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In re Aurelio R., 167 Cal.App.3d 52, 212 Cal.Rptr. 868

Facts

The appellant, Fernando R., a member of the Avenue Gang, participated in a retaliatory shooting against the Cypress Park Gang after a gang member was shot. On December 20, 1982, he and four other gang members drove into Cypress Park territory with the intent to shoot a rival gang member. During the encounter, gunfire was exchanged, resulting in the death of one of the Avenue Gang members, Caesar Salas. Fernando R. was charged with murder and conspiracy, and the court found him guilty of second-degree murder and conspiracy to commit assault with a deadly weapon.

The appellant, Fernando R., is a member of a juvenile gang—the Avenue Gang. The previous Saturday the Cypress Park Gang had shot an Avenue Gang 'homeboy.' At about eleven on the evening of December 20, 1982, the appellant and four other 'homeboys' from the Avenue Gang decided to drive into the Cypress Park area.

Issue

Whether the evidence supported Fernando R.'s conviction for 'provocative act murder' without the need for a separate and independent provocative act.

Fernando R. appeals primarily on grounds the evidence does not support his conviction of 'vicarious murder' of his fellow gang member, Caesar Salas.

Rule

A defendant can be convicted of 'provocative act murder' if they or their accomplices commit an act that provokes a third party into firing the fatal shot, and they must know that this act has a high probability of eliciting a life-threatening response.

To satisfy the 'actus reus' element of this crime the defendant or one of his confederates must commit an act which provokes a third party into firing the fatal shot.

Analysis

The court analyzed the facts and determined that the actions of Fernando R. and his accomplices in driving into rival gang territory with the intent to shoot constituted a provocative act in itself. The court noted that their intent to kill and the high probability of retaliatory gunfire from the rival gang satisfied the elements of 'provocative act murder.' Thus, the court concluded that no separate provocative act was necessary for the conviction.

The felony the appellant intended to and did commit involved an intent to kill. They did not enter Cypress Hill territory to rob a chicken restaurant hoping to escape with some money but without firing a shot.

Conclusion

The court affirmed the conviction of Fernando R. for the murder of Caesar Salas, holding that his actions were sufficient to support the charge under the 'provocative act murder' doctrine.

The judgment is affirmed with respect to appellant Fernando R.

Who won?

The People (State) prevailed in the case against Fernando R. because the court found sufficient evidence to support his conviction for murder based on the doctrine of 'provocative act murder.'

The court found Fernando R. had committed murder in the second degree involving use of a firearm and conspiracy to commit assault with a deadly weapon.

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