2 Rulings on Gangs Help, Hurt Prosecutors

SAN FRANCISCO — The California Supreme Court Monday made it tougher for prosecutors to accuse gang members of murder in some revenge killings.

At the same time, a second ruling went the prosecutors’ way. In that case, the court made it possible to convict more than one gang member for the murder of a single victim in a shootout without having to prove which of the accused actually fired the fatal bullet.

The unanimous rulings “should begin to fix this line of demarcation separating mutual combat killings from retaliatory killings in the context of urban warfare between rival gangs,” Justice Joyce L. Kennard wrote in a concurring opinion.

One of the cases involved a 1994 Orange County murder. In that case, the court said the defendant, who wounded a rival gang member but left the scene shortly before a fatal revenge shooting took place, could not be found guilty of the murder.

The other was a 1996 San Bernardino case. This time, the court held that two gang rivals shooting at each other could both be found guilty of the first-degree murder of an innocent bystander. Police did not know which of the two defendants fired the fatal round.

The Orange County decision, People v. Cervantes, S083267, overturns the murder conviction of Israel Cervantes, who wounded a man at a party in Santa Ana and then left the house. In a period that the court described as within seconds to a minute or two later, members of the gang to which the wounded man belonged shot and killed a member of Cervantes’ gang.

A jury convicted Cervantes of second-degree murder under a theory known as the provocative act murder doctrine, which says that someone who provokes another to kill is responsible for the murder. Although he is now clear of the murder conviction, Cervantes will not go free. His attack on the man he wounded at the party was by itself a third-strike offense under the state’s tough sentencing law.

Defense attorneys complain that prosecutors have been stretching the provocative act doctrine to apply to more and more killings.

Monday’s ruling appears to limit the doctrine to defendants whose attacks directly spark a killing by someone else. For example, a defendant could be found guilty of murder if he shot at a police officer who returned fire and accidentally killed a bystander. The court noted that the man Cervantes wounded was not involved in the subsequent shooting.

“The critical fact that distinguishes this case from other provocative act murder cases is that the actual murderers were not responding to defendant’s provocative act by shooting back at him or an accomplice, in the course of which someone was killed,” Justice Marvin R. Baxter wrote for the court.

In the Orange County case, “the killing wasn’t done to resist the commission of anything my client, Mr. Cervantes, did,” said Phillip M. Brooks, the defense attorney in the case. “It was a revenge thing, and that was not what they intended when they created this doctrine.”

Kennard, who was joined by Justice Kathryn Mickle Werdegar, addressed Cervantes in writing a concurrence in the companion case.

“History establishes that killings motivated by revenge may occur in cycles lasting many years and even generations,” Kennard wrote. “Although those whose conduct precipitates these vendetta cycles, and all who participate in them, must bear moral responsibility for the ensuing bloodshed, the criminal law will not impose what in theory could be an unbounded liability for retaliatory killings.”

In People v. Sanchez, SO88025, the victim was killed during a shootout by dueling San Bernardino County gang members.

Julio Cesar Sanchez and Ramon Gonzalez, who were exchanging gunfire, were both charged with first-degree murder in the death of a passerby. Sanchez was a passenger in a car that drove by Gonzalez’s house. Gonzalez and a friend were standing outside.

Sanchez and Gonzalez fired at each other, and one of the rounds killed the bystander. Police did not know which defendant fired the fatal shot. A jury convicted both of first-degree murder, but a Court of Appeal overturned Gonzalez’s conviction on the grounds that both men could not be guilty of first-degree murder of a person hit by a single bullet.

Baxter, again writing for the court, said the murder conviction was proper because the defendant’s action was a “substantial concurrent cause” of the death.

“Although in this case it could not be determined who was the direct or actual shooter of the single fatal round, the evidence . . . supports a finding that defendant’s commission of life-threatening deadly acts in connection with his attempt on Gonzalez’s life was a substantial concurrent, and hence proximate cause” of the victim’s death, Baxter wrote.

Melvyn Douglas Sacks, who represented Sanchez, said the ruling gives prosecutors a new tool in the war on gangs.

“You are going to see a lot more gang members being prosecuted for murder now just because they were at the scene of the crime,” Sacks said. “This is a landmark decision that really aids law enforcement and prosecutors in dealing with gang shootouts where not only gang members get killed, but innocent bystanders as well.”

Deputy Atty. Gen. Garrett Beaumont, whose office represented the prosecution in both cases, declined to comment.

J. Clark Kelso, a law professor at McGeorge Law School, said the court applied existing legal doctrine in the Sanchez case and clarified the law rather than changed it.

He said the Cervantes case may have wide applicability because of the number of revenge killings by gangs.