People v. Torres CA3

BACKGROUND

The following facts are quoted from the opinion of this court on defendant’s first appeal from the judgment. (People v. Torres (Feb. 18, 2014, C069510) [nonpub. opn.] (Torres).) “[I]n May 2008 [the victim Jose] Guerrero and his family, which included his wife, Celica, and two stepsons who were Sureño gang members, were living at [an address in Sacramento]. They had lived there for seven years. “On Memorial Day, Guerrero was with some other family members in the garage and driveway area of his house when a group of young men walked up, including one wearing a red bandana across his face. That was [defendant], who is a Norteño gang member. Also in the group was Jose [Gonzalez (Jose)], who is also a Norteño gang member. “[Defendant] challenged Guerrero’s stepsons to come out and fight. Guerrero said he was going to call the police and pulled out his cell phone. A physical struggle between [defendant] and Guerrero ensued. At some point, [defendant] pulled out a gun. According to Guerrero’s stepdaughter, Veronica, Guerrero was able to grab the gun and throw it away, but he threw it in the direction of the group that [defendant] came with. Another witness testified that…