*1 Aug. S083267. 2001.] [No. PEOPLE, Plaintiff and Respondent,
THE CERVANTES, Defendant Appellant. ISRAEL *3 Counsel Court, Brooks, for Defendant under Supreme M. appointment
Philip and Appellant. General, Williamson Attorneys George and Bill Lockyer,
Daniel E. Lungren Schons, General, Druliner, W. Gary Assistant Attorneys P. Chief and David Foster, General, I. and Garrett Motley Robert M. Keith Attorney Assistant General, Beaumont, for Plaintiff Respondent. Attorneys Deputy Opinion
BAXTER, J. concerning proof case question presents This to decide review granted act murder case. We in a causation defendant, whether a member of a street a nonfatal gang, perpetrated shooting members of an quickly precipitated revenge killing by street of murder on the facts before us. We conclude opposing gang, guilty that he is not. History
Facts and Procedural 30, 1994, after on Shortly October defendant and fellow midnight High- land Street members went to a gang Santa Ana thrown birthday party Perez, the Alley for one of their Boys gang members. Joseph prosecu- tion’s gang testified the Street and expert, Highland were Alley Boys gangs not enemies at the time. Over 100 were in attendance at the people party, of them many members. house,
Outside of the he woman knew named approached Grace. She was intoxicated and heavily declined defendant’s invitation to go him, to another “ho,” him to call her a prompted *4 leading, turn, to Cisneros, an of crude exchange insults. Juan a member of the Alley Boys, and told approached defendant not to his “disrespect” “homegirl.” Linares, Richard situation, also an tried Alley to defuse the but Boy, Cisneros drew a and threatened to gun ass.” Defendant “cap [defendant’s] own,1 responded by brandishing of his handgun Linares to prompted intervene once again, or defendant pushing touching on shoulder in an effort to him from separate Cisneros. In defendant stated response, “nobody touches me” and shot Linares the arm and through chest.
A crowd some 50 was these people watching events unfold. Someone did yelled, “Why shoot home you or home my boy?” shot “your boy your own to homeboy,” which someone responded “Highland is the one [Street] that shot.” A melee erupted, gang challenges were exchanged.
A short time later2 a group Alley Boys Hector Cabrera spotted entering his car and driving him as a member away. Recognizing of the Highland shots, Street fired a gang, they A volley killing him. of shell variety recovered casings from the street evidenced that at least five different had shooters in the murder of Cabrera. participated Perez testified that although Street and Highland Alley Boys gangs were not enemies at the time of the both would be shootings, gangs expected to be armed. He that the would consider opined Alley Boys defendant’s slipped gun 1 Defendant testified someone pocket Spanish into his and warned him in “be careful.” 2 The witnesses’ time estimates varied from several seconds to a minute or two. to their gang. Linares to be act of “major conduct shooting disrespect” with To would be avenge shooting, they expected respond quickly his or another member of gang. or force defendant greater against equal Therefore, Perez death was a foreseeable reasonably Cabrera’s opined, actions. defendant’s consequence Linares, he did not intend to shoot but was simply
Defendant testified Cisneros, He drew his first. himself from weapon trying protect off, see his he did not feel it fire or any when went because gun surprised testified, else know if shot somebody flash. He “I don’t I shot [Linares] [him], I that if to murder I anybody, but what do know is I attempted [had] he was the floor.” the confusion follow- would have shot while on [him] Linares, heard someone home say, shooting ing “[Y]our “Highland’s own and then he heard someone boy,” say shot home boy your defendant ran from that shot.” he was in Realizing danger, one He they off with others. heard shots fired as drove being several sped and arrested a short distance away. He was away. by police stopped Code, 187.)3 (Pen. Cabrera. murdering Defendant charged that murder unlawful homicide instructions informed relevant could be from deliberate with malice malice aforethought,4 life,5 that the indifference to human doing act with doing dangerous could be such an act.6 of a act that resulted death statutory to this otherwise indicated. Defendant was 3 Allfurther references are code unless *5 (§§ 187), charged attempted of the murder of Linares also with and and convicted (id, 12022.5) findings and committed the personally § with that he used a firearm enhanced (id, (id, 186.22), illegal possession of a firearm for the benefit a street § offense of Code, (Health (d) (e)), Saf. possession methamphetamine & and subds. and of § (his 11379). only further claims of appeal challenged his conviction murder On he review). sentencing rejected error were and are not issue on aforethought guilty is being with malice 4 “Everyperson unlawfully kills human . murder .... . . crime, following proved: each of the elements must be prove “In order to such killed; being “1. A human unlawful; killing and “2. The 8.10.) (See killing aforethought.” malice CALJIC No. “3. The was done with 5 “ may express implied. be or . . . ‘Malice’ either [H] ffl “Malice is when: act, an intentional “1. The resulted from life, dangerous to human natural of the are consequences “2. The to, knowledge danger of the with deliberately performed act was with “3. The for, 8.11.) (See disregard No. human life.” CALJIC conscious who is not a during person of a crime committed commission 6 “Ahomicide crime, provocative by perpetrator an response intentional perpetrator of such deceased, surviving killing by considered in to be unlawful crime other than law perpetrator of crime. was further instructed that for homicide a causal jury liability requires death, direct, connection between an unlawful act and that the act’s namely, h.7 natural and must be deat Pursuant to probable consequences (Roberts), Roberts Cal.4th 271 274] direct, was instructed that a natural and jury must probable consequence foreseeable, be measured under a reasonably reasonable objectively person test.8 here, Cabrera,
As relevant convicted defendant of the murder of fixed at second degree.
Discussion Provocative act murder was the sole under theory was tried and convicted of the murder of Hector Cabrera. At the close of evidence, defendant sought (§ 1118.1) judgment on murder acquittal for want of charge “sufficient evidence aof act to provocative permit defined, “An provocative intentional act is as follows: intentional, “1. The act was life, “2. The natural consequences dangerous of the act were to human to, “3. The deliberately performed act was knowledge danger of the and with disregard conscious for human life. crime, prove “In order to such each the following be proved: elements must “1. The crime of assault voluntary with a firearm or attempted manslaughter or attempted committed; murder was During “2. the commission of the crime the defendant also committed an intentional act; provocative person “3. Another perpetrator not a of the crime of assault with a firearm attempted or murder, voluntary manslaughter act, attempted to the killed . person; another “4. The defendant’s commission of the intentional act was a cause of the death of Hector Cabrera. committed, you “If find that the crime you of murder was must find it to be murder of the (See degree.” 8.12.) second CALJIC No. 7 “To constitute the crime of Murder there must be in addition to the death of Hector Cabrera an unlawful act which awas cause of that death. “The criminal law has its particular way defining own cause. A cause of the death of *6 direct, Hector Cabrera is an act that sets in motion a produces, chain of events that as a natural act, Cabrera, probable and consequence of the the death of Hector and without the (See death 3.40.) would not occur.” CALJIC No. direct, jury 8 The was told that “A natural probable consequence is defined as a consequence reasonably which is foreseeable. The defendant need not intend that the ultimate committed, crime be nor need personally may he even that foresee it be committed. It is enough objectively that reasonably H¡] it is may foreseeable that the ultimate crime occur. result, respect With foreseeability to the of the ultimate the issue does not turn on the whether, subjective defendant’s depends upon state of mind but under all the circumstances presented, a person reasonable the position defendant’s or would have should have known that the ultimate result was a reasonably consequence foreseeable of the intended crime.” The trial to find the defendant liable for the death of Hector Cabrera.” jury denied court the motion.9 the facts a matter
On that are insufficient as of urged appeal, the affirming law to his conviction of act murder. In support provocative conviction, commented, have diffi- the Court “We considerable Appeal this a deliberate revenge with which concedes culty argument ‘pure, act. to distance from the We yet provocative tries itself killing,’ concept “Granted, see no reason the act doctrine should not a apply.” provocative have the time minutes between Linares Cabrera couple may elapsed interval, However, were shot. this brief for during relatively potential and issued violence escalated as members drew rapidly gang weapons (Cabrera), And as the their target threats. as soon Alley Boys spotted they set wasted no time their Because Cervantes exacting deadly revenge. death, motion a chain of events which led Cabrera’s fast-moving directly a after the it is immaterial the occurred few minutes act.” provocative is, therefore, us before whether sufficient evidence question supports defendant’s of murder based on the act murder conviction provocative in the most favorable to the guilty evidence theory. Viewing light must whether rational any verdict secured we determine prosecution, trier fact essential of the crime beyond could have found the elements (See, (2000) 24 reasonable doubt. v. Staten Cal.4th e.g., People 968].) the essential particular, are element with which we here concerned is causation of a act context murder provocative prosecution. cases, a an act
In homicide “cause of death of is [the decedent] direct, a chain of events that as omission sets motion produces natural and of the act or omission the death probable consequence [the (See which the death would not occur.” CALJIC No. without decedent] act 3.40.) In established is cause where general, “[p]roximate clearly no force intervening connected with directly resulting injury, Elements, (1 (3d 2000) ed. & Cal. Criminal Law Epstein, Witkin operating.” In this there force in intervening opera case was an all mem least in attendance at the presumably tion—at five persons party, member Hector Highland bers of the shot and killed Street Alley Boys, that does not Cabrera in hail of bullets after melee But shortly erupted. be liable end our because “defendant also may criminally inquiry, in order him sought to have the instructed that to convict 9 Defendant also Boys’ Alley had to to his murder it find the provocative act request modify court denied the standard murder “reasonable.” The trial (CALJIC 8.12.) instruction. No.
867
act,
result directly caused
his or her
even
there is
though
another
37,
243;
(Id.,
cause.”
contributing
3.41.)
see also CALJIC No.
'
(1965)
with
v.
Beginning
People Washington
a victim or officer shoot another. robbery, causing police the from we were concerned with doctrine Washington distinguishing mainly in that we the It was Gilbert first felony-murder liability. developed provoca- act One of defendant’s accom- liability fully. tive of murder more theory a and a officer wounded another gun mortally started battle plices police in- in After the had been accomplice response. deciding improperly here, not bemay structed in matters relevant we articulated “principles [that] committed a of . murder a killing by invoked to convict defendant . . for 704.) (Gilbert, another.” Cal.2d at supra, 63 p. be of malice in Gilbert’s aforethought;
We first there must proof explained con- case malice. the defendant or his with a “When accomplice, life, for an that is to cause intentionally scious commits disregard likely death, to such response and his victim or a officer kills reasonable police case, act, the such a the is attribut- killing of murder. In guilty able, not to the of a but to the intentional act felony, commission merely his disregard the defendant or committed with conscious accomplice (Gilbert, 704.) at life.” Cal.2d 63 self-defensive killing
We then discussed causation: victim’s “[T]he of his cannot be considered officer’s killing performance duty police liable, for it an cause for the defendant is independent intervening or the is a reasonable to the dilemma thrust victim upon the defendant or his intentional accomplice.” policeman (Gilbert, 705.) Cal.2d 63 at short,
In described act murder in traditional liability Gilbert malice, and as the former compo- terms of causation regards nent, rule that no criminal attaches general liability reaffirmed implicitly from an remote actor for an unlawful that results initial contrast, (i.e., cause). In when cause a intervening superseding independent cause, chain from of causation intervening the death results a dependent by neighbor trying prevent who the robbers robbery residential was shot and killed was progeny and its are not escaping. explained principles “the announced in Gilbert from We actually committing is either a homicide victim person limited cases which (Id. recent have invoked the doctrine felony or a officer.” Several cases police deadly defendant’s provoked responds shooter force to the felonious when (See, re engaged e.g., conduct. life-threatening conduct is himself criminal (1985) gang Cal.Rptr. 52 minor his fellow Cal.App.3d 868] Aurelio R. [A revenge earlier territory upon exacting intent for an gang into rival armed and members drove battle, ensuing gun accomplices one the minor’s on of their own. In the attack one member.]; Cal.App.4th v. Gardner killed rival dealer, dealer, victim, defendant, the course of drug drug shot at the also who in 603] [the fatally gunned by yet drug third armed dealer who fleeing shots down defendant’s him].) being shots fired at believed defendant’s were remains unbroken and the ordinarily initial actor is liable for the unlawful *9 homicide.
This basic causation was articulated over a principle century in our decision in ago (1899) v. Lewis 124 Cal. People 551 P. 470]. intestines, There the defendant had shot the victim in the him sending toward painful inevitable death he decided to hasten apparently by his slitting own throat. We held Lewis was convicted of properly because manslaughter suicidal, the victim’s understandable; response, though was natural and hence it was not an cause of independent intervening death. Even “if the alone, deceased did die from the effect of the knife wound no doubt the defendant would be if it was made responsible, and the could appear, evidence, have found from the that the knife wound was caused wound inflicted (Id. defendant in the natural course of events.” at p. contrast, 555.) we By one posed, assaults and “Suppose wounds another life, wound, to take intending but the though is not even painful, dangerous, and the mortal, wounded man knows that it is not takes his life yet own would it escape pain, not be suicide (Id. 556.) at only?” The answer would be and there yes, would be no homicide if liability, wound “[t]he suicide, not, induced the but the wound was in the usual course of things, words, cause of the suicide” (ibid.)—in other if death would not have followed and inevitably instead occurred through interven- independent cause of the ing victim’s own will to die.
The
was revisited in
principle
(1918)
v. Fowler
More that, recently, Cal.4th we reiterated “The criminal found, law thus is clear that for to be the cause of the liability harm direct, must only be but also not so remote as to fail to constitute the natural and probable of the consequence (Id. defendant’s act.” at p. “Commentators and drafters have made this (Ibid.; conclusion see explicit.” Perkins & 774; Criminal Boyce, (3d 1982) Code, Law ed. Model Pen. § 2.03, (2)(b) subd. or of a result purpose knowledge is an element of [when offense, is not for an unintended or result uncontemplated actor liable here,
unless, “the actual result the same kind or as relevant involves injury harm that and is not too remote or accidental designed as contemplated its a . . . on the actor’s or on the bearing gravity occurrence have liability offense”].) of his as fellow Roberts state inmate walked down corridor his prison
inmates, defendant, on both He walls sides. including lounged against caused his death. was attacked with 11 stab wounds emerged shortly inmate, brought in an “unconscious state on by hypovolemic dying *10 shock,” knife a from the floor and one of his assailants up grabbed pursued a stairs the second where he the knife flight of to floor reflexively plunged (Roberts, into 2 Cal.4th at guard, killing the chest a him. prison supra, p. 316, 9; id., 294-295.) the charged fn. The defendant was with murder of pp. ultimately reversing both the inmate and the correctional officer. Although error, for we found the evidence sufficient for the to find instructional (Id. a the death. at defendant’s acts were cause of officer’s p. 321.) in on authorities. In an
We
reliance
Roberts
several out-of-state
placed
case,
744],
The
(1888)
Illinois
Belk v.
125 Ill.
N.E.
early
584 [17
team of
defendants were
have
allowed their
horses
alleged
negligently
a
break
on a narrow
lane. The team collided with wagon
loose
country
ahead,
run
that
team horses to
and
sight just
causing
wagon’s
panic
plain
victim, a
to her death. The Illinois
away
thereby throwing
and
passenger,
but
grounds,
court
convictions on other
resulting manslaughter
reversed
“
or
of the defend
reasoned
‘Between
acts of omission
commission
ants,
occurred,
of the
which it is
the collision
and
alleged
injury
deceased, there
not an
of a human
acting
will
interposition
indepen
break the causal
...
natural
extraordinary
dently
any
phenomena,
Belk,
318,
(Roberts,
supra,
connection.’”
Cal.4th at p.
quoting
supra,
745.)
(1955)
N.E.
also cited Madison
summarized as follows. “In an cause will general, intervening ‘independent’ (1 & absolve defendant of criminal Witkin Cal. Criminal liability. Epstein, However, (2d 1988) Law ed. in order to be ‘independent’ must be and abnor cause ‘unforeseeable ... intervening extraordinary occurrence, mal which rises to the level of an exonerating, superseding cause.’ 420-421 (People Armitage Cal.App.3d hand, 515].) On the other cause will not intervening Cal.Rptr. ‘dependent’ relieve the defendant of criminal ‘A defendant be criminally liability. may liable for a result caused if there his even is another directly cause. If an is normal and contributing cause intervening reasonably foreseeable result of defendant’s act the original intervening “depen cause, dent” and not a will relieve superseding liability. *11 The need not have been a consequence strong probability; [Citation.] “[ ] which have been is possible consequence might reasonably contemplated foreseen; enough. need not have been it is precise consequence [ ] that the defendant should have foreseen the of some enough harm possibility the kind result from might his act.” v. Harris (People [Citation.]’ 419, (1975) 52 40].)” 427 (1994) v. Funes Cal.App.3d Cal.Rptr. (People [125 1506, 758]; 23 1523 see also Cal.App.4th v. Hansen Cal.Rptr.2d People [28 473, (1997) 897]; 59 479 v. Schmies Cal.App.4th Cal.Rptr.2d People [68 38, (1996) 44 185]; 49 v. Hebert Cal.App.4th 514, 539].) Cal.App.2d Cal.Rptr. One has described the rationale for the acts of a commentary finding remote, (and second to be a intervening party independent superseding) free, deliberate, cause in these terms: “The and informed intervention of a first, second who intends to created the but is situation person, exploit him, not in concert with held to relieve the first actor of acting normally Honoré, (Hart (2d criminal & Causation in the Law ed. responsibility.” 326, 1985) omitted.) fn.
In Roberts we that “there is no line bright demarcating legally explained sufficient from cause one that is too remote. Ordinarily will be for the in some instances evidence question jury, though undisputed reveal a remote cause so that court decide that no may may properly (Roberts, find needed nexus. trier of fact could rational [Citations.]” that, and Boyce suggest fn. Perkins Cal.4th at situation, where the which determine just latter “The matters policy field of be the broad shall recognition placed upon limitations juridical cause, notions of fairness jus- are . . . upon actual grounded partly Law, omitted.) fn. (Perkins & Criminal tice. . . .” Boyce, hand, that facts at we agree to the Turning to his insufficient as a matter of law support evidence introduced below is murder, the essential for it fails to establish conviction of provocative case are distinguishable causation. The facts of this element of proximate act murder case in number respects. from the classic provocative in the incident that rise to gave the initial aggressor Defendant was not unidentified that Cabrera’s act.12 There was no direct evidence provocative act, i.e., in a of the at the scene provocative murderers13 were even present Linares. Defendant himself was defendant shoot witness actually position down; the only where Cabrera was fatally gunned scene present from he already running away on the suggests evidence introduced point was murdered.14 off in his car when victim or speeding from other this case distinguishes But the critical fact murderers not responding is that here the actual were cases15 murder “disrespecting” his confronted defendant for established that Cisneros 12 Theevidence he threatened defendant. It was never weapon his with which “homegirl,” pulled and first out Grace, a he knew talking act of woman theory People’s case that defendant’s of the calling her a “ho” when she refused his Alley Boys, or even his was associated with the overtures, foreseeably give rise to threats of violence act that would was itself a retaliatory murder. The shooting and a Alley Boys, much less escalate into a from the *12 Highland and to the effect that the Street expert the own testimony prosecution’s of enemies; gangs jointly in the fact members of both were Boys gangs that Alley were coexisting; and that the fact that there they peacefully party at the reflected were attendence pushing and shooting the situation escalated to of immediate when was conversation instead not enemies. guns participants reflected the were shoving display and the noted, by was murdered supported the inference that Cabrera ballistics evidence 13 As prosecution witness Although some evidence that Cisneros there was several individuals. shooters, for Cabrera’s they prosecuted were not among the actual Francisco Guluarte were murder, complicity in the murder any way possible their in seek use prosecution nor did the act murder. against provocative defendant for its case-in-chief to establish running jury, the “He starts prosecutor the conceded to closing argument, [Cabrera] 14 Inhis truth, I can tell I don’t know where that is but you to tell the parked. his car’s And to where you up.” it ended where implied applied principles we first Washington in and Gilbert explained that 15 Wehave criminal defendants to situations in which intervening-act causation malice murder and kill, response to their a third to kill in caused intended to but instead neither killed nor act factual (Ante, provocative The traditional p. life-threatening provocative acts. acts of an through the in which death results of those homicide cases pattern is but a subset
873
at him an
the
defendant’s
back
in
by shooting
provocative
accomplice,
course of which someone was killed.
were not in the shoes of the
They
officers in Gilbert or Caldwell who
shot back and killed an accom-
police
as an
“reasonable
to the dilemma thrust
objectively
upon
plice
malicious and
acts.
life-endangering
defendant’s
by
provocative
[them]”
Caldwell,
705;
(Gilbert,
36
Cal.3d at
supra,
People
supra,
63 Cal.2d at
v.
219-223.)
without volition as was the inmate in
Nor were they acting
pp.
who,
Roberts
been rendered unconscious from stab wounds inflicted
having
Roberts,
defendant
“reflexively”
by stabbing
guard
responded
prison
(Roberts,
321),
death
2 Cal.4th at
or as
supra,
intermediary
State,
Madison v.
35],
supra,
intermediary. intermediary In all homicide cases in which the conduct of an is the actual cause death, liability depend defendant’s will on whether it can be demonstrated that his own death—i.e., proximately conduct caused the it victim’s whether can be shown that the death, intermediary’s merely dependent intervening conduct was cause of and not an established, independent superseding cause. If causation is the defendant’s level culpability vary for the homicide in in accordance turn will with his criminal intent. Fowler, Although intervening-act cases like Roberts and Madison are causation homicide cases in that the victims’ came at the intermediary, deaths hands of an it would be a misnomer to label them act murder cases. Neither the unidentified driver who ran over the Fowler, left in roadway unconsciously victim the inmate reflexively who stabbed Roberts, prison guard intermediary instinctively nor the grenade kicked the hand Madison, away from “provoked” taking himself in were deadly into their actions in the sense Gilbert, 690, Caldwell, the police supra, officers in 62 Cal.2d v. 36 provoked shooting Cal.3d were during into back the robberies involved in those cases. the provocative theory Because act murder felony-murder was derived in the context of robberies) (usually factual scenarios specifically and was conceived as a caveat to the rule, felony-murder “provocative confusion can be avoided if use of the term act murder” is which, category intervening-act reserved for that during causation cases in commission of crime, (i.e., intermediary victim) a police provoked by officer or crime is the defendant’s back, shooting conduct into resulting in In the someone’s death. classic act, murder prosecution, malice is from the provocative resulting and the crime is 187, 188; (§§ Law, degree. murder in the second Epstein, 1 Witkin & Cal. Criminal Person, 148, Against seq.; People Dellinger Crimes et Cal.3d 200].) Cal.Rptr. But whether or not a defendant’s unlawful conduct sense, “provocative” proximately intermediary literal when it causes an kill act, through dependent intervening liability defendant’s homicide will be fixed in proximately accordance with his criminal mens rea. If the defendant causes a homicide through intermediary the acts premeditation, and does so with malice and his crime will *13 (see degree perpetrated by any be murder in the first murder § 189 ... . . . [“All willful, deliberate, kind of premeditated degree.”]; and ... is murder of the first Gilbert, conduct, sense, supra, 705), irrespective 63 Cal.2d at of whether his in a literal provoked intermediary killing. proximately into If the defendant causes a homicide malice, through intermediary manslaugh acts of an and does so without his crime will be Schmies, (see, e.g., 58), Cal.App.4th again, ter at irrespective once of conduct, sense, intermediary whether the provoked taking deadly a literal into action. themselves murderers here were the acts of the actual
To the contrary, The fatal criminal, felonious, malice aforethought. and perpetrated at a third fired, but instead at the defendant or accomplice, not shots were act.16It can the initial not a (Cabrera) who was party exploit the murderers of Cabrera be said that “intend[ed] further him,” [defendant], but not in concert with acting created [were] situation held to relieve the first actor that is “normally [defendant] a circumstance Law, Honoré, at criminal Causation in the (Hart & responsibility.” short, murderous forced the omitted.) Alley Boys’ nobody fn. case, act of a direct to defendant’s if indeed it was response in this at the hands murder of Cabrera and malicious Linares. The willful shooting liability act on which defendant’s intervening was an independent of others not be based. for the murder could after defend- short time very the murder occurred
The circumstance that that Linares, Perez gang expert opinion prosecution ant shot shooting of defendant’s a foreseeable consequence murder was Cabrera’s was mentality, code of honor of a street gang’s Linares in the context to find that was asked on which evidence essentially only natural, direct, consequence” “a probable murder was Cabrera’s that the Linares. Given defendant’s act of 3.40) shooting No. (CALJIC felonious, intentional, itself perpe- other murder of Cabrera by parties and directed at victim who aforethought, trated with malice Linares, the defendant and altercation between in the original involved law to establish the requisite proxi- as a matter of is insufficient evidence murder. liable for to hold defendant mate causation
Conclusion extent it affirms to the the Court is reversed Appeal
The judgment affirmed, murder; and the it is in all other respects defendant’s conviction views consistent with the expressed further remanded for proceedings matter herein. J., Chin, J., Brown, Kennard, J., concurred. J., C.
George, present were either or his murderers Cabrera noted there was no evidence 16 Wehave the house. at the side of shot Linares in which directly the incident witnessed pande conduct when characterizing Cabrera’s own in the record any there evidence Nor is only that he was being exchanged; we know challenges were broke out and monium away. attempted he to drive fatally shot as *14 in the KENNARD, J. concur in the judgment majority opinion I case of stated in concurring opinion companion the reasons my 26 Cal.4th 209]. Sanchez J., concurred. Werdegar,