People v. Diaz CA4/3

FACTS

Background Around 8:00 p.m. on February 23, 2007, McCoy and Haston were sitting in McCoy’s car parked outside a convenience store in Rialto, California. Haston testified that a man he described as Hispanic, six-feet one-inch in height, weighing 200 pounds, with a thin mustache, approached the driver’s side door. The man tapped on the window and said, “[W]here we’re from?” McCoy said, “I don’t bang,” while Haston responded, “Rialto.” The man then displayed a saw-off shotgun and fired a shot through the window. The blast killed McCoy. When Haston saw the man display the shotgun, he jumped out of the car and fled. The man followed, firing several rounds in Haston’s direction. Although struck by some pellets in his arm and back, Haston successfully eluded his pursuer. About the same time, Franks, Buckley, and their four children were in a minivan driving along a street near the convenience store. Franks testified he saw a man carrying what he initially thought was a pole walking in the opposite direction along the adjacent sidewalk. As the man came closer, Franks realized that he was holding a shotgun. The man stepped into the street in front of the minivan, pointed the weapon…