People v. Curiel CA4/3

FACTS

I. Underlying Crime

A detailed recitation of the facts is set forth in the prior opinion in this case. (People v. Curiel (Feb. 21, 2008, G037359) [nonpub. opn.] (Curiel I).) In sum, one summer morning in 2002, Cesar Tejada, Raul Ramirez, Lupe Olivares, Griselda Alfaro, Jeffrey [last name unknown], and another man were in front of Tejeda’s apartment drinking and socializing. Two men walked by, later identified as Curiel and Abraham Hernandez, and stared at the group angrily before going into a convenience store.

1 All further statutory references are to the Penal Code. 2 Ramirez went into the apartment to use the restroom, and when he came back, Curiel and Hernandez had returned, and Curiel was arguing with Tejada. One of the men asked Tejeda, “‘Where are you from?’” Tejeda replied, “‘I am from nowhere[.]’” Ramirez asked Curiel and Hernandez to leave and one of them replied, “‘Shut the fuck up,’” and it was not his business. Lupe Olivares argued with Curiel, and Curiel got into a shoving match with Tejeda and Ramirez. Curiel said it was his neighborhood, and yelled, “‘OTH.’” Hernandez pulled out a gun, pointed it at Jeffery, and chased him away. Hernandez returned, argued…