People v. Olivo CA3

BACKGROUND

Prior Conviction The relevant facts of this case are taken from our prior opinion in defendant’s direct appeal. (People v. Olivo (Feb. 6, 2004, C038291) [nonpub. opn.] (Olivo)). “With [defendant] acting as driver, gang members Jose Olivo and Henry Ortiz gunned down two people in a liquor store.[1] Ortiz sought vengeance against African-American gang members because of an earlier beating by a black rival gang. Unfortunately, the two murder victims were not affiliated with gangs: one was the elderly liquor store owner, the other merely a customer in the wrong place at the wrong time. An information charged defendant, Jose, and Ortiz with two counts of murder with special circumstances (Pen. Code, §§ 187, 190.2, subd. (a)(3), (16) & (22)), two counts of attempted murder (Pen. Code, §§ 664, 187), one count of shooting at an inhabited dwelling (Pen. Code, § 246), and violations of the street gang terrorism statute (Pen. Code, § 186.22, subds. (a) and (d)); defendant was also charged with possession of cocaine base for sale (Health & Saf. Code, § 11351.5.) The court held separate trials for the three defendants. A jury found defendant guilty of two counts of first degree…