People v. Bautista CA2/2

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In the early morning hours of a Monday in April 2000, defendant and his fellow gang members approached a rival gang member getting home from work. Unfortunately for them, the rival was an armed security guard wearing a bulletproof vest. When defendant and his cohorts opened fire on their intended victim, he fired back and killed one of the cohorts.

II. Procedural Background

A. Underlying conviction, sentence and appeal The People charged defendant with (1) the murder of his cohort (as a consequence of defendant’s provocative act of attacking the rival gang member) (§ 187, subd. (a)), and (2) the attempted premeditated murder of the rival gang member (§§ 187, 664, subd. (a)). With respect to the murder charge, the People alleged that defendant personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and that the crime was “committed for the benefit of, at the direction of, or in association with any criminal street gang” (§ 186.22, subd. (b)(1)(C)). On the murder count, the jury was only

All further statutory references are to the Penal Code.

2 instructed on the provocative act…