People v. Palacios CA3

FACTS AND PROCEEDINGS

On August 18, 2010, in the early afternoon, a high school security guard saw two groups wearing red approach each other in a park next to the school and start fighting. All three defendants were involved, standing a few feet from each other. The guard was familiar with all three, having broken up a previous gang fight involving Palacios and Martinez, and having previously tried to talk Hernandez out of involvement in the Norten͂o criminal street gang. The major Norten͂o gang in town was of the Varrio Bosque subset and wore red. On this occasion, the guard ran towards the melee and saw Hernandez exchange punches with a large male wearing his hair in a ponytail. The latter separated from Hernandez and said, “if you got the balls, fuckin’ use it.” The guard saw something dark in Hernandez’s hand. The trial court allowed the guard to testify he thought the object was a weapon, not for the truth but to explain his actions. The object was neither too big nor too small to be the firearm in evidence. The guard knocked the ponytailed man down, held him to the ground and called 911. The others ran away. Defendants got into Hernandez’s two-door Chrysler and agreed to…