People v. Delavega CA1/1

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A detailed discussion of the facts is unnecessary to our resolution of the appeal. Briefly, however, Delavega got into a fist fight with Justin Kroh in August 2014. Later that month, Delavega, who was then 18 years old, and a friend were driving in Antioch when they spotted Kroh riding a bicycle on the opposite side of the road. Delavega, who testified in his own defense, heard Kroh ask if he was ready for another fight, and Delavega instructed his friend to make a U-turn. Delavega’s friend parked, and Delavega got out of the vehicle and approached Kroh. After a brief confrontation during which Delavega claimed Kroh pulled a knife, Delavega shot at Kroh, striking him in the head. Delavega and his friend fled the scene, and Kroh later died of his injuries. Delavega was charged with murder and various enhancements. One alleged a gang special circumstance, and another alleged that Delavega committed the offense for the benefit of a street gang.3 In addition, Delavega was charged with intentionally discharging a firearm causing death under

2 In conjunction with this appeal, Delavega filed a petition for a writ of habeas corpus in which he…