P. v. Kellum

Filed 9/12/17 P. v. Kellum 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
LAMONT AARON KELLUM et al.,
Defendants and Appellants.
B268683
(Los Angeles County
Super. Ct. No. TA135978)
APPEAL from a judgment of the Superior Court of Los
Angeles County, John T. Doyle, Judge. Affirmed.
Law Office of Corey Evan Parker and Corey Evan Parker
for Defendant and Appellant Kellum.
Law Office of Allen G. Weinberg and Derek K. Kowata,
under appointment by the Court of Appeal, for Defendant and
Appellant Stocker.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey and Mary Sanchez,
Deputy Attorneys General, for Plaintiff and Respondent.

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Appellants Lamont Kellum and Eric Stocker appeal from a
judgment entered after they were convicted by a jury of first
degree murder, two counts of attempted murder, possession of a
firearm by a felon, and shooting at an inhabited dwelling. The
jury found the firearm and gang enhancement allegations to be
true. Appellants raise issues regarding insufficiency of the
evidence, instructional error, and evidentiary error. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At 12:20 a.m. on August 14, 2014, a shooting occurred
outside the residence of Keiwan Williams at 824 West Maple
Street in the City of Compton. Williams testified that shortly
after midnight, he looked outside and saw his brother Sylvester
Willis with Ronald Stoval and Reggie Heard in front of the house.
At about 12:30 a.m., Williams heard a series of seven to ten
gunshots. He called 911 and ran outside. Willis and Stoval ran
past him and went inside the house. Heard, who had been shot,
was crawling on the driveway. Heard died at the scene from a
single gunshot wound.
Several hours later, paramedics removed defendants from a
white vehicle that had crashed into a utility pole in the City of
Lakewood. A paramedic alerted a sheriff’s deputy that Kellum
had a firearm in his pocket. A nine millimeter semiautomatic
handgun was recovered from the pocket of Kellum’s pants and a
.357 revolver was recovered from inside the white vehicle.
Ballistics tests showed that both firearms had been used in the
Maple Street shooting.
Defendants were tried before a single jury on five counts:
(1) first degree murder of Heard (Pen. Code, § 187, subd. (a);

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count 1);1 (2) attempted willful, deliberate, and premeditated
murder of Willis (§§ 664, 187, subd. (a); count 2); (3) attempted
willful, deliberate, and premeditated murder of Stoval (§§ 664,
187, subd. (a); count 3); (4) possession of a firearm by a felon
(§ 29800, subd. (a)(1) [count 4 as to Kellum and count 5 as to
Stocker]);2 and (5) shooting at an inhabited dwelling (the
Williams residence at 824 West Maple Street) (§ 246, count 6).3
Firearm4 and gang5 allegations were included in each count.
1 All further undesignated statutory references are to the
Penal Code.
2 Kellum and Stocker each stipulated to the prior felony
conviction alleged in the unlawful possession charge.
3 Count 7, shooting at an inhabited dwelling (at 824 W.
Maple Street, adjacent to the Williams residence), was dismissed
before trial.
4 Counts 1, 2, and 3 contained allegations that each
defendant personally discharged and used a firearm (§ 12022.53,
subd. (b), (c), (d), and (e)(1)), and that a principal personally and
intentionally discharged a firearm (ibid.).
5 Counts 1 through 3 alleged that the offenses are
punishable by imprisonment for life under section 186.22,
subdivision (b)(5). It also was alleged that each of the offenses
was committed for the benefit of, at the direction of, and in
association with a criminal street gang with the specific intent to
promote, further and assist in criminal conduct by gang
members. (§ 186.22, subd. (b)(1)(A) & (C).)

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The Prosecution’s Evidence
The shooting occurred in the territory of the Cedar Block
Pirus, a Blood gang which favors the color red. Heard, a college
football player who worked at Target, was wearing his red
employee shirt when he was shot. He was not a gang member.
According to the medical examiner, the bullet had entered
through Heard’s back, perforated the carotid artery, and exited
the left side of the neck.
The fatal .357 bullet that killed Heard (it was matched to
him through DNA testing) was recovered on the driveway at 824
West Maple Street. Also at that address, fragments consistent
with nine millimeter Luger type bullets were recovered from a
tree, and bullet marks were found in a car parked in the
driveway.
Two houses away from 824 West Maple Street, ten
expended nine millimeter casings were found on the ground.
Bullet marks were found on the exterior of 828 West Maple
Street, and on a post between 828 and 830 West Maple Street. A
bullet fragment consistent with a .38 or .357 revolver was found
along a fence line between those properties.
Sergeant John O’Brien interviewed Williams, Willis,
Stoval, and neighboring residents, but was not able to obtain the
description of a possible suspect. Based on surveillance videos
from nearby businesses, O’Brien thought that a white vehicle
might have been involved in the shooting. Surveillance videos
taken at 12:27 a.m., several minutes after the shooting, showed a
white car speeding south on Wilmington Avenue with its
headlights off. Two minutes later, a sheriff’s radio car appeared
on the videos, going north on Wilmington Avenue toward Maple
Street.

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Defendants’ Car Accident
Several hours after the shooting, defendants were injured
in a single vehicle accident. Kellum was driving a white Nissan
Sentra when it crashed into a utility pole on Lakewood Boulevard
and Ashworth Street in the City of Lakewood. The Sentra was
registered to Kellum’s girlfriend, Riki Davenport.
A reporter filmed a video of paramedics removing
defendants from the vehicle, and posted the video on the
Internet. The video, which was played at trial, showed a
paramedic, Celina Serrano, removing Kellum from the vehicle.
Serrano testified that she felt a gun in Kellum’s pants pocket and
alerted a deputy. Deputy Jody Napuunoa testified that he
recovered a black nine millimeter Caltech semiautomatic
handgun from the front right pocket of Kellum’s red pants. Upon
searching the Sentra, Napuunoa recovered a second firearm—a
.357 chrome revolver with one live round and five empty
casings—from the driver’s side floorboard. In his report about
the firearms, Napuunoa identified both defendants as members
of the Park Village Crips.
Surveillance Video from New Wilmington Arms
On September 25, 2014, Sergeant O’Brien interviewed
Semaj Newton, a confidential informant who was in custody on
another matter. After the interview, O’Brien watched the
Internet video of defendants’ car accident and obtained a
surveillance video from the New Wilmington Arms, a gated
apartment complex on Laurel Street, south of the crime scene.
The surveillance video showed a white car arriving outside the
apartment complex on Laurel Street at 12:50 a.m. on the night of
the shooting, and two men exiting the vehicle. At 1:13 a.m., the

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video showed a large group of people emerging from the
apartment complex, and two men reentering the white vehicle
and driving away. O’Brien testified that he could not make out
the faces of the two men in the white car or the license plate
number.
Physical Evidence.
O’Brien obtained a warrant to search the white Nissan
Sentra, which was at a tow yard. He recovered several black knit
gloves and a bloodstained sweatshirt from the Sentra.
Gunshot residue was found on the sweatshirt and one of
the gloves. The blood on the sweatshirt was matched to Stocker
through DNA testing.
DNA from several sources was found on each of the guns
recovered at the scene of the car accident—the .357 revolver
found on the floorboard of the Sentra and the nine millimeter
semiautomatic handgun found in Kellum’s pocket. None of the
DNA on the firearms was matched to either defendant.
The recovered firearms were test fired by James Carroll, a
prosecution firearms expert. By comparing the test fired
cartridges and casings with the expended cartridges and casings
recovered from the crime scene, Carroll linked both recovered
firearms to the Maple Street shooting. He testified that the
bullet that killed Heard had been fired by the .357 revolver
recovered from the floorboard of the Sentra, and that the ten
expended casings from the crime scene had been fired by the nine
millimeter semiautomatic handgun recovered from Kellum’s
pocket.
Carroll concluded that the .357 revolver had misfired on
the night of the shooting. He testified the revolver contained a

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single live round. When he examined the round, he saw it had a
firing pin impression, an indication the gun had misfired.
Kellum’s Text Messages and Photographs
Several months after the shooting, Kellum was arrested for
a parole violation. His parole officer took custody of his cell
phone, and its contents were electronically downloaded and
printed. Several of those downloaded text messages (Exhibits 83
and 84) and photographs (Exhibit 85) were presented at trial, but
only against Kellum. (Other photographs that also depicted
Stocker were admitted as to both defendants.)
Exhibit 83. On September 15, 2014, Kellum and a person
named Kells (referred to as “Crip”) exchanged text messages
about a gun that had jammed:
Kells: “On god lol we got crackin last night fuck
MexicanK.”
Kellum: “That bunk ass strap smh.”
(Detective Scott Lawler, the prosecution’s expert witness on
criminal street gangs, testified that “strap” means handgun, and
“smh” means shaking my head.) “Bullshit jammed.” (Lawler
testified that this refers to a gun jamming.)
Kells: “On god that shit had me hot man.”
Kellum: “That whole night had me hot cuh, nigga got get
more organized on what they gone do.”
Kells: “On my momma, bro. And we need to get a bigger
gun.”
Kellum: “Crip you know how I get down.” “That shit was
weak.”

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Exhibit 84. On September 4, 2014, Kellum and a person
designated as “Bestfriend” exchanged text messages regarding
Kellum’s injuries and Baby Clues (Stocker):
Bestfriend: “you been feeling ok?”
Kellum: “Yeah. I’m recovering well . . . Still ah little sore
but I’m good.”
Bestfriend: “ok good be coo on baby clues”
Kellum: “Yeah im cool on that boy he did some gay shit too
I called cuh and he won’t answer and then I text cuh and he read
it lol”
Cell Phone Tower Records.
FBI special agent Michael Easter provided expert
testimony on the cell phone records for Kellum, Stocker, and
Stocker’s girlfriend, Tiffany Gilstrap,6 on the night of the
shooting. The cell phone towers used by Stocker’s phone
indicated he was in the vicinity of 824 West Maple Street from
12:02 a.m. to 12:27 a.m. At 12:29 a.m., Stocker’s phone began
moving west and then south of the crime scene area.
At 10 p.m., Kellum’s phone was in the area south of Maple
Street, and by 11:15 p.m. had moved east of 824 West Maple
Street. Kellum’s phone was turned off from 11:46 pm to 12:32
a.m., which meant it generated no cell phone tower activity
during that period.
6 Stocker had two Sprint cell phones, one with a number
ending in 6435, and the other ending in 6530. Based on his
analysis of the records for both phones, Easter concluded that on
the night of the shooting, Gilstrap, who lives in the City of Perris,
was using the 6530 Sprint phone (Gilstrap’s phone), and Stocker
was using the 6435 Sprint phone (Stocker’s phone).

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The next activity for Kellum’s phone occurred after the
shooting, at 12:32 a.m., when his phone received a call from
Gilstrap’s phone. At that time, Kellum’s phone was slightly west
of the crime scene.
At 12:32 a.m., Stocker’s phone used the same cell tower
that was being used by Kellum’s phone. Easter testified that
both defendants’ phones were “at the exact same spot,” which was
“the northwest corner of Avalon Boulevard and Compton.”
Several hours later, at about the time of the car accident,
Kellum’s phone was near the 91 and 710 freeways, in the vicinity
of Lakewood Boulevard. After the accident, at 5:09 a.m.,
Stocker’s phone was near Lakewood Boulevard and Alondra
Boulevard when a call from Gilstrap’s phone, which was in
Perris, was routed to Stocker’s voice mail. Gilstrap’s phone made
calls to both Stocker’s and Kellum’s phones, but no calls were
made between Stocker’s phone and Kellum’s phone that night.
Gang Affiliation Evidence.
In 2011, Kellum was arrested by Deputy Orlando Saldana.
Saldana testified that Kellum had admitted being a member of
the Park Village Crips.
In 2012, Stocker was arrested by Deputy Javier Flores.
Flores testified that Stocker, who had a tattoo on his right arm
(“Only God can judge me”), admitted being a Park Village Crip.
Expert Gang Testimony.
Lawler testified that there are about 150 to 200 members of
the Park Village Crips. The Park Village Crips claim an area to
the south of the territory of a rival gang, the Cedar Block Pirus.

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The area where the shooting occurred, Maple Street west of
Wilmington Avenue, is in Cedar Block Piru territory.
There are three apartment complexes within the territory
of the Park Village Crips: the Park Village Apartments (now
called Jasmine Gardens), the New Wilmington Arms, and Sunny
Cove.7 The New Wilmington Arms and Park Village Apartments
are on the same street.
The primary activities of the Park Village Crips are illegal
possession of firearms, narcotics sales, vehicle thefts, shootings,
murders, and assaults with deadly weapons. When committing
crimes, gang members like to bring “true soldiers” who can
handle the pressure and will not snitch. Associates hang out
with a gang, but do not engage in its hard core activities.
Respect is essential in gang culture. To earn respect, a
gang member will commit crimes, go to jail, and do the time.
Gang members want to instill fear in others, particularly rival
gangs. Fear is beneficial to a gang because it discourages
witnesses from testifying in court.
Park Village Crips identify with the color blue. They favor
blue hats (Chicago Cubs) and items with a “V” (Virginia Tech),
“L” (St. Louis Cardinals), or “VL” (Louis Vuitton) which stands
for Village Life. The gang also favors tattoos such as WACC
(Wilmington Arms Compton Crip), Louis Vuitton (Village Life),
Chanel (CC for Compton Crip), and street signs such as
Wilmington or Laurel. To earn a tattoo, a gang member must put
in work, such as committing a shooting. The ultimate crime for a
gang member is murder.
7 The Cedar Block Pirus gang claims an area to the north of
the Park Village Apartments and south of Rosecrans Avenue.

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In 2013, Lawler investigated Kellum’s father, Lamont
Kellum, Sr.8 Lawler testified that Senior is an active member of
the Park Village Crips.
Lawler has seen field identification cards which refer to
Kellum as a member of the Park Village Crips. One of those
cards was prepared by Lawler’s partner. Lawler identified
photographs that he had taken of Kellum’s gang-related tattoos
such as CC (Compton Crip) and VL (Village Life). Photographs of
Kellum flashing gang symbols were admitted into evidence.
Lawler has seen field identification cards for Stocker,
known as Baby Clues, which identified Stocker and his
companions, Lamar Chapman (Mighty Mouse or Chap) and
Davell Reed (Veezy), as members of the Park Village Crips.
Stocker has been called Baby Clues in recorded jailhouse phone
calls. Lawler identified photographs he had taken of Stocker’s
gang tattoos—“VL” and “LV” for Village Life, “V” for Village, a
dollar sign, and a clown with a gun. Based on Stocker’s field
identification cards, tattoos, criminal record, and known
associates, Lawler testified that Stocker was a member of the
Park Village Crips.
Lawler testified to the gang’s predicate crimes: In 2012,
Chapman was convicted of assault with force likely to cause great
bodily injury. That same year, Anthony Merritt was convicted of
illegal possession of a firearm.
Based on a hypothetical crime that tracked the
prosecution’s theory of this case,9 Lawler testified that in his
8 In order to differentiate between Kellum, Sr., and his son,
we will refer to Kellum, Sr. as Senior.

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opinion, the hypothetical gang members committed the crime for
the benefit of a criminal street gang and in association with each
other. As to the hypothetical victims’ lack of gang affiliation,
Lawler explained that when gang members are on a mission, it
does not matter whether the victim is a gang member. The final
body count is all that matters.
9 The prosecutor posed the following hypothetical: “Assume
that on August 14, 2014, a young man in Cedar Block Piru
territory is standing outside of a house on Maple Street wearing a
red shirt and brown khaki pants. He’s standing with two other
individuals neither of whom—all three of them are not gang
members. [¶] And I’d like you to assume that two individuals
open fire, one with a 9 millimeter Cal Tech, the other with a .357
Smith and Wesson. The Smith and Wesson revolver is the one
that kills the individual wearing the red shirt and the khaki
pants. [¶] The two individuals who open fire are later in a car
accident a few hours later in a different neighborhood. When
those individuals are identified to be Park Village Crip gang
members, inside the vehicle that they are driving and that’s
involved in the accident is the 9 millimeter Cal Tech as well as
the .357 revolver. Both of the Park Village gang members have
numerous tattoos signifying their involvement in the gang. [¶]
Do you have an opinion as to whether the murder of the young
man wearing the red shirt in Cedar Block Piru territory as done
at the benefit of, at the direction of, or in association with a
criminal street gang?”
Detective Lawler responded yes, the hypothetical Park
Village gang members committed the crime for the benefit of the
gang as a whole and in association with each other.

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Newton’s Interview Statements
Newton was a reluctant prosecution witness. After Newton
repeatedly testified that he did not provide O’Brien with
information about the Maple Street shooting,10 he was
impeached with an audio recording and transcript of his
interview, a summary of which follows.11 Newton grew up with
Baby Clues (referring to Stocker) in Park Village (an apartment
complex within the territory of the Park Village Crips). Newton
lives at 807 West Maple Street, the same block where the
shooting occurred. Shortly before the shooting, Newton saw
Stocker standing across the street from his house. As Newton
watched from his window, Stocker loaded a chrome .357 revolver
and placed it in his pocket. Stocker then loaded and cocked what
appeared to be a black .40 or .45 semi-automatic handgun.
10 At trial, Newton testified he was living at 807 Maple
Street on the night of the shooting. He testified that he was a
former affiliate of the Park Village Crips, but was not a member.
He stated that he does not know anyone called Baby Clues
(Stocker’s gang moniker). He did not attend school with Stocker,
nor did he identify Stocker as Baby Clues. He never told O’Brien
that he saw Baby Clues loading a .357 revolver and a semi-
automatic .40 or .45 handgun. He did not recall identifying
Kellum as his cousin.
11 The jury was instructed in relevant part: “You have
heard evidence of [] statements that a witness made before the
trial. If you decide that the witness made those statements, you
may use those statements in two ways:
“1. To evaluate whether the witness’s testimony in court is
believable;
“AND

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Newton called out to Stocker, “Yo, what’s the deal?”
Stocker replied, “Oh, oh, nothing, bro, nothing.” Stocker began
walking west on Maple Street toward Kemp Avenue. Fearing he
might be shot, Newton closed his front door and window and
went to his bedroom.
A few minutes later, Newton heard three shots from the
.357 revolver, followed by ten rounds from the semi-automatic
pistol. Newton was familiar with both weapons: the semi-
automatic pistol belonged to Stocker, and the .357 revolver “came
in through the hood” and had “been passed around.”
Newton said that the occupants of the house where the
shooting occurred are related to the mother of Newton’s baby.
They belong to several gangs—Village Town, Cedar, and Fruit
Town. But Heard, the decedent, “wasn’t from Compton. He
works at Target. That’s why he had a red shirt on. He’s not a
gangster at all.” Heard was a “nice kid” and a “football player
going to college.” Newton believed that Stocker had fired at
Heard because of the red shirt.
Newton identified a photograph of Kellum, known as AJ.
Newton calls Kellum his cousin because his mother was married
to Kellum’s uncle. Newton was aware that Kellum had started
hanging out with Stocker, but Kellum was not with Stocker that
night. If Kellum had been there, Newton would have gone
outside to find out what was happening.
Newton was surprised to see Stocker walking in Cedar
Block Piru territory. When Newton saw Stocker that night, he
thought to himself, “we Compton Crips, what the fuck is you
doing walking down Cedar going that way anyways with two
“2. As evidence that the information in those earlier
statements is true.”

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loaded pistols.” Given the area, Stocker would not have come on
foot. “No, realistically, y’all know damn well he didn’t walk
there.” “I don’t even walk to the store. So I know for a fact, hell
no. Somebody—he had to either drop him off or something.”
“But wasn’t nobody with him when he walking down that street
though.”
Newton said that Stocker recently had injured his face and
ribs in a car accident. Stocker was riding in a white four-door
midsize car at the time of the accident.
Defendants’ Motions for Acquittal
After the People rested, defendants moved for acquittal
under section 1118.1.12 As to the attempted murder charges,
defendants argued the evidence was insufficient to show that
Willis and Stoval were the intended targets of the shooting.
Unlike Heard, neither Willis nor Stoval was wearing red. In
addition, the zone of fire was never defined—there was no
evidence of the distance separating Willis and Stoval from Heard.
Defendants argued there was insufficient evidence to
support the charge of shooting at an inhabited dwelling, 824 West
Maple Street. At most, shots were fired at the ground and a tree,
12 “In a case tried before a jury, the court on motion of the
defendant or on its own motion, at the close of the evidence on
either side and before the case is submitted to the jury for
decision, shall order the entry of a judgment of acquittal of one or
more of the offenses charged in the accusatory pleading if the
evidence then before the court is insufficient to sustain a
conviction of such offense or offenses on appeal. If such a motion
for judgment of acquittal at the close of the evidence offered by
the prosecution is not granted, the defendant may offer evidence
without first having reserved that right.” (§ 1118.1.)

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but none at the dwelling itself. Strike marks on adjacent
property at 828 West Maple Street, which was not occupied, and
casings in front of 816 West Maple Street were not sufficient to
prove that shots were fired at 824 West Maple Street.
As to the gang allegations, defendants relied on People v.
Prunty (2015) 62 Cal.4th 59 (Prunty). They argued that because
Lawler had testified about the gang’s three subsets,13 the
prosecution had to establish a connection between the defendants
and the specific subset that committed the shooting, as well as a
connection between the subset and the larger group.
Kellum raised an additional ground: lack of evidence that
he was present during the shooting. Newton stated that Kellum
was not with Stocker, and according to O’Brien, the identities of
the men in the white vehicle could not be determined from any of
the surveillance videos. Because Kellum’s cell phone had been
13 During cross-examination, Lawler was asked about
territories and subsets:
“Q. Referring to Park Village, I think you said they have
three territories, right? What used to be the Park Village
Garden?
“A. Well, it was Park Village. Now it’s – has been since
renamed the Jasmine Garden.
“Q. The New Wilmington Arms?
“A. The New Wilmington Arms. Yes, Sir.
“Q. You know of Sunny Cove?
“A. Yes. Housing complex.
“Q. Those three territories does that constitute three subsets
of Park Village?
“A. Yeah. You have the Sunny Side. That’s going to be
Sunny Cove. You have the WACC Side, Wilmington Arms.
WACC, Wilmington Arms Compton Crip. And the Park Side
located now in the Jasmine Gardens.” (Italics added.)

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turned off, there was no cell phone activity for his phone when
the shooting occurred. Kellum and Stocker were together several
hours later, but that is irrelevant given the lack of evidence that
Kellum was an aider and abettor or the getaway driver.
The prosecutor argued the evidence supported a reasonable
inference that all three victims were the intended targets of a
gang shooting. From the number of shots fired, it was reasonable
to infer that after Heard had been shot and was on the ground,
shots continued to be fired at Willis and Stoval. They managed to
escape unharmed as bullets hit the surrounding area—the
ground, a tree, a car, and the house next door.
The prosecution sought to distinguish Prunty, which
involved the Norteno and Sureno In this case, subsets are not at
issue. Defendants belong to the same gang, the Park Village
Crips, and have the same tattoos regarding Village Life.
The trial court denied the motion, finding the evidence was
sufficient to support the substantive charges and gang
allegations. The court distinguished Prunty because, in this case,
there was substantial evidence to show that the primary and
predicate offenses were committed by members of the Park
Village Crips regardless of any subsets.
Kellum’s Defense
Kellum presented defense witnesses, but Stocker did not.
Janae Council. Kellum’s cousin, Janae Council, testified
that she knows both defendants. When Council visited Stocker in
the hospital after the car accident, Stocker said he had one gun in
his lap and the other gun in his pocket. Council stated that
neither Kellum nor his father belonged to a gang.

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Chastity Wright. Kellum’s mother, Chastity Wright,
testified that after the car accident, she went to the wrecking
yard with Davenport and removed Kellum’s red sweat pants from
the Sentra. Wright brought the sweat pants with her to court.
Senior. Senior testified that he was a former member of
the Park Village Crips and a former longtime resident of the
Wilmington Arms. On the night of the shooting, Senior was
gambling at the Wilmington Arms with Deandre Davis (also
known as Uncle Rudy) and others. Because he had been
drinking, Senior called Kellum to ask for a ride home. About 15
minutes later, Kellum arrived at the Wilmington Arms and
waited for Senior to finish gambling. Eventually Senior left in a
white car with Kellum, Davis, and Stocker. Senior drove the
white car even though he had been drinking. They drove on
Wilmington Avenue to the 91 Freeway and exited on Downey
Avenue. Stocker was unable to enter his grandmother’s house, so
they all drove to the apartment building where Senior and Davis
reside. After Senior and Davis got out of the vehicle, Kellum and
Stocker drove off. Senior did not see any guns in the car. Later,
Senior got a call saying there had been an accident.
Senior testified that Kellum does not belong to the Park
Village Crips and does not have a Village Life tattoo. Senior
stated he did not know whether Kellum has a Wilmington Arms
tattoo, or whether the Park Village Crips hang out at the
Wilmington Arms.
Kellum. Testifying in his own defense, Kellum stated that
he is known as AJ, which stands for Aaron Junior, and his father
is known as Senior. Kellum admitted he had a prior felony
conviction.

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Kellum is a former long-time resident of the New
Wilmington Arms. On the night of shooting, Kellum was staying
with his aunt on Wilmington Avenue and 103rd Street. Shortly
after 11 p.m., Senior called to ask for a ride home. Kellum drove
alone in the white Nissan Sentra to the New Wilmington Arms.
Because non-residents may not drive into New Wilmington Arms
after 10 p.m., Kellum parked on the street outside the front gate.
He went inside to meet his father and uncle who were shooting
dice in the visitors’ parking lot. While Kellum was waiting for his
father, Stocker came over and asked for a ride. Kellum agreed.
Kellum had been to Stocker’s house before.
Senior drove the Sentra while Stocker and Kellum rode in
the back seat. They took Wilmington Avenue to the 91 Freeway
and exited at Downey Avenue. They stopped to let Stocker out,
but Stocker could not get into his house and returned to the car.
Senior and Davis were dropped off at their apartment building.
The accident occurred while Kellum and Stocker were driving
back to Stocker’s house.
Kellum was unconscious when he was placed in the
ambulance. He was wearing the red Hollister sweat pants that
his girlfriend had cut into shorts. He did not recall any gloves or
guns in the car. Kellum claimed it was impossible to fit a
handgun inside his pants pocket, which contained his cell phone.
Kellum regained consciousness eight days later, after being on
life support for four and a half days. His arm was in a cast.
On cross-examination, Kellum claimed to have quit the
Park Village Crips upon learning of his girlfriend’s pregnancy in
March 2014. He confirmed that Newton was his cousin by
marriage. Kellum stated that he used to hang out with Stocker
at the Wilmington Arms, but did not know him by his nickname.

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20
After playing the audio recording of Kellum’s police
interview, the prosecutor asked Kellum to explain some of his
statements. Kellum testified that when he told O’Brien he could
not remember anything about the accident, his memory was still
impaired from the accident. When he said that he did not know
Stocker, he was being sarcastic because they had just been in an
accident together.
Kellum testified that he did not know there were guns in
the car. He admitted having two prior felony convictions, one in
2011 for carrying a firearm in a public place, and another in 2012
for assault with a firearm.
On redirect, Kellum explained that his tattoos have
different meanings. The one that says “Lord I knows I try” has
wings and a serenity prayer. The tombstone tattoo is for his
deceased grandparents. The tattoos on his back memorialize his
late friend and cousin. He also has tattoos of Jesus’ hands, the
Hollywood sign, and the Compton courthouse.
Prosecution’s Closing Argument
The prosecutor, Jennifer Turk, argued that Kellum and
Stocker belong to the Park Village Crips, and they ventured into
Cedar Block Piru territory to commit a shooting. They drove
around until they spotted Heard—who was wearing a red shirt—
and his companions on West Maple Street. Defendants fired 15
rounds, intending to kill all three men. The scattered casings,
strike marks, and bullet fragments supported a reasonable
inference that all three victims were being targeted while they

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21
were running toward the front door of 824 West Maple Street.14
Turk stated that “the casings tell us the story. The fact that Mr.
Williams said that they came running to the house told us a
story. The fact that there were at least 14 fragments and casings
that were found tells us the story that they weren’t just aiming
for Mr. Heard because Mr. Heard was only hit once.”
“[T]hankfully these two are bad shots and the other two were
able to get away.”
Stocker was identified by Newton, who saw Stocker loading
the .357 revolver. Newton said that the revolver had been passed
around the neighborhood, and this was corroborated by the
presence of DNA from multiple sources.
Newton heard two guns being fired at the same time. This
suggested there were two shooters. Stocker was implicated in the
shooting by the presence of his blood and gunshot residue on the
sweatshirt recovered from the Sentra. Because the blood was on
the front left shoulder of the sweatshirt, it is unlikely that
Kellum was wearing the sweatshirt. Had Kellum been wearing
the sweatshirt, because he was in the driver’s seat the force of the
14 “They’re being followed everywhere. This is 828 Maple
Street, and we know that there were some strikes on that house
as well even though no one lived there. Just consistent with
people continuing to fire. And then we know this is 828 and 830.
There was this fragment that actually came from the Smith and
Wesson th[at] is consistent with a revolver. We have nine
millimeters that start on the corner of the property and we have
the .357 that kills Mr. Heard, and we continue to have .357 even
further west of the property and it ends up over by 830. But
again everyone is moving towards 824 Maple to get to safety
except for Mr. Heard who was unfortunately struck.”

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22
collision might have transferred Stocker’s blood to Kellum’s right
shoulder, but not to the left.
Kellum’s testimony that he drove alone from his aunt’s
house to the New Wilmington Arms in order to give his father a
ride home was rebutted by cell phone tower records which
showed that Kellum was “actually driving around. All of these
phone calls where he’s hitting off of all of these towers, he’s
driving around, looking, hunting. It’s twelve o’clock at night.
There are not a lot of people out when this happens. So you got
to kind of look for your victim here. And that’s what happened.”
Kellum was implicated in the shooting by the presence of
defendants’ cell phones at the same location shortly after the
shooting. The cell phone tower records showed the direction of
travel of defendants’ cell phones, which coincided with the
direction of travel of the white car in the surveillance videos.
Other evidence of Kellum’s involvement included the surveillance
videos showing two men arriving at the New Wilmington Arms in
a white car, their subsequent departure, and, several hours later,
the accident in which both defendants were found inside a white
Sentra with the firearms used in the Maple Street shooting.
In addition, incriminating text messages on Kellum’s cell
phone supported a reasonable inference that he was a participant
in the shooting. Although Kellum told O’Brien that he did not
know Stocker, and testified that he did not know Stocker by his
nickname Baby Clues, the text messages by Kellum referred to
Baby Clues and a gun that had jammed.15 Turk argued: “You
15 Unless Kellum was “talking about some other strap that
jammed, the logical and reasonable inference is that he’s talking
about this gun. And keep in mind that text message was just
sent a few weeks after. It was about a month after the murder

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23
heard that audio for yourself. You saw his demeanor on the
stand and his sarcastic tone of voice in here. There wasn’t a trace
of sarcasm when Detective O’Brien slid that photo across the
table, and you heard him say with all sincerity. No. I don’t know
who that person is.” In addition, Kellum’s text message—”Crip,
you know how I get down”—contradicted his testimony that he
had quit the Park Village Crips upon learning of his girlfriend’s
pregnancy in April 2014.
All of these facts viewed together supported a reasonable
inference that the white car in the surveillance videos was the
same white Nissan Sentra that was crashed by Kellum several
hours later. Because it is unlikely Stocker would commit a
shooting in rival gang territory without a getaway car, it is
reasonable to infer that Kellum was the getaway driver.16
when [Kellum] had been in the hospital for a while for his
injuries. I’m not going to deny that he had serious injuries. I
don’t know if he was actually on life support. I know that he was
really, really injured. And we know he had that big cast on his
arm. So either he went out did another shooting with a gun that
jammed which seems unlikely or this is what he’s talking about.
And again [Stocker and Kellum] were together based on the
direction of travel, the cars, the cell phones, and the location
where defendant Kellum was at the time that Stocker’s phone
pinged around that one [tower] near Rancho Dominguez.”
16 “If defendant Kellum wasn’t there, how did Eric Stocker
get anywhere? Wandering around? Because, I mean, according
to . . . defendant’s Kellum’s testimony and his father’s testimony,
Mr. Stocker just shows up and needs a ride. So he’s running
around shooting people with two weapons and then walking
around Compton? I don’t think so. That doesn’t make any
sense.”

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24
Turning to count 1, first degree murder, Turk argued that
defendants intended to kill Heard, and that the shooting was
willful, deliberate, and premeditated.17 Regardless of which
defendant fired which gun, both would be guilty of first degree
murder as perpetrators. Alternatively, even if the jury concluded
that Kellum was sitting in the car while Stocker was firing both
guns, Kellum would be equally responsible for the murder under
a theory of aiding and abetting.18
As to counts 2 and 3, the attempted murders of Willis and
Stoval, defendants are guilty because they were targeting all
three men who were standing outside the house, even though
they succeeded only as to one. Alternatively, defendants are
guilty because the evidence showed that they intended to kill
“everyone in a particular zone, the harm or kill zone.” 19
17 The jury was instructed with CALCRIM Nos. 500
(Homicide: General Principles), 520 (First or Second Degree
Murder with Malice Aforethought), and 521 (A) (First Degree
Murder: Deliberation and Premeditation).
18 The jury was instructed with CALCRIM Nos. 400 (Aiding
and Abetting: General Principles), and 401 (Aiding and Abetting:
Intended Crimes).
19 The jury was instructed with CALCRIM No. 600
(Attempted Murder):
“The defendants are charged in Counts 2 and 3 with
attempted murder.
“To prove that the defendant is guilty of attempted murder,
the People must prove that:
“1. The defendant took at least one direct but ineffective
step toward killing another person;

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25
Counts 4 (Kellum) and 5 (Stocker), unlawful possession of a
firearm by a felon, were supported by the recovery of the .357
revolver from the Sentra’s floorboard, an area accessible to either
defendant. In addition, Stocker was in possession of both
weapons when he was loading them before the shooting, and
Kellum was in possession of the 9-millimeter semiautomatic
when it was recovered from his pocket.
Count 6, shooting at an inhabited dwelling, was established
by the shots fired toward 824 West Maple Street. There were
bullet fragments and strike marks on a car, a tree, and the
pavement in front of that house.
Jury Verdict and Sentence
The jury convicted Kellum and Stocker on all charges. The
gang and gun enhancement allegations were found true as to all
“AND
“2. The defendant intended to kill that person.
“A direct step requires more than merely planning or
preparing to commit murder or obtaining or arranging for
something needed to commit murder. A direct step is one that
goes beyond planning or preparation and shows that a person is
putting his or her plan into action. A direct step indicates a
definite and unambiguous intent to kill. It is a direct movement
toward the commission of the crime after preparations are made.
It is an immediate step that puts the plan in motion so that the
plan would have been completed if some circumstance outside the
plan had not interrupted the attempt.
“. . . . . .
“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.’ . . .”

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26
counts. (§§ 12022.53, subds. (b), (c), (d), (e), 186.22, subd.
(b)(1)(A).)
On count 1, the jury found defendants guilty of the willful,
deliberate and premeditated murder of Heard. Each defendant
was found to have personally and intentionally discharged a
firearm which caused great bodily injury and death to Heard.
The jury found that each defendant personally used a firearm,
and that a principal personally and intentionally discharged a
firearm.
On counts 2 and 3, the jury found defendants guilty of the
willful, deliberate and premeditated attempted murders of Willis
and Heard. The jury found that each defendant personally and
intentionally discharged a firearm, and that a principal
personally and intentionally discharged a firearm.
After denying the defense motions for new trial, the trial
court imposed identical sentences of 80 years to life as to count 1,
and concurrent sentences as to the remaining counts. The
sentence on count 1 consisted of a base term of 25 years to life,
doubled to 50 years to life under section 667, subdivision (e)(1),
with an additional 25 years to life under section 12022.53,
subdivision (d), plus an additional 5 years under section 667,
subdivision (a).
DISCUSSION
I
Kellum contends the gang enhancement findings must be
reversed. We do not agree.
In Prunty, supra, 62 Cal.4th 59, the Supreme Court
discussed the meaning of the phrase “criminal street gang” as
used in the Street Terrorism Enforcement and Prevention Act

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27
(the STEP Act or Act): “The Act imposes various punishments on
individuals who commit gang-related crimes—including a
sentencing enhancement on those who commit felonies ‘for the
benefit of, at the direction of, or in association with any criminal
street gang.’ (. . . § 186.22, subd. (b) (section 186.22(b)), italics
added.) A criminal street gang, in turn, is defined by the Act as
any ‘ongoing organization, association, or group of three or more
persons’ that shares a common name or common identifying
symbol; that has as one of its ‘primary activities’ the commission
of certain enumerated offenses; and ‘whose members individually
or collectively’ have committed or attempted to commit certain
predicate offenses. (§ 186.22, subd. (f) (section 186.22(f)).) To
prove that a criminal street gang exists in accordance with these
statutory provisions, the prosecution must demonstrate that the
gang satisfies the separate elements of the STEP Act’s definition
and that the defendant sought to benefit that particular gang
when committing the underlying felony.” (Prunty, at p. 67.)
The issue in Prunty was what “type of showing the
prosecution must make when its theory of why a criminal street
gang exists turns on the conduct of one or more gang subsets. In
this case, the prosecution’s theory was that defendant Zackery
Prunty committed an assault to benefit the Sacramento-area
Norteño street gang. The evidence showed that Prunty identified
as a Norteño; that he claimed membership in a particular
Norteño subset, the Detroit Boulevard Norteños; and that Prunty
uttered gang slurs and invoked ‘Norte’ when shooting a perceived
rival gang member at a Sacramento shopping center. To show
that Prunty’s crime qualified for a sentence enhancement under
the STEP Act, the prosecution’s gang expert testified about the
Sacramento-area Norteño gang’s general existence and origins,

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28
its use of shared signs, symbols, colors, and names, its primary
activities, and the predicate activities of two local neighborhood
subsets. The expert did not, however, offer any specific testimony
contending that these subsets’ activities connected them to one
another or to the Sacramento Norteño gang in general.” (Prunty,
supra, 62 Cal.4th at p. 67.)
Prunty held that if the prosecution elects to rely on crimes
committed by members of a subset as predicate offenses to prove
a gang enhancement, the prosecution must establish a connection
between the gang and the subset. The Supreme Court stated:
“We conclude that the STEP Act requires the prosecution to
introduce evidence showing an associational or organizational
connection that unites members of a putative criminal street
gang. The prosecution has significant discretion in how it proves
this associational or organizational connection to exist; we offer
some illustrative examples below of strategies prosecutors may
pursue. Yet when the prosecution seeks to prove the street gang
enhancement by showing a defendant committed a felony to
benefit a given gang, but establishes the commission of the
required predicate offenses with evidence of crimes committed by
members of the gang’s alleged subsets, it must prove a connection
between the gang and the subsets. In this case, the prosecution
did not introduce sufficient evidence showing a connection among
the subsets it alleged comprised a criminal street gang, so Prunty
was not eligible for a sentence enhancement under the STEP
Act.” (Prunty, supra, 62 Cal.4th at pp. 67–68.)
Kellum argues the prosecution did not satisfy Prunty’s
requirements because it failed to prove “that any of the subsets
share an associational or organizational connection with the
larger group, as required by Prunty.” But, unlike Prunty, in this

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29
case the predicate crimes were committed by members of the
Park Village Crips, and the prosecution did not rely on predicate
crimes committed by members of a subset. (See People v. Duran
(2002) 97 Cal.App.4th 1448, 1458 [charged offense may be used
as predicate offense].)
The issue of subsets arose, if at all, during cross-
examination of Lawler. The initial question—”Referring to Park
Village, I think you said they have three territories, right?”—
referred to territories and not subsets. After Lawler listed the
three apartment buildings (Park Village, Sunny Cove, and New
Wilmington Arms), all within the gang’s territory, he was asked
whether “[t]hose three territories . . . constitute three subsets of
Park Village?” Lawler answered yes, but went on to describe
three geographical areas or sides: “You have the Sunny Side.
That’s going to be Sunny Cove. You have the WACC Side,
Wilmington Arms. WACC, Wilmington Arms Compton Crip.
And the Park Side located now in the Jasmine Gardens.” Lawler
did not use the word “subset” in his testimony.
We see no indication that the prosecution was relying on a
crime committed by a member of a subset to establish one or
more predicate offenses under the STEP Act. Accordingly,
Prunty is inapplicable to this case.
II
Defendants challenge the gang enhancement findings
based on evidentiary error under People v. Sanchez (2016) 63
Cal.4th 665, 699–700 (Sanchez), which was decided after the trial
in this case. Defendants contend that Lawler relied on
inadmissible hearsay when he testified that defendants were
active members of the Park Village Crips based on police reports

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30
prepared by other officers and statements of other officers in field
identification cards, and that this resulted in a violation of their
right to confrontation. (Crawford v. Washington (2004) 541 U.S.
36 (Crawford).)20 We find no error.
A. The Sanchez Decision
In Sanchez, the court rejected the practice of admitting
hearsay statements related by experts as the basis of their
opinion, with a caution to the jury that the statements should
only be considered as the basis of the expert’s opinion and should
not be considered for their truth. (Sanchez, supra, 63 Cal.4th at
p. 680–681.) The flaw in this method, Sanchez explained, is that
“[w]hen an expert relies on hearsay to provide case-specific facts,
considers the statements as true, and relates them to the jury as
a reliable basis for the expert’s opinion, it cannot logically be
asserted that the hearsay content is not offered for its truth. In
such a case, ‘the validity of [the expert’s] opinion ultimately
turn[s] on the truth’ [citation] of the hearsay statement. If the
hearsay that the expert relies on and treats as true is not true, an
important basis for the opinion is lacking.” (Id. at pp. 682–683.)
20 Respondent argues the hearsay and Confrontation
Clause claims were forfeited by the failure to object below. We do
not agree that the claims were forfeited. The hearsay objection is
based on Sanchez, supra, 63 Cal.4th 665, which was decided after
the trial in this case. Accordingly, “[a]ny objection would likely
have been futile because the trial court was bound to follow pre-
Sanchez decisions holding expert ‘basis’ evidence does not violate
the confrontation clause. [Citation.]” (People v. Meraz (2016) 6
Cal.App.5th 1162, 1170, fn. 7, review granted on March 22, 2017,
No. S239442 [opinion remains precedential under Cal. Rules of
Court, rule 8.1115(e)(3)].)

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31
Sanchez held that “[w]hen an expert is not testifying in the
form of a proper hypothetical question and no other evidence of
the case-specific facts presented has or will be admitted, there is
no denying that such facts are being considered by the expert,
and offered to the jury, as true.” (Sanchez, supra, 63 Cal.4th at
p. 683.)
However, Sanchez reaffirmed “the propriety of an expert’s
testimony concerning background information regarding his
knowledge and expertise and premises generally accepted in his
field. Indeed, an expert’s background knowledge and experience
is what distinguishes him from a lay witness, and, as noted,
testimony relating such background information has never been
subject to exclusion as hearsay, even though offered for its truth.
Thus, our decision does not affect the traditional latitude granted
to experts to describe background information and knowledge in
the area of his expertise. Our conclusion restores the traditional
distinction between an expert’s testimony regarding background
information and case-specific facts.” (Sanchez, supra, 63 Cal.4th
at p. 685.)
The court explained its holding: “Any expert may still rely
on hearsay in forming an opinion, and may tell the jury in
general terms that he did so. Because the jury must
independently evaluate the probative value of an expert’s
testimony, Evidence Code section 802 properly allows an expert
to relate generally the kind and source of the ‘matter’ upon which
his opinion rests. A jury may repose greater confidence in an
expert who relies upon well-established scientific principles. It
may accord less weight to the views of an expert who relies on a
single article from an obscure journal or on a lone experiment
whose results cannot be replicated. There is a distinction to be

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made between allowing an expert to describe the type or source of
the matter relied upon as opposed to presenting, as fact, case-
specific hearsay that does not otherwise fall under a statutory
exception.
“What an expert cannot do is relate as true case-specific
facts asserted in hearsay statements, unless they are
independently proven by competent evidence or are covered by a
hearsay exception. It may be true that merely telling the jury the
expert relied on additional kinds of information that the expert
only generally describes may do less to bolster the weight of the
opinion. The answer to this reality is twofold. First, the
argument confirms that the proffered case-specific hearsay
assertions are being offered for their truth. The expert is
essentially telling the jury: ‘You should accept my opinion
because it is reliable in light of these facts on which I rely.’
Second, in a criminal prosecution, while Crawford and its
progeny may complicate some heretofore accepted evidentiary
rules, they do so under the compulsion of a constitutional
mandate as established by binding Supreme Court precedent.
“In sum, we adopt the following rule: When any expert
relates to the jury case-specific out-of-court statements, and
treats the content of those statements as true and accurate to
support the expert’s opinion, the statements are hearsay. It
cannot logically be maintained that the statements are not being
admitted for their truth. If the case is one in which a prosecution
expert seeks to relate testimonial hearsay, there is a
confrontation clause violation unless (1) there is a showing of
unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.”
(Sanchez, supra, 63 Cal.4th at pp. 685–686, fn. omitted.)

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B. Analysis
Respondent contends that when Lawler referred to field
identification cards and police reports, he did so only in general
terms to explain that he relied on these materials in forming his
own opinion, which was not improper. (Sanchez, supra, 63
Cal.4th at p. 685.) In addition, respondent argues that because
there was independent evidence to establish that defendants are
members of the Park Village Crips, the expert testimony did not
violate the hearsay rule. (Ibid.) We conclude respondent is
correct.
Lawler’s testimony that he personally photographed each
defendant’s gang-related tattoos did not violate the hearsay rule.
Information regarding a case-specific fact may properly be
established “by a witness who saw the tattoo, or by an
authenticated photograph.” (Sanchez, supra, 63 Cal.4th at
p. 677.) “That [a particular tattoo] is a symbol adopted by a given
street gang would be background information about which a gang
expert could testify. The expert could also be allowed to give an
opinion that the presence of a [particular] tattoo shows the
person belongs to the gang.” (Ibid.)
Kellum’s former gang membership was established through
his own testimony. Whether he was telling the truth when he
testified that he had quit the gang upon learning of his
girlfriend’s pregnancy was for the jury to decide. Based on
Kellum’s text message—“Crip, you know how I get down.”—a jury
could reasonably conclude Kellum had lied about quitting the
gang. We find no violation of the hearsay rule. (Sanchez, supra,
63 Cal.4th at p. 685.)

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III
Kellum argues the evidence was insufficient to support his
conviction of first degree murder. He focuses on the lack of
evidence of planning, motive, and participation in the shooting.
Kellum also argues the gunshot residue on the sweatshirt
recovered from the Sentra does not implicate him as the shooter.
He contends the sweatshirt was worn by Stocker, whose blood
was found on the front left shoulder of the garment.
The jury found that each defendant personally and
intentionally discharged a firearm which caused great bodily
injury and death to Heard, and that a principal personally and
intentionally discharged a firearm which caused great bodily
injury to Heard. (§ 12022.53, subd. (d).) These findings show
that each defendant was found to be a perpetrator in the
shooting, and that each was found to have proximately caused
great bodily injury and death to Heard.
The findings under section 12022.53, subdivision (d) were
proper as to both defendants. The fact that Heard was struck
only once by a single bullet from the .357 revolver does not
contradict the jury’s findings that both defendants proximately
caused his death. “Proximately causing and personally inflicting
harm are two different things.” (People v. Bland (2002) 28
Cal.4th 313, 336 (Bland).)21
21 The jury was correctly instructed on the meaning of
proximate cause: “There may be more than one cause of death.
An act causes death only if it is a substantial factor in causing
death. A substantial factor is more than a trivial or remote
factor. However, it does not need to be the only factor that causes
the death.”

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35
Kellum argues that there was no evidence he personally
engaged in any planning activity prior to the shooting. He relies
on People v. Casares (2016) 62 Cal.4th 808, which is
distinguishable because it did not involve a violation of the STEP
Act.
Significantly, the jury found that the crime alleged in each
count 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. By these STEP Act findings, the jury found that
Kellum and Stocker had engaged in a joint criminal enterprise to
commit a shooting in rival gang territory for the benefit of a gang.
Viewed in light of the STEP Act findings, the contention that the
evidence was insufficient to show Kellum had engaged in
planning activity is not persuasive.
The record contained substantial evidence of planning
activity by Kellum. In addition to the cell phone activity earlier
that evening which indicated he was driving around the area
where the shooting occurred, Kellum and Stocker were found
together several hours after the shooting in a white vehicle with
the murder weapon on the floorboard. The other firearm used in
the shooting was recovered from Kellum’s pocket, and during
Kellum’s testimony he provided no explanation as to how the
guns had come to be in his possession. Taken together, the
circumstantial evidence supported a reasonable finding that
Kellum was the getaway driver in a gang related shooting in
enemy territory. Under these circumstances, a jury could
reasonably infer that while Stocker was loading the firearms,
Kellum was parking the vehicle. The fact that only Stocker was

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36
seen loading both weapons does not render the evidence
insufficient to support Kellum’s conviction on count 1.
Nor does the fact that only Stocker’s blood was found on the
sweatshirt compel a different result. Regardless which weapon
was used by which defendant, the jury found that both
defendants committed the shooting for the benefit of a gang
within the meaning of the STEP Act. In light of the STEP Act
findings, defendants are equally culpable for the results of their
joint criminal enterprise regardless of which one actually fired
the fatal shot that killed Heard. (See People v. Garcia (2002) 28
Cal.4th 1166, 1176 [STEP Act allows accomplice liability].)
IV
In a related contention, Kellum argues the evidence was
insufficient to support his conviction on count 6, shooting at an
inhabited dwelling. We do not agree.
Section 246 provides that “[a]ny person who shall
maliciously and willfully discharge a firearm at an inhabited
dwelling house . . . is guilty of a felony . . . .” As with “‘all general
intent crimes, the question is whether the defendant intended to
do the proscribed act.’ [Citation.] ‘In other words, it is sufficient
for a conviction if the defendant intentionally did that which the
law declares to be a crime.’ [Citation.]” (People v. Overman
(2005) 126 Cal.App.4th 1344, 1356.) A violation of the statute
occurs where the evidence shows that the defendants were firing
at persons standing close to an inhabited dwelling, and were
consciously indifferent to the risk of that some of the shots would
hit the building. (Ibid.)
It was reasonable to conclude that before the shooting,
Kellum was driving around in rival gang territory while looking

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37
for potential victims. Because the area where the shooting
occurred was residential, it was reasonable to infer that Kellum
was consciously indifferent to the risk that an inhabited dwelling
would be struck by bullets fired at those standing in front of the
building.
Kellum argues that he did not violate section 246 because
the evidence failed to show that he committed the shooting or
knew of Stocker’s criminal purpose. He contends that because
the only evidence linking him to the shooting was discovered
several hours later, at the scene of the car accident, his conviction
on count 6 must be reversed.
As previously discussed, the evidence was sufficient to
support the conviction of Kellum either as a perpetrator of the
shooting or as an aider and abettor. In People v. White (2014) 230
Cal.App.4th 305, which involved a gang-related shooting by
defendant White, we held that defendant Gales, the aider and
abettor, “need not know of, or share, the perpetrator’s specific
intent to shoot at an inhabited dwelling, even when the
perpetrator has such an intent.” (Id. at p. 309.) We stated that
“[a]lthough White may have had the specific intent to fire the gun
at the building, that particular intent was not, in fact, required
for White’s commission of the crime: as explained above, White’s
state of mind was sufficient for the crime, provided that he
intentionally fired the gun ‘in such close proximity to the target
that he show[ed] a conscious indifference to the probable
consequence that one or more bullets w[ould] strike the target.’
(Overman, supra, 126 Cal.App.4th at p. 1356.) For that reason,
Gales’s status as an aider and abettor was not dependent on
whether he knew of, or shared, White’s particular intent to shoot
at the building. Rather, under the circumstances presented here,

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38
to establish Gales’s status as an aider and abettor, it was
sufficient to demonstrate that Gales knowingly and intentionally
encouraged White to shoot the gun under circumstances showing
that Gales—like White—was consciously indifferent to the
probable consequence that the bullets would strike the building.”
(White, at pp. 318–319.)
As in White, the evidence in this case was sufficient to
demonstrate that Kellum, either as a perpetrator of the shooting
or as an aider and abettor, knowingly and intentionally fired at
an inhabited dwelling or encouraged his codefendant to do so.
V
Defendants contend the evidence was insufficient to
support their convictions on counts 2 and 3 for attempted
murder. They challenge the sufficiency of the evidence to support
the jury’s finding that they intended to kill Willis and Stoval, who
ran into the house unharmed. “In reviewing the sufficiency of
evidence to support a conviction, we review the entire record to
determine whether there is reasonable and credible evidence
such that a reasonable trier of fact could find defendant guilty
beyond a reasonable doubt. [Citation.]” (People v. Ramos (2011)
193 Cal.App.4th 43, 47 (Ramos).)
“Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing. [Citation.]” (Ramos, supra,
193 Cal.App.4th at p. 47.) “Unlike the crime of murder, the crime
of attempted murder requires the specific intent to kill” each
attempted murder victim. (Ibid.) “Evidence of intent to kill is
usually inferred from defendant’s acts and the circumstances of
the crime. [Citation.] Firing a gun toward a victim at a close

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range in a manner that could have inflicted a mortal wound had
the bullet been on target supports an inference of intent to kill.
[Citation.]” (Ramos, at p. 48.)
Williams testified that before the shooting, he heard his
brother outside, looked out the window, and saw his brother in
front of the house with Heard and Stoval. The next time
Williams saw the three men was after he made a 911 call. When
Williams went outside, Heard was crawling on the driveway and
Willis and Stoval ran past Williams toward the front door.
Defendants contend that because neither Willis nor Stoval
testified at trial, and there was no evidence as to where Willis
and Stoval were standing in relation to Heard when the shooting
began, it is not reasonable to infer that Willis and Stoval were
intended targets, or that they were inside the zone of fire in
relation to Heard. They contend that at most, the testimony by
Williams supports an inference that Willis and Stoval were
coming from the general vicinity of the gunshots, but not that
they were the intended targets of the shooting.
The prosecutor addressed this issue in her argument to the
jury. She argued that the evidence supported a reasonable
inference that after Heard was shot, defendants continued firing
at Willis and Stoval as they ran to the house.
The evidence supported a reasonable inference that
defendants were targeting all three men who were standing in
front of the residence. The evidence supporting this inference
included Newton’s statement that the shots were fired in rapid
succession, which suggests the crime occurred quickly, and
Williams’ testimony that when he went outside after calling 911,
Heard was crawling on the driveway and Willis and Stoval were
running toward the front door. In light of the quick succession of

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events, the fact that Willis and Stoval had not yet reached the
front door supports a reasonable inference that they had been
closer to Heard when he was shot and fell on the driveway. The
jury had photographs of the crime scene to assist in evaluating
the testimony and physical evidence. Under the circumstances, a
jury could reasonably infer that all three men were standing in
close proximity to one another when Heard was shot, and that
defendants intended to shoot Willis and Stoval as they ran to
safety.
The fact that only Heard was dressed in red is not
conclusive evidence that Willis and Stoval were not being
targeted. Lawler’s testimony that murder is the ultimate crime
for gang members, who do not care whether the victim is a
member of a rival gang or not, supports a reasonable inference
that Willis and Stoval also were targeted during the shooting.
VI
Defendants contend the trial court prejudicially erred in
instructing the jury on the kill zone theory because the evidence
did not provide substantial support for the application of that
theory. (CALCRIM No. 600.) Respondent argues the issue was
forfeited by the failure to raise it below. We agree. (People v.
Virgil (2011) 51 Cal.4th 1210, 1260.) Because the instruction was
supported by substantial evidence, the contention also fails on
the merits.
The attempted murder instruction (CALCRIM No. 600)
correctly stated that in order to convict defendants of the
attempted murder of Willis and Stovall, the jury must find
defendants intended to kill each victim. The instruction
permitted this finding to be made based upon proof beyond a

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reasonable doubt that defendants intended to kill Willis and
Stoval, or, alternatively, that defendants intended to kill a
specific person, Heard, “and at the same time intend to kill
everyone in a particular zone of harm or ‘kill zone.’”
As we have previously discussed, the evidence supported a
reasonable inference that defendants are gang members who
committed a shooting in rival territory, and that they targeted
Heard because he was wearing a red shirt, the color of the rival
gang, as well as his companions, Willis and Stoval, in order to
enhance the reputation of their gang and instill fear in the
community at large. The evidence was therefore sufficient to
support a finding that notwithstanding the intent to kill Heard
because he was wearing a red shirt, defendants intended to kill
his companions as well.
In People v. Smith (2005) 37 Cal.4th 733, the Supreme
Court explained that the kill zone theory is a theory of concurrent
intent. The theory allows a shooter to be “convicted of multiple
counts of attempted murder . . . 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.
Under such circumstances, a rational jury could conclude beyond
a reasonable doubt that the shooter intended to kill not only his
targeted victim, but also all others he knew were in the zone of
fatal harm. (Bland, supra, 28 Cal.4th at pp. 329–330.) As [the
court] explained in Bland, ‘This concurrent intent [i.e., “kill
zone”] theory is not a legal doctrine requiring special jury
instructions. . . . Rather, it is simply a reasonable inference the
jury may draw in a given case: a primary intent to kill a specific

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target does not rule out a concurrent intent to kill others.’
(Bland, supra, 28 Cal.4th at p. 331, fn. 6.)” (Smith, at p. 746.)
We conclude the instruction was properly given in this
case. Defendants’ reliance on People v. Pham (2011) 192
Cal.App.4th 552 is misplaced. Because the defendant in that
case was not charged with a violation of the STEP Act, there was
no evidence that he belonged to a gang or that he committed the
crime for the benefit of a gang. The court’s determination in
Pham—that firing a gun repeatedly at several persons will not
necessarily support a finding of attempted murder of every
person in the group—is not applicable where, as here, the expert
gang testimony supported a reasonable inference that defendants
had fired their weapons in rival gang territory with the intention
of killing all three victims.
The remaining authority, People v. McCloud (2016) 211
Cal.App.4th 788, is distinguishable. Defendants McCloud and
Stringer fired 10 shots from a semiautomatic handgun into a
crowd, killing two persons and injuring one. In addition to two
counts of murder, Stringer was convicted on 46 counts of
attempted murder, and McCloud on 46 counts of assault with a
deadly weapon. Only the murder convictions were affirmed on
appeal. The remaining convictions were reversed since the
number of alleged victims (46) far exceeded the number of shots
fired (10). McCloud is not helpful to defendants because in this
case, the number of shots fired (15) exceeded the number of
victims (3), and the convictions are supported by substantial
evidence.

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
COLLINS, J.

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