P. v Miranda

Filed 3/2/17 P. v. Miranda CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTIAN J. MIRANDA et al.,
Defendants and Appellants.
B266817
(Los Angeles County
Super. Ct. No. KA107796)
APPEALS from a judgment of the Superior Court of
Los Angeles County, George Genesta, Judge. Affirmed.
Lynette Gladd Moore, under appointment by the Court of
Appeal, for Defendant and Appellant Christian J. Miranda.
Paul Richard Kleven, under appointment by the Court of
Appeal, for Defendant and Appellant Derek J. Sommer.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant

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Attorney General, Zee Rodriguez and Michael J. Wise, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant Christian Miranda walked up to a man standing
outside a Pomona restaurant and punched him in the face. When
the man’s three friends rushed to his aid, codefendant Derek
Sommer drew a gun and shot the man, two of his friends, and
Miranda; he also took aim at the third friend but did not fire at
him. A jury convicted Sommer of five counts of attempted
murder, five counts of assault with a firearm, and one count of
felon in possession; a separate jury convicted Miranda of one
count each of attempted murder and assault with a firearm.
Miranda and Sommer both challenge their convictions.
Miranda contends the evidence was insufficient to support the
jury’s conclusions that he was culpable in the attempted murder
of the punched victim and that the attempted murder of that man
was willful, deliberate, and premeditated. Sommer likewise
contends that the evidence did not support the jury’s findings
that the attempted murders were willful, deliberate, and
premeditated. He also argues there was no evidence he intended
to kill or took a direct step toward killing the one victim who was
not shot, that the “kill zone” instruction was not supported by
substantial evidence, and that his counsel rendered ineffective
assistance during closing argument.
We reject these contentions and affirm the judgment of the
trial court in full.
PROCEDURAL HISTORY
An amended information charged Miranda and Sommer
each with four counts of attempted murder (Pen. Code, §§ 187,

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subd. (a) & 664)1 and four counts of assault with a firearm (§ 245,
subd. (a)(2)). It further charged Sommer with the attempted
murder of Miranda (§§ 187, subd. (a) & 664), assault of Miranda
with a firearm (§ 245, subd. (a)(2)), and illegal possession of a
firearm (§ 29800, subd. (a)(1)). The amended information alleged
that each of the attempted murders was committed willfully,
deliberately, and with premeditation (§§ 189 & 664, subd. (a)),
and involved a principal’s use of a firearm (§ 12022.53, subds. (b)
& (e)(1)), intentional discharge of a firearm (§ 12022.53, subds. (c)
& (e)(1)), and intentional discharge of a firearm with great bodily
injury (§ 12022.53, subds. (d) & (e)(1)). It further alleged that
each of the crimes was committed for the benefit of, at the
direction of, or in association with a criminal street gang with the
specific intent to promote, further, and assist in criminal conduct
by gang members (§ 186.22, subds. (b)(1)(A) [firearm possession]
& (b)(1)(C) [attempted murders and assaults]), and that Sommer
personally used a firearm during the each of the assaults
(§ 12022.5, subd. (a)) and suffered three prison priors (§ 667.5,
subd. (b)). The priors allegations ultimately were stricken.
Defendants were tried jointly before two separate juries.
Sommer’s jury found him guilty as charged and found true all of
the allegations except one: intentional discharge of a firearm
against the attempted murder victim who was not shot.2
Miranda’s jury found him guilty of assaulting and attempting to
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The verdict form for that particular count only included
two of the three firearms allegations: use (§ 12022.53, subds. (b)
& (e)(1)) and intentional discharge (§ 12022.53, subds. (c) &
(e)(1)), as the evidence at trial did not indicate the victim
sustained any injury.

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murder the man he initially punched, and found true the
enhancement allegations pertinent to those counts. The trial
court declared a mistrial on the remaining counts against
Miranda after the jury indicated it was hopelessly deadlocked,
and the prosecution later dismissed those counts.
The court sentenced Sommer to a total of 140 years to life
on the five attempted murder counts and related enhancements,
plus two years concurrent on the firearm possession count. The
court imposed and stayed sentences on the five assault counts
pursuant to section 654.
The court sentenced Miranda to seven years to life on the
attempted murder count, plus an additional 25 years to life for
the related firearm enhancement, for a total of 32 years to life.
The court imposed the midterm of three years on the assault
count, plus an additional 10 years for the gang enhancement; it
stayed the resultant 13-year term pursuant to section 654.
Both defendants timely appealed.
FACTUAL BACKGROUND
I. Victim Testimony
On October 4, 2014, Brandon R., his brother, Nathan R.,
and their friends Joanny A. and Wesley V. attended a motocross
event at the Fairplex in Pomona.3 The group left the Fairplex
around 6:30 p.m., and Brandon drove them to nearby Alberto’s
Restaurant in his white hatchback. As they were pulling into the
restaurant’s drive-through lane, Brandon and Wesley both
noticed some people standing near an apartment complex less
than 100 yards behind the restaurant. Neither Brandon nor
3 Pursuant to California Rules of Court, rule 8.90 (b)(4), we
refer to the victims in this case by their first names to protect
their personal privacy interests. No disrespect is intended.

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Wesley thought much of this; Brandon testified that he did not
know the people and had never had problems at Alberto’s in the
past.
After everyone in the car ordered their food, Brandon
pulled up to the pick-up window and Wesley stepped outside the
car to smoke a cigarette. Wesley stood about five feet away from
the car, on the passenger side. Somewhere between 30 seconds
and five minutes after Wesley started smoking, two men walked
up to him. Without saying a word, one of the men punched
Wesley in the face.
Brandon saw Wesley get hit. He “screamed” to Nathan and
Joanny, who were in the backseat, that Wesley had been hit or
punched. Nathan and Joanny immediately exited the car and
rushed to Wesley’s aid. Joanny testified that Wesley was on the
ground, and the assailant was “bent down, kind of like on top of
him.” Nathan testified that he tried to pull the assailant off
Wesley, and Joanny testified that he began either hitting or
kicking the assailant, whom he identified in court as Miranda.
Brandon testified that he saw “[e]verybody” throwing punches at
one another, including the second man who had walked over with
the assailant; he said “they were in, like, a group, fighting.”
Joanny testified that the second man was standing a “[c]ouple
feet away” from “the jumping or the hitting Wesley,” apparently
“waiting for something to go wrong his way.” Joanny identified
the second man in court as Sommer.
As Brandon was getting out of the car to join the fray, he
heard three sounds, like firecrackers with pauses in between,
which he later learned were gunshots. Brandon saw Joanny and
Wesley running toward the street; Nathan was still fighting with
the person who initially hit Wesley. Brandon testified that he

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ran toward his brother and “got involved.” The other man, whom
Brandon identified in court as Sommer, had run toward the
apartments, but came back toward the fight scene and pointed a
revolver at Brandon. Brandon “told him that I was sorry and
that we did don’t want any more problems.” Sommer did not
shoot the gun; instead, he turned around. Brandon dragged
Nathan away and screamed for bystanders to call 911.
None of the victims saw Sommer shoot anyone. Wesley
testified that he heard five or six shots from “[n]o further than
five feet” away, at which point he felt “[e]xtreme pain” and
“burning” in his groin area. Once he felt the pain, he stood up,
ran across the street with Joanny, and lay down in a grassy area.
Wesley was airlifted to USC Medical Center; he had been shot
once in the groin and three times in the buttocks. His wounds
were “through and through,” though bullet fragments remained
in his groin at the time of trial. Wesley did not know who shot
him, but he was “pretty sure” that Sommer punched him. Wesley
noted that his memory of the events was “pretty fuzzy,” however.
Joanny testified that he “saw Wesley up out of nowhere and
running,” and around the same time “felt like somebody hit me
with a bat in the back of my leg.” Joanny heard Wesley say he
was shot, and ran across the street with Wesley. When Joanny
got there, he looked down and saw that he had a bullet in his leg.
Joanny flagged down a passing motorist, who got out of her car to
help. Paramedics also arrived and airlifted Joanny to USC
Medical Center. Joanny testified that bullet fragments remained
in his leg at the time of trial and were painful because “they’re
poking my nervous system.”
Nathan testified that he did not hear any gunshots. He
nevertheless was aware that he had been shot in his left forearm

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and left leg. He did not recall much after being shot, but
remembered hearing Brandon telling him that everything would
be okay, and remembered paramedics arriving on the scene.
Nathan testified that he underwent two operations to remove a
bullet from his leg and to put plates and screws in his arm.
II. Other Eyewitness Testimony
At around 6:40 p.m. on October 4, 2014, Michael Santos
was in the drive-through lane at Alberto’s Restaurant. As he was
driving around the restaurant, he saw two people jump over a
fence separating the lot behind Alberto’s from an apartment
complex about 50 yards away. Santos thought the people were
retrieving a ball or something and “didn’t think anything else of
it.”
Santos placed his order and pulled up behind a white car
that was waiting at the pick-up window. He saw a man get out of
the white car and begin smoking a cigarette. About five to ten
minutes later, Santos testified, “somebody from the rear of my
vehicle came and punched the guy that was smoking, just
randomly” without saying anything. After that, “they continued
to be in a brawl.” Within about 25 seconds, the smoker’s friends
got out of the car and “[p]unches were being tossed left and
right.”
Santos observed that “the person who came and punched
him was starting to lose the battle.” The brawl began to
“migrate” toward Santos’s car. When it reached the back
passenger window of his car, Santos heard “about four gunshots,”
with breaks in between. Santos knew from the sound that the
gun was a revolver. After the first “round of shots,” “like two,”
Santos saw two of the fighters get up and run away. Santos
testified that he would not recognize any of the aggressors if he

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saw them again.
Cinthya Lopez went to Alberto’s Restaurant with her
family on October 4, 2014. As her husband was pulling the car
into the restaurant, she “heard a noise, kind of like a shot or
firework” from the direction of the drive-through. She looked
around to see what was happening and saw two people fighting
one another, moving toward the back of the menu board. “Right
after” she saw them, she “saw the person with the gun, and then
he shot.” Lopez saw one of the men fighting fall to the ground.
The man who shot the gun “ran towards the back of Alberto’s,
going to some apartments or building that . . . was behind
Alberto’s place.” A man at the apartments “pointed and makes
some sign with his hand to go back to Alberto’s.” “The person
that had the gun, he jumped back into Alberto’s. He came
running back . . . . And he had . . . the gun in his hand.” At that
point, Lopez told her husband to leave. Once they left Alberto’s,
Lopez called 911.
Miguel Tovar also was present at Alberto’s Restaurant on
October 4, 2014. He planned to get food at the drive-through, but
changed his mind when he saw four or five men “[p]ushing each
other and hitting each other” in the drive-through lane. Tovar
also saw a person with a gun standing near the fight, about three
feet away. Tovar heard two gunshots—one when he was pulling
into the parking lot, and another after he saw the man with the
gun. After the second shot, Tovar saw one of the fighters fall to
the ground. He did not see the person get up. The man who fired
the gun ran toward the back of the restaurant and jumped over a
fence. Tovar saw the man come back over the fence and return to
the Alberto’s parking lot. Tovar then left the restaurant.

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III. Law Enforcement Response & Investigation
Pomona police detective Jerry Uribe was dispatched to
Alberto’s Restaurant at around 6:42 p.m. on October 4, 2014.
Upon arriving, he saw Wesley and Joanny lying on the ground
across the street from the restaurant. Uribe testified that Wesley
“seemed to be bleeding heavily from the groin area,” and that
Joanny “had a leg injury.” A woman was with Joanny, “trying to
tend to him.” Uribe asked Joanny who shot him, and Joanny
responded that the person who did it ran behind Alberto’s.
Pomona police officer Joe Hernandez testified that he was
dispatched to a shooting at Alberto’s Restaurant at around 6:40
p.m. on October 4, 2014. He found Nathan lying face down in the
drive-through, with gunshot wounds in his leg and forearm.
Nathan was being treated by paramedics from the Los Angeles
County Fire Department.
Pomona police officer Vaneric Mendoza was dispatched to a
fire station near Alberto’s Restaurant around 6:44 p.m. on
October 4, 2014. There he found Miranda, with a “through and
through” bullet wound in his right chest. Miranda told Mendoza
that he had been shot while waiting in line at Alberto’s.
Pomona Police Department crime scene investigator Adam
MacDonald was dispatched to Alberto’s on October 4, 2014. He
testified that he photographed bloodstains outside the
restaurant. He further testified that he found a black baseball
cap with the letter P on it at the scene. He did not find any shell
casings, but testified that some guns, including revolvers, do not
eject casings when they are fired.
Pomona police detectives Eric Berger and Greg Freeman
were assigned to investigate the Alberto’s shooting. During their
investigation, Berger interviewed Sommer. Sommer told Berger

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that he had beaten up Miranda earlier in the day on October 4,
2014.
Freeman obtained surveillance video from the apartment
complex behind Alberto’s. Freeman testified that the video,
which was played for the jury, showed two people jumping the
fence separating the apartment complex from the vacant lot
behind Alberto’s just before 6:40 p.m. on October 4, 2014.
Freeman showed Sommer stills from the video when he
interviewed him. Freeman testified that the video showed four
members of the Westside Pomona gang near the fence: Miranda,
Steven Vasquez, and individuals Freeman knew as “Darky” and
“Greedy.”4
Pomona police officer Alan Pucciarelli testified about an
incident that happened before the shooting, on the afternoon of
October 4, 2014. He testified that he was dispatched to the
apartments behind Alberto’s to assist with a traffic stop. The
officer performing the traffic stop had detained a man named
Jorge Terrazas, but needed assistance in locating another
passenger who had “bailed” from the vehicle. Pucciarelli
searched the apartment complex and found Miranda, who was
wearing a black baseball cap with a letter P on it. Terrazas was
arrested, but Miranda was not. Pucciarelli testified that he left
Miranda at the apartment complex.
IV. Sommer’s Jail Calls
Berger testified that, at some point during the investigation
of the Alberto’s incident, Sommer was arrested and placed in the
Pomona City Jail. While Sommer was housed at the jail, his
outgoing calls were monitored and recorded. Two recordings of
4 Prosecution gang expert Michael Lee testified that Greedy
was Sommer’s gang moniker.

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phone calls Sommer made to his father were played for both
juries.
During the first call, made on October 13, 2014, Sommer
told his father, “I’m facing attempt” in “that thing at Alberto’s[,
t]hose four fools that got shot.” He stated, “They got all the
evidence against me. I’m fucked.” Sommer admitted to his
father that he had a gun and told him that he already had taken
the blame. He told his father that he had seen himself on a tape
that “shows everything.” Sommer’s father told him to “[f]ight it,”
to which Sommer replied, “I’m not gonna’ [sic] fight it. I’m guilty.”
Sommer nonetheless told his father that “[i]t was self defense”
and explained, “we were the ones that went up there but we were
the ones that ended up getting jumped. My intentions—my
intentions were not to go kill. I mean, that’s what I’m gonna tell
them, like I’m gonna let the courts know.”
Sommer also told his father that he had “a crimey” there
with him, to which his father responded, “If you didn’t do it, don’t
take the blame for it, Derek.” Sommer replied, “I did it. Fucking
I did it. I shot it. I shot. I shot it.” Sommer’s father asked him
who the victims were, and Sommer said, “I don’t know who the
fuck they were. The other fool was bald—it was only one fool
originally. He was bald and he looked like a gang member and
everything.”
During the second phone call, made on October 14, 2014,
Sommer’s father told him, “don’t take the blame for someone else.
Don’t be a dumbass.” Sommer assured him, “I’m not taking no
blame for nobody but myself.”
V. Miranda’s Interview
Before Miranda’s jury only, Freeman testified that he
interviewed Miranda during the course of the Alberto’s shooting

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investigation. The prosecution played a recording of the
interview for Miranda’s jury, and provided the jurors with
transcripts that included translations of the Spanish portions of
the interviews.
During the interview, Miranda said that “they can’t accuse
me of that, of what happened there, because the video shows that
I didn’t shoot.” Detectives Freeman and Berger informed
Miranda that did not matter, because “you were part of, of what
happened.” Miranda told them that the shooter was on the video
too, so they should get him. The interpreter assisting with the
interview told Miranda, “They know it was your friend who shot,”
to which Miranda responded, “Did my friend shoot me?” The
detectives told him yes. Miranda explained that one person was
on top of him, fighting, when he heard a gunshot, felt pain, and
saw that he was bleeding. Because he was pinned to the ground
at the time, Miranda did not see who shot him. Later in the
interview, he said, “in my mind, Greedy was the one that shoot
me, you know? It was my friend.” He also said, however, “Like,
like uh he shot me too, like, what the fuck he’s supposed to be my
friend, you know. What the fuck?”
The detectives asked Miranda whom he went to the
restaurant with, and he told them Greedy. Miranda did not
know Greedy’s real name but described him as having a “WS”
tattooed on his face. Miranda said that Greedy was “with West
Side, and I’m not with West Side.” Nevertheless, Miranda told
the detectives that he was wearing a black hat with the letter P
on it when he went to Alberto’s; the prosecution’s gang expert
testified that such hats were indicative of gang affiliation.
When asked why he and Greedy went to the restaurant,
Miranda explained that the man smoking a cigarette “was like

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looking for a problem with me.” Miranda later stated that he had
previously “gotten in an argument with that fool before,”
approximately an hour before the incident. Detective Freeman
asked, “He had a problem with you?” Miranda responded, “Yeah.
But, I, I . . . go fight with him, you know? But the thing is that
the four guy[s] that came out, I don’t know what, I don’t know
what happened, you know? Four guy came out [sic] the car, like.”
Miranda explained that Greedy “was walking . . . to defend me
from the four guys, fool,” a few steps behind Miranda. Miranda
told the detectives that he knew Greedy took a gun with him to
Alberto’s and said it was a revolver, either “a .38 or a 357.”
Miranda did not know how many times Greedy fired the gun; he
estimated two or three.
VI. Relevant Gang Evidence5
Pomona police officer Michael Lee testified before both
juries as the prosecution’s gang expert. Lee testified that West
Side Pomona was one of about 10 active Pomona gangs. Lee
stated that Alberto’s Restaurant was within West Side’s territory,
and described the apartment complex behind the restaurant as
“West Side Pomona’s stronghold.” West Side members used the
letters W and S, and wore hats with Ps or Ws on them. Lee
explained that hats with the letter P were not unique to the West
Side Pomona gang; several gangs in Pomona used that symbol.
Lee testified that the notion of respect was “imperative” to
gang culture. Gang members “will go that extra mile to be
respected, whether it’s assaulting innocent victims within their
5 Neither defendant challenges the jury’s findings on the
gang enhancements or any pertinent evidentiary rulings. We
accordingly limit our discussion of the gang evidence to that
necessary to the issues presented in this appeal.

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own city, assaulting rival gang members, [or] committing crimes
within their own neighborhood.” Such actions instill not only
respect but fear in the community. They also help gang members
“gain status within the gang.” Gang members frequently commit
crimes in the presence of other gang members, because “[t]hey
want somebody that’s going to be able to come back and vouch for
them and say so-and-so committed this crime. . . . So now all the
other gang members look at that member and say, oh, he’s
respectable.”
Lee testified that a person desiring to join a gang typically
gets “jumped in,” meaning he or she is beaten by current
members, or commits a crime for the gang. He explained that a
person usually begins the process by “associating with them in
some way. You start to hanging [sic] around. You hang out with
them, drink beer with them, maybe commit a couple small crimes
for the gang, hold gun for them, hold a little bit of dope for them,
something like that so they start to trust you.” Then, “someone
will vouch for you and they’ll actually want to put you into the
neighborhood.” Until that point, the person is merely an
associate, a “hanger on” who chooses to put him or herself into
the gang lifestyle or a gang neighborhood. Lee opined that it was
uncommon for gang members to accompany or “support and
defend” associates while the latter were committing crimes. It
also would be uncommon for a gang member to take full credit for
a crime he committed with others; “it wouldn’t benefit him to say,
you know, only I did it, because it would make these guys look
bad.”
Lee opined that Sommer was a member of West Side
Pomona who went by the gang moniker “Greedy.” Lee noted that
Sommer had facial tattoos indicative of gang membership, “a W

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under his right eye, an S under his left.” Lee further opined that
Jorge Terrazas, with whom Miranda was detained on the
afternoon of October 4, 2014, also was a member of West Side
Pomona. Lee testified that Miranda was “at minimum” an
associate of West Side Pomona, “if not a full-fledged gang
member with the West Side Pomona gang.” Lee opined that
Miranda’s residence in the laundry room of West Side Pomona’s
apartment stronghold was evidence that he was “placing himself
with these people on his own.” “He chose to put himself in a set
of circumstances where he’s associating with people who are
known to carry guns, known to commit violent crimes against
other gang members and have violent crimes committed against
them.”
Lee opined that a hypothetical punching and shooting like
those that occurred at Alberto’s Restaurant on October 4, 2014
would have been committed for the benefit of West Side Pomona.
He explained that such acts would garner respect in the
community and, if “[a]n undocumented gang member goes with a
documented gang member, this could be his initiation into the
gang.” Lee further opined that it was common within gang
culture for a fistfight to escalate into a shooting. “The gang
member who brings a gun to a fist fight, there’s some intent to
use it, whether it’s, you know, they start losing the fight and they
decide to bring out the gun” or merely “a complete lack of regard
for human life.” Lee also explained that shooting is the highest
form of confrontation, and that gang members “want to be known
for taking that to the next level.” Additionally, assaults with
firearms are one of West Side Pomona’s primary activities.
VII. Defense Evidence
Miranda testified on his own behalf before both juries. He

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testified that he immigrated to California from Puerto Rico
approximately two years before. He recently moved into the
laundry room of the apartment complex behind Alberto’s because
his wife kicked him out of the house for using drugs. Miranda’s P
hat belonged to his brother-in-law.
Miranda testified that on October 4, 2014, he was trying to
buy drugs from Terrazas when the police arrived. Miranda ran
because he “didn’t want to get held with drugs.” The police took
Terrazas to jail, but did not arrest Miranda. Shortly thereafter, a
man named Steven arrived at the apartment complex. He
seemed angry that the police had arrested Terrazas but not
Miranda. Steven gave other people, including Sommer,
permission to beat up Miranda, which they did. When the
beating ended, Steven said he would kill Miranda if Miranda left
the apartments before Steven figured out whether Miranda
snitched on Terrazas.
Miranda accordingly found himself hanging out with
Steven and some other people behind the apartment complex that
evening. Miranda claimed that Steven “ordered me to go hit that
guy” at the Alberto’s drive-through, and he complied. Three men
responded by hitting him, and he was shot while that was going
on. Miranda concluded he was the first person shot “[b]ecause I
had the four people in front of me,” and Greedy—Sommer—was
standing about five to six feet away. Miranda ran to a nearby fire
station upon noticing he was “bleeding a lot.” “[W]hen he shot
me, I left and there was nobody else injured.”
Miranda testified that the detectives interviewed him at
the hospital, while he was under the influence of morphine. At
that time, he told the detectives he punched the man at Alberto’s
because the man looked at him funny. Miranda testified that

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was a lie, but said he feared that “they”—presumably the gang
members at the apartment complex—“would kill my family” if he
told the detectives the truth. Miranda lied to first responder
Mendoza, whom he did not know was a police officer, for the same
reason.
Miranda gave conflicting testimony as to whether he knew
that Greedy brought a gun to Alberto’s. Miranda initially testified
that he had seen Greedy with a gun but did not know who had
shot him. He later testified that he did not know Greedy brought
a gun with him: “At that moment at Alberto’s I didn’t know that
that he had it, but I know that he always carries one in the
apartments.”
On cross-examination, Miranda admitted that he also lied
to the detectives about having a previous altercation with
Wesley. He claimed he had never punched anyone before and
“didn’t imagine” that Wesley would punch back, or that Wesley’s
friends would defend him. Miranda agreed with the prosecutor’s
assertion that Greedy had “tried to kill” him, and further
testified, “they sent me there to punch the guy, but I think they
set me up and they send him [Greedy] to get me killed.” That is,
he thought the members of West Side Pomona “were setting me
up, you know . . . I had to do it because I felt intimidated by
them.” He also reiterated that he “only saw the gun after I got up
and after receiving the first shot and I looked up, and I saw him
[Greedy] with a gun.”
Miranda also called Berger to testify before both juries.
The parties stipulated that Berger was an expert in the area of
criminal street gangs. He opined that Miranda was an associate
of West Side Pomona.

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DISCUSSION
I. Sufficient Evidence Supported the Attempted
Murder Convictions, Kill Zone Instruction, and
Premeditation Findings
Sommer contends the evidence was insufficient to support
his conviction for the attempted murder of Brandon or a jury
instruction on the kill zone theory. He further contends that
there was insufficient evidence that any of the attempted
murders was willful, deliberate, and premeditated. Miranda
similarly argues that there was insufficient evidence to support
his conviction for the attempted murder of Wesley and the jury’s
finding that the attempted murder was willful, deliberate, and
premeditated.6 None of these arguments is persuasive.
A. Standard of Review
“‘“When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.] We determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” [Citation.] In so doing, a
6 Both Miranda and Sommer state in their opening briefs
an intent to “join[] in and incorporate[] as though fully set forth
in appellant’s opening brief the arguments set forth in the
opening briefs of all co-appellants that accrue to his benefit.”
(See California Rule of Court, rule 8.200(a)(5); People v. Bryant
(2014) 60 Cal.4th 335, 363-364.)

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reviewing court “presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.” [Citation.]’ [Citation.]” (People v. McCurdy (2014) 59
Cal.4th 1063, 1104.)
B. Attempted Murder of Brandon
1. Direct Step
“Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Ervine (2009) 47
Cal.4th 745, 785.) A direct step is something more than mere
preparation. However, “[c]onduct that qualifies as mere
preparation and conduct that qualifies as a direct but ineffectual
act toward the commission of the crime exist on a continuum.”
(People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 12.)
“Whether acts done in contemplation of the commission of a
crime are merely preparatory or whether they are instead
sufficiently close to the consummation of the crime is a question
of degree and depends upon the facts and circumstances of a
particular case.” (Id. at p. 14.) The dividing line between making
preparations and taking a direct step is crossed when, “by reason
of the defendant’s conduct, the situation is ‘without any
equivocality,’ and it appears the design will be carried out if not
interrupted.” (Id. at 13.) “[W]hen the acts are such that any
rational person would believe a crime is about to be
consummated absent an intervening force, the attempt is
underway, and a last-minute change of heart by the perpetrator
should not be permitted to exonerate him.” (People v. Dillon
(1983) 34 Cal.3d 441, 455, overruled on other grounds, People v.
Chun (2009) 45 Cal.4th 1172, 1186.)

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Sommer argues that pointing the gun at Brandon was not a
direct step toward killing him. Instead, Sommer contends, he
“voluntarily abandoned any attempt murder without taking the
direct step of firing.” This view of a direct step is too restrictive.
The Supreme Court long has recognized that “the law of
attempts would be largely without function if it could not be
invoked until the trigger was pulled, the blow struck, or the
money seized.” (People v. Dillon, supra, 34 Cal.3d at p. 455; see
also People v. Nelson (2011) 51 Cal.4th 198, 212; People v. Ervine,
supra, 47 Cal.4th at pp. 785-786.) “[I]t is not necessary that the
overt act be the last possible step prior to the commission of the
crime”—here, the trigger pull. (People v. Morales (1992) 5
Cal.App.4th 917, 926.) Here, the record at trial supported the
inference that Sommer intended to kill Brandon when he pointed
the revolver at him. As Sommer acknowledges in his opening
brief, evidence admitted at trial showed that “Sommer pointed a
gun at Brandon R[.] when he returned from the apartment
complex.” When he pointed the gun at Brandon, he already had
fired several shots and seriously wounded all of Brandon’s
companions. The jury readily could infer that Sommer returned
to Alberto’s to finish what he and Miranda had started by
shooting Brandon, particularly since Sommer positioned himself
and aimed the gun in Brandon’s direction. Indeed, Brandon
himself inferred that Sommer intended to shoot him and
interrupted Sommer’s efforts with an apology and plea for mercy.
(See People v. Dillon, supra, at p. 455.) Sommer’s last-second
change of heart, made after Brandon pleaded for mercy while
attempting to drag his injured brother out of harm’s way, does
not negate Sommer’s actions up to that point; abandonment of
the effort prior to completion of the crime does not compel the

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conclusion that the defendant lacked the intent to kill. (See
People v. Smith (2005) 37 Cal.4th 733, 741.)
2. Kill Zone
Sommer also contends that the jury could not have found
him guilty of the attempted murder of Brandon under the kill
zone theory. He argues the jury should not have been instructed
on the kill zone theory because the theory was not supported by
the evidence. He further contends, that these errors were
compounded by a supplemental argument the prosecutor made in
response to a jury question. 7 We disagree.
a. The Kill Zone Theory
To obtain a conviction for attempted murder, the
prosecution must prove that the defendant intended to kill the
alleged victim, not someone else; intent cannot be transferred
between victims. (People v. Bland (2002) 28 Cal.4th 313, 328
(Bland).) “Someone who intends to kill only one person and
attempts unsuccessfully to do so, is guilty of the attempted
murder of the intended victim, but not of others.” (Ibid.)
However, “[t]he conclusion that transferred intent does not apply
to attempted murder still permits a person who shoots at a group
of people to be punished for the actions towards everyone in the
group even if that person primarily targeted only one of them.”
7 The Attorney General claims that “Sommer essentially
concedes his case” on the kill zone by acknowledging that
Brandon, Nathan, Joanny, and Miranda were in the kill zone.
We reject this mischaracterization of Sommer’s argument.
Sommer’s opening brief says, “While the jury also heard Miranda
state his belief that he was being set up [citation], that testimony
was contrary to the prosecution’s theory that Sommer intended to
kill [Wesley, Joanny, and the R. brothers], and Miranda was in
the ‘kill zone.’”

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(Bland, supra, 28 Cal.4th at p. 329.) This “kill zone” theory holds
that a defendant may have a concurrent intent to kill a specific
victim and those around him or her “‘when the nature and scope
of the attack, while directed at a primary victim, are such that we
can conclude the perpetrator intended to ensure harm to the
primary victim by harming everyone in that victim’s vicinity.’”
(Ibid.) That is, “a shooter may be convicted of multiple counts of
attempted murder on a ‘kill zone’ theory where the evidence
establishes that the shooter used lethal force designed and
intended to kill everyone in an area around the targeted victim
(i.e., the ‘kill zone’) as the means of accomplishing the killing of
that victim.” (People v. Smith, supra, 37 Cal.4th at p. 746.)
b. Use in this Case
The prosecution in this case sought to apply a kill zone
theory to explain Sommer’s alleged shooting of codefendant
Miranda. The prosecutor argued, “A person may intend to kill a
specific victim or victims and at the same time intend to kill
everyone in a particular zone of harm, or kill zone. That’s the
theory regarding Mr. Miranda. The way the defendant shot with
this group of people there, the number of shots he was shooting,
I’m going to kill these people and I don’t care who I kill. . . . He
didn’t care whether Christian Miranda got killed or not. . . . With
the others, it’s more clear. With Christian Miranda, you may
have to think about it a little bit more and say how many shots
did he fire? How close was he? Did he really care whether
Christian Miranda got killed or not?”
The trial court instructed the jury on the kill zone as to
Miranda: “In order to convict the defendant of the attempted
murder of Christian Javier Miranda, the People must prove that
the defendant not only intended to kill [Joanny, Nathan,

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Brandon, and Wesley] but also either intended to kill Christian
Javier Miranda, or intended to kill everyone within the kill zone.
If you have a reasonable doubt as to whether the defendant
intended to kill Christian Javier Miranda or intended to kill
[Joanny, Nathan, Brandon, and Wesley] by killing everyone in
the kill zone, then you must find the defendant not guilty of the
attempted murder of Christian Javier Miranda.”
After some deliberation, and a request for readback of
Brandon’s testimony, Sommer’s jury submitted two questions to
the court: (1) “Does the simple fact that pointing a gun [sic]
qualify as a direct step,” and (2) “What constitutes a kill zone
only relevant counts.” The court informed the jury that the
instructions addressed both issues. It nevertheless permitted the
attorneys to make supplemental closing arguments to address
the questions.
After some general comments about the kill zone, and the
jury’s responsibility to determine its size, the prosecutor made
the following argument: “If you get someone like Brandon [R.],
who wasn’t shot, you have to figure out - - try to figure out, the
best you can with the inferences, where he was. So you figure out
where that kill zone is and, if it’s relating to Brandon [R.], was he
there or was he not. If the only evidence you have is that he
pointed the gun and you can’t say beyond a reasonable doubt that
he’s within the kill zone, then maybe you only have an assault
with a firearm and not an attempted murder. . . . But if you look
at the facts, you put Brandon in that area where he’s shooting the
other people, the number of shots the defendant’s firing, you can
conclude he was trying to kill him as well, then you have the
attempted murder as well.”

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Sommer’s counsel raised no objection to this argument,
which suggested that the kill zone theory applied to Brandon in
addition to Miranda.8 She argued, “Mr. Bean sort of gave you his
view on that. Mr. Bean is the prosecutor. I will have a different
view. So, again, you’re getting, you know, kind of clarification
from advocates, but you, the jury, now - - because you’ve
deliberated quite a bit, so, you know, you’ve had a good
understanding of the evidence and the instructions. And if you
feel somebody was or was not within the kill zone or what is or is
not a kill zone, as you know, following the instructions, looking at
the evidence and the law, if you feel you are not sure, you know,
that’s your call to make. That’s why we have reasonable doubt
instructions for you. That’s why we have the other instructions
for you. So I really add this point, I think that - - I don’t think it
is for us to be able to help you. You need to help yourselves. And
if there is an issue, you’re not sure if it exists or not, then so be
it.”
c. Analysis
Sommer contends that the original instruction on the kill
zone doctrine—which was based on CALCRIM No. 600—was not
supported by the evidence. He relies on People v. McCloud (2012)
211 Cal.App.4th 788, 798, which held that the kill zone theory
does not apply “if the evidence shows only that the defendant
intended to kill a particular targeted individual but attacked that
individual in a manner that subjected nearby individuals to a
risk of fatal injury.” At most, he argues, the evidence showed
8 In his opening brief, Sommer argued the prosecutor
committed misconduct by belatedly applying the kill zone theory
to Brandon. “Upon further consideration,” however, Sommer
affirmatively abandoned this theory in his reply brief.

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that he fired “four random shots . . . in response to people coming
to help fight Miranda,” thereby subjecting Wesley and his friends
to a risk of fatal injury. He further asserts that applying the kill
zone theory “to allow convictions for the attempted murder of
more people than there were shots fired where the additional
person was not in the line of fire [is] improper.” We are not
persuaded.
There was evidence from which the jury could infer that
Sommer fired more than four shots at the five victims. Wesley
testified that he heard “five or six,” and the jury could infer from
the eight collective wounds sustained by the victims that at least
that many shots were fired. This is not a case like People v.
McCloud, in which defendants who fired 10 shots into a large
group of people were charged with 46 counts of attempted
murder. (See People v. McCloud, supra, 211 Cal.App.4th at pp.
790-791, 801.) Nor is it like People v. Perez (2010) 50 Cal.4th 222,
232, in which the kill zone did not apply because the defendant
indiscriminately fired one shot at a group of people. The jury
reasonably could infer that Sommer created a kill zone by firing
“a flurry of bullets” at a small group of people. (Bland, supra, 28
Cal.4th at p. 331.)
The manner in which Sommer carried out the attack—
firing at a group of people who were fighting with their hands
mere feet away from him—was suggestive of an intent to kill
everyone in the area. “The act of firing toward a victim at close,
but not point blank, range ‘in a matter that could have inflicted a
mortal wound had the bullet been on target is sufficient to
support an inference of an intent to kill . . . .’ [Citation.]” (People
v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Sommer appears
to assume that Wesley was the only intended target, but the

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prosecution theorized and argued that Sommer intended to kill
Wesley and his friends, while Miranda happened to be in the kill
zone. There was evidence from which the jury could conclude
that Wesley’s friends were specifically targeted, not merely
placed at risk of a fatal injury due to Sommer’s focus on Wesley
alone. Sommer told his father he shot at the “fools,” eyewitnesses
testified that Miranda—Sommer’s “crimey” and likely gang
associate—was losing the fight, and Sommer continued shooting
at close range even after some of the men had been hit.
Sommer also contends that even if the kill zone instruction
was proper generally, it was not applicable to Brandon because
there was no evidence that he was within the kill zone. He
asserts that Brandon was not shot and was “on the other side of
the car” when the shots were fired. Even if Brandon was on the
“other side of the car,” that was mere feet away from the fight,
and the jury reasonably could infer that area was encompassed
within Sommer’s gang-motivated kill zone. Sommer has not
pointed to any case law holding that a kill zone may extend only
a specific number of feet, and for good reason: a kill zone is
“necessarily defined by the nature and scope of the attack” in
each case and therefore varies with the circumstances of every
case—as both the prosecutor and Sommer’s counsel noted in their
supplemental arguments. (People v. Perez, supra, 50 Cal.4th at p.
232.) A reasonable jury could infer that the area around the car
was within Sommer’s kill zone. Moreover, there was evidence
that Brandon approached what remained of the fray to aid his
wounded brother, who was still being attacked at the time. The
jury could conclude that Brandon entered a more narrowly
defined kill zone at this time.

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C. Attempted Murder of Wesley
Sommer does not challenge his conviction for the attempted
murder of Wesley. Miranda, however, argues that there was
insufficient evidence that he aided and abetted this attempted
murder. He contends that Sommer’s attempted murder of
Wesley was not a natural and probable consequence of Miranda’s
initial punch. We reject this contention.
“[U]nder the natural and probable consequences doctrine,
‘[a]n aider and abettor is guilty not only of the intended, or
target, crime but also of any other crime a principal in the target
crime actually commits (the nontarget crime) that is a natural
and probable consequence of the target crime.’ [Citation.]
Moreover, ‘[a] consequence that is reasonably foreseeable is a
natural and probable consequence under this doctrine. “A
nontarget offense is a ‘“natural and probable consequence”’ of the
target offense if, judged objectively, the additional offense was
reasonably foreseeable.”’ [Citation.] ‘The latter question is not
whether the aider and abettor actually foresaw the additional
crime, but whether, judged objectively, it was reasonably
foreseeable.’ [Citation.] The natural and probable consequences
doctrine applies equally to aiders and abettors and conspirators.
[Citation.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 901.)
Miranda recognizes that “[j]urors in a number of cases have
found shootings to be a foreseeable consequence of gang
confrontations, and those findings have been affirmed on appeal.”
(People v. Ayala (2010) 181 Cal.App.4th 1440, 1449; see also
People v. Gonzales (2001) 87 Cal.App.4th 1, 10.) He argues that
this case is different, however, because “all that was
contemplated initially was a fistfight between a low-level
associate and a possible gang member,” and “the intervention of

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[Wesley’s] friends, which prompted Sommer to shoot, was
unforeseen and independent of the plan to commit the assault.”
This argument is not persuasive. “‘Aider and abettor
liability under the natural and probable consequences doctrine
does not require assistance with or actual knowledge and intent
relating to the nontarget offense. . . .’ [Citation.] “‘Because the
nontarget offense is unintended, the mens rea of the aider and
abettor with respect to that offense is irrelevant and culpability is
imposed simply because a reasonable person could have foreseen
the commission of the nontarget crime.’” [Citation.]” (People v.
Romero (2015) 62 Cal.4th 1, 42.) Even if the jury believed
Miranda’s testimony that he did not expect Wesley or his friends
to fight back, the question it had to resolve was whether, from an
objective standpoint, an attempted murder was a reasonably
foreseeable consequence of Miranda’s punch. There was
sufficient evidence in the record to allow the jury to resolve that
question affirmatively. Gang expert Lee testified that
committing crimes such as assaults and shootings help members
gain status in gangs, and it was common within the gang culture
for a fistfight to escalate into a shooting. The jury reasonably
could find that would be particularly true where, as here, there
was evidence that the altercation was gang-related and the initial
aggressor was aware that his companion brought a gun to the
scene.
Miranda nevertheless maintains that this case is more
analogous to People v. Leon (2008) 161 Cal.App.4th 149 (Leon)
than it is to the numerous cases holding that shootings are
reasonably foreseeable consequences of gang-related assaults. In
Leon, the defendant and a confederate broke into a truck. When
they were confronted by the truck’s owner and other eyewitnesses

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to the crime, who threatened to call the police, the confederate
looked at the witnesses “and fired a gun in the air.” (Leon, supra,
161 Cal.App.4th at pp. 153-154.) Defendant and his confederate
were charged with and convicted of burglary (§ 459), attempting
to dissuade a witness from reporting a crime (§ 136.1, subd.
(b)(1)), and two gang-related firearms offenses
(§§ 12025, subd. (b)(3), 12031, subd. (a)(1).) (Id. at p. 152.) On
appeal, defendant argued and the appellate court agreed that
there was insufficient evidence that witness intimidation was a
natural and probable consequence of the other offenses. (Id. at
pp. 159-161.) The court reasoned that there was “not a ‘close
connection’ between any of the target crimes Leon aided and
abetted, and [his confederate’s] commission of witness
intimidation.” (Id. at p. 161.) The court recognized that “the fact
that the crimes were gang related and that they were committed
in a rival gang’s territory clearly increased the possibility that
violence would occur,” but concluded that witness intimidation
simply “cannot be deemed a natural and probable consequence of
any of the target offenses.” (Ibid.)
This case has virtually no factual similarity to Leon.
Unlike the crimes of burglary and witness intimidation, the
target crime of assault and the ultimate crime of attempted
murder share a close connection that numerous courts have
recognized. The gang-related nature of the incident here
rendered the escalation of violence a near certainty, not the mere
abstract possibility it was in Leon.
In short, the evidence amply supported Miranda’s
conviction for attempted murder under the natural and probable
consequences theory, the only one the prosecution argued. We
accordingly need not address Miranda’s alternative argument

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that a more traditional aiding and abetting theory also was not
supported by sufficient evidence. (See People v. Holt (1997) 15
Cal.4th 619, 671; People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
D. Willfulness, Deliberation, and Premeditation
Both defendants argue that the juries’ findings that the
attempted murders were willful, deliberate, and premeditated
were not supported by sufficient evidence. Miranda claims there
was no indication that Sommer intended to kill Wesley “until the
whole group turned the tables on” Miranda, an abrupt change of
circumstances that prompted Sommer to abandon his original
intent to merely assault Wesley on the spur of the moment,
without deliberation. Sommer similarly contends that there was
insufficient evidence from which a reasonable jury could infer
that he was following “‘a calculated design to ensure death rather
than an unconsidered explosion of violence.’ (People v. Horning
(2004) 34 Cal.4th 871, 902-903.)” We disagree.
“‘[P]remeditated’ means ‘considered beforehand’ and
‘deliberate’ means ‘formed or arrived at or determined upon as a
result of careful thought and weighing of considerations for and
against the proposed course of action.’” (People v. Mayfield (1997)
14 Cal.4th 668, 767.) “The process of premeditation and
deliberation does not require any extended period of time. ‘The
true test is not the duration of time as much as it is the extent of
the reflection. ‘Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly.
. . .’” (Ibid.) The key inquiry is whether a rational jury could
have concluded that the crime occurred as a result of preexisting
reflection rather than a rash impulse. (People v. Felix (2009) 172
Cal.App.4th 1618, 1626.)

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In People v. Anderson (1968) 70 Cal.2d 15, 26-27
(Anderson), the Supreme Court developed guidelines to aid
reviewing courts in assessing sufficiency of the evidence to
sustain findings of premeditation and deliberation. Anderson
identified three categories of evidence pertinent to the analysis:
those indicative of planning, motive, and manner of killing. The
Anderson guidelines have been applied in the context of
premeditated attempted murder. (See, e.g., People v. Lenart
(2004) 32 Cal.4th 1107, 1127-1128; People v. Felix, supra, 172
Cal.App.4th at pp. 1626-1627; People v. Herrera (1999) 70
Cal.App.4th 1456, 1462, fn. 8 , overruled on other grounds in
People v. Mesa (2012) 54 Cal.4th 191, 199.) Importantly,
however, the Anderson guidelines are “descriptive, not
normative”; they reflect the Supreme Court’s effort “to do no more
than catalog common factors that had occurred in prior cases.”
(People v. Perez (1992) 2 Cal.4th 1117, 1125.) Thus, the
categories of evidence described in Anderson do not “redefine the
requirements for proving premeditation and deliberation,” and
“do not represent an exhaustive list of evidence that could sustain
a finding of premeditation and deliberation, and the reviewing
court need not accord them any particular weight.” (People v.
Young (2005) 34 Cal.4th 1149, 1183.) The question remains
whether, in light of the whole record, there was substantial
evidence from which the jurors could have found that Sommer’s
shootings were the result of preexisting thought and the careful
weighing of considerations. (People v. Boatman (2013) 221
Cal.App.4th 1253, 1270 (Boatman).)
Here, the evidence was sufficient for a jury to conclude that
Sommer planned to kill, had a motive for doing so, and attacked
the victims in a manner indicative of preconceived design.

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Sommer stated during his jail calls that the “fool” who initially
caught his attention, Wesley, “looked like a gang member and
everything.” Alberto’s Restaurant was in the heart of West Side
Pomona territory, near its stronghold, and the jury could infer
that Sommer was angry or felt disrespected upon seeing an
unknown gang member in his territory. From these facts, the
jury could infer motive. Sommer armed himself with a gun
before walking to Alberto’s with a fellow gang member or
associate who had been instructed to initiate an assault on
Wesley, and stepped aside to use the gun when Miranda began to
lose the fight. From these facts, the jury could infer planning.
Defendant argued that the evidence showed that Sommer
and Miranda were taken by surprise when Wesley’s friends
rushed to his aid. But “[p]remeditation can be established in the
context of a gang shooting even though the time between the
sighting of the victim and the actual shooting is very brief.”
(People v. Sanchez (2001) 26 Cal.4th 834, 849.) The manner in
which Sommer acted also is indicative of deliberation. He
stepped back a few feet from the brawl and repeatedly shot his
gun at the participants, pausing between each shot. The jury
could infer from Sommer’s disengagement from the fistfight, his
retreat mere steps away, and shooting of the participants one by
one, some multiple times, that he carefully considered his
actions. Though Sommer did not actually shoot Brandon, his
actions in leaving the immediate scene, then returning and
pointing the gun at Brandon while Brandon was assisting his
bleeding brother demonstrate a calculated, considered attempt to
kill.
Defendants maintain this evidence is insufficient because it
is not as strong as evidence in other cases. Sommer highlights

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cases in which there was evidence of explicit planning by a gang
member to shoot known rivals, such as repeated drive-bys (People
v. Sanchez, supra, 26 Cal.4th at pp. 849-850; People v. Rand
(1995) 37 Cal.App.4th 999, 1001); and cases in which the manner
of killing or attempted killing—execution-style shots to the
head—was more indicative of a deliberate, calculated intent to
kill (People v. Romero (2008) 44 Cal.4th 386, 400-401; People v.
Martinez (2003) 113 Cal.App.4th 400, 412-413).
Miranda likens this case to Boatman, 221 Cal.App.4th
1253, in which the appellate court concluded that none of the
Anderson factors was satisfied where the defendant shot his
girlfriend in the face during an argument in a manner that he
maintained was accidental. The Boatman court noted that
Boatman testified that he did not intend to kill his girlfriend
(Boatman, supra, 221 Cal.App.4th at p. 1268); here, defendants
note that Sommer told his father that his “intentions were not to
go kill.”9 The Boatman court also emphasized that defendant’s
actions after the murder—crying, calling 911, wondering aloud
how he could go on with his life—were consistent with “someone
horrified and distraught about what he had done, not someone
who had just fulfilled a preconceived plan.” (Boatman, supra, at
p. 1267.)
“[T]he facts of other cases, such as [those cited by
defendants], are not particularly helpful in evaluating the
sufficiency of the evidence in this case.” (People v. Rundle (2008)
9 Jury disbelief of a defendant’s statements or testimony
cannot, without more, support an inference “that defendant did
that which he denied doing.” (People v. Velazquez (2011) 201
Cal.App.4th 219, 231; Boatman, supra, 221 Cal.App.4th at p.
1267.) We reject the Attorney General’s assertion to the
contrary.

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43 Cal.4th 76, 140, disapproved on a different ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Many cases have
unique evidence and circumstances, and the divergence of facts
from one case to another does not mean that one of the cases is
devoid of sufficient evidence to support the jury’s verdict. The
evidence in this case may not have been as compelling as that in
the cases defendants highlighted, or as weak as that in Boatman.
It nonetheless was sufficient to allow the jury to infer that
Sommer acted with premeditation and deliberation.
II. Sommer’s Counsel was not Ineffective
Sommer contends that his trial counsel rendered ineffective
assistance during closing and supplemental closing arguments.
He argues that her closing argument was “rambling” and
“disjointed,” and did not address the elements of the charges
against him or explain the concepts of premeditation and
deliberation. He further claims her reliance on a self-defense
theory was improper, as was her acknowledgement that she as a
juror would have “strong suspicions” about Sommer’s guilt.
Sommer further asserts that the supplemental argument, made
in response to the jury’s questions about direct steps and the kill
zone, “provided no defense,” and that both arguments “lessened
the prosecution’s burden and undermined the adversary process.”
We disagree.
“The standard for showing ineffective assistance of counsel
is well settled. ‘In assessing claims of ineffective assistance of
trial counsel, we consider whether counsel’s representation fell
below an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome. [Citations.]” (People v.

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Gray (2005) 37 Cal.4th 168, 206–207.) “Further, ‘a court need not
determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.’
[Citation.]” (People v. Carrasco (2014) 59 Cal.4th 924, 982.)
A criminal defendant’s constitutional right to effective
assistance of counsel extends to closing arguments. (Yarborough
v. Gentry (2003) 540 U.S. 1, 5.) “Nonetheless, counsel has wide
latitude in deciding how best to represent a client, and deference
to counsel’s tactical decisions in his [or her] closing presentation
is particularly important because of the broad range of legitimate
defense strategy at that stage. Closing arguments should
‘sharpen and clarify the issues for resolution by the trier of fact,’
[citation], but which issues to sharpen and how best to clarify
them are questions with many reasonable answers. Indeed, it
might sometimes make sense to forgo closing argument
altogether. [Citation.] Judicial review of a defense attorney's
summation is therefore highly deferential.” (Id. at pp. 5-6.)
Sommer selectively highlights isolated excerpts of his
counsel’s lengthy closing argument, characterizing them as
incoherent and improper. For instance, he points out that she
stated, “the issue is not whether Derek Sommer, my client, is
guilty of attempted murder and these other charges,” and “you
are not here to decide is Mr. Sommer guilty of attempted
murder.” He neglects to place these statements in context,
however. Immediately after the first statement, counsel argued,
“the issue is has there been presented to you proof, compelling
evidence from which you can say to yourself that you feel an

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abiding conviction that the case has been proven to you beyond a
reasonable doubt.” Similarly, after the second statement, she
emphasized that the jury had to decide whether Sommer
harbored the requisite intent to warrant an attempted murder
conviction: “So the attempted murder has to have a specific
intent to kill, and based on the evidence here, as you can see, are
the way those two folks jumped over the fence, walked over there.
You make the decision, right? So if you decide that, yes, there
was a shooting done, and you know, we know there were victims
who were shot or hurt by that, you know, got hit. Why did he do
that? He did that because he’s aiding his friend, and he
maintained his story.”
Placed in context, the statements Sommer isolates
demonstrate a tactical decision to not dispute the facts but rather
to focus the jury’s attention on the prosecution’s heavy burden of
proof and Sommer’s possible exculpatory motivation for his
actions. Indeed, Sommer acknowledges that counsel “argued
repeatedly that he was not guilty of attempted murder” and
advanced a self-defense theory. This approach was eminently
reasonable, given the eyewitness evidence and inculpatory
statements made by Sommer, and well within the bounds of
prevailing professional norms.
Sommer also highlights two paragraphs of closing
argument—collectively about one page of the 24-page
argument—and argues they are rambling and disjointed. We
agree with Sommer that the excerpts he identifies are not
exemplars of outstanding oration. But they accurately state the
law and continue counsel’s evidence-driven approach of focusing
on Sommer’s intent—to aid Miranda—and the prosecutor’s heavy
burden, along with the jury’s responsibility to determine the

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facts. Counsel’s argument highlighted a theory of the case
supported by at least some of the evidence and advanced
Sommer’s interests within the bounds of professional norms.
The same is true of her suggestion to the jury that she had
“strong suspicions” about Sommer’s guilt, which appears to have
been a tactical decision designed to build rapport with the jury
and reiterate the importance of the reasonable doubt standard.
Likewise, her emphasis on “minor discrepancies in the
recollections of the prosecution’s witnesses and Miranda” appears
to be a reasonable effort to hold the prosecution to its burden.
Sommer notes that counsel could not recall victim Wesley’s 13-
letter surname or the sibling relationship between Brandon and
Nathan, but he does not explain how these minor memory lapses
rendered the underlying factual summation and legal argument
improper or constitutionally ineffective.
Sommer also claims that counsel’s supplemental argument
(ante, section I.2.b) “provided no defense” and merely said “it was
up to the jury to decide based on the instructions.” As the United
States Supreme Court has recognized, however, “which issues to
sharpen and how best to clarify them are questions with many
reasonable answers. Indeed, it might sometimes make sense to
forgo closing argument altogether.” (Yarborough v. Gentry,
supra, 540 U.S. at p. 6.) Counsel’s supplemental argument was
responsive to the prosecutor’s and emphasized that the kill zone
query was one of fact for the jury to determine. It was not
unreasonable for counsel to take such an approach. Trial counsel
enjoy considerable latitude in crafting and delivering argument.
None of the purported deficiencies Sommer identifies, together or
separately, demonstrate that his counsel’s strategic approach to
this case was so objectively unreasonable or inadequate as to fall

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below prevailing professional norms.
DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.

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