People v. Birdsong CA2/1

BACKGROUND

“Shortly before 9:00 p.m. on the evening of November 3, [2009,] Richard Juarez and Richard De la Cruz had been sitting on a bench in Virginia Avenue Park in Santa Monica, with companions Chloe McCarty and Ashleigh Rodriguez. De la Cruz belonged to the Santa Monica 13 gang; Juarez belonged to a gang in another territory, but was associated with De la Cruz and the Santa Monica 13 gang. One or two African-American men

1The jury also convicted Birdsong of street terrorism (see People v. Martin (July 30, 2014, B239366) [nonpub. opn.] at p. 5 (Martin)), but that conviction is not pertinent to this appeal.

Further statutory references are to the Penal Code.

2 approached the group, one wearing a hooded gray sweatshirt over a red striped shirt, the other a black sweatshirt; one had a black beanie hat. One . . . of the men fired several shots, killing Juarez. “Witnesses heard about eight or more gunshots, and multiple muzzle flashes were visible on the dashboard video recorder of a police car parked nearby on Pico Boulevard. After the shooting stopped, two men were seen running from the park, south across Pico Boulevard toward 22nd Street, one wearing a black sweatshirt,…