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Name: People v. Cervantes
Case #: S083267
Court: CA Supreme Court
District CalSup
Opinion Date: 08/27/2001
Subsequent History: None

Defendant, a member of a street gang, perpetrated a nonfatal shooting which precipitated a revenge killing by members of an opposing street gang. He was charged with the subsequent murder. The jury was instructed that malice could be implied from the deliberate doing of a dangerous act with indifference to human life, and that the doing of a provocative act that resulted in death could be such an act. It was also instructed that liability for homicide requires a causal connection between the act and the death, and that the consequences of the act must be reasonably foreseeable. The jury convicted of second degree murder. The Court of Appeal affirmed. The California Supreme Court here reversed the conviction. The opinion of a prosecution gang expert that the revenge killing was foreseeable was the only evidence the jury had on which to base its finding that the murder was a direct and probable consequence of the initial act. Given that the murder of the victim was itself felonious, intentional, and perpetrated with malice, and directed at a victim who was not even involved in the original altercation, the evidence was insufficient as a matter of law to establish the requisite proximate causation for a murder conviction. A critical fact distinguishes this case from other provocative act murder cases: the actual murderers were not responding to defendant’s provocative act by shooting back at him. The murder of the victim was an independent intervening act on which appellant’s liability for the murder could not be based.