People v. Vivero CA3

BACKGROUND

Because defendant’s section 1172.6 petition was denied at the prima facie stage, we provide a condensed recitation of the facts based on this court’s prior unpublished opinion and the appellate record in that case, portions of which were attached to the People’s opposition to the section 1172.6 petition. We do so only to place the jury verdict and jury instructions in their proper context. At the time of the shooting that gave rise to defendant’s murder and attempted murder convictions, two Norteño gangs in Stockton were involved in active hostilities against each other. Those gangs were South Side Stocktone (Triple S) and its offshoot, Triple Six Gangsters (Triple Six). The hostilities involved more than a dozen drive-by shootings, assaults with deadly weapons, and homicides. Defendant was a member of Triple Six. The murder victim, Ray Ortega, was a founding member of Triple S. (Vivero, supra, C086268.) On the one-year anniversary of the death of a Triple S gang member who had been shot and killed, Ortega and several others went to the cemetery to visit his grave. Defendant was also at the cemetery, visiting a different person’s grave. Later that night, Ortega and his…