People v. Burciaga CA4/3

FACTS

Defendant, Nestor Lopez, Cesar Aziel Pedroza, and Oscar Ramos were charged in a first amended information with the premeditated and deliberate attempted murder of “Jane Doe” (Pen. Code,1 §§ 664, subd. (a), 187, subd. (a); count one), active participation in a criminal street gang (§ 186.22, subd. (a); count two), and conspiracy to commit murder (§§ 182, subd. (a), 187, subd. (a); count three). A gang enhancement (§ 186.22, subd. (b)(1)) was alleged in connection with the murder and conspiracy charges. As to defendant, the information also alleged he inflicted great bodily injury (§ 12022.7, subd. (a)) in connection with the attempted murder, and personally and intentionally discharged of a firearm causing great bodily injury to “Jane Doe.” (§ 12022.53, subd. (d).) The codefendants were also charged with discharging a firearm resulting in great bodily injury or death. (§ 12022.53, subd. (b), (e)(1).) Defendant was tried alone. His codefendants are not parties to this appeal.

All undesignated statutory references are to the Penal Code.

2 Prosecution Evidence About 6:00 p.m. on July 28, 2008, a group of friends had just finished playing basketball on Shalimar Dr. in…