Court Case: People V. Cervantes, 26 Cal

NAME: Lilibeth Rodriguez
CLASS: CRJ 2 - 11:00 AM
DATE: March 10, 2016
CASE BRIEF
CASE: People v. Cervantes, 26 Cal.4th 860 (2001)
SUMMARY OF THE FACTS: The defendant got into an altercation with a gang member of the Alley Boys, who pulled out his gun resulting in the defendant pulling out his gun as well. Linares, a member of the same gang (Alley Boys), tried to calm down the situation and touched the defendant which resulted in the defendant shooting Linares nonfatal. The defendant being part of a different gang (Highland Street), the gang members of Alley Boys sought retaliation and fatally shot Cabrera, member of the Highland Street gang.
ISSUE: (1) Whether defendant should be convicted of murder based on the provocative act murder theory.

APPLICABLE RULES OF LAW: The Provocative Act is a legal theory in which a person can be tried and convicted for murder if the person’s actions lead to the killing of another human or fetus.

Even though the murder could have been done by someone else (third party), the person can still be committed for murder because their actions created a sequence of events leading to a murder which can be seen as a reckless homicide.
HOLDING: The murder of Hector Cabrera cannot be held accountable to Cervantes through the Provocative Act.
REASONING (RATIONALE): The defendant argues that he can’t be held accountable for the murder of Cabrera because he did not by any means try to harm/shoot Linares. Unlike the Alley Boys who shot Cabrera, because they did commit murder with malice aforethought. Also, if going by retaliation, the Alley Boys should have gotten back at Cervantes. The defendant also argues that the killing of Cabrera could not be held accountable to him because he argues that
there was not enough evidence to claim that the gang members were even there to see Cervantes shoot Linares which would cause the

retaliation.
CONCURRING/DISSENTING OPINION:
Concurring: The defendant should be held accountable for the murder of Cabrera because (1) the shooting of a gang member by another gang member clearly means for retaliation by the gang who was first hit. This can be further proved by Joseph Perez, who was the prosecution’s gang expert. (2) This shows that Cervantes was aware of what would happen when he pulled out his gun and fired the gun.
Dissenting: The Provocative Act states that one could be held accountable for murder due to their actions but in the case of Cervantes, his actions don’t justify the murder of Cabrera because (1) Cervantes did not mean harm to Linares and was not aware that it was him that sent the first shot. (2) There is no sufficient evidence to conclude that the Alley Boys who fatally shot Cabrera were even at the scene of Cervantes’s shooting, to justify their retaliation meaning they did shoot Cabrera with malice aforethought. (3) If going by gang’s means of retaliation, it should have been Cervantes or an accomplice who should have been shot not Cabrera who was technically a bystander.