People v. Martinez CA2/2

FACTS AND PROCEDURAL BACKGROUND

I. Facts2

A. The underlying crime In 2007, defendant and Natividad Delossantos (Delossantos) got into a fistfight outside of a convenience store with someone they believed to be a member of a rival street gang. While defendant continued the fistfight, Delossantos retrieved a gun from his car. Upon returning to the fray, Delossantos put the gun to the rival’s temple and pulled the trigger two or three times. The gun only clicked. The perceived rival ducked back into the store, while Delossantos managed to fire off two or three shots. All missed. Defendant and Delossantos fled the scene together, shouting the name of their gang. B. Prosecution, conviction, and appeal In the operative complaint, the People charged defendant with one count of attempted premeditated murder (§§ 664/187, subd. (a)), and three counts of assault with a semiautomatic firearm (§ 245, subd. (b)) as to the perceived rival and other customers in the store. As to all counts, the People alleged that the offenses were committed in association with a criminal street gang (§ 186.22, subd. (b)(1)(B)), and that a principal personally used and discharged a firearm (§…