People v. Moore CA6

I. BACKGROUND

Defendant fatally shot Ramon Garcia in August 2013 in a parking lot near downtown San Jose. He was charged with murder with the personal use of a firearm (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) The information alleged a prior strike conviction (Pen. Code, §§ 667, subds (b)–(i), 1170.12) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)). Trial was held in 2018. The prosecution called several percipient witnesses at trial: From his second story apartment on 3rd Street, one witness heard an escalating commotion and saw “a group of guys against one individual.” An African American man wielded a bat at a Hispanic man who was “backing up” and being followed, and the others looked like they were “containing” the Hispanic man. The African American man swung the bat at the Hispanic man. The Hispanic man fell, held up his forearms to defend against the bat, and struggled to get up. He turned his back, and moved away from the man with the bat and from the witness’s view. From a yard sale on the corner of 3rd and Julian, a woman heard a noisy group of men approaching on the street. As the group got closer, an African American male hit a man on a…