People v. Carpio CA2/2

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The underlying crime One afternoon in April 2013 after school let out, defendant—then age 19—and his younger brother Anthony walked onto the campus of Cleveland High School in Reseda, California. The brothers “went up” to Kevin Orellana (Orellana), who was standing on one of the handball courts. Defendant made

All further statutory references are to the Penal Code unless otherwise indicated. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). We therefore refer to the law formerly codified at section 1170.95 as section 1172.6.

2 the archetypical gang challenge—demanding to know, “Where you from?” Defendant admitted he was “hitting up” and “banging on” Orellana. Orellana said something in response that led defendant to believe Orellana was associated with a rival street gang. Defendant threw a punch, and Anthony soon joined in the three-way fistfight. Orellana fought back, taking on both brothers for a time and, as he gained the upper hand, concentrating first on defendant, then Anthony. At some point when Orellana was fighting defendant and his back…