PEOPLE v. CERVANTES (1999)

OPINION

Gang member Israel Cervantes was convicted of provocative act murder for instigating events which resulted in a retaliatory killing by an opposing gang.¹  He claims his murder conviction must be overturned because:  (1) the victim's death was not a reasonably foreseeable consequence of his conduct, (2) the prosecution's gang expert gave improper and legally insufficient opinion testimony, and (3) the prosecutor withheld exculpatory evidence.   Cervantes also contends the court erred by considering his prior juvenile adjudications as “strikes” for sentencing purposes.   We affirm.

* * *

On Halloween night 1994, Cervantes and several other Highland Street gang members went to a party which was heavily attended by members of the Alley Boys gang.   Late in the evening, Cervantes had an argument at the side of the house with a woman named Grace.   When Cervantes called Grace a “ho,” ² Alley Boy Juan Cisneros approached and told Cervantes not to disrespect his home girl.   Richard Linares, also an Alley Boy, tried to defuse the situation, but Cisneros drew a gun and threatened to “cap [Cervantes'] ass.”   Cervantes responded by pulling a gun of his own, which prompted Linares to intervene once again.   Apparently exasperated by Linares' dogged passivity, Cervantes shot him.

The result was pandemonium:  Gang challenges and party guests flew around like so many bats at sunset.   Amid the chaos, a group of Alley Boys spotted Hector Cabrera getting in his car and driving away.   Recognizing him as a member of Highland Street, they brought him down with a hail of bullets,³ killing him.

Joseph Perez, the prosecution's gang expert, testified Highland Street and the Alley Boys were not enemies at the time of the shootings.   However, both gangs would be expected to be heavily armed to protect themselves from their rivals.   Perez offered the not-too-surprising opinion the Alley Boys would consider Cervantes' conduct in shooting Linares to be an act of “major disrespect” to their gang.   To avenge the shooting, they would be expected to respond quickly with equal or greater force against Cervantes or another member of Highland Street.   Therefore, Perez believed Cabrera's death was a reasonably foreseeable consequence of Cervantes' actions.

Cervantes testified he did not intend to shoot Linares, but was simply trying to protect himself.   He was surprised when his gun went off, because he did not feel it fire or see any flash.   He testified, “I don't know if I shot [LINARES] OR SOMEBODY ELSE SHOT [HIM], BUT WHat I do know is that if i attempted to murder anybody, I would have shot [Linares] while he was on the floor.”   In the confusion following the shooting, Cervantes heard someone say, “[Y]our home boy shot your own home boy.”   Based on this statement, Cervantes defended on the ground that Linares actually was shot by one of his fellow Alley Boys, who then conspired to frame him for it.

I

 Cervantes argues the facts are insufficient as a matter of law to support his conviction for provocative act murder.   As he puts it, “California law has never applied the provocative act doctrine to assign vicarious liability to a pure, deliberate revenge killing like that shown by the evidence in this case.”   Because Cabrera's killers acted “completely outside the law” and “after the completion of [his] provocative act,” Cervantes insists “their conduct must be viewed as an independent, intervening cause of Cabrera's death [.]”  We have considerable difficulty with an argument which concedes this was a “pure, deliberate revenge killing,” yet tries to distance itself from the concept of provocative act.   We see no reason the provocative act doctrine should not apply.

The provocative act doctrine evolved from People v. Washington (1965) 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130 and People v. Gilbert (1965) 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365.   In Washington, the Supreme Court determined the defendant could not be convicted of felony murder for participating in a robbery in which his accomplice was killed by the robbery victim, because neither the defendant nor his accomplice committed the killing.   However, while the felony-murder doctrine was inapplicable in this situation, the court warned that defendants who initiate gun battles may still be found guilty of murder if their intended victims fire back and kill someone.  “Under such circumstances, the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death, and it is unnecessary to imply malice by invoking the felony-murder doctrine.   To invoke the felony-murder doctrine to imply malice in such a case is unnecessary and overlooks the principles of criminal liability that should govern the responsibility of one person for a killing committed by another.”  (People v. Washington, supra, 62 Cal.2d at p. 782, 44 Cal.Rptr. 442, 402 P.2d 130, citations, internal quotation marks and footnote omitted.)

In Gilbert, the defendant's accomplice was killed by a police officer who arrived at the scene of a bank robbery.   Because the killing was in response to a shooting initiated by the defendant, the court determined the requirements for implied malice murder, as set forth in Washington, were satisfied.   In elaborating on this murder theory, the court explained, “ When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder.   In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.   Thus, the victim's self-defensive killing or the police officer's killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice.  [Citations.]”  (People v. Gilbert, supra, 63 Cal.2d at pp. 704-705, 47 Cal.Rptr. 909, 408 P.2d 365.)

 While Gilbert refers to killings committed by the victim or a police officer, the provocative act doctrine has not been limited to such situations.   For example, in Pizano v. Superior Court (1978) 21 Cal.3d 128, 145 Cal.Rptr. 524, 577 P.2d 659, the Supreme Court ruled the doctrine could be applied where the victim of a residential robbery was shot and killed by a neighbor who was trying to prevent the robbers from escaping.   In so ruling, the court stated, “[T]he principles announced in Gilbert and its progeny are not limited to cases in which the person actually committing the homicide is either a victim of the felony or a police officer.   Although Gilbert and subsequent cases refer only to victims and police officers, none states that the [provocative act doctrine] is limited to such persons, and no logical basis exists for such a limitation.”  (Id. at p. 136, 145 Cal.Rptr. 524, 577 P.2d 659;  see also People v. Williams (1977) 75 Cal.App.3d 731, 746-748, 142 Cal.Rptr. 704 [applying provocative act doctrine where killing was committed by potential rescuer].)

 Rather than focusing solely on who committed the killing, courts have applied a more comprehensive approach to assessing liability under the provocative act doctrine.   As stated in Taylor v. Superior Court (1970) 3 Cal.3d 578, 583, 91 Cal.Rptr. 275, 477 P.2d 131, the relevant inquiry is whether the death “proximately resulted” from the conduct of the defendant or his accomplices.   This is a factual question which the jury must resolve by applying ordinary principles of proximate causation.  (People v. Caldwell (1984) 36 Cal.3d 210, 220, 203 Cal.Rptr. 433, 681 P.2d 274;  People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1079, 53 Cal.Rptr.2d 207;  People v. Gardner (1995) 37 Cal.App.4th 473, 482, 43 Cal.Rptr.2d 603;  People v. White (1995) 35 Cal.App.4th 758, 765, 41 Cal.Rptr.2d 510;  People v. Mai (1994) 22 Cal.App.4th 117, 127-129, 27 Cal.Rptr.2d 141;  In re Aurelio R. (1985) 167 Cal.App.3d 52, 212 Cal.Rptr. 868.)   More precisely, the jury must decide “whether the death of the victim was proximately caused by the provocative act of the defendant or by some other superseding cause, such as an unforeseeable and unreasonable act of a third party.”  (People v. Gardner, supra, 37 Cal.App.4th at p. 483, 43 Cal.Rptr.2d 603.)

In arguing lack of causation, Cervantes notes Cabrera was killed after his provocative act, at a time when he no longer posed an active risk to anyone.   Granted, a couple of minutes may have elapsed between the time Linares and Cabrera were shot.   However, during this relatively brief interval, the potential for violence escalated rapidly as gang members drew weapons and issued threats.   And as soon as the Alley Boys spotted their target (Cabrera), they wasted no time exacting their deadly revenge.   Because Cervantes set in motion a fast-moving chain of events which led directly to Cabrera's death, it is immaterial the killing occurred a few minutes after the provocative act.  (See People v. Caldwell, supra, 36 Cal.3d at pp. 219-220, 203 Cal.Rptr. 433, 681 P.2d 274 [upholding murder conviction where the lull in the action from defendant's provocative act until the time of the killing was “precarious and short-lived”];  People v. Garcia (1999) 69 Cal.App.4th 1324, 1332, 82 Cal.Rptr.2d 254 [upholding the defendant's murder conviction where there was “no significant lull” from time of provocative act until killing];  People v. Superior Court (Bennett) (1990) 223 Cal.App.3d 1166, 1174, 273 Cal.Rptr. 71 [same].)

 Cervantes also emphasizes the fact Cabrera's death was the product of an unlawful and deliberate act of revenge by the Alley Boys. Comparing this situation to those in which the killings were committed by police officers attempting to apprehend criminals or victims acting in self-defense, Cervantes claims the Alley Boys' response was so unreasonable as to constitute an intervening and superseding cause of Cabrera's death.   But Cervantes misapprehends the provocative act doctrine.   It is not concerned with the subjective reasonableness of the killer's conduct.  (Pizano v. Superior Court, supra, 21 Cal.3d at pp. 136-139, 145 Cal.Rptr. 524, 577 P.2d 659.)   It is enough that the killing is an objectively foreseeable consequence of the defendant's conduct.  (Ibid.) Simply put, “the proper test is one of proximate cause and natural and probable consequences,” not “reasonable response.”  (People v. Gardner, supra, 37 Cal.App.4th at p. 481, 43 Cal.Rptr.2d 603.)

The Alley Boys and Highland Street were both heavily armed on the night in question.   And although the two gangs had been coexisting peacefully that evening, it was readily apparent the Alley Boys, like any other criminal street gang, would not let the shooting of one of their own go unatoned.   Indeed, gang expert Perez testified the Alley Boys would be expected to react in response to the gang's sub-cultural imperative by inflicting immediate and severe retaliation against the perpetrators.   The fact several different Alley Boys unloaded on Cabrera shows just how predictable this reaction was.   Considering the totality of the circumstances, Cabrera's death was a reasonably foreseeable consequence of Cervantes' conduct.   Therefore, application of the provocative act doctrine was proper.

II-III **

IV

Finally, Cervantes alleges the court improperly considered his prior juvenile adjudications as strikes.   To assess this claim, we must first revisit the procedural history of that case.   It began in 1985, when a petition was filed in juvenile court alleging Cervantes committed three counts of armed robbery and three counts of assault.   Pursuant to Welfare and Institutions Code section 707, the prosecutor moved to have Cervantes tried as an adult in superior court.   Cervantes successfully opposed the motion, and the case remained in juvenile court.   Following a contested hearing, the court sustained two of the robbery charges and two of the assault charges.

 Because the robbery adjudications qualified as prior felony convictions under Penal Code section 667, subdivision (d), the prosecution charged them as strikes in the present case.   Cervantes objected to the charges, asserting they undermined certain representations which were made to him during his juvenile court case.   Specifically, Cervantes claimed the court and prosecution had told him that if he gave up his right to a jury trial and agreed to have the charges heard in juvenile court, they could not be used to increase his punishment for any future offenses.   Analogizing this situation to a plea bargain, Cervantes insisted “his act of waiving his right to go to adult court and to have a jury trial was the ‘concession’ he made for the ‘promise’ that any sustained petition thus resulting would never be an adult criminal conviction and could not be used against him as an adult criminal prior conviction[.]”  Continuing with this contract theme, Cervantes argued he was entitled to “specific performance” of the promise, i.e., dismissal of the strikes in this case.

 The trial court rejected this argument, as do we.   The problem with it is that Cervantes attempts to conjure up a “bargain” where none ever existed.   The prosecution did not negotiate any sort of deal to encourage Cervantes to waive his right to a jury on the juvenile court allegations.   He waived his jury right because the law at that time precluded the prosecution from using juvenile adjudications as prior convictions.   However, the Three Strikes law changed the rules in this respect.   Under certain conditions applicable here, the prosecution may now use juvenile adjudications as strikes.  (See Pen.Code, § 667, subd. (d)(3);  People v. Garcia (1999) 21 Cal.4th 1, 87 Cal.Rptr.2d 114, 980 P.2d 829.) It is this change of law to which Cervantes really objects.   However, there is no legal impediment to using conduct which qualifies as a strike to increase a defendant's sentence, even when the conduct predates the Three Strikes law.  (See People v. Hatcher (1995) 33 Cal.App.4th 1526, 39 Cal.Rptr.2d 801.)   Therefore, the trial court was entitled to consider Cervantes' juvenile adjudications as strikes.  (Cf. People v. Fowler (1999) 72 Cal.App.4th 581, 84 Cal.Rptr.2d 874 [defendant's juvenile adjudication could be used as a strike even though it occurred without a jury trial or waiver of same].)

The judgment is affirmed.

FOOTNOTES

1.   Cervantes was also convicted of several other offenses which are not at issue in this appeal.

2.   The level of discourse in this case calls to mind the musings of Justice Gardner in People v. Benton (1978) 77 Cal.App.3d 322, 142 Cal.Rptr. 545.   Lamenting the criminal argot of that case, he said, “It is a sad commentary on contemporary culture to compare ‘Don't say a word, don't say a mother-fucking word’ with ‘Stand and deliver,’ the famous salutation of Dick Turpin and other early English highwaymen.   It is true that both salutations lead to robbery.   However, there is a certain rich style to ‘Stand and deliver.’   On the other hand, ‘Don't say a word, don't say a mother-fucking word’ conveys only dismal vulgarity.”  (Id. at p. 324, fn. 1, 142 Cal.Rptr. 545.) Regrettably, “dismal vulgarity” was the zenith of this case.

3.   Shell casings from five different weapons were found at the scene.

FOOTNOTE.   See footnote *, ante.

BEDSWORTH, J.

CROSBY, Acting P.J., and SCOVILLE, J.***, concur.