Provocative Act Murder Prosecution in California

In People v. Cervantes (2001) 26 Cal.4th 860, the California Supreme Court had occasion to discuss causation in the context of a provocative act murder prosecution. (Id. at p. 866.) The court stated, "'In general, an "independent" intervening cause will absolve a defendant of criminal liability. However, in order to be "independent" the intervening cause must be "unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." On the other hand, a "dependent" intervening cause will not relieve the defendant of criminal liability. "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. ' The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' " ' " (Id. at p. 871.) In Cervantes, members of different gangs attended the same party. The defendant, a member of the Highland Street gang, shot a member of the Alley Boys gang (Linares) in the arm and chest during a scuffle over a perceived slight to a woman associated with the Alley Boys. (Cervantes, supra, 26 Cal.4th at pp. 863-864.) A melee erupted with several participants yelling gang challenges. (Ibid.) A short time later, a group of Alley boys spotted a lone Highland Street gang member (Cabrera) and fired several shots, killing him. (Id. at p. 864.) At trial on charges he killed Cabrera, the defendant testified he did not intend to shoot anyone, and that he was driving away from the party when he heard several shots being fired. (Ibid.) The California Supreme Court reversed the defendant's conviction, observing, "Defendant was not the initial aggressor in the incident that gave rise to the provocative act. There was no direct evidence that Cabrera's unidentified murderers were even present at the scene of the provocative act, i.e., in a position to actually witness defendant shoot Linares. Defendant himself was not present at the scene where Cabrera was fatally gunned down; the only evidence introduced on the point suggests he was already running away from the party or speeding off in his car when the victim was murdered." (Cervantes, supra, 26 Cal.4th at p. 872.) The court observed, Cabrera's murderers "'intended to exploit the situation created by defendant, but were not acting in concert with him,' a circumstance that is 'normally held to relieve the first actor defendant of criminal responsibility.' " (Id. at p. 874.)