P.

BACKGROUND

I. Procedural Background

On July 1, 2008, the Contra Costa County Grand Jury returned an indictment accusing Botello and Robert Miles of crimes arising from three separate incidents. With respect to an incident on August 1, 2007, the grand jury accused Botello and Miles of the murder of Dominic Porter, in violation of Penal Code1 section 187 (count 1); of the deliberate and premeditated attempted murder of Marquez Pierce, in violation of sections 187, subdivision (a), and 664, subdivision (a) (count 2); of discharging a firearm at an inhabited dwelling, in violation of section 246 (count 3); and of active participation in a criminal street gang, in violation of section 186.22, subdivision (a) (count 4). Counts 1 through 3 were accompanied by gang allegations (§ 186.22, subd. (b)(1)) and various firearm use and discharge allegations (§ 12022.53, subds. (b)-(d), (e)(1)). In addition, Miles alone was charged with possession of ammunition by a convicted person, a violation of section 12316, subdivision (b)(1) (count 11). Botello and Miles pled not guilty to the charges and denied the sentencing allegations. Before trial, the court severed the charges according to the…