People v. Humphrey CA3

FACTS AND HISTORY OF THE PROCEEDINGS

The amended information charged defendant with murder (§§ 187, subd. (a), 189), attempted robbery (§§ 664/211), and assault (§ 245, subd. (a)(2)). As to the murder and attempted robbery, the amended information alleged the enhancement defendant personally used a firearm. (§ 12022.53, subd. (b).) The information further alleged the murder was committed while the defendant was engaged in the attempted commission of robbery. (§ 190.2, subd. (a)(17).) We provide a summary of the underlying facts which are set forth in the appellate opinion in defendant’s original appeal solely for context and do not otherwise use those facts to resolve this appeal. (§ 1172.6, subd. (d); see People v. Humphrey (May 4, 2011, C052744) [nonpub. opn.].)1 One of two men approached several other men playing poker on their front porch. (Ibid.) When the approaching man asked to join in and was refused, he pulled out a gun and demanded money. (Ibid.) After a scuffle, shots rang out and one of the poker players was killed and another was injured. (Ibid.) At his original trial in 2006, the jury found defendant guilty of murder (§§ 187, subd. (a), 189); attempted robbery (§§…