People v. Jackson CA2/1

Opinion

Filed 9/28/26 P. v. Jackson CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B342996

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA491422) v.

WILLIAM LEO JACKSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Ray G. Jurado, Judge. Affirmed as modified. Micah Reyner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________ Defendant William Leo Jackson was convicted of two counts of attempted murder, one count of shooting at an occupied vehicle, and one count of possession of a firearm by a felon. The trial court sentenced Jackson to an aggregate state prison term of 78 years to life. On appeal, Jackson contests the sufficiency of the evidence supporting the jury’s findings that (1) he specifically intended to kill one of the two attempted murder victims, and (2) he perpetrated both attempted murders with deliberation and premeditation. Jackson further contends his trial attorney rendered ineffective assistance by failing to (1) introduce evidence of a negative gunshot residue (GSR) test result for a sweatshirt Jackson was wearing when the police arrested him, and (2) object to a portion of the prosecutor’s closing argument in which he invoked the kill zone theory of attempted murder liability and purportedly referred to facts not in evidence. Jackson’s challenges to the sufficiency of the evidence fail because the jury reasonably could have inferred (1) Jackson knew a former romantic partner who recently ended her relationship with him was in the front passenger seat of the vehicle he targeted with his firearm, (2) he was aware someone else was driving that car, and (3) he had several motives for killing the driver, including his desire to prevent the driver from reporting the shooting to the police. Next, Jackson fails to demonstrate his trial counsel’s failure to present evidence of the negative GSR test result prejudiced him. In addition, Jackson does not establish his trial attorney rendered deficient performance by failing to object to the prosecutor’s closing argument, given that the trial court did not bar the People from relying on the kill zone theory, Jackson fails to show the theory is inapplicable, and the 2 prosecutor’s remarks constituted fair commentary on the evidence. Lastly, we strike certain stayed sentencing enhancements because the parties agree the jury did not find them true. We affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND1 We summarize only those facts relevant to this appeal.

1. The first amended information On March 29, 2023, the People filed the first amended information, charging Jackson with two counts of attempted willful, deliberate, and premeditated murder, in violation of Penal Code2 sections 664 and 187 (counts 1 and 2); one count of shooting at an occupied vehicle, in violation of section 246 (count 3), and one count of possession of a firearm by a felon, in violation of section 29800, subdivision (a)(1) (count 4).

1 In describing the trial evidence and the procedural history of this case, we rely in part on admissions from the parties’ briefing and assertions made by the Attorney General that Jackson does not dispute in his reply brief. (See Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th 764, 772, fn. 2, 773–774 [employing this approach].) 2 Undesignated statutory citations are to the Penal Code.

3 2. A summary of the People’s trial evidence3 In November 2020, Whitney J. ended her romantic relationship with Jackson that had lasted nearly five years.4 On an evening in November 2020, Whitney went to her friend’s (R.B.’s) workplace so that R.B. could drive Whitney to meet a male friend of Whitney’s. R.B. drove Whitney in R.B.’s dark-colored Kia; Whitney sat in the front passenger seat of the vehicle. After R.B. and Whitney arrived at the intersection of 54th Street and Crenshaw Boulevard in Los Angeles, Whitney opened the passenger door of the Kia and a silver or gray Infiniti pulled up to the Kia.5 A bearded man inside the Infiniti who was wearing a gray hooded sweatshirt and a mask then fired approximately five gunshots into the driver’s side of the Kia. R.B. put the Kia in reverse and backed the car up on Crenshaw Boulevard. The shooter continued to fire at the Kia after R.B. began to drive away. R.B. then drove the Kia south on Crenshaw Boulevard and eventually arrived at a hospital, whereas the Infiniti drove east on 54th Street. Whitney had been shot in the buttocks and required emergency surgery. The bullets had struck R.B.’s right breast, face, and abdomen.

3 We describe evidence relevant to Jackson’s claims of error in greater detail in our Discussion, post. 4 To protect the victims’ privacy, we identify one of them by her first name and last initial (Whitney J.) and the other victim by her initials (R.B.). (Cal. Rules of Court, rule 8.90(b)(4).) 5 Whereas Jackson identifies this vehicle brand as “Infinity” in his briefing, the Attorney General refers to the brand as “Infiniti.” This discrepancy has no impact on our resolution of the instant appeal.

4 Los Angeles Police Department (LAPD) Officer Kurt Lockwood was investigating a burglary reported at an apartment building at 54th Street and Crenshaw Boulevard when he heard gunshots and observed the shooting. Officer Lockwood radioed a description of the Infiniti to other officers in the vicinity. Police officers later stopped an Infiniti matching that description at 78th Street and Western Avenue. They arrested Jackson, who was the sole occupant of the Infiniti and was wearing a gray hooded sweatshirt. A 9-millimeter shell casing was found between the front passenger seat and the door. Expended shell casings found at the scene of the shooting were fired from the same gun as the shell casing found in Jackson’s car. Although a black face mask was discovered in the Infiniti, the police did not find a gun in the vehicle.

3. The jury’s verdict, the trial court’s sentence, and Jackson’s notice of appeal The jury convicted Jackson on all four counts and found true the allegation he committed the attempted murders willfully, deliberately, and with premeditation. On December 18, 2024, the trial court sentenced Jackson to a total state prison term of 78 years to life. Jackson timely appealed from the judgment.

DISCUSSION

A. We Reject Jackson’s Challenges to the Sufficiency of the Evidence In reviewing a challenge to the sufficiency of the evidence, we examine the “ ‘ “ ‘record in the light most favorable to the judgment’ ” to determine whether it discloses substantial 5 evidence — “ ‘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.]’ . . . . [Citation.]” (People v. Barrett (2025) 17 Cal.5th 897, 964 (Barrett).) We “ ‘ “ ‘presume[ ] in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence[ ]’ ” [citation]’ ” and do not “ ‘resolve credibility issues or evidentiary conflicts’ ” or “ ‘inquire whether the evidence might “ ‘ “ ‘be reasonably reconciled with the defendant’s innocence.’ ” ’ ” [Citation.]’ . . . [Citation.]” (Ibid.) Under the substantial evidence standard, “we must begin with the presumption that the evidence . . . was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, ‘without a statement or analysis of the evidence, . . . that the evidence is insufficient . . . .’ [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient.” (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “ ‘Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citation.]” (See People v. Richee (2025) 111 Cal.App.5th 281, 293.) “Because the doctrine of transferred intent does not apply to attempted murder, . . . ‘ “the defendant must intend to kill the alleged victim, not someone else.” ’ [Citation.]” (Ibid.) Furthermore, a finding that a defendant acted with premeditation and deliberation “ ‘ “requires more than a showing of intent to kill; the [defendant] must . . . carefully weigh[ ] the considerations for and against a choice to kill before he or she completes the acts” ’ ” giving rise to liability 6 for attempted murder. (See People v. Serrano (2024) 100 Cal.App.5th 1324, 1333–1334 (Serrano).) Jackson raises two challenges to the sufficiency of the evidence supporting his convictions for attempted murder: (1) “The prosecution did not present substantial evidence that would have allowed a rational jury to find beyond a reasonable doubt that [Jackson] specifically intended to kill R[.B., which is] an essential element of the attempted murder charge”; and (2) the People did not offer sufficient evidence that Jackson committed the attempted murders of R.B. and Whitney J. with premeditation and deliberation.

1. Jackson does not show the record lacks sufficient evidence that he specifically intended to kill R.B. Jackson does not maintain the record lacks substantial evidence that he was the shooter or that he intended to kill Whitney J. Instead, he argues, “[The] jury received no evidence that [Jackson] knew who R[.B.] was, that he knew she was in the Kia, or where she was seated inside that [vehicle]”; “R[.B.] did not know who [Jackson] was on the night of the shooting”; and “[t]he Kia’s windows were so heavily tinted that [a police officer who witnessed the shooting,] Officer Lockwood[,] could not see inside.” Jackson maintains “the record lacks substantial evidence to support a rational finding beyond a reasonable doubt that [Jackson] was shooting at R[.B.] or . . . even knew she was present at the scene.” As a preliminary matter, we note Jackson does not direct us to any evidence that before the night of the shooting, Jackson knew the Kia belonged to one of Whitney’s friends. Indeed, as we noted above, Jackson acknowledges the trial evidence showed 7 R.B. “did not know who [Jackson] was at the time of the shooting.” We agree with the Attorney General that the jury could reasonably have inferred that for Jackson to have determined Whitney J. was in a vehicle that Jackson had never seen before (i.e., R.B.’s Kia), he had to have either (1) seen Whitney get into the vehicle that evening, or (2) otherwise observed that she was in the front passenger seat of the Kia.6 Further, there is no dispute the record contains evidence that Jackson “fired ‘about seven shots at the driver’s side door and window . . . .’ ” Additionally, in an interview with police, R.B. indicated the shooter continued to fire at the Kia after R.B. began driving away. Given these circumstances, the jury reasonably could have deduced (1) Jackson knew that Whitney J. was in the front passenger seat of the Kia and someone else was driving the vehicle,7 (2) Jackson fired multiple shots at the driver’s side of the Kia, and (3) he continued firing at the car even after R.B. attempted to flee. That Jackson repeatedly fired into the driver’s side of the Kia when he was aware Whitney was in the passenger 6 As for the latter possibility that Jackson at some point prior to the shooting saw Whitney in the Kia, Jackson does not dispute the Attorney General’s assertion “[t]he windshield of [R.B.’s] car was not tinted . . . .” (See Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal case in which the Court of Appeal assumed that an assertion made by the respondent was correct because the “defendant did not dispute [the] respondent’s claim in his reply”].) 7 We note Jackson does not argue there is any evidence that the Kia was a self-driving vehicle.

8 seat supports the conclusion he intended to kill the driver, and his decision to continue to fire at the Kia as R.B. tried to drive off suggests Jackson did not want either Whitney or the driver of the Kia to escape. Further, because there is substantial evidence Jackson knew Whitney was in the Kia and another person was driving it, he had at least two motives for killing the driver: (1) to prevent that individual from moving Whitney to a place of safety, thereby ensuring he achieved his objective of slaying Whitney, and (2) to preclude the driver from surviving and relaying information to the police that could lead to Jackson’s apprehension.8 For the foregoing reasons, we conclude Jackson has not demonstrated the record lacks substantial evidence that he specifically intended to kill R.B.

2. Jackson fails to establish the jury’s finding the attempted murders were premeditated and deliberate is unsupported by substantial evidence In assessing whether Jackson perpetrated the attempted murders with premeditation and deliberation, we bear in mind that “ ‘ “ ‘cold, calculated judgment may be arrived at quickly,’ ” ’ ” and that “ ‘ “ ‘the express requirement for a concurrence of deliberation and premeditation excludes . . . those [attempted murders] . . . which are the result of mere unconsidered or rash impulse hastily executed.’ ” [Citation.]’ [Citations.]” (See Serrano, supra, 100 Cal.App.5th at pp. 1333–1334.) Courts have “ ‘ “identified three categories of evidence relevant to resolving 8 In fact, R.B. did provide a description of the shooter to the police.

9 the issue of premeditation and deliberation: planning activity, motive, and manner of killing.” [Citation.] “However, these factors are not exclusive, nor are they invariably determinative.” [Citation.] “ ‘[They are] simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the [attempted murder] occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]’ ” [Citation.]’ [Citation.]” (See id. at p. 1334.) Jackson argues, “[T]he record does not show whether he planned to arrive at the scene of the shooting, whether he paused to think before [the] shooting, or whether he weighed the consequences of his actions.” He further contends, “[T]he record here does not show whether . . . [Jackson] arrived at the scene of the shooting randomly or through some sort of undiscovered plan.” Yet, Jackson acknowledges in his briefing there is evidence that R.B.’s windows were so darkly tinted that one could not see inside the Kia from the driver’s side of the car. That evidence undercuts Jackson’s apparent claim he may not have been following R.B.’s Kia prior to the shooting but had, by happenstance, driven his vehicle next to R.B.’s Kia, looked over, saw Whitney J. was in the vehicle, and opened fire. Put differently, the evidence that Jackson fired at the Kia without being able to see into the cabin of the vehicle suggests he knew beforehand that Whitney was in there, which inference in turn supports the conclusion Jackson had followed the vehicle prior to shooting at it. Furthermore, the jury heard evidence that (1) Whitney J. ended her relationship with Jackson in November 2020, and (2) a day or two before the shooting, Whitney dumped garbage throughout Jackson’s apartment and left him a voicemail or text 10 message accusing him of infidelity. Jackson thus had a motive to kill Whitney. Likewise, there is substantial evidence Jackson had at least two motives to kill R.B., that is, to prevent R.B. from bringing Whitney to a place of safety and ensure R.B. could not report the shooting to the police. (Discussion, part A.1, ante.) Based on this evidence that Jackson followed the Kia and had motives to kill R.B. and Whitney J., a rational factfinder could conclude Jackson formed his intention to kill R.B. and Whitney after having reflected on that course of action rather than as an unconsidered and rash impulse, meaning that he did so with premeditation and deliberation.

B. Jackson’s Claims of Ineffective Assistance of Counsel Fail “ ‘An ineffective assistance claim has two components: A [defendant] must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.’ [Citations.]” (In re Gay (2020) 8 Cal.5th 1059, 1073 (Gay).) As for the first component of an ineffective assistance claim, “ ‘a [defendant] must demonstrate that counsel’s representation “fell below an objective standard of reasonableness,” ’ as measured by ‘ “prevailing professional norms.” ’ [Citation.]” (Gay, supra, 8 Cal.5th at p. 1073.) “[W]e ‘must apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance.’ [Citation.]” (In re Friend (2022) 76 Cal.App.5th 623, 635 (Friend).) To satisfy the second component, the defendant “must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient 11 to undermine confidence in the outcome.’ [Citations.] Where . . . counsel’s performance has been shown to be deficient in multiple respects, we . . . . consider the cumulative impact of the errors on the fairness of the trial.” (See Gay, supra, 8 Cal.5th at pp. 1086– 1087.) Jackson argues his trial counsel rendered ineffective assistance by failing to: (1) present evidence that Jackson’s sweatshirt tested negative for GSR and “corresponding expert testimony that such a negative test [result] was highly exculpatory” (boldface & some capitalization omitted), and (2) object to the prosecutor’s “improper statements regarding kill zone liability and facts not in evidence during closing argument” (boldface & some capitalization omitted). Jackson fails to show his attorney’s failure to present evidence of the negative GSR test result and related expert testimony prejudiced him. (Discussion, part B.1, post.) Jackson also does not demonstrate defense counsel rendered deficient performance by failing to object to remarks made by the prosecutor during closing argument. (Discussion, part B.2, post.) In light of these conclusions, we reject Jackson’s contention the “cumulative effect of the ineffective assistance of counsel . . . should . . . result in reversal.” (Boldface & some capitalization omitted.)

1. Jackson does not demonstrate he was prejudiced by his trial counsel’s failure to present the negative GSR test result and expert testimony explaining that result Jackson was wearing a gray hooded sweatshirt when police arrested him. Before trial, the defense requested that the sweatshirt be tested for GSR. Although the LAPD initially denied this request, the agency ultimately tested the sweatshirt 12 and was unable to find GSR on this article of clothing. This disclaimer was included with the negative test result: “[N]o witness from L.A.P.D. S.I.D. will testify to these results, because the science is not well established on the testing of objects other than hands.” Jackson’s trial counsel did not introduce the LAPD’s report into evidence or present expert testimony interpreting this negative test result. Jackson argues, “Not presenting the negative GSR test for [Jackson’s] shirt, and corresponding expert [testimony] explaining the exculpatory nature of the negative test, fell below the . . . standard for effective representation because that un- presented evidence strongly indicated [Jackson] was not the shooter.” Further, according to Jackson, because the police failed to retrieve the firearm used in the shooting, there is “a reasonable likelihood” that introduction of the negative GSR test result and expert testimony thereon would have caused “at least one juror [to] have a reasonable doubt of [Jackson’s] guilt on all counts.” As we explain below, Jackson does not show prejudice from his counsel’s failure to introduce evidence concerning the negative GSR test result. After the jury convicted Jackson, he moved for a new trial and filed a motion claiming his trial attorney rendered ineffective assistance. In support of these motions, Jackson offered the testimony of Bryan Burnett, who attested, inter alia, he was “one hundred per cent certain” GSR would have been found on Jackson’s sweatshirt if he was the shooter. In rejecting this testimony, the trial court noted that Burnett “could not cite any studies contradicting” “the LAPD’s gunshot residue lab report[’s] . . . [statement] that the lack of gunshot [residue] on [Jackson’s] sweatshirt was possibly an unreliable result, or a 13 false negative . . . .” The court also observed that Burnett “did not do any research regarding what scientific studies might or might not support the lab report’s conclusion.” Additionally, the trial court found Burnett was not a credible witness because “his testimony reflected [he] . . . was ill- prepared, quick to come to baseless opinions, too willing to rely on inaccurate information if those inaccuracies benefitted [Jackson], [and] inconsistent on matters both important and meaningless . . . .” The court noted, for instance, that Burnett “testified with certainty that it was Officer Lockwood who allegedly planted a casing in [Jackson’s] vehicle[ ] because [the defense’s audiovisual expert] told [Burnett] that the body worn video supposedly showing the planting of the casing in [Jackson’s] car belonged to Officer Lockwood,” even though the body worn video belonged to a different officer and the footage “does not appear to show th[e] officer placing or dropping anything inside [Jackson’s] car.” Jackson does not contest the trial court’s description of Burnett’s testimony. Indeed, Jackson concedes “effective counsel” may have elected not to “call[ ] Burnett to testify at trial.” Jackson apparently contends his trial attorney should have called a different expert witness to “explain[ the] exculpatory import” of the “negative GSR test . . . .” Jackson does not, however, identify an alternative expert witness who could have provided such testimony. Instead, Jackson cites a bulletin from the California Department of Justice, Bureau of Forensic Services that he claims shows the Bureau will test clothing for the presence of GSR if hand samples are not available and there is a reasonable expectation that the clothing was worn during the shooting 14 incident and had not been laundered.9 He claims this bulletin shows that “testing clothing for GSR was scientifically viable.” As an initial matter, Jackson does not seek judicial notice of this bulletin from the California Department of Justice, Bureau of Forensic Sciences or explain why he believes we may consider this extra-record evidence.10 In any event, even if this bulletin were properly before us and it stood for the proposition that GSR testing of clothing may be scientifically viable in certain circumstances (e.g., perhaps the presence of GSR could show a firearm was discharged near the article of clothing), Jackson does not argue cogently this bulletin establishes the absence of GSR on clothing is exculpatory. In his reply brief, Jackson argues: “[I]ndependent of . . . Burnett’s testimony, logic dictates that if [Jackson] was the shooter, he would have had GSR on his clothing. The shooter fired multiple rounds from inside of a car. [Citation.] A[n LAPD o]fficer was able to track [Jackson’s] Infinity almost immediately after the shooting occurred to the point where [Jackson] was stopped and arrested. [Citation.] There is no realistic possibility that [Jackson] washed his sweatshirt in between the shooting and his arrest. In such a scenario, it is highly exculpatory that [Jackson’s] sweatshirt was negative for GSR.” Elsewhere in his briefing, Jackson appears to acknowledge that an expert is needed to “explain[ ] the [supposed] exculpatory 9 In his opening brief, Jackson directs us to the version of the bulletin that was released in August 2023, whereas in his reply he cites a revised version that was released in June 2026. 10 (See People v. Gams (1997) 52 Cal.App.4th 147, 155 [“ ‘Appellate jurisdiction is limited to the four corners of the record on appeal . . . .’ ”].)

15 nature of the negative test . . . .” (See also Evid. Code, § 801, subd. (a) [indicating that expert opinion is proper on “a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”].) Consequently, we find unavailing Jackson’s assertion that “logic dictates” “he would have had GSR on his clothing” if he was the shooter. In sum, Jackson does not show there is a reasonable probability that the outcome of the trial would have been different if his counsel had presented the negative GSR test result and expert testimony elaborating on that report. In light of our conclusion that Jackson has not shown prejudice, we do not decide whether trial counsel rendered deficient performance in failing to introduce such evidence. (Gay, supra, 8 Cal.5th at p. 1073 [noting that deficient performance and prejudice are essential elements of an ineffective assistance claim].)

2. We reject Jackson’s claim that his trial counsel rendered deficient performance by failing to object to the prosecutor’s invocation of the kill zone theory and the prosecutor’s supposed reference to facts not in evidence Jackson raises an ineffective assistance claim based on his trial counsel’s failure to object to a portion of the People’s closing argument in which the prosecutor described the shooting. Specifically, Jackson asserts his attorney should have objected to the closing argument on the grounds the prosecutor (1) contended 16 the jury should convict Jackson based on the kill zone theory,11 which was “inapplicable and not part of the jury instructions”; and (2) stated facts not in evidence. For the reasons set forth below, this claim of ineffective assistance fails. First, Jackson maintains the prosecutor misstated the law because (1) the trial court rejected the kill zone theory of liability and (2) that theory was inapplicable “because it was unclear whether the shooter knew more than one person was present in the Kia.” The record belies both of Jackson’s claims. The reporter’s transcript reveals the trial court denied the prosecutor’s request to issue the kill zone instruction provided in CALCRIM No. 600 because (1) a bench note provides the instruction is not required,12 and (2) the court was displeased the prosecution had not requested this “complex” instruction during the jury instruction conference but had instead belatedly made the request the following day. In declining to issue the kill zone instruction in CALCRIM No. 600, the court acknowledged the prosecutor had expressed his intention to argue that Jackson was liable for attempted murder under the kill zone theory. The court did not rule that the kill zone theory was inapplicable or direct 11 Under the kill zone theory, “a defendant may . . . be liable for attempted murder” of individuals other than the defendant’s primary target if “ ‘ “the nature and scope of the [defendant’s] attack . . . are such that [a factfinder] can conclude the [defendant] intended to [kill] the primary victim by [killing] everyone in that victim’s vicinity.” ’ . . . . [Citation.]” (See People v. Mumin (2023) 15 Cal.5th 176, 191–192.) 12 (See also People v. Medina (2019) 33 Cal.App.5th 146, 154 [“The kill zone theory ‘is not a legal doctrine requiring special jury instructions’ but rather ‘is simply a reasonable inference the jury may draw in a given case.’ ”].)

17 the prosecutor not to argue that theory to the jury. Accordingly, we reject Jackson’s assertion that the trial court determined the kill zone theory was “inappropriate.” As for whether Jackson knew more than one person was in the Kia, the jury reasonably could have inferred Jackson was aware that Whitney J. was in the front passenger seat and someone else was driving the vehicle. (See Discussion, part A.1, ante [discussing the evidence from which the jury could reasonably have inferred (1) Jackson was aware the Kia had two occupants and (2) he continued to fire at the vehicle after R.B. attempted to flee, and noting Jackson does not argue there is evidence the Kia was a self-driving car].) Further, Jackson acknowledges the trial evidence showed Whitney opened the passenger door to the Kia before the first shots were fired at the vehicle. Jackson does not argue he was unable to see from his vehicle that the passenger door to the Kia was open, and, because the trial evidence showed Jackson pulled his vehicle up to the Kia before he opened fire (see Factual & Procedural Background, part A, ante), one could reasonably infer he was close to the vehicle at that time. Therefore, we find unpersuasive Jackson’s assertion “it was unclear whether the shooter knew more than one person was present in the Kia.” Jackson’s failure to present any other argument showing the kill zone theory does not apply is fatal to his claim that defense counsel rendered deficient performance by failing to object to the prosecution’s invocation of that theory. (See Gay, supra, 8 Cal.5th at p. 1073 [holding the defendant has the burden of showing deficient performance]; Friend, supra, 76 Cal.App.5th at p. 635 [noting that a reviewing court “ ‘appl[ies] a “strong presumption” that counsel’s representation’ ” was not deficient].)

18 Lastly, Jackson argues that the prosecutor referred to facts not in evidence by remarking during closing argument that Jackson had information that two people were in the Kia and Jackson saw Whitney J. starting to get out of the car. In light of the evidence discussed above from which the jury could reasonably infer that (1) Jackson was aware two people were in the Kia, (2) Whitney was in the front passenger seat, and (3) Whitney opened the passenger door just before the first shots were fired, the prosecutor’s arguments to that effect were a fair commentary on the evidence. Jackson thus fails to demonstrate defense counsel was ineffective because he failed to object on the ground the prosecutor stated facts not in evidence. (See Barrett, supra, 17 Cal.5th at p. 1035 [“ ‘ “Prosecuting attorneys are allowed ‘a wide range of descriptive comment’ and their ‘ “ ‘argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.’ ” ’ ”].)

C. We Strike Certain Enhancements the Trial Court Imposed on Counts 2, 3, and 4 In their appellate briefing, the parties agree that the trial court erred in imposing and staying enhancements under section 12022.7, subdivision (e) on counts 2, 3, and 4, and under section 12022.7, subdivision (a) on count 2, because the jury did not find those allegations true. In keeping with the parties’ concessions, we strike these four enhancements. (See Williams v. Superior Court (1964) 226 Cal.App.2d 666, 674 [“ ‘An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case.’ ”].)

19 DISPOSITION The judgment is modified as follows: We strike the enhancements imposed (1) on count 2 pursuant to Penal Code section 12022.7, subdivisions (a) and (e); and (2) on counts 3 and 4 pursuant to section 12022.7, subdivision (e). As modified, the judgment is affirmed. Upon the issuance of our remittitur, the trial court is directed to prepare a corrected minute order reflecting the modifications set forth above, amend the abstract of judgment accordingly, and send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The clerk of the court is directed to send a copy of the opinion and remittitur to the Department of Corrections and Rehabilitation. (See Cal. Rules of Court, rule 8.272(d)(2).) NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

M. KIM, J.