People v. Alcantar CA2/2

FACTS AND PROCEDURAL BACKGROUND

A. The killing of John Barbosa2 One evening in July 2002, Alcantar and fellow Rivera gang members Daniel Luna and Cynthia Vargas were in Rivera Park, located in Rivera gang territory. John Barbosa, his brother James, and Pedro Brache were also at the park that night. Alcantar and Vargas approached James, and Alcantar asked James where he was from. James understood the question as seeking his gang affiliation, and when he denied being from any gang, Alcantar punched James in the face. Not wanting any trouble, James turned and walked away. Alcantar, Vargas, and Luna went to another area in the park where they started writing “Rivera” and other gang graffiti

1 Undesignated statutory references are to the Penal Code.

2 The underlying facts are drawn from the trial record in appellant’s direct appeal from his conviction (People v. Alcantar et al. (Apr. 20, 2005, B175349) [nonpub. opn.]), which the superior court considered at the section 1172.6 evidentiary hearing and which we have judicially noticed. (See § 1172.6, subd. (d)(3) [at the hearing to determine petitioner’s eligibility for relief, “the court may consider evidence previously admitted at…