People v. Superior Court (Castellanos) CA4/3

FACTS

This case concerns crimes committed on two different days about one week apart. The prosecution charged Castellanos with committing a 1 crime on August 7, 2011—aggravated assault (Pen. Code, § 245, subd. (a)(1)) (count 3) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The prosecution also charged Castellanos with committing the following crimes on August 13, 2011: special circumstance gang murder (§§ 187, subd. (a), 190, subd. (a)(22)) (count 1) and attempted willful, deliberate, and premeditated murder (§§ 664, subd. (a), 187, subd. (a)) (count 2). It alleged he personally discharged a firearm during the commission of counts 1 and 2 (§ 12022.53, subd. (d)) and benefitted a criminal street gang during the commission of count 2.2 At the first trial, the jury convicted Castellanos of count 3 and found true the gang enhancement. It was unable to reach a verdict on counts 1 and 2, and the trial court declared a mistrial. The prosecution retried Castellanos on counts 1 and 2. At the second trial, the jury convicted Castellanos of counts 1 and 2 and found true

1 All further statutory references are to the Penal Code.

2 The prosecution also charged…