Lead Opinion
Opinion
Defendant Julio Cesar Sanchez and his codefendant, Ramon Gonzalez, were each charged with first degree murder in connection with the shooting death of Reynaldo Estrada. Defendant, a gang member, was the passenger in a car that drove by a house outside of which Gonzalez, a rival gang member, and a friend were standing. Both defendants had armed themselves for the confrontation. As defendant’s car made its third pass by the house in the course of several minutes, shots were exchanged and Mr. Estrada, an innocent bystander, was hit and killed by a single stray bullet.
The evidence adduced at trial did not establish whether defendant or Gonzalez fired the shot that killed Estrada because the real evidence probative on the point (specifically the guns and bullet casings used in the shooting) was not recovered. Similarly, evidence regarding the trajectory of the fatal bullet was inconclusive in that it supported a finding that either defendant or Gonzalez could have fired the fatal shot.
The district attorney prosecuted defendant for first degree murder on two theories: premeditated first degree murder (Pen. Code, § 189)
The jury convicted defendant and Gonzalez of first degree murder. The Court of Appeal reversed defendant’s
We granted the People’s petition for review to determine whether defendant was properly convicted of first degree murder on these facts. As will be explained, the Court of Appeal erred in concluding concurrent causation cannot be established in a single-fatal-bullet case. The circumstance that it cannot be determined who fired the single fatal bullet does not undermine defendant’s conviction under either of the two first degree murder theories advanced against him at trial—premeditation (§ 189), and murder by means of intentionally discharging a firearm from a motor vehicle with specific intent to inflict death. {Ibid.) Defendant’s act of engaging Gonzalez in a gun battle and attempting to murder him was a substantial concurrent, and hence proximate, cause of Estrada’s death through operation of the doctrine of transferred intent. Sufficient evidence supports defendant’s first degree murder conviction under either theory, and contrary to the conclusion of the Court of Appeal, the record does not affirmatively suggest the jury relied on any improper or unsubstantiated theory in convicting defendant of the charge.
Defendant is a member of a Fontana gang named TDK (Diablo Klicka).
Christopher Draper, a friend of Gonzalez’s who was himself associated with another gang named TMK, testified that on the afternoon in question three .Hispanic males whom he recognized from their clothes and shaved heads as rival gang members drove by his (Draper’s) home, stopped, and got out of their vehicle. Draper became scared; when the group left he took a .22-caliber semiautomatic pistol he had stolen from his mother and got a ride to Gonzalez’s home on Poplar Avenue.
Later that afternoon, as Gonzalez and Draper were standing in front of Gonzalez’s home, a black Ford Escort drove slowly by. Defendant, who owned the vehicle but was not driving because he had a suspended driver’s license, was the passenger. Fellow TDK gang member Omar Mendez was the driver. Draper recognized the black Escort as one that had been involved in an incident several months earlier in which Draper had been shot at by the vehicle’s occupants, one of whom had yelled out “TDK.”
The Escort left and returned to Gonzalez’s street 15 or 20 minutes later. According to Draper, as it drove by the second time the occupants “mad-dogged” or stared down Draper and Gonzalez. Feeling threatened, Draper took the gun he had brought with him, placed it next to a bush on Gonzalez’s front lawn, covered it with a T-shirt, and showed Gonzalez where he had put it.
The Escort drove off and returned yet a third time, approaching from the south. According to Draper, the Escort stopped about two houses away from
At the time of the gun battle, Reynaldo Estrada, his wife, and their son Miguel were visiting their married son Rene who lived on Poplar Avenue close to Gonzalez’s house. The men were working on the father’s truck in the driveway when the shooting erupted. Rene had noticed a dark-colored car driving slowly by his home, and saw Christopher Draper in front of Gonzalez’s house making a pointing motion, possibly in the direction of the car. Two sets of shots rang out, the second series louder than the first, and Mr. Estrada fell to the ground. The sons called 911; Mr. Estrada died in the hospital from a single gunshot wound to the head after remaining on life support for several days.
Gonzalez’s sister Yolanda was at the Gonzalez house on the date in question. She testified that the first time the Ford Escort drove by she saw the vehicle’s occupants flash gang hand signs at them. When the car drove slowly by the Gonzalez house the second time, she heard Gonzalez and Draper yell to the occupants, “Come back.”
Omar Mendez, also a member of the TDK gang, testified he drove defendant’s black Ford Escort during the drive-by shooting. When first driving down Poplar Avenue, he and defendant noticed Draper and Gonzalez standing in front of Gonzalez’s house. Believing they had possibly thrown gang hand signs at them, Mendez and defendant made a U-tum to investigate. According to Mendez, Gonzalez started shooting at them and defendant returned the fire. Mendez claimed to have been unaware defendant was armed with a gun, although his preliminary hearing testimony was to the contrary. Afterwards, Mendez drove to Cesar Padilla’s house on Athol Street, where other TDK members were known to congregate. Juan Ramirez, a TDK member present at the house, heard Mendez state that he and defendant had just been involved in a shooting with the Headhunters. Another TDK member, Anthony Castellanos, heard Mendez state they had been involved in a “shoot-out” with “some fools.” Police arrived at the Padilla residence in short order and recovered a nine-millimeter semiautomatic Ruger pistol from
The fatal bullet recovered from Estrada’s body was found to be consistent in size with .38-caliber and .357-caliber ammunition. No bullets or shell casings were recovered from the murder scene. Police arriving on the scene observed Draper and others picking up things from the street in front of Gonzalez’s house; the prosecution theorized that bullets and/or shell casings were being retrieved to eliminate evidence that Gonzalez had shot at the Ford Escort. Draper conceded as much in his interviews with detectives, but claimed he found no shell casings. The actual murder weapon was never recovered. The guns Gonzalez and Sanchez later claimed they used in the gun battle were never recovered. Nor did the testimony pertaining to the _ likely trajectory of the fatal bullet establish with certainty whether it had been fired by defendant from the Ford Escort, or by Gonzalez from the street in front of his house.
Gonzalez was interviewed by police after the incident. He admitted he was a member of the Headhunters. He admitted that TDK and the Headhunters were in continual conflict and that members of the two gangs had shot at each other in the past. He claimed that when the black Ford Escort stopped in front of his house he (Gonzalez) fired off the first shots. Although he did not see a weapon inside the vehicle, he saw one of the occupants making a reaching motion with his hand. He (Gonzalez) was using the gun Christopher Draper had given him that was hidden near some bushes in the front yard.
Defendant was interviewed on three separate occasions after being taken into custody. In the first interview, he denied that he or his black Ford Escort had been involved in the incident, although he admitted membership in the TDK. In the second interview, he admitted being involved in the shooting but denied that he had personally fired a weapon. In the third interview, he stated he and Mendez had gone back to the Gonzalez residence in his black Ford Escort because persons there had “flipped [him] off’ and flashed gang hand signs. When they drove by, two people began shooting at his car from the middle of the street. The shooter who fired most of the shots was wearing a blue checkered shirt.
In charging the jury before commencement of deliberations, the trial court gave the usual standard murder instructions. It gave this instruction on the provocative act murder doctrine; “A homicide committed during the commission of a crime by a person who is not a perpetrator of such crime in response to an intentional provocative act with implied malice by a defendant is considered in law to be an unlawful killing by such defendant.” (Italics added; see CALJIC No. 8.12, on which the instruction was patterned.)
The court also gave the following instruction on proximate causation: “A cause of death is an act that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act, the death of a human being, and without which the death would not occur. [^] There may be more than one cause of the death, [f] When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the death. [H] A cause is a concurrent cause if it was operative at the moment of death and acted with another force to produce the death. fl[] If you find that a defendant’s conduct was a cause of death to another person, then it is no defense that the conduct of some other person also contributed to the death.” (See CALJIC Nos. 3.40, 3.41.)
Finally, the court instructed the jury on the doctrine of transferred intent as follows: “When one unlawfully attempts to kill a certain person but by mistake or inadvertence kills another person, the crime, if any, so committed is the same as though the person originally intended to be killed had in fact been killed.” (See CALJIC No. 8.65.)
The jury returned verdicts finding both defendant and Gonzalez guilty of first degree murder. The allegation that defendant had carried a firearm
The Court of Appeal concluded there are no theories under which the jury could have found both defendant and Gonzalez guilty of first degree murder. The threshold premise underlying this conclusion was the court’s belief that since only one bullet struck and killed Estrada, and since it could not be determined whether defendant or Gonzalez fired the fatal bullet, concurrent causation could not serve as a basis for finding both defendants liable for premeditated first degree murder. The court stated its belief that “concurrent causation . . . requires two independent acts [i.e., two distinct direct or actual causes] that converge and concurrently cause death.” From there the Court of Appeal reasoned that Gonzalez’s first degree murder conviction necessarily reflected he was found to be the actual shooter of the single fatal bullet, since a premeditated intentional killing was the only statutory basis on which Gonzalez’s first degree murder conviction could have been based. The court concluded that, consequently, defendant must have been convicted under the provocative act murder theory.
Discussion
Throughout this appeal, the parties and the Court of Appeal have focused on the application of the provocative act murder doctrine to the particular facts of this case as pivotal to the determination whether defendant was validly convicted of first degree murder. We conclude, however, that the doctrine has little significance in this appeal because it was an alternative theory of murder liability on which the jury was instructed but which, given the state of the evidence at the close of the evidentiary phase of trial, played
Proximate causation
We know a single stray bullet was the actual, direct cause of death. At the close of evidence all parties agreed it could not be established whether defendant or Gonzalez had fired the fatal shot. However, it is proximate causation, not direct or actual causation, which, together with the requisite culpable mens rea (malice), determines defendant’s liability for murder. The Court of Appeal erred in concluding principles of concurrent causation cannot be invoked in a single-fatal-bullet case. The circumstance that it cannot be determined who fired the single fatal bullet, i.e., that direct or actual causation cannot be established, does not undermine defendant’s first degree murder conviction if it was shown beyond a reasonable doubt that defendant’s conduct was a substantial concurrent cause of Estrada’s death.
The jury was instructed on proximate causation as follows: “A cause of death is an act that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act, the death of a human being, and without which the death would not occur. [^] There may be more than one cause of the death. [*J] When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the death. [10 A cause is a concurrent cause if it was operative at the moment of death and acted with another force to produce the death. [^] If you find that a defendant’s conduct was a cause of death to another person, then it is no defense that the conduct of some other person also contributed to the death.” (See CALJIC Nos. 3.40, 3.41.)
We have upheld a murder conviction even where the jury was uncertain whether the charged defendant actually shot the victim or served as an aider and abettor. (People v. Garrison (1989)
The Kemp court disagreed, explaining: “The evidence here strongly indicates that Kemp and Coffin were inciting and encouraging one another to drive at a fast and reckless rate of speed on a residence street and as they closely approached a blind intersection. It was by the merest chance that Kemp was able to avoid hitting the other car, and that Coffin was not. Only the matter of a split second and a few inches made the difference. They were both violating several laws, the acts of both led directly to and were a proximate cause of the result, and the fact that the appellant happened to narrowly escape the actual collision is not the controlling element. The evidence is sufficient to show that they were not acting independently of each other, and that they were jointly engaged in a series of acts which led directly to the collision. The language of section 192 of the Penal Code is broad enough to impose criminal liability in this situation and the evidence, with the reasonable inferences therefrom, is sufficient to show that the homicide was a proximate result of the commission of an unlawful act or acts on the part of the appellant, within the meaning of that section.” (Kemp, supra,
Similarly, in a case where the evidence indisputably showed one individual’s gunshot directly caused decedent’s death, the trial court nonetheless instructed, through CALJIC No. 3.41, that the conduct of another individual also could have proximately caused the death. (People v. Mai (1994)
Sister state decisions are in accord. For example, in Commonwealth v. Gaynor (1994)
The New York high court’s decision in People v. Russell (1998)
The defendants in Russell “urge[d] . . . that the evidence adduced at trial did not support a finding that they—as adversaries in a deadly gun battle— shared the ‘community of purpose’ necessary for accomplice liability. [Citation.]” (Russell, supra,
The Russell court went on to suggest that, “People v. Abbott [(1981)]
We agree with the above noted authorities. Although in this case it could not be determined who was the direct or actual shooter of the single fatal round, the evidence, with all reasonable inferences drawn in favor of the guilty verdicts, supports a finding that defendant’s commission, of life-threatening deadly acts in connection with his attempt on Gonzalez’s life
Mens rea
The evidence supports the finding, implicit in the jury’s first degree murder verdict, that defendant premeditated the murder of Gonzalez, and/or intentionally discharged a firearm from a motor vehicle with the specific intent to inflict death (§ 189). If a jury finds that a defendant proximately caused a death, either solely through his own conduct or through the actions of others where his conduct is shown to be a substantial concurrent cause of the death, and the defendant did so with a premeditated intent to kill, then the defendant is guilty of first degree murder. (§ 189 [“All murder which is perpetrated ... by any . . . kind of willful, deliberate, and premeditated killing ... is murder of the first degree.”]; see also Gaynor, supra, 648 A.2d at pp. 298-299.)
The jury could reasonably have found on this evidence that at least as of the time the first shots rang out, defendant and Gonzalez, both members of rival gangs, had armed themselves and premeditated and deliberated the attempted murder of one another. “Premeditation and deliberation can occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” (People v. Memro (1995)
Defendant and Gonzalez were each members of rival gangs, the TDK and the Headhunters. Members of both gangs had shot at one another in the past, and there was evidence that defendant’s black Ford Escort had previously been involved in a drive-by shooting during which Gonzalez’s
For his part, Gonzalez may have “flipped off’ and/or thrown gang hand signs at the rival gang members as they drove past his house. Gonzalez’s sister testified he may have yelled toward the Ford Escort to “come back” as it passed by the house. Gonzalez too was in the company of a companion, Draper, who was known to associate with Gonzalez’s gang as well as another gang, the TMK. Draper had brought a loaded handgun and placed it in a secreted position on the lawn in front of the house so as to make it quickly accessible to himself or Gonzalez.
After the gun battle, when an innocent bystander who had been standing with his family members in front of their home had been fatally shot in the head by a stray bullet, Gonzalez and Draper’s response was to scour the street in an effort to recover spent bullets and shell casings that might evidence their role in the shooting, while defendant and Mendez retreated to a house where TDK gang members were known to be congregating to relate how they had just shot it out with “some fools.” At trial, both defendant and Gonzalez admitted the allegations that their crimes were committed for the benefit of their street gangs.
Although the actual shooting here may have been almost spontaneous, the mutual planning of one another’s murder supports a finding of premeditation as to both defendant and Gonzalez. The requisite mental state for first degree murder (premeditation and malice) having thereby been proved, by operation of the doctrine of transferred intent,
Validity of defendant’s murder conviction on appeal
Ordinarily, if an alternative theory of criminal liability is found unsupported by the evidence, the judgment of conviction may rest on any legally sufficient theory unaffected by the error, unless the record affirmatively demonstrates that the jury relied on the unsupported ground. (See People v. Johnson (1993)
Contrary to the conclusion of the Court of Appeal, defendant’s first degree murder conviction rested on either of two legally sufficient theories: premeditated murder (§ 189), and murder perpetrated by means of intentionally discharging a firearm from a motor vehicle with the specific intent to inflict death. (Ibid.) As we have explained, the evidence was sufficient to support defendant’s conviction of first degree murder under either theory. Although it could not be determined who fired the fatal bullet, since sufficient evidence established that defendant and Gonzalez premeditated the
Nor does the record affirmatively demonstrate that the jury rested defendant’s first degree murder verdict on any other unsupported theory of liability. (Johnson, supra,
Defendant and Gonzalez engaged one another in a gun battle on a public street in broad daylight, during which each plainly attempted to murder the other. Given that their respective claims of self-defense were rejected by the jury, express malice on the part of each was patently established. In contrast, the definition of provocative act murder in the instruction given would have been triggered by the finding of a provocative act that gave rise to an inference of implied malice. Given that defendant and Gonzalez were each convicted of first degree murder on facts plainly establishing express malice, there is no sound basis on which to conclude that the jury rested defendant’s first degree murder verdict on a finding that he committed a provocative act with implied malice.
Nor is it logical to conclude such an implied malice murder would be elevated to first degree by operation of section 189. In People v. Gilbert (1965)
Finally, under the instructions given, in order to convict defendánt of provocative act murder the jury would also have to find that Gonzalez, as the provoked shooter, was “not a perpetrator” of defendant’s initial crime during which the homicide was committed. In one sense, both defendants might well be deemed “perpetrators” of the mutual crime—the simultaneous attempts to murder one another in a preplanned blaze of gunfire—that led to Estrada’s death.
We conclude defendant’s first degree murder conviction rested on one or more legally sufficient theories, and that the record does not affirmatively demonstrate the jury relied on an unsupported theory in reaching that verdict. Accordingly, defendant’s murder conviction must be affirmed. (Johnson, supra,
Conclusion
The judgment of the Court of Appeal is reversed, and the matter remanded for further proceedings consistent with the views expressed herein.
George, C. J., Kennard, J., Chin, J., and Brown, J., concurred.
Notes
All further statutory references are to this code unless otherwise specified.
Gonzalez is not a direct party to this appeal.
Provocative act murder traditionally has been viewed as a form of implied malice murder, originally derived as an offshoot of the felony-murder rule. (See People v. Washington (1965) 62 Cal.2d 777, 782 [
Indeed, as will further be explained, examination of the jury’s verdicts in light of the instructions given reflects that defendant’s murder conviction was not based on the provocative act murder theory.
Defendant has a TDK tattoo on his back. A Fontana police officer assigned to the gang unit testified that there was much hatred between TDK and the Headhunters. Six months earlier, defendant had told another officer that a Headhunter had shot at him because he was a member of TDK.
Draper’s credibility was seriously questioned at trial; his testimony contradicted his prior statements to detectives as well as his preliminary hearing testimony on a number of points.
There was conflicting evidence as to whether Draper was wearing a blue checkered shirt at the time of the shooting.
As will be explained, the guilty verdicts viewed in light of the jury instructions reflect defendant was not convicted under the provocative act murder theory.
“[U]nder the common law doctrine of transferred intent, if A shoots at B with malice aforethought but instead kills C, who is standing nearby, A is deemed liable for murder notwithstanding lack of intent to kill C. (See Perkins & Boyce[, Criminal Law (3d ed. 1982)] at p. 924.” (People v. Roberts (1992)
As Justice Kennard explains in her concurring opinion, “For purposes of applying the rule of transferred intent, it does not matter whether defendant himself fired the fatal shot or instead induced or provoked another to do so; in either situation, defendant’s culpable mental state is determined as if the person harmed were the person defendant meant to harm. (See People v. Antick (1975)
In defendant’s case, the question of premeditation aside, if he was found to have intentionally discharged a firearm from a motor vehicle with the specific intent to inflict death, then by operation of section 189, such circumstance afforded a separate basis for the first degree murder conviction. Defendant admitted intentionally discharging his firearm from his Ford Escort in which he was the passenger. His guilty verdict reflects the jury’s rejection of his claim of self-defense, and the jury could reasonably conclude on the evidence that he intentionally discharged his firearm from his vehicle with the specific intent to inflict death. Accordingly, even without a further showing of premeditation, and regardless of the fact that an unintended victim was killed, defendant’s act of shooting at Gonzalez from the vehicle established the requisite mental state for conviction of first degree murder under section 189.
As we have noted, under the provisions of section 189, on which the jury was also instructed, defendant need not have been found to have acted with premeditation in order to be held liable for first degree murder on a finding that he intentionally discharged his firearm from a motor vehicle with the intent to inflict death. (Ante, fn. 10, at p. 851.) Justice Kennard explains further that the circumstance that an innocent bystander was killed rather than the intended murder victim (Gonzalez) does not undermine defendant’s liability for first degree murder under the statute: “Nothing in [section 189’s] statutory language requires that the person killed be the person whom the defendant intended to kill; rather, it is enough that the defendant acted with the intent to kill the person at whom he or she was shooting.” (Conc, opn. of Kennard, J., post, at p. 857.)
We recognize the jury in this case returned inconsistent sentence enhancement findings in connection with Gonzalez’s convictions, and also found not true a sentence enhancement allegation that defendant “cause[d] the death of a person ... as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony.” (§ 12022.55.) This circumstance does not undermine our analysis on appeal. “[A]n inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both. (United States v. Powell (1984)
Relevant to this conclusion is the circumstance that defendant and Sanchez each admitted the truth of the allegations that their crimes were committed for the benefit of a street gang. (§ 186.22, subd. (b)(1).)
Concurrence Opinion
I concur in the judgment holding that defendant was properly convicted of the first degree murder of Reynaldo Estrada. I write separately to clarify why his conviction is proper even though neither defendant nor his codefendant Gonzalez intended to kill Estrada and even though it could not be determined with the necessary degree of certainty whether defendant or Gonzalez fired the fatal shot. I write separately also to explain how this case differs from the companion case of People v. Cervantes (2001)
The majority gives a detailed summary of the relevant facts, which need not be repeated here, and it explains that the evidence at trial was insufficient to establish whether defendant or Gonzalez fired the bullet that killed Estrada, although it is certain that one or the other did. In this situation, a reviewing court must examine both possibilities—that defendant fired the fatal shot, and that codefendant Gonzalez did so—to determine whether the evidence supports defendant’s conviction.
To support a criminal conviction, there must be sufficient evidence of both the criminal act and the required mental state. (Pen. Code, § 20 [“In
For first degree murder, the criminal act is “the unlawful killing of a human being.” (Pen. -Code, § 187, subd. (a).) If defendant fired the shot that struck and killed Estrada, then the criminal act requirement presents no difficulty: Defendant performed the prohibited act by killing Estrada, a human being. If Gonzalez rather than defendant fired the fatal bullet, the legal analysis is more complicated, although defendant’s guilt is also established by sufficient evidence.
In legal terms, defendant committed the act of killing Estrada if his conduct was a legal or proximate cause of Estrada’s death, even though codefendant Gonzalez fired the bullet that struck and killed Estrada. (See LaFave & Scott, Criminal Law (2d ed. 1986) § 3.12, p. 277 et seq.) Defendant and Gonzalez were members of rival gangs. By challenging Gonzalez with gestures and hand signals, and by firing his gun at Gonzalez, defendant engaged Gonzalez in a gun battle and induced Gonzalez to fire the shot that hit an innocent bystander, Estrada. In this sense, it is accurate to say that even if defendant did not fire the bullet that killed Estrada, nonetheless defendant’s conduct caused Estrada’s death.
The Court of Appeal recognized that if Gonzalez’s bullet killed Estrada, it was defendant’s conduct that prompted Gonzalez to shoot, and in that sense had also caused Estrada’s death, but the court expressed the view that defendant’s conduct could not be a proximate or legal cause of Gonzalez’s actions. It reasoned that in convicting Gonzalez of first degree murder, the jury must have concluded that Gonzalez fired at defendant with a deliberate and premeditated intent to kill defendant. The Court of Appeal thought that this deliberate conduct by Gonzalez must in law be regarded as a “superseding cause” that cut off defendant’s responsibility for any injury or death inflicted by the bullets that Gonzalez fired.
In law, the term “superseding cause” means “an independent event [that] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original [wrongdoer] should have foreseen that the law deems it unfair to hold him responsible.” (Soule v. General Motors Corp. (1994)
Significantly, we are not faced with a situation in which the mental state of the person who fired the fatal shot was substantially more culpable than the mental state of the person who induced the shooter to act. Here, both defendant and Gonzalez acted with intent to kill, and the evidence was equally persuasive that for both of them the intent to kill was deliberate and premeditated. Because defendant and Gonzalez had equally culpable mental states and engaged in precisely the same conduct at the same time and place in exchanging shots, it is not unfair to hold them equally responsible for Estrada’s death, without regard to which of them actually fired the bullet that struck and killed Estrada.
I consider next whether defendant had the required mental state for first degree murder. Under the statutory definition of that crime, the required mental state may take different forms. Here, the prosecution argued that defendant had the required mental state under either, or both, of two theories. The prosecution argued that in killing Estrada, defendant acted with a mental state sufficient for first degree murder because he had formed a deliberate and premeditated intent to kill Gonzalez, and because defendant killed by “discharging a firearm from a motor vehicle” at a person outside the vehicle with the intent to kill the person at whom the shot was fired. (Pen. Code, § 189.)
If defendant committed the prohibited act, either by firing or by inducing Gonzalez to fire the fatal shot, with a deliberate and premeditated intent to kill Gonzalez, then he had a mental state sufficiently culpable for first degree murder. Under the rule of transferred intent, as the majority explains, a defendant who intends to shoot and kill another but, because of bad aim, kills a different person is “just as guilty as if he had actually harmed the intended victim.” (LaFave & Scott, Criminal Law, supra, § 3.12, p. 284; see also People v. Scott (1996)
Under the prosecution’s other mental state theory—a killing while firing from a motor vehicle—it is unnecessary to apply the transferred intent rule.
On the surface, this case resembles the companion case of People v. Cervantes, supra,
History sadly establishes that killings motivated by revenge may occur in cycles lasting many years and even generations. Although those whose conduct precipitates these vendetta cycles, and all who participate in continuing 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, and courts must try to draw appropriate lines to mark the outer limits of legal causation in these situations. The court’s decisions today in these two companion cases should begin to fix this line of demarcation separating mutual combat killings from retaliatory killings in the context of urban warfare between rival street gangs.
Werdegar, J., concurred.
Concurrence Opinion
I agree with the analysis in Justice Kennard’s concurring opinion, but write separately to explain the chief differences, as I understand them, between her analysis and that employed by the majority.
The opinions continue to diverge from this point. Justice Kennard’s discussion squarely addresses the problem of superseding cause, upon which the Court of Appeal believed the conviction foundered. (Conc. opn. of Kennard, J., ante, at pp. 855-856.) The majority sidesteps this question by characterizing the fatal acts of defendant and Gonzalez as “concurrent” causes of Estrada’s death. (Maj. opn., ante, at pp. 845-849.)
Elegant as it may appear, the majority’s solution is wrong. The undisputed fact is that this victim was hit by only one bullet. Whoever shot that bullet directly caused the victim’s death. Whoever did not shoot that bullet could have caused his death only indirectly, i.e., by causing the actual perpetrator to shoot the bullet. That chain of causation may be compact enough in time, foreseeable enough, and close enough to the intended course of events to call the result proximate, but it remains a causal sequence rather than a concurrence of causes: one event happened, causing another to happen, in turn causing the death. Thus, whatever label we use, we cannot avoid the question that troubled the Court of Appeal: was the second event (the fatal shooting) so independent as to cut off the chain of proximate causation running from the first event (the malicious conduct that provoked the fatal shooting)? Was the fatal shooting, in other words, a superseding cause? As noted, Justice Kennard addresses this question; the majority does not.
Justice Kennard’s discussion also recognizes that, if defendant did not directly shoot Estrada, his liability for Estrada’s death must rest on conduct that “induced” or “prompted” Gonzalez to fire the fatal shot. (Conc. opn. of Kennard, J., ante, at p. 855.) While Justice Kennard avoids using the label, this is clearly “provocative act” liability. The majority, confusingly, suggests provocative act murder was an “unsupported theory of liability” (maj. opn., ante, at p. 852), though the majority does not explain in what respect the theory is unsupported by the evidence. Justice Kennard is thus better able to explain in what critical respects this case differs from the companion case, People v. Cervantes (2001)
Finding her analysis more logical and complete, I join Justice Kennard’s concurrence rather than the majority opinion.