Additional facts showing that Mr. Diaz was not the shooter

Additional facts showing that Mr. Diaz was not the shooter are prevalent in the record.

For instance, the prosecution conceded at trial it could not establish that Mr. Diaz was the shooter. In opening statement, the prosecutor said, "there will be no evidence as to who the actual shooter of [the victim] was" (R. 788).

The prosecutor reiterated this concession in closing argument, stating, "I do not believe the evidence has shown that this defendant went in there with the intention of killing anyone," and arguing that the jury should convict based solely on felony murder (R. 1257-58).