he asked defendant if he was “capable” of shooting
someone. Defendant said he didn’t see himself shooting anyone, and “ ‘I’ve got other
things to do, you know.’ ” Defendant also said, “ ‘I mean, I could shoot somebody,’ ”
and “ ‘Anybody’s capable of shooting anybody I believe.’ ” Defendant added, “ ‘Yeah,
anybody can shoot somebody, but that is not my type of life.’ ” Defendant said he
thought about joining the military.
       Detective Castillo asked defendant what he was doing on the day of the shooting.
Defendant said he was with his cousin at his apartment. He saw Jackson and Vang in the
evening. He left around 7:00 p.m. or 8:00 p.m. with Vang to purchase liquor. He
described Vang as his girlfriend. Defendant said he had been thinking about cutting his
long dreadlocks because he wanted to visit Jerry Jr. in the hospital.
       Detective Castillo told defendant he did not believe his story. Defendant replied
that he was not involved in the shooting. Castillo told defendant that “all kinds of people
saw him at the scene.” Defendant said: “ ‘I believe no one saw me. No one saw me,’ ”
and people were making it up.
                                        DISCUSSION
I.     Ineffective Assistance
       Defendant contends his defense attorney was prejudicially ineffective based on the
manner he questioned defendant before the jury. Defendant argues that defense counsel
treated him as a hostile witness, asked questions which placed him in a bad light, and
admitted in closing argument he “sabotaged” defendant’s case when he conducted direct
examination. Defendant cites to numerous sequences in his trial testimony in support of
this argument.
       As we will explain, our review of these sequences in context of the entirety of
defendant’s testimony refutes defendant’s contentions. Defense counsel’s apparent
tactical decisions when he conducted direct examination were not ineffective or
prejudicial in light of the entire record.

                                             20.
       A. Standard of Review
       We begin with the well settled standard to review defendant’s contentions. “In
order to demonstrate ineffective assistance, a defendant must first show counsel’s
performance was deficient because the representation fell below an objective standard of
reasonableness under prevailing professional norms. [Citation.] Second, he must show
prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams
(1997) 16 Cal.4th 153, 214–215.)
       “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining
a claim of ineffective assistance of counsel [citation], and there is a “strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” ’ [Citation.] ‘[W]e accord great deference to counsel’s tactical decisions’
[citation], and we have explained that ‘courts should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are
generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the
context of the available facts.’ [Citation.]” (People v. Weaver (2001) 26 Cal.4th 876,
925–926; People v. Hinton (2006) 37 Cal.4th 839, 876.) The test “is not solely one of
outcome determination. Instead, the question is ‘whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding fundamentally
unfair.’ [Citation.]” (In re Harris (1993) 5 Cal.4th 813, 833.)
       “In the usual case, where counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance of counsel
on appeal unless there could be no conceivable reason for counsel’s acts or omissions.
[Citations.]” (People v. Weaver, supra, 26 Cal.4th at p. 926.)



                                              21.
       B. Defendant’s Narrative Responses
       Before we address defendant’s claims of ineffective assistance, we begin with
defense counsel’s initial questions to defendant about his prior friendship and later
disagreements with Jerry Jr., how he learned about the shooting, and the anonymous
threats that were made to Gabrielle Vang, Perris Jackson, and himself after the shooting.
       In response to these questions, defendant responded with long, narrative answers
which went beyond the questions and were not responsive. Defense counsel tried to keep
defendant focused to respond to the question that was asked. For example, when defense
counsel asked defendant about the threats to Vang, counsel prefaced his question as
follows:

       “Anthony, in order for us to have a conversation that [the reporter] can
       write down, try to listen specifically to the question I’m asking you and try
       to answer the question that I’m [asking]. I know you want to get up and tell
       your story, but we have to do it in a certain way. So I’m going to ask you a
       question, listen to the question specifically and try to answer it that way. I
       will make follow-up questions if we need to.”
       C. Defendant and Jackson
       Defendant’s first claim of ineffective assistance is based on a sequence which
followed defense counsel’s statement quoted above. Counsel asked defendant about the
threatening telephone calls and his decision to call Gabrielle Vang and Perris Jackson to
warn them about the threats. Defendant continued to give long, narrative, and rambling
answers to the questions.
       Defense counsel asked defendant if Jackson already knew about the threats before
she arrived at his apartment. Defendant responded with another long, narrative answer,
and testified Jackson was crying when she arrived, he asked her why she was crying, and
she said people called and said they were going to kill her because she had something to
do with shooting Jerry Jr.

       “[DEFENSE COUNSEL:] So [Jackson] came to your house already
       knowing about Jerry?

                                            22.
       “A    Not when I first saw her, called her. When I first told her, she did
       not know.

       “Q    Let me stop you there. Listen to the question. When she came to
       your house, when she arrived at your house, she already had the idea in her
       head about threats, correct?

       “A     Yes.” (Italics added.)
       The prosecutor moved to strike defendant’s answer as speculation, and the court
ordered the answer stricken. Defense counsel asked defendant about his conversation
with Jackson. The prosecutor objected to the question as hearsay and the court agreed.
Defense counsel continued with direct examination and asked about whether Vang knew
why Jackson was also there.
              1. Analysis
       Defendant points to the italicized portion of defense counsel’s question and
contends his “word choice was belligerent” because counsel told defendant: “Let me stop
you there. Listen to the question.” In context, however, defense counsel made these two
statements to keep defendant focused on the question being asked and avoid the long,
rambling, narrative and sometimes unresponsive answers he had been giving. Counsel
was not acting belligerently to his own client.
       As defendant’s testimony continued, defense counsel was compelled to repeatedly
keep defendant focused on answering the questions being asked, instead of rambling on
about irrelevant or damaging matters. Defendant has not referenced these other
exchanges as constituting ineffective assistance, but they place the entirety of defendant’s
testimony in context. We have already quoted defense counsel’s gentle admonition to
defendant above. Later in the direct examination, defense counsel asked defendant about
his visit to the police department to clear his name. When defendant described the visit,
he again lapsed into an unresponsive narrative, and defense counsel said: “Let me stop
you” and “Listen to the questions. Some of them are yes or no.” Counsel continued:
“We have to make sure it is clear. What I’m asking is a yes or no. You can answer yes


                                            23.
or no. I can ask you to explain, but we will have to go further and take that step back.
Okay?” Defendant said he understood, and the questioning continued. When defense
counsel asked about his arrest and telephone call to Jackson from jail, defendant again
lapsed into narrative responses, which included irrelevant facts, and counsel repeatedly
told defendant to “stop” and answer the question.
       Defense counsel was not ineffective because of his numerous attempts to keep
defendant focused on answering questions and not lapsing into irrelevant or even
damaging narrative responses.
       D. Defendant Testimony About Vang
       Defendant’s next claim of ineffective assistance occurred immediately after the
above sequence cited by defendant. Defense counsel continued to ask about his meeting
with Vang and Jackson. As explained in the factual statement, Vang had already testified
for the prosecution that she left the apartment with defendant to buy liquor and cigarettes.
Defense counsel was also aware that during his postarrest interview, defendant told
Detective Castillo he left the apartment with Vang around 7:00 p.m. or 8:00 p.m. to
purchase liquor. He described Vang as his girlfriend.
       During his testimony, defendant testified both women came to his apartment, he
hugged and comforted Jackson because she was crying, he showed Jackson more
attention than Vang, and Vang left the apartment.

       “[DEFENSE COUNSEL:]                Did you go with Gabby [Vang] to get
       liquor?

       “A     Uh, no.

       “Q     Gabby said that you went and did that; isn’t that correct?

       “A     Yes.

       “Q     So which is it, Anthony? I don’t need you looking at the District
       Attorney at this time. Look at my questions, okay? I’m going to ask you
       again, did you leave that house with Gabby that night?


                                            24.
      “A     No. Not that I remember.

      “Q     Anthony at this time …

      “A     No.

      “Q     –you’re getting all of these threats, what is your feelings, what were
      our feelings going on at that time?

      “A     I was – man, my feelings was all over the place at that time. I’m
      feeling – I’m having mixed feelings with my baby’s mother. And I’m
      having feelings like people – my family is being threatened, you know,
      about being killed. So I’m like – I’m down. I was in the blue already that
      day, and then getting these phone calls about, you know, shooting
      somebody, and I didn’t know if he was dead or not. So I was just – I was –
      man, emotionally, I was everywhere. I don’t think I cried. But it was
      probably on my face that I wanted to cry, you know, like damn. Like, I was
      down. I was real down, like.

      “Q    Do you remember speaking to Officer Castillo on December 10th
      when you were arrested?

      “A     Yes.

      “Q   Did you tell Officer Castillo that you may have left that night with
      Gabby somewhere?

      “A     Yes.

      “Q     So which is it Anthony, did you or did you not leave that night?

      “A    Well, it wasn’t really the night. It was – it was probably after
      12:00.… Yes, I did leave that night and went to Gabby’s house, her
      grandma’s house. And we had got, you know, some weed. She was – she
      was my connection.” (Italics added.)
             1. Analysis
      Defendant cites to the italicized portion of this sequence and again argues
counsel’s choice of words was “belligerent.” Given the nature of the record, however,
defense counsel was apparently trying to keep defendant focused on the question being
asked and avoid inconsistent testimony about his activities with Vang. While counsel
may have briefly displayed frustration with defendant’s responses, he never sought to


                                           25.
undermine defendant’s story and, as we will explain below, used his closing argument to
explain this point to the jury.
       It is important to note that on appeal, defendant has not argued that he did not
want to testify at trial or that defense counsel forced him to testify. It is also important to
note that the record strongly implies that defendant may have surprised defense counsel
with some of his responses. Defense counsel repeatedly tried to keep defendant focused
on the questions being asked, which were consistent with his defense theory that he was
not the gunman and Vang testified against him because she was angry about his
relationship with Jackson. Defense counsel’s efforts to assist his client were not
belligerent or ineffective.
       E. Defendant’s Testimony About Vang and Jackson
       Defendant next cites to defense counsel’s questions about when Vang discovered
his relationship with Jackson. Defendant testified he spent the night with Jackson. Vang
returned the next morning and discovered Jackson was still there.

       “[DEFENSE COUNSEL:] And can you describe what happened when
       Gabby [Vang] arrived and Perris [Jackson] was still there?

       “A      Well, the next [day], me and Perris was asleep in the room and then I
       hear a knock on the door. I get up. I’m like, I’m going to check who it is.
       It was Gabby.… So I opened the door. And my natural reaction was to just
       let her in .… And that’s when she found out that I was going out with
       Perris that day.

       “Q     What else did she find out that day about Perris?

       “A     That Perris was pregnant?

       “Q     By?

       “A     By me.

       “Q     What was Gabby’s reaction to that?




                                              26.
       “A     She was pissed. Like she first walked out the house and I walked
       after her. And then she was just telling me, like, fuck me and all that. And I
       played her and stuff.

       “Q       You did, right?

       “A       Yeah, I did. I did.” (Italics added.)

                1. Analysis
       Defendant cites to defense counsel’s italicized questions, and argues counsel was
ineffective because he “chose to emphasize” defendant’s failure to be honest with Vang,
and that he had “played her.” Defendant notes Vang had already testified about her
discovery of defendant’s relationship with Jackson. Defendant argues counsel painted
him in the “most negative possible light” by asking about Vang’s reaction to Jackson’s
pregnancy, which again raised this issue and further undermined his credibility.
       The defense theory of the case was that Jerry Jr. falsely implicated defendant as
the gunman because he was angry about their falling out, and the rest of his family
simply repeated what Jerry Jr. told them. One of the most important prosecution
witnesses, however, was Vang, who described defendant’s activities just a few hours
after the shooting, and his inculpatory statements and activities. Vang testified he was
shaken and crying, that he said he had done something, but he could not tell her, that he
had cash at the liquor store, and his reaction to Vang’s discovery that Jerry Jr. had been
shot. Even more damaging was Vang’s testimony that defendant said he did something
bad, the police would be looking for him, he “got into it” with Jerry Jr., and he asked her
for an alibi.
       In light of Vang’s extremely damaging testimony against defendant, and
defendant’s testimony that he never made these statements to Vang, defense counsel was
faced with having to explain why Vang would purportedly lie and effectively claim
defendant admitted he shot Jerry Jr. The defense explanation was that Vang was angry
about defendant’s business and personal relationship with Jackson: Jackson helped with



                                              27.
his illicit sales activities, they were in an intimate relationship, and she was pregnant with
defendant’s child. Defense counsel relied on these facts to create the motive for Vang to
lie about defendant’s alleged inculpatory statements.
       Defendant concedes it was advantageous for the jury to hear Vang’s direct
examination testimony about her reaction to learning about defendant’s relationship with
Jackson, and that Vang’s own testimony explained her motive to allegedly lie about him.
However, defendant argues there was no tactical reason to ask defendant to repeat the
story. Defendant argues the exchange undermined his credibility since he admitted that
he lied to Vang and raised the inference he was lying to the jury. Defendant argues
defense counsel’s questions were more appropriate for the district attorney and not his
own attorney.
       To the contrary, the defense could not simply rely on Vang’s prosecution
testimony to explain her motives in this case, particularly since the rest of Vang’s
testimony was so harmful to the defense. Defendant’s testimony about the uncomfortable
moment when Vang learned about Jackson, and his admission that he had played her,
may not have placed him in the best light, but supported the defense theory about why
Vang would essentially accuse defendant of being the gunman in two attempted murders.
Defense counsel may have reasonably concluded the potential benefit from defendant’s
vivid description of Vang’s reaction, and the importance of undermining her prosecution
testimony, outweighed any negative impact from defendant’s admissions about his
personal life.
       Moreover, defendant had already testified he had multiple girlfriends and
described his various Facebook posts on the day of the shooting, when he vented his
anger about another former girlfriend having an affair with his cousin and his own friends
accused him of hypocrisy. Defendant has not cited to his testimony on these points as
examples of defense counsel’s alleged ineffectiveness.



                                             28.
       Defense counsel’s decision to ask defendant about Vang’s reaction was not
ineffective and was an appropriate tactical decision under the circumstances.

       F. Defendant’s Drug Sales
       Defendant’s next claim of ineffective assistance is based on defense counsel’s
questions about his illegal drug and alcohol sales. As explained above, defendant
testified that he sold drugs and liquor, he knew the activities were illegal, Jackson helped
him with his sales activities, and the cell phone contained photographs of his inventory
which he and Jackson used to further the sales.
       After defendant testified about Vang’s anger upon discovering his relationship
with Jackson, the following exchange occurred.

             “Q      Okay. Anthony, we have 12 jurors who are looking at you as
       you speak and you expect them to believe you have to explain to them that
       you were selling Ecstasy, marijuana, and weed?

              “THE COURT:          Counsel, I’m sorry, what is the question?

              “[DEFENSE COUNSEL]: He expects the jurors to believe his
       testimony, knowing he has explained to them that he was a criminal at the
       time.

               “[DEFENDANT]: I didn’t do this. I didn’t do the crime, shooting
       Jerry, Jerry Manning Jr. and Sr. I didn’t do it. So like me selling Ecstasy
       and weed, you know, it’s like it is on a whole other scale to me. This is
       attempted murder. This is killing a friend. This ain’t killing like – I
       wouldn’t kill anybody, period. But this is killing a friend. But I think
       about that. I have a conscience. You know, I’m not no lunatic. I’m not no
       crazy person like the D.A. is trying to make me seem. I’m not no .…”
       The court interrupted defendant and asked the attorneys to approach. The court
held a brief, unreported conference in the hallway. The court resumed testimony in front
of the jury and stated it was going to strike defendant’s answer as unresponsive to the
question. The court directed the reporter to read defense counsel’s last question and
directed defendant to answer yes or no.

              “[DEFENDANT]: Yes.

                                            29.
              “THE COURT:           [Defense counsel], you may elaborate if you
       wish, or clarify your question.

             “[DEFENSE COUNSEL]: You do agree that on November 29th
       around that time, you were committing criminal acts, such as selling
       Ecstasy, correct?

              “A     Yes.

              “Q     And selling marijuana?

              “A     Correct.

              “Q     And selling alcohol without a license?

              “A     Correct.

              “Q     And you agree or you knew at the time that these were illegal
       things, correct?

              “A     Yes.” (Italics added.)

              1. Analysis
       Defendant argues defense counsel was prejudicially ineffective when he asked the
questions italicized above, about his illegal drug and alcohol sales. Defendant argues
these questions were not designed “to influence jurors favorably” toward him since
counsel called him a criminal, enumerated each criminal act he committed when he sold
drugs and liquor, and these questions would have been inadmissible under Evidence
Code section 1101.
       As explained above, the prosecution’s case against defendant was based on the
eyewitness identifications from the victims and their family and Vang’s testimony about
defendant’s inculpatory statements. In addition, the prosecution strongly relied on the
expert testimony about the semiautomatic firearm that was depicted on the cell phone, the
type of cartridges found at the scene, that all the cartridges were fired from the same
weapon, and the cartridges had distinctive characteristics consistent with being fired from
the type of gun shown in the cell phone photograph.



                                              30.
       The weapon used in this case was never found, but the expert testimony on these
points was extremely damaging to the defense and tied the expended cartridges to the
weapon depicted on Jackson’s cell phone. It was even more damaging when the
prosecution introduced evidence of defendant’s postarrest telephone call to Jackson from
the jail, when he told her to get rid of the cell phone. The prosecution raised the obvious
inference that defendant made this statement because he knew the cell phone contained
the photograph of the weapon.
       Given this background, defense counsel’s tactical decision to ask defendant about
his illegal drug and alcohol sales was not unreasonable because it provided the only
explanation about why he told Jackson to get rid of the cell phone after he was arrested –
he was afraid the police would see the pictures of his drug and alcohol inventory and
learn about his sales activities. Defendant further testified he was not the person holding
the gun, and he never saw that photograph on Jackson’s cell phone before he was
arrested.
       Defense counsel was obviously aware that defendant’s explanation also
constituted an admission of criminal activities. Counsel sought to blunt the impact of
defendant’s admissions by asking defendant to explain to the jury that while he may have
sold drugs, he could not have tried to kill someone, particularly in the manner claimed by
the prosecution. Again, defense counsel may have decided the potential benefit provided
by explaining why defendant wanted Jackson to get rid of the cell phone outweighed the
negative impact of hearing about defendant’s drug activities, and that it was far less
serious for the jury to learn about defendant’s drug sales than to believe he was telling his
girlfriend to get rid of evidence about the gun used in the attempted murders. Defense




                                             31.
counsel’s tactical decisions were not unreasonable or ineffective in light of the extremely
strong evidence against defendant.8
       G. Closing Argument
       Defendant’s final claim of ineffective assistance is based on a limited portion of
defense counsel’s closing argument. Before addressing his contentions, however, we
must review certain portions of defense counsel’s closing argument, which preceded the
section relied on by defendant.
       Defense counsel used closing argument to assert the entire case was about the
identification of the gunman, and argued Jerry Jr. influenced all the other witnesses when
he stumbled into the house and either falsely claimed defendant shot him, or later decided
in the hospital that defendant did it. Counsel argued Vang lied when she testified about
defendant’s inculpatory statements because she was angry about defendant’s relationship
with Jackson, and she was frightened about the threats she received for allegedly being
involved in the shooting.
       Defense counsel then turned to defendant’s testimony:

       “Remember, Anthony has a right to not testify, or he can choose to testify.
       I, as his attorney, cannot make that decision for him. I can’t make him
       testify and I can’t make him not testify. That’s his decision. That’s his
       decision. That’s his decision alone. We look at people afterwards. How
       do they react afterwards? How do they act after a certain incident to see if
       they’re guilty? Are they showing signs of guilt? Are they reacting in a
       guilty way? Well, apparently everyone has lost sight of all the things and
       all the effort that Anthony tried to take to clear his name.”
       Defense counsel reviewed defendant’s testimony about his attempt to speak to an
officer at the police department. Counsel argued the police jumped to the conclusion that


       8 In making his appellate argument that defense counsel was prejudicially
ineffective for introducing evidence about his drug sales, defendant concedes he had
every reason to have Jackson destroy the cell phone since it depicted the illegal drugs and
alcohol he was selling.


                                            32.
defendant was the suspect because of the statements from the victims and their family.
Defense counsel argued the officers never obtained Jerry Jr.’s cell phone records to find
out who he was texting just before the shooting. They never tried to determine whether
the shooting had anything to do with the pending case against Jerry Jr., did not
investigate why Jerry Jr. kept changing his story about the gunman’s mask, and failed to
further investigate the suspects who were detained the night of the shooting just because
Lezette did not identify them.
       Defendant’s claim of ineffective assistance is based on the following section of
counsel’s closing argument:

              “Well, [the prosecutor] explains to you that you are not – you can
       consider Anthony Silva’s testimony, but you shouldn’t believe it. Why,
       because he is being charged with a crime? Why, because you should be
       prejudiced by him because he decided to speak? Why? Because, of course
       he would lie, he would lie to save himself. Everybody would lie to save
       themselves. Well, if that is the concept in our system, then we would never
       have the opportunity to defend ourselves. If a coworker tells you, I accused
       you of doing X, Y and Z, and you have no opportunity to defend – because
       of course you would lie about doing that. And your boss says to you, sorry,
       they accused you, so whatever you say, not going to believe it. You have
       every reason to lie.

              “Is it unreasonable what Anthony says? Anthony gave you a lot of
       information. I’m sure a lot of information that he didn’t want to give you.
       I was frustrated with Anthony yesterday. I was frustrated because this
       young man is trying to explain to you what happened, but he was not
       following the confines of the question and answer, the very dry system that
       we have. And that is my fault. I apologize for that. And I fell into that too.
       I didn’t even allow him to tell his story. And I sabotaged his own
       testimony.

              “But what Anthony tells you is, yes, he said get rid of the phone,
       yes, he said there are photos on the phone. He never says in the [jail] call
       what the photos are. In the [jail] call, you can hear the operator say, ‘This
       call will be recorded.’ He had to have heard that. But he didn’t care,
       because he wasn’t saying, get rid of something which deals with this case.
       Remember where he came from. He came from an investigator, an
       interrogation room where he thought he was giving a statement, but in fact


                                            33.
       they were looking for a confession. … He could not believe he gets
       arrested December 10th. He does not skip town. He does not change his
       appearance. He is here. He is not hiding. He didn’t resist. He didn’t have
       a weapon. They didn’t find anything that they could use. He was
       cooperating at all times with the officers….” (Italics added.)
Defense counsel argued defendant told Jackson to get rid of the cell phone because he
knew it had photographs of the illegal liquor and narcotics he was selling.
       Defense counsel conceded defendant had his own problems, and admitted he
cheated on his girlfriends and he sold drugs. These were “reasons to not like him, but
that does not necessarily mean his story is incorrect.”
              1. Analysis
       Defendant cites to the italicized portion of defense counsel’s closing argument,
quoted above, and contends counsel was ineffective for telling the jury that he had
“sabotaged” defendant’s case. Defendant concedes counsel might have tried to “undo the
harm he [had] already done to his client’s case.” However, defendant asserts counsel’s
closing argument amounted to an argument against defendant, and invited the jury to find
defendant was not credible.
       As we have already explained, defense counsel was faced with the daunting task
of addressing the eyewitness identifications of a gunman who shot the two victims at
point blank range, confronted the witnesses face to face, and was someone well known to
them; Vang’s testimony about his inculpatory admissions; the distinctive gun depicted on
the cell phone, which was consistent with firing the expended cartridges; and defendant’s
postarrest directive for Jackson to get rid of the cell phone. In order to do so, defense
counsel was faced with introducing evidence which did not place defendant in the best
light, but which explained the prosecution’s evidence: Vang lied about him because she
was angry that defendant played her, and Jackson was pregnant with his child; Jackson
needed to get rid of the cell phone because it had photographs of defendant’s drug




                                             34.
inventory; and defendant may have sold drugs, but that was different from trying to kill
two people in the manner described by the prosecution’s evidence.
       Defense counsel also had to deal with defendant’s repeated failures to answer
questions that were being asked and his frustration when defendant repeatedly ignored his
admonitions to answer yes or no instead of giving rambling responses. Counsel was
obviously trying to prevent defendant from going beyond the scope of the question and
giving a response that was inconsistent or undermined the defense theory.
       In light of the entirety of the record, defense counsel’s closing argument sought to
explain to the jury his momentary frustration with defendant’s rambling answers and why
he interrupted his responses. More importantly, defense counsel asked the jury to
consider the reasons for Vang’s lies and defendant’s admonition to get rid of the cell
phone, and realize that his story was consistent with the evidence. Whether a tactic
works or backfires is not the question, and a failed trial tactic is not necessarily an
irrational one. Defense counsel’s tactical decisions were reasonable under the
circumstances and were not ineffective.
       H. Prejudice
       While we have concluded that defense counsel’s tactical decisions were not
ineffective, we will address defendant’s final contention that counsel’s decisions were
prejudicial and a more favorable result would have occurred in the absence of counsel’s
strategic mistakes and “sabotaging of his defense.”
       Defendant argues counsel’s trial strategy was prejudicial because the actual
evidence which connected defendant to the shootings was “a tenuous chain that began
and ended with Jerry Jr.’s belief [defendant] had tried to kill him,” Jerry Jr.’s family
identified defendant because they “fed off” his initial false claim that defendant was the
gunman, and Jerry Jr. was predisposed to believe he was the gunman because of their
prior disagreements “regardless of the truth.” Defendant also contends Vang’s testimony



                                              35.
was suspect because of her anger about his affair with Jackson and the threats she
received after the shooting.
       Defendant further argues the cell phone photograph of the gun did not connect him
to the shootings because the gunman was not identified, the picture was unreliable, and
the DNA evidence was also inconclusive.
       As we have explained, defense counsel had to address the eyewitness
identifications, Vang’s testimony, the cell phone photograph of the distinctive gun, and
the physical evidence which connected the expended cartridges to that type of weapon.
The witnesses testified the gunman was not a stranger. They had long been acquainted
with him, and were familiar with his body structure, mannerisms, and voice. The
witnesses testified Jerry Jr. immediately said defendant was the gunman as he stumbled
into the house after being shot. Jerry Sr. testified he recognized defendant’s voice when
he went into the kitchen and confronted Jerry Jr. Jebril and Jerkobe also testified they
recognized defendant from their prior contacts.
       Vang’s testimony was extremely damaging. She knew about the confrontation
between defendant and Jerry Jr. and described his inculpatory actions and statements in
the hours immediately after the shooting. The cell phone photograph of the distinctive
semiautomatic gun was also damaging to the defense, particularly since the expended
cartridges were consistent with being fired from that type of weapon.
       Defense counsel’s tactical decisions were not ineffective or prejudicial, and it is
not reasonably probable that the result of the proceeding would have been different if
counsel had not made these strategic decisions.
II.    Prosecutorial Misconduct – Alleged Accusation of Fabricating the Defense
       Defendant contends the prosecutor committed prejudicial misconduct in rebuttal
argument because he allegedly accused defendant and his attorney of fabricating the
defense. Defendant objected to this section of rebuttal argument, and the court overruled



                                            36.
the objection. Defendant argues the court erroneously overruled his objections, and the
rebuttal argument was prejudicial and requires reversal.
       As we will explain, the prosecutor’s argument raised an inference based on the
admissible evidence in this case, and did not constitute misconduct.
       A. Prosecutorial Misconduct
       We again turn to the well settled law in this area. “A prosecutor’s misconduct
violates the Fourteenth Amendment to the United States Constitution when it ‘infects the
trial with such unfairness as to make the conviction a denial of due process.’ [Citations.]
In other words, the misconduct must be ‘of sufficient significance to result in the denial
of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that does
not render a trial fundamentally unfair nevertheless violates California law if it involves
‘the use of deceptive or reprehensible methods to attempt to persuade either the court or
the jury.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202.)
       “ ‘It is settled that a prosecutor is given wide latitude during argument. The
argument may be vigorous as long as it amounts to fair comment on the evidence, which
can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]’ ”
(People v. Wharton (1991) 53 Cal.3d 522, 567–568; People v. Stanley (2006) 39 Cal.4th
913, 951–952.)
       “To preserve for appeal a claim of prosecutorial misconduct, the defense must
make a timely objection at trial and request an admonition; otherwise, the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 447; People v. Silva
(2001) 25 Cal.4th 345, 373.)
       B. Rebuttal Argument
       Defendant contends the prosecutor committed misconduct in the following
italicized portion of his rebuttal argument. The prosecutor argued:



                                            37.
               “Consider this, of all the witnesses that testified, including the
       defendant, who had the opportunity – and let me refer just to civilians. The
       Mannings and Ms. Vang. Who had an opportunity to review the police
       reports? Who had the opportunity to take in the preliminary hearing
       transcript? Who was present in the audience when all the witnesses were
       testifying? Who had the opportunity to fine-tune his or her testimony based
       on what everyone said in the past, said here in court? One person. The
       defendant. Ms. Vang, Jerry Manning, Sr., Jerry Manning, Jr., Lezette,
       Jebril, Jerkobe –” (Italics added.)
       Defense counsel objected and asserted the argument violated defendant’s Sixth
Amendment rights. The court overruled the objection.
       C. Accusations of Fabricating the Defense
       Defendant contends the prosecutor committed misconduct because he improperly
suggested defendant fabricated his defense and trial testimony. Defendant argues the
prosecutor cast “ ‘uncalled for aspersions’ ” on defense counsel, and he implicated
defense counsel in defendant’s alleged dishonesty “because [defendant’s] defense could
only reach the jury through defense counsel’s work.”
       Defendant’s misconduct argument implicates the extent to which the prosecutor
may comment on both the defense attorney’s trial conduct, and the credibility of a
defendant’s trial testimony. We begin with a series of cases which address the
permissible extent of prosecutorial comments on defense counsel.
       “A prosecutor commits misconduct if he or she attacks the integrity of defense
counsel, or casts aspersions on defense counsel. [Citations.]” (People v. Hill (1998) 17
Cal.4th 800, 832.) “[I]t [is] improper for the prosecutor to imply that defense counsel has
fabricated evidence or otherwise to portray defense counsel as the villain in the case. It is
not necessary to find that such implication impinges upon defendant’s constitutional right
to counsel. [Citation.] Instead it is sufficient to note that defendant’s conviction should
rest on the evidence, not on derelictions of his counsel. [Citations.] Casting uncalled for
aspersions on defense counsel directs attention to largely irrelevant matters and does not




                                             38.
constitute comment on the evidence or argument as to inferences to be drawn therefrom.’
[Citation.]” (People v. Sandoval (1992) 4 Cal.4th 155, 183–184.)
       “In addressing a claim of prosecutorial misconduct that is based on the denigration
of opposing counsel, we view the prosecutor’s comments in relation to the remarks of
defense counsel, and inquire whether the former constitutes a fair response to the latter.
[Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 978, overruled on another point in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
       There are numerous cases that have rejected misconduct claims based upon
closing arguments far more inflammatory than anything said in this case. For example, in
People v. Cummings (1993) 4 Cal.4th 1233 (Cummings), the court found the prosecutor
did not commit misconduct when he argued that “ ‘a skillful lawyer, a lawyer that is
persuasive as [defense counsel] is, could maybe get [a witness] to say almost
anything ….’ ” (Id. at p. 1303.) Cummings held such an argument was a comment on
that witness’s confusion and difficulty in understanding and responding to questions,
rather than an assertion that defense counsel sought to elicit perjured testimony from the
witness. (Ibid.; see also People v. Marquez (1992) 1 Cal.4th 553, 575–576 [prosecutor’s
reference to defense as “smokescreen” not misconduct]; People v. Young (2005) 34
Cal.4th 1149, 1193 [prosecutor’s characterization of defense counsel’s argument as
“ ‘idiocy’ ” was fair comment on counsel’s argument]; People v. Zambrano (2007) 41
Cal.4th 1082, 1154 (overruled on another point in People v. Doolin, supra, 45 Cal.4th at
p. 421, fn. 22) [prosecutor did not commit misconduct and “simply used pungent
language” when he described defense counsel’s closing argument “as a ‘lawyer’s
game’ ”]; People v. Stitely (2005) 35 Cal.4th 514, 559–560 [prosecutor did not commit
misconduct by arguing jurors should avoid “ ‘fall[ing] for’ ” defense counsel’s
“ ‘ridiculous’ ” and “ ‘outrageous’ ” attempt to allow defendant to “ ‘walk’ free” by
claiming he was guilty only of second degree murder]; People v. Gionis (1995) 9 Cal.4th
1196, 1215–1216 ... [prosecutor did not commit misconduct by arguing defense counsel

                                            39.
was talking out of both sides of his mouth and that this was “ ‘great lawyering’ ”]; People
v. Bell (1989) 49 Cal.3d 502, 538 [not misconduct when prosecutor argued defense
counsel’s job was to “ ‘confuse []’ ” and “ ‘throw sand in your eyes,’ ” and that counsel
“ ‘does a good job of it’ ”].)
       In addition to fair commentary about defense counsel’s handling of the case, “[t]he
prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled
to credence, to comment on failure to produce logical evidence, to argue on the basis of
inference from the evidence that a defense is fabricated, and to comment on the evidence
of prior convictions attributable to defense witnesses. [Citations.]” (People v. Pinholster
(1992) 1 Cal.4th 865, 948 (Pinholster), overruled on other grounds in People v. Williams
(2010) 49 Cal.4th 405, 459.) In Pinholster, the prosecutor did not commit misconduct
when he referred to a defense witness as a “ ‘weasel,’ ” called another defense witness a
“perjurer,” accused yet another witness of failing to follow the defense “ ‘script,’ ” and
said defendant had been “caught in some lies, some ‘doozies ….’ ” (Pinholster, supra, at
p. 948.) In People v. Boyette (2002) 29 Cal.4th 381, the court held the prosecutor did not
commit misconduct by repeatedly calling defendant “a liar.” (Id. at p. 433.) The court
held it was permissible argument since there was conflicting evidence about certain
issues which the prosecutor argued defendant lied about, and “the prosecutor was thus
permitted to argue that defendant was less than truthful.” (Ibid.)
       In People v. Edelbacher (1989) 47 Cal.3d 983, the court held the prosecutor did
not commit misconduct by describing defendant as, among other things, “a ‘pathological
liar,’ and ‘one of the greatest liars in the history of Fresno County.’ ” (Id. at p. 1030.)
“Referring to the testimony and out-of-court statements of a defendant as ‘lies’ is an
acceptable practice so long as the prosecutor argues inferences based on evidence rather
than the prosecutor’s personal belief resulting from personal experience or from evidence
outside the record. [Citations.] Argument may be vigorous and may include opprobrious
epithets reasonably warranted by the evidence. [Citations.] The prosecutor’s comments

                                              40.
were based on the evidence and amounted to no more than vigorous but fair argument.”
(Ibid.)
                 1. Analysis
          As illustrated by the cases discussed ante, the prosecutor’s rebuttal argument in
this case did not constitute misconduct, and he did not improperly demean or denigrate
the integrity of defense counsel, the defense strategy, or the defendant. Both the
prosecutor and defense counsel agreed the disputed issue was the gunman’s identity. The
prosecutor argued the eyewitness identifications, Vang’s testimony, and the evidence
about the gun proved defendant was the gunman. Defense counsel argued the police
failed to follow other leads in the case, Jerry Jr.’s statement influenced the police to
decide defendant was the gunman, and disputed the testimony from the victims and Vang
based on defendant’s trial testimony about their own motives.
          Defendant argues there was no evidentiary support for the prosecutor’s argument.
To the contrary, the prosecutor’s rebuttal was based on inferences arising from
defendant’s own testimony and a fair comment on the evidence. During defendant’s
direct examination, defendant testified he had never seen the cell phone photograph of the
gun before he was arrested. As background for that question, defense counsel asked him
to look at the exhibits which were photographs from Jackson’s cell phone, and whether
he had been “able to review police reports and photographs provided by the District
Attorney.” Defendant said yes. Counsel asked how he was able to do so. Defendant
replied, “You came to see me and went over them with me.” When defendant was asked
whether he remembered his prior statement to Detective Castillo, he testified he reviewed
the transcript of his postarrest statement. On cross-examination, defendant further
testified he reviewed the transcript of his call to Jackson from the jail, the police reports
about all the statements from the witnesses, the victims’ testimony at the preliminary
hearing, and heard the testimony of all the witnesses at trial.



                                               41.
       In this case, “[t]he prosecutor’s comments on [the] defensive tactics were
supported by evidence in the record, some of it provided by [defendant] himself.
[Citation.] Comments concerning [his] bias and motive for lying were not improper.”
(People v. Jenkins (1974) 40 Cal.App.3d 1054, 1057.)
       Having found the prosecutor did not commit misconduct, and that his argument
was supported by evidentiary inferences, we further reject defendant’s claim that the
rebuttal argument violated his constitutional rights to present a defense, testify on his own
behalf, and to be present at all critical stages of trial. The prosecutor did not accuse
defendant and his defense counsel of conspiring to fabricate a defense or falsify evidence.
Instead, the prosecutor argued defendant’s testimony was not credible, he was lying about
his actions that night, and he had the opportunity to mold his testimony to fit the evidence
he had already heard.
III.   Prosecutorial Misconduct – Alleged Misstatement of the Burden of Proof
       Defendant raises another claim of prosecutorial misconduct during rebuttal
argument, and asserts the prosecutor “incorrectly stated the role of circumstantial
evidence in proving the elements of an offense, shifted the burden of proof to the defense,
and lessened his own burden of proof.” In making this argument, defendant raises the
curious claim that the prosecutor was legally obliged to prove the elements of the charged
offenses “by substantial evidence.” Defendant contends the court erroneously overruled
his objections to the prosecutor’s allegedly prejudicial misconduct.
       In order to evaluate these contentions, we will review relevant portions of the
parties’ closing arguments and then turn to defendant’s assignments of error in the
rebuttal argument.
       A. Prosecutorial Misconduct and the Burden of Proof
       It is well settled that while a prosecutor has broad discretion to discuss the legal
and factual merits of the case, it is improper to misstate the law, and “it is misconduct for
counsel to attempt to absolve the prosecution from its prima facie obligation to overcome

                                             42.
reasonable doubt on all elements. [Citation.]” (People v. Katzenberger (2009) 178
Cal.App.4th 1260, 1266.) A prosecutor must refrain from misstating the law or
impermissibly seeking to shift the burden of proof to a criminal defendant. (People v.
Bradford (1997) 15 Cal.4th 1229, 1339.)
       “Comments on the state of the evidence or on the defense’s failure to call logical
witnesses, introduce material evidence, or rebut the People’s case are generally
permissible. [Citation.] However, a prosecutor may not suggest that ‘a defendant has a
duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’
[Citations.]” (People v. Woods (2006) 146 Cal.App.4th 106, 112.) “A distinction clearly
exists between the permissible comment that a defendant has not produced any evidence,
and on the other hand an improper statement that a defendant has a duty or burden to
produce evidence, or a duty or burden to prove his or her innocence.” (People v.
Bradford, supra, 15 Cal.4th at p. 1340.)
       B. The Prosecutor’s Closing Argument
       The prosecutor discussed elements of the charged offenses and argued “there’s
only one real question you need to answer in this case: Who did it? … So it is important
that you understand these elements, because it is the law. But really the focus of these
elements is the person who did it. [¶] But at any rate, the People must prove each of
these elements beyond a reasonable doubt.” “[T]hese are the elements, this is what must
be proven. What you must decide is was it the defendant. That is the only question.”
       The prosecutor advised the jury that it had to consider all the evidence, which
shows that “[s]omeone is lying, someone is telling the truth. Your role, not the judge’s,
not mine, not the defense attorney, your role is to decide what the truth is. That is your
role. And I submit to you that the truth, combined with a lie, does not equal reasonable
doubt.… You can consider the lie, but that does not mean that you must accept the lie.
When the full weight of the evidence points in one direction, but you are told to consider
something else, that does not mean that you must accept it. That is your role.”

                                            43.
       The prosecutor argued the jury could find defendant guilty based on Vang’s
testimony about what defendant said on the night of the shooting, his postarrest call to
Jackson to get rid of the cell phone, the photograph of the gun on the cell phone, and the
expert’s comparison of the expended shells found at the victims’ house with the type of
gun depicted in that photograph.
       C. Defense Counsel’s Closing Argument
       Defense counsel agreed the case was about “identification,” and addressed the
People’s burden of proof:

       “[The case] is about whether or not you have been presented enough
       information to decide whether or not [defendant] is the individual that
       committed this crime. Now, you can look at it from the perspective of,
       well, which party presented that to me in the best light. That would be
       incorrect, however. To place the burden on [defendant] and I’d have to
       explain to you that he was not the individual involved is not accurate. It is
       not part of the law. The burden rests solely on the People to prove beyond
       a reasonable doubt that [defendant] is the individual that committed this
       crime.” (Italics added.)
       Defense counsel asserted the police should have followed different leads and
conducted a more thorough investigation about the gunman’s identity instead of relying
on Jerry Jr.’s statements.

       “And remember, I do not have to prove any of these theories. I don’t have
       to say, this is the suggestion, and you look and say, well, I don’t believe
       what [defense counsel] says so now I have to convict. These are just
       suggestions. Remember, as the judge explained to you, I don’t have to do
       anything. I’m not going to do that. As you say, I was clearly going to
       question people. I was clearly going to question the evidence.” (Italics
       added.)
       Defense counsel argued Vang lied to the police about everything, including the
nature of her relationship with defendant, the incident at the mall, whether she learned
about the shooting on Facebook, what defendant said and did that night, and whether
defendant asked her for an alibi. Counsel again returned to the argument that the police
failed to investigate other leads in the case.

                                                 44.
               “Which leads, you might say. Remember, the burden is not on me.
       But I want to suggest as much as I can for you, so you can get a better
       picture. I’m not a detective. I’m not a police officer. It is not my job to
       investigate this crime. It is my job to advocate Anthony’s position.”
       (Italics added.)
       Defense counsel argued the officers never obtained Jerry Jr.’s cell phone records
to find out who he was texting just before the shooting; they never tried to determine
whether the shooting had anything to do with the pending case against Jerry Jr.; they did
not investigate why Jerry Jr. kept changing his story about the gunman’s mask; they
failed to further investigate the suspects who were detained the night of the shooting
simply because Lezette did not identify them; and they failed to follow up on the mixture
of DNA found on Jerry Jr.’s wallet.
       Defense counsel concluded:

       “[The prosecutor] has to prove every single fact. It is the District Attorney
       that has to disprove everything that I’m telling you. I don’t have to prove
       that Anthony was Facebooking. He has to disprove that he wasn’t. I don’t
       have to prove that he didn’t commit this crime. The People have to prove
       that he did.” (Italics added.)

       D. The Prosecutor’s Rebuttal
       Defendant’s claims of misconduct are based on the following italicized sections of
the prosecutor’s rebuttal argument.
       The prosecutor acknowledged defense counsel’s suggestion that the police failed
to fully investigate the case, and argued that it was not unusual to have minor
inconsistencies when witnesses describe a traumatic event such as the attempted murders
in this case.
       The prosecutor continued:

              “It is important to recall what I do not have to prove beyond a
       reasonable doubt. Because there was some suggestion by the Defense what
       I have to prove. What I have to prove is exactly what the judge told you I
       have to prove: The elements of Counts One through Four and the



                                            45.
       enhancements. Those slides that I showed, the law that you have, that is it.
       That is it.” (Italics added.)
       Defense counsel objected. The court overruled the objection. The prosecutor
continued:

              “I do not have to prove beyond a reasonable doubt whether the
       defendant did or did not go to the Fresno Police Department. Maybe he
       did. Maybe a clerk absolutely screwed up and told someone that wanted to
       turn themselves in for a shooting or answer questions about a shooting and
       shooed them out the door. I don’t have to prove whether that did nor did
       not happen. That is not the elements. That is not the law. I do not have to
       prove beyond a reasonable doubt whether the defendant did or did not have
       a mask or whether he did take it on and off in the timeline. I don’t have to
       prove that beyond a reasonable doubt. What I have to prove beyond a
       reasonable doubt is strictly the elements.” (Italics added.)
       Defense counsel again objected. The court asked the parties to approach and it
conducted an unreported conference with the attorneys. After the conference, the
prosecutor resumed.

       “I do not have to prove beyond a reasonable doubt whether the defendant
       did or did not date Gabby. I mean, these are all questions that maybe …
       can’t be answered, that you may have opinions on. That is fine. But the
       obligations of the People should be very clear, what I have to prove beyond
       a reasonable doubt. And I don’t have to prove beyond a reasonable doubt
       that the victim’s or the defendant’s DNA was on the wallet. Only the
       elements of the crimes charged.” (Italics added.)
       The prosecutor concluded with a legally correct discussion of reasonable doubt
based on the jury instruction.
       E. Burden of Proof
       Defendant cites the italicized sections of the prosecutor’s rebuttal argument, as
quoted above, and argues the prosecutor committed misconduct by shifting the burden of
proof on issues for which the defense tried to create a reasonable doubt, and misleading
the jury to believe defendant had the burden of proving his innocence.
       However, the prosecutor’s rebuttal argument was legally correct when he stated
the People had the burden of proving “[t]he elements of Counts One through Four and the


                                            46.
enhancements.” The court properly overruled defendant’s objections to this argument.
In addition, the prosecutor did not shift the burden of proof when he argued that he did
not have to prove issues such as whether Vang was on Facebook on the night of the
shooting, that defendant tried to talk to someone at the police department, or if the
gunman was wearing a mask. While the People had the burden of proving each element
of the offense beyond a reasonable doubt, the prosecutor did not say that the People did
not have to prove the gunman’s identity. Instead, the prosecutor used rebuttal argument
to respond to defense counsel’s assertions about peripheral issues in the case which
addressed the credibility of some of the witnesses and not the elements of the offenses.
       F. The People’s Burden at Trial
       Defendant further asserts the prosecutor misled the jury by allegedly arguing “his
only duty was to prove ‘the elements’ of the offense beyond a reasonable doubt,” and he
improperly “disavowed his duty to prove those elements by ‘substantial evidence.’ ”
(Italics added.) Defendant claims:

       “But [the prosecutor] was incorrect. It is hornbook law that to sustain a
       conviction, there must be substantial evidence on each of the essential
       elements of the crime…. [The prosecutor’s] claim that he had only to
       prove the elements of the charged offense was not accurate. He had to
       prove those elements by substantial evidence.” (Italics added.)
       In response to defendant’s appellate arguments on this point, the People have
replied that defendant confused the distinction between the People’s burden to convict a
defendant at trial, and the proof necessary to affirm a conviction on appeal. In his reply
brief, defendant again declared the prosecutor’s rebuttal argument was misleading
because there is “no dual standard under the due process clause for criminal convictions.
Proof beyond a reasonable doubt means substantial evidence exists on each of the
essential elements of the crime. This standard applies in the trial court, and it applies in
the court of appeal.”




                                             47.
       We are compelled to address defendant’s erroneous description of reasonable
doubt and substantial evidence. “The Fourteenth Amendment of the United States
Constitution provides that the state shall not deprive a person of his liberty without due
process of law. In the context of a criminal trial, due process requires proof beyond a
reasonable doubt. A trial court, therefore, must instruct the jury that, before reaching a
guilty verdict on the criminal charge, the prosecution must prove every required element
beyond a reasonable doubt.” (People v. Beeson (2002) 99 Cal.App.4th 1393, 1401, fns.
omitted; In re Winship (1970) 397 U.S. 358, 364; Arizona v. Fulminante (1991) 499 U.S.
279, 291.)
       It is the prosecution’s burden in a criminal trial to prove every element of the
crime, including the identity of the perpetrator, beyond a reasonable doubt. (People v.
Cuevas (1995) 12 Cal.4th 252, 260; People v. Berryman (1993) 6 Cal.4th 1048, 1083,
overruled on another ground in People v. Hill, supra, 17 Cal.4th 800, 823, fn. 1.)
“California law imposes a duty on the trial court to instruct the jury in a criminal case on
the presumption of innocence in favor of the defendant and the prosecution’s burden of
proving guilt beyond reasonable doubt.” (People v. Aranda (2012) 55 Cal.4th 342, 352.)
CALCRIM No. 220, which we will quote post, correctly instructs the jury about the
People’s burden of proving the elements of the offense beyond a reasonable doubt, and
the definition of reasonable doubt. (Ibid.)
       In contrast, the substantial evidence standard of review applies “when an appellate
court is reviewing on appeal the sufficiency of the evidence to support a conviction .…”
(People v. Cuevas, supra, 12 Cal.4th at p. 261.)

              “In assessing a claim of insufficiency of evidence, the reviewing
       court’s task is to review the whole record in the light most favorable to the
       judgment to determine whether it discloses substantial evidence – that is,
       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.] The federal standard of review is to the same effect:
       Under principles of federal due process, review for sufficiency of evidence


                                              48.
       entails not the determination whether the reviewing court itself believes the
       evidence at trial establishes guilt beyond a reasonable doubt, but, instead,
       whether, after viewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential
       elements of the crime beyond a reasonable doubt. [Citation.] The standard
       of review is the same in cases in which the prosecution relies mainly on
       circumstantial evidence. [Citation.]” (People v. Rodriguez (1999) 20
       Cal.4th 1, 11, italics added.)
       “ ‘Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court[,] which must be
convinced of the defendant’s guilt beyond a reasonable doubt. “ ‘If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.’ ” [Citations.]’ [Citation.]” (People v. Stanley
(1995) 10 Cal.4th 764, 792–793, italics added.)
       Contrary to defendant’s appellate contentions, the prosecutor did not misstate the
People’s burden of proof. Indeed, the prosecutor would have committed error if he made
the type of argument suggested by defendant: that the People were only required to
prove the elements of the charged offenses by “substantial evidence.”
       G. Direct and Circumstantial Evidence
       Finally, defendant argues the prosecutor committed misconduct because his
rebuttal argument misled the jury about its consideration of circumstantial evidence to
convict him. Defendant argues that since substantial evidence may be either direct or
circumstantial, and the witnesses other than Jerry Jr. only offered circumstantial evidence
of the gunman’s identity, the prosecutor “could not convict [defendant] unless he proved
both direct and circumstantial evidence beyond a reasonable doubt. His statement that he
had only to prove the elements of the offense was wrong and misleading.”
       We have already explained that defendant’s argument is based on the false
premise that the People’s burden of proof was based on the “substantial evidence”

                                              49.
standard. Defendant has not challenged the instructions given in this case, which are
contrary to his version of the People’s burden of proof. The prosecutor’s rebuttal
argument was consistent with these legally correct instructions. For example, the jury
was instructed pursuant to CALCRIM No. 223 that “[f]acts may be proved by direct or
circumstantial evidence or by a combination of both.”

      “Both direct and circumstantial evidence are acceptable types of evidence
      to prove or disprove the elements of a charge, including intent and mental
      state and acts necessary to a conviction, and neither is necessarily more
      reliable than the other. Neither is entitled to any greater weight than the
      other. You must decide whether a fact in issue has been proved based on
      all the evidence.” (CALCRIM No. 223, italics added.)
      The jury received CALCRIM No. 224, that before it could rely on circumstantial
evidence “to conclude that a fact necessary to find the defendant guilty has been proved,
you must be convinced that the People have proved each fact essential to that conclusion
beyond a reasonable doubt.” (Italics added.)
      As to the elements of the charged offenses, the jury was instructed that to prove
defendant guilty of attempted murder, robbery, and discharge of a firearm, the People
must prove defendant committed the delineated statutory elements, which included the
elements that defendant was the person who committed the crimes. (CALCRIM Nos.
600, 965, 1600.)
      Finally, the jury was instructed with CALCRIM No. 220 on the burden of proof:

              “The fact that a criminal charge has been filed against the defendant
      is not evidence that the charge is true. You must not be biased against the
      defendant just because he has been arrested, charged with a crime, or
      brought to trial.

            “A defendant in a criminal case is presumed to be innocent. This
      presumption requires that the People prove a defendant guilty beyond a
      reasonable doubt. Whenever I tell you the People must prove something, I
      mean they must prove it beyond a reasonable doubt.

             “Proof beyond a reasonable doubt is proof that leaves you with an
      abiding conviction that the charge is true. The evidence need not eliminate

                                           50.
          all possible doubt because everything in life is open to some possible or
          imaginary doubt.

                 “In deciding whether the People have proved their case beyond a
          reasonable doubt, you must impartially compare and consider all the
          evidence that was received throughout the entire trial. Unless the evidence
          proves the defendant guilty beyond a reasonable doubt, he is entitled to an
          acquittal and you must find him not guilty.”
          These instructions correctly state the relevant legal principles, defendant has not
challenged the instructions, and the prosecutor’s rebuttal argument did not run afoul of
these instructions.
IV.       Substantial Evidence of Attempted Murder
          Defendant contends his convictions must be reversed because the evidence did not
prove he was the gunman “beyond a reasonable doubt.”
          Given the nature of defendant’s arguments, we again state the applicable standard
of review on appeal. “In assessing the sufficiency of the evidence, we review the entire
record in the light most favorable to the judgment to determine whether it discloses
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. [Citations.] Reversal on this
ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin
(1998) 18 Cal.4th 297, 331.)
          “The federal standard of review is to the same effect: Under principles of federal
due process, review for sufficiency of evidence entails not the determination whether the
reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable
doubt, but, instead, whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. [Citation.]” (People v. Rodriguez, supra, 20 Cal.4th at
p. 11.)



                                               51.
       “The standard of appellate review is the same in cases in which the People rely
primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also be reasonably
reconciled with a contrary finding does not warrant a reversal of the judgment.” ’
[Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the
crime and to prove [her] guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean
(1988) 46 Cal.3d 919, 932–933; People v. Stanley, supra, 10 Cal.4th at pp. 792–793.)
       The evidence against defendant was overwhelming. Defendant was not a stranger
to the victims and witnesses in this case. He was a long-time friend of Jerry Jr., his
parents, and brothers. He often visited the Manning house. When Jerry Jr. was shot and
stumbled to the front door, he immediately told his parents and his brother that defendant
shot him. Jerry Jr. said the gunman was not wearing a mask. Jerry Sr. said the gunman
was wearing a mask, which was not inconsistent with Jerry Jr.’s statement since
defendant had time to pull the mask over his face. After Jerry Sr. was repeatedly shot,
the gunman went into the house, found Jerry Jr. in the kitchen, placed the gun at his head,
and said that he was going to kill him. Jerry Sr. testified he heard the threat and
recognized defendant’s voice. As Jerkobe walked home from the bus stop, he recognized
defendant running away from his house with another man. Jerkobe told the police that
defendant said he had just shot someone, and he was putting a black and white mask in
his pocket as he ran away. When the police arrived at the house, Jerry Sr. was unable to
respond to questions, but Jerry Jr. said defendant shot him. Lezette told the officers that
after Jerry Jr. was shot, he told her that “ ‘Ant did this,’ ” and she believed he meant
defendant. Jebril also described what had happened. While the victims may have

                                             52.
hesitated about cooperating with the investigation, they later gave full statements about
the shooting which were consistent with the details already given by Lezette and Jebril
immediately after the shooting.
       Moreover, this case did not rest on the testimony of the Manning family. As noted
above, Gabrielle Vang’s testimony was extremely damaging to the defense because she
described defendant’s inculpatory statements and actions in the hours after the shooting.
In addition, defendant’s jailhouse call to Jackson was recorded, and revealed his order to
get rid of the cell phone. The police obtained a search warrant for the cell phone and
discovered the photograph of the weapon, which matched the expended cartridges found
at the scene.
       Defendant asserts the “sheer number of witnesses” who identified him as the
gunman was not “proof beyond a reasonable doubt,” and “[e]veryone’s belief” that he
was the gunman derived from the incorrect assumption that Jerry Jr. was telling the truth
when he said defendant shot him. Defendant argues the Manning family’s claims that he
was the gunman were based on their unreliable assumption that Jerry Jr. was telling the
truth. Defendant declares the victims “wanted” him convicted, and they “came up with
details long after the event to bolster” the chances of getting a conviction. Defendant
further argues Vang had a motive to lie against defendant, and the cell phone photograph
of the gun was inconclusive.
       Defendant raised these issues before the jury. As we explained in issue I, ante,
defense counsel was faced with a difficult task in light of the overwhelming prosecution
evidence, but endeavored to show how the victims delayed reporting the details about the
shooting, tried to impeach Vang’s credibility because of her apparent anger at defendant,
and also tried to explain defendant’s order for Jackson to get rid of the cell phone. These
were issues placed before the jury, the jury obviously rejected the attacks on the
credibility of the victims, witnesses, and Vang, and defendant’s convictions are supported
by substantial evidence.

                                            53.
V.     Correction of Abstract
       The parties agree the abstract of judgment incorrectly states defendant was
convicted in counts I and II of “attempt 2nd deg murder.” A conviction for attempted
murder is not divided into degrees. (People v. Favor (2012) 54 Cal.4th 868, 876.) The
abstract of judgment must be corrected to state defendant was convicted in counts I and II
of attempted murder, and not attempted second degree murder.
                                       DISPOSITION
       The superior court is directed to correct the abstract of judgment to state defendant
was convicted in counts I and II of attempted murder and not attempted second degree
murder. The superior court is further directed to transmit certified copies of the amended
abstract to all appropriate parties and entities. In all other respects, the judgment is
affirmed.

                                                                   _____________________
                                                                   Poochigian, Acting P.J.

WE CONCUR:


______________________
Franson, J.


______________________
Peña, J.




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