P.

FACTS

Although defendant was charged with Galindo’s murder, in fact defendant and Galindo were comrades-in-arms in the Sureño criminal street gang. Galindo was actually killed by a member of the Norteño criminal street gang during a confrontation. The prosecution’s theory was that defendant committed murder under the provocative act doctrine, “a descriptive term referring to a subset of intervening-act homicides in which the defendant’s conduct provokes an intermediary’s violent response that causes

2 someone’s death.” (People v. Gonzalez (2012) 54 Cal.4th 643, 649, fn. 2.) As noted, the jury could not agree on this charge and found defendant guilty only of attempted murder. The underlying conduct relating to this case occurred on April 12, 2009. On that date, defendant and Galindo decided to retaliate for an incident in 2008 in which a group of Norteños attacked defendant as he was eating at a taquería. They drove to an apartment complex known to contain Norteño residents and a shootout ensued. Galindo wounded one of the Norteños before another Norteño killed him. Defendant, who had been walking next to Galindo when the shootout started, fled when he heard the sound of a gun…