People v. Nunez CA5

BACKGROUND

In an amended information filed August 14, 2019, the Kern County District Attorney charged defendant with premeditated murder (count 1; Pen. Code3 §§ 187, subd. (a) & 189), active gang participation (count 2; § 186.22, subd. (a)), and possession of a firearm as a misdemeanant (count 3; § 29805.)4 The information further alleged:

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531. 2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). 3 All further statutory references are to the Penal Code unless otherwise stated. 4 Codefendant Fernando Rojas was also charged with counts 1 and 2. Rojas was charged individually with one count of possession of a firearm as a felon (count 4; § 29800, subd. (a)(1).) 2. Defendant committed the murder for the benefit of, at the direction of, or in association with the Varrio Chico Lamont (VCL) criminal street gang; the gang-murder special circumstance applied (§ 190.2, subd. (a)(22)); and firearm enhancements to the murder count under sections 12022, subdivision (d) and section 12021.5. A jury convicted defendant on counts 1, 2, and 3. The jury also found true the gang enhancement (§ 186.22, subd.…