People v. Gonzalez CA2/5

FACTS AND PROCEDURAL BACKGROUND

I. Facts2

A. The underlying crime Defendant and Hugo Hernandez (Hernandez) were members of Townsmen, a criminal street gang. On a Friday night in January 2005, defendant, Hernandez, and a third Townsman went to a party hosted by Liliana Mendez (Mendez) at Mendez’s residence, which was located in an area claimed by Townsmen and a rival gang called Little Hill. When defendant, Hernandez, and the third Townsman arrived, they “hit up” other partygoers, asking them for their gang affiliation. After one partygoer replied that he “didn’t

All further statutory references are to the Penal Code unless otherwise indicated.

We have drawn these facts from our prior, unpublished opinion affirming defendant’s conviction on appeal (People v. Gonzalez (Dec. 21, 2006, B188498) [nonpub. opn.]), but have independently confirmed them by examining the underlying trial record, of which we take judicial notice (Evid. Code, §§ 452, subd. (a), 459).

2 bang,” Reinaldo Aguayo pushed that partygoer aside and declared to defendant and the others that he was “Downer from Little Hill.” Defendant then pulled out a gun and opened fire, striking Aguayo in the…