People v. Sincox CA4/3

FACTS AND PROCEDURAL HISTORY

A. Underlying Conviction and Appeal The following facts are primarily taken from our prior unpublished opinion in this matter (G045723), which was included in the record: “Defendant was a member of the Fifth Street criminal street gang. One night he was hanging out and smoking methamphetamine with some fellow gang members. They got into a van and started driving. One of them started ‘challenging’ defendant and another gang member in the van, Martinez. He told them ‘they don’t know how to gang bang,’ so they should ‘go out today and do something.’ “Someone called one of the gang members to report a ‘suspicious’ man in Fifth Street territory. One said they should ‘go gang banging, smashing some guys.’ They drove down Fifth Street and found Alex Moreno Cruz, who matched the caller’s description. The gang members threw gang signs at Cruz, and he threw gang signs back.

1 All further undesignated statutory references are to the Penal Code.

2 “Defendant and Martinez got out of the van. Martinez ‘had [his] knife out.’ It was a ‘special edition’ ‘Winchester’ knife. Defendant and Martinez ‘hit up’ Cruz, asking where he was from (i.e., what gang he was…