People v. Vargas CA4/2

I. FACTUAL AND PROCEDURAL BACKGROUND2

Defendant, a member of a criminal street gang, was sitting in the right front

passenger seat of a vehicle from which one of the passengers in the back seat fired a gun.

The vehicle drove up to two people walking down the street. Defendant told the shooter

he should “‘just fu---ing do it’” if one of the pedestrians said they were from a rival gang.

The shooter said that he wanted to be the one to do the shooting. Defendant gave a gun

to the shooter. (Vargas, supra, E029525.)

All further statutory references are to the Penal Code unless otherwise indicated.

2 On the court’s own motion, we take judicial notice of this court’s prior nonpublished opinion in defendant’s appeal from the original judgment. (People v. Vargas (Mar. 29, 2002, E029525) [nonpub. opn.] (Vargas); Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).)

2 Someone in the back seat asked the pedestrians where they were from. One of the

pedestrians answered that he was from a rival gang. Immediately thereafter, the man in

the back seat fired multiple shots from a gun. One of the pedestrians was shot and

injured; the other was killed. (Vargas, supra,…