Filed 7/20/26 P. v. Gonzalez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT

THE PEOPLE, B337344

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA502951
v.

FRANCISCO GONZALEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Christopher G.
Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________
 A jury convicted appellant Francisco Gonzalez of
premeditated attempted murder and first degree “provocative
acts” murder after viewing a video in which he drove a fellow
gang member to a failed shooting of a rival gang member,
swerved his car towards the rival gang member in the midst of
the failed shooting, and sped off after a rival gang member’s
bullet fatally struck his girlfriend, Irene Marin, who was with
him in the car. Gonzalez claims on appeal there was insufficient
evidence to support either conviction. We affirm.
I.
On the morning of December 21, 2021, Gonzalez, Marin,
Benny Villasenor, and Henry Briceno drove an Acura sedan down
Beswick Street in the Boyle Heights neighborhood of Los
Angeles. Although both Gonzalez and the People identify the
fourth person in the vehicle as Henry Briceno, that person’s
identity is contested in Briceno’s own pending appeal, People v.
Henry Briceno, B338104. For clarity, we identify this individual
as “Briceno” throughout this opinion, but we reach no conclusions
regarding the individual’s identity.
Various surveillance videos collected from multiple Beswick
Street residences show that Gonzalez, driving the Acura, turned
onto Beswick Street just after Jeremy Flores, who would later be
identified as a rival gang member, was walking across the same
intersection. Gonzalez slowed the Acura as he approached
Flores, nearly coming to a stop. The car’s windows were rolled
down. Flores turned to look at the car. After several seconds,
Gonzalez accelerated down the street, passed several houses, and
allowed Briceno, a fellow gang member seated in the back seat, to
exit the vehicle. Flores started jogging down the street after the
Acura passed him. He stopped as he reached the front gate of a

2
house on the street. He saw Briceno, who was then walking back
down the street toward him.
Flores placed his backpack on the ground, kept a small
black bag in his hand and, with an eye still on Briceno, moved
into the street to stand behind a parked vehicle. Briceno
approached Flores, pulled out a gun, and began shooting at
Flores, who used the parked vehicle as a shield, ducking behind it
and attempting to stay out of Briceno’s line of sight. At one point,
Flores threw his black bag over the roof of the vehicle at Briceno.
As Flores scurried around the vehicle, the Acura reappeared,
having turned around after dropping off Briceno. While driving
toward the ongoing shooting, Gonzalez remained in the
righthand lane farthest from the shooting — Beswick Street is a
two-lane road with a dashed yellow line dividing traffic. But as
Flores ran into the street, Gonzalez drove the Acura across the
dividing line into the opposite lane of traffic, aiming directly at
Flores. Flores ran back onto the sidewalk to avoid the Acura,
reentering Briceno’s line of sight. Briceno continued shooting at
Flores, who continued to dodge and eventually ran down the
sidewalk away from Briceno.
Meanwhile, Gonzalez, after swerving toward Flores,
reversed the Acura into a driveway entry directly across the
street from the ongoing shooting. Just as the car stopped,
someone, later identified as Daniel Perez, a member of the same
rival gang as Flores, began to shoot a gun from inside the house
near where Briceno stood. Briceno turned and ran to the Acura
to avoid Perez’s bullets. Just as he reached the vehicle, one of
Perez’s shots penetrated the front windshield and struck the
occupant of the front passenger seat, Marin, in the head.
Gonzalez immediately drove the vehicle down the street, leaving

3
behind Briceno, who ran after the vehicle, calling “Hey, fool!” to
Gonzalez as Perez continued shooting. At the intersection of
Beswick and Spence Streets, Gonzalez made a left turn then
stopped, reversed into a corner of the intersection, and waited for
Briceno to enter the vehicle. The vehicle then sped away down
Spence Street.
Marin succumbed to her injuries three days later.
The People charged Gonzalez with the attempted
premeditated murder of Flores (Pen. Code, §§ 187, subd. (a), 664)
and the murder of Marin (id., § 187, subd. (a)). (All further
undesignated statutory references are to the Penal Code.)
At trial, the People showed the jury the surveillance videos
described above and offered testimony from the detective who
investigated the shooting and a gang expert. The gang expert,
Officer Aaron Gruendyke, testified that Gonzalez, Villasenor, and
Briceno are all members of the Boyle Heights gang White Fence
and its subset City’s Dopest Kings (CDK). Gruendyke was
familiar with Gonzalez, Briceno, and Villasenor, having
interacted with each of them in the course of his work, and noted
each man had face or body tattoos symbolizing his gang
affiliation. Gruendyke also identified both Perez and Flores as
known members of rival gang “Varrio Nuevo Estrada” (VNE)
with whom he had interacted many times, and whose gang
affiliation was likewise identifiable via their face tattoos.
Beswick Street is in VNE’s claimed territory. White Fence
and VNE are rival gangs with strong mutual animosity, and each
defends its demarcated territory with violence. Gruendyke
described the concept of a “mission,” in which a “member or
members of a gang go looking for a rival gang member to either
assault or shoot at.”

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 Gonzalez did not testify at trial, but his attorney argued
Gonzalez had no idea Briceno “had a gun” or “intended to shoot a
gun or to kill anybody” on the day of the shooting. Gonzalez was
not on a “mission” to attack rival gang members but had instead
entered enemy gang territory for a less violent purpose, such as
“tagging” the territory with White Fence graffiti. Counsel
emphasized Marin’s presence in the vehicle belied the theory
Gonzalez was out to commit violence against rival gang members,
as he “cared for her” too much to “put her in that situation.”
A jury found Gonzalez guilty of the premeditated attempted
murder of Flores and the first degree murder of Marin. The court
sentenced Gonzalez to seven years to life and 25 years to life for
the attempted murder and the murder, respectively, totaling 32
years to life. Gonzalez timely appeals.
II.
Gonzalez contends insufficient evidence supports each of
his two convictions.
A.
Gonzalez argues we must reverse his conviction for the
premeditated attempted murder of Flores due to insufficient
evidence of premeditation.
In assessing the sufficiency of the evidence supporting a
jury’s finding, “a reviewing court considers the entire record in
the light most favorable to the judgment below to determine
whether it contains substantial evidence — that is, evidence
which is reasonable, credible, and of solid value — from which a
rational trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] When the circumstances
reasonably justify the jury’s findings, a reviewing court’s opinion
that the circumstances might also be reasonably reconciled with

5
contrary findings does not warrant reversal of the judgment.”
(People v. Mendoza (2011) 52 Cal.4th 1056, 1068−1069.)
“Reversal on this ground is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support’ ” the jury’s verdict. (People v. Bolin (1998)
18 Cal.4th 297, 331.)
The same standard governs in cases in which the
prosecution relies primarily on circumstantial evidence. (People
v. Maury (2003) 30 Cal.4th 342, 396.) We “must accept logical
inferences that the jury might have drawn from the
circumstantial evidence.” (Ibid.) “Although it is the jury’s
duty to acquit a defendant if it finds the circumstantial evidence
susceptible of two reasonable interpretations, one of which
suggests guilt and the other innocence, it is the jury, not the
appellate court that must be convinced of the defendant’s guilt
beyond a reasonable doubt.” (People v. Kraft (2000) 23 Cal.4th
978, 1053–1054.)
A verdict of premeditated attempted murder “requires more
than a showing of intent to kill. [Citation.] ‘Deliberation’ refers
to careful weighing of considerations in forming a course of
action; ‘premeditation’ means thought over in advance.” (People
v. Koontz (2002) 27 Cal.4th 1041, 1080.) A murder attempt is
premeditated “no matter how quickly” the attempted killing
“follows the ultimate formation of the intention if that intention
has been reached with deliberation and premeditation . . . . The
true test is not the duration of time as much as it is the extent of
the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at
quickly . . . .” (People v. Thomas (1945) 25 Cal.2d 880, 900−901;
see also People v. Perez (1992) 2 Cal.4th 1117, 1127

6
[“premeditation can occur in a brief period of time”]; People v.
Brito (1991) 232 Cal.App.3d 316, 324 [premeditation can happen
in “a matter of seconds”].)
In People v. Anderson (1968) 70 Cal.2d 15, 26−27, our
Supreme Court identified three categories of evidence courts have
commonly found sufficient to sustain a finding of premeditation
and deliberation: (1) planning activity, or “facts about how and
what defendant did prior to the actual killing which show that
the defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing”; (2) motive, or
“facts about the defendant’s prior relationship and/or conduct
with the victim from which the jury could reasonably infer a
‘motive’ to kill the victim”; and (3) “facts about the nature of the
killing from which the jury could infer that the manner of killing
was so particular and exacting that the defendant must have
intentionally killed according to a ‘preconceived design’ to take
his victim’s life in a particular way for a ‘reason’.” (Ibid.)
However, Anderson’s “ ‘ “guidelines are descriptive and neither
normative nor exhaustive, and . . . reviewing courts need not
accord [the factors] any particular weight.” ’ [Citation.]
Anderson provides ‘a framework to aid in appellate review,’ but it
does not ‘define the elements of first degree murder or alter the
substantive law of murder in any way.’ ” (People v.
Morales (2020) 10 Cal.5th 76, 89.)
Here, the evidence before the jury supported a conclusion
that Gonzalez acted with premeditation and deliberation in
attempting to kill Flores. The jury could reasonably have
inferred motive from the evidence of gang rivalry the People’s
gang expert presented. (See People v. Martinez (2003)
113 Cal.App.4th 400, 413 [a jury could reasonably infer the

7
motive for a gang shooting involved gang rivalry].) The jury
heard White Fence and VNE are fiercely antagonistic rival gangs
who claim adjoining territories in Boyle Heights and defend their
territorial boundaries with violence. (See People v. Rand (1995)
37 Cal.App.4th 999, 1001 [in the context of gang rivalry murders,
“[a] studied hatred and enmity . . . evidences the most cold-
blooded, most calculated, most culpable, kind of premeditation
and deliberation”].) They saw photos showing Flores had visible
face tattoos proclaiming his affiliation with VNE. And they saw
video of Gonzalez, driving a vehicle in known VNE territory,
slowing down for several seconds as he passed Flores as Flores
turned to look at the Acura, giving each plenty of time to identify
the other as an enemy gang member and to recognize the threat.
Gonzalez, after speeding down the street, stopped to let Briceno
out of the vehicle, and Briceno promptly started shooting at
Flores. The jury heard testimony that gang members go on
“missions” looking for a rival gang member to harm. And they
saw Flores appear wary and take precautionary measures before
the shooting, implying what transpired when the Acura rolled
past him conveyed a threat and an impending attack. Jurors
could conclude this was not a “ ‘rash explosion of violence.’ ”
(People v. Miranda (1987) 44 Cal.3d 57, 87.) “Premeditation can
be established in the context of a gang shooting even though the
time between the sighting of the victim and the actual shooting is
very brief.” (People v. Sanchez (2001) 26 Cal.4th 834, 849.)
Gonzalez’s subsequent actions captured on the collected
surveillance videos are also important. Jurors saw the
confrontation with Flores lasted more than two minutes, during
which Gonzalez made several additional choices that could
suggest premeditation and determination. (People v.

8
Shamblin (2015) 236 Cal.App.4th 1, 13 [“planning activity can
happen during an altercation itself and ‘over a short period of
time’ ”].)
After dropping off Briceno, Gonzalez turned the Acura
around and drove back toward Flores, who was then ducking and
weaving around a parked car, dodging the numerous shots from
Briceno’s gun. The shots were audible, and Briceno was firing his
gun at Flores in full view and in broad daylight.
Approaching the shooting, Gonzalez, it can be inferred, saw
Flores run into the street to avoid Briceno’s shots and decided to
execute a plan to aid his fellow gang member’s lethal purpose,
which by then was on full display. Gonzalez swerved the Acura
into the opposite lane of traffic and directly at Flores. Jurors
could infer Gonzalez had used the car as a deadly weapon. (See,
e.g., People v. Oehmigen (2014) 232 Cal.App.4th 1, 6 [defendant
drove car at two police officers]; People v. Aznavoleh (2012)
210 Cal.App.4th 1181, 1183 [defendant deliberately sped through
red light at busy intersection, colliding with another
vehicle]; People v. Russell (2005) 129 Cal.App.4th 776, 787
[defendant shoved victim into path of an approaching car].)
But this attack not only appeared to be a serious attempt to
strike Flores, it also chased Flores back onto the sidewalk where
he would no longer have cover from Briceno’s bullets. Having
done this, Gonzalez then reversed the Acura into a driveway
directly across the street from Briceno and Flores and stopped
the vehicle, facing the two men. Gonzalez remained in the
driveway until Perez began returning fire from within a nearby
house. After a bullet from Perez struck Marin in the head,
Gonzalez pulled out of the driveway and sped down the street,
but he again stopped a few houses away at the intersection,

9
waiting for Briceno to reenter the vehicle before accelerating
away from the scene of the shooting in what he then knew was
the getaway car.
We conclude a rational trier of fact could reasonably have
found Gonzalez acted with premeditation and deliberation in the
attempted murder of Flores.
Gonzalez, age 18 at the time of the shooting, argues his
actions were not premeditated but rather those of a “teenager[]
acting like [a] teenager[] – namely, acting without thinking, and
without deliberating, and acting on an unconsidered and rash
impulse.” He further claims he did not know Briceno well enough
to plan a murder together, he was unaware Briceno had a gun
that day, and he would not have brought his girlfriend Marin
with him if he had been planning something dangerous.
Swerving the vehicle toward Flores, then, was “a rash and
impulsive decision to try to stop the fight and move on.” These
arguments are merely “competing inferences [Gonzalez] wishes
the jury had drawn.” (People v. Casares (2016) 62 Cal.4th 808,
827.) Where, as here, “the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be
reconciled with a contrary finding.” (People v. Albillar (2010)
51 Cal. 4th 47, 60.) Here, the jury had sufficient evidence in the
form of video and testimony from which they could reasonably
infer Gonzalez’s actions throughout the incident with Flores, even
if that incident unfolded over only a few minutes, evidenced
reflection and a weighing of multiple considerations and choices,
culminating in a premediated murder attempt. We therefore
reject Gonzalez’s sufficiency of the evidence claim regarding the
count of premeditated attempted murder.

10
 B.
Sufficient evidence also supports Gonzalez’s conviction for
first degree murder of Marin under the provocative act doctrine.
In a “provocative act” murder, the perpetrator of an
underlying crime is held liable for the killing of an accomplice by
a third party. (People v. Briscoe (2001) 92 Cal.App.4th 568, 581
(Briscoe).) This theory also applies where the third party kills a
bystander while attempting to stop the perpetrator. (People v.
Cervantes (2001) 26 Cal.4th 860, 867 (Cervantes).) “[W]hen the
perpetrator of a crime — with a conscious disregard for life —
intentionally commits an act that is likely to result in death and
the crime victim kills in reasonable response to that act, the
perpetrator is guilty of murder.” (Briscoe, at p. 581;
accord, Cervantes, at p. 868.) “ ‘In such a case, the killing is
attributable, not merely to the commission of a felony, but to the
intentional act of the defendant or his accomplice committed with
conscious disregard for life.’ ” (People v. Gonzalez (2012)
54 Cal.4th 643, 655.) There may be more than one act
constituting the proximate cause of the killing. (See People v.
Caldwell (1984) 36 Cal.3d 210, 219; People v. Superior Court
(Shamis) (1997) 58 Cal.App.4th 833, 845−846.) As the proximate
cause standard is not a “bright line” rule, the provocative act
question is generally one “ ‘for the jury, though in some instances
undisputed evidence may reveal a cause so remote that a court
may properly decide that no rational trier of fact could find the
needed nexus.’ ” (Cervantes, at pp. 871−872.)
A defendant is liable for provocative act murder “when the
actus reus and mens rea elements of murder are satisfied. The
defendant or an accomplice must proximately cause an unlawful
death, and the defendant must personally act with malice.”

11
(People v. Concha (2009) 47 Cal.4th 653, 663−664.) “To constitute
the actus reus of provocative act murder, the defendant must
commit an act that provokes a third party to fire a fatal shot.
The mens rea element is satisfied if the defendant knows that his
or her provocative act has a high probability — not merely a
foreseeable possibility — of eliciting a life-threatening response
from the person who actually fires the fatal bullet.” (Briscoe,
supra, 92 Cal.App.4th at p. 582.) “Once liability for murder is
established in a provocative act murder case . . . the degree of
murder liability is determined by examining the defendant’s
personal mens rea and applying section 189. Where the
individual defendant personally intends to kill and acts with that
intent willfully, deliberately, and with premeditation, the
defendant may be liable for first degree murder for each unlawful
killing proximately caused by his or her acts, including a
provocative act murder. Where malice is implied from the
defendant’s conduct or where the defendant did not personally
act willfully, deliberately, and with premeditation, the defendant
cannot be held liable for first degree murder.” (Concha, at pp.
663−664.)
Here, the trial court instructed the jury on provocative act
murder using CALCRIM No. 560, explaining, in part, that to
convict Gonzalez of first degree murder under the provocative act
doctrine, the People had to prove “[Gonzalez’s] provocative act
was an attempted murder committed willfully, deliberately and
with premeditation. He acted willfully in committing this
provocative act if he intended to kill. He acted deliberately if he
carefully weighed the considerations for and against his choice
and, knowing the consequences, decided to kill. He acted with
premeditation if he decided to kill before committing the

12
provocative act that [was] intended to cause death. [¶] . . . [¶]
For defendant Gonzalez to be found guilty of first-degree murder,
he personally must have acted willfully, deliberately, and with
premeditation when the attempted murder was committed.”
Gonzalez argues there was insufficient evidence before the
jury to satisfy either the actus reus or the mens rea elements of
provocative act murder. As to the actus reus element, Gonzalez
contends: “it was most likely Briceno’s chasing and shooting at
Flores that provoked Perez’s lethal response to fire shots on the
street. There was no substantial evidence that it was Mr.
Gonzalez’s action that provoked the lethal response.” Concerning
mens rea, Gonzalez claims he “was not armed and did not fire a
single shot . . . . While he might have swerved the car near
Flores, it was not foreseeable that that action would elicit a life
threatening response.”
Neither of Gonzalez’s arguments is persuasive.
Although Gonzalez claims Briceno’s actions, not his own,
were more likely to have provoked Perez’s deadly response, case
law establishes there may be more than one provocative act, from
more than one party, prompting an act of lethal response. (See
Briscoe, supra, 92 Cal.App.4th at p. 586 [“The fact that
[accomplice’s] taking of [victim’s] weapon could have been one
cause of [victim’s] ultimate act of shooting [accomplice] does not
preclude the possibility that the later pistol-whipping
administered by Briscoe himself was yet another provocative act
resulting in [victim’s] shooting of [accomplice]”].) Here, the jury
saw video showing Briceno began shooting at Flores
approximately 30 seconds before Perez began to return fire, while
Gonzalez swerved the Acura at Flores approximately 10 seconds
before Perez began shooting. Perez did not begin firing until

13
after the one-on-one attack had escalated to include Gonzalez and
the Acura. Gonzalez claims he did not “engage in a gun battle,”
but the jury, looking at how he aided his fellow gang member’s
shooting, could have concluded otherwise. The jury may have
reasonably determined that Gonzalez’s acts, in sufficient part,
provoked Perez’s lethal response, and substantial evidence
supports the jury’s finding that Gonzalez’s attempt to strike
Flores with a vehicle was a, if not the only, provocative act
prompting Perez’s response.
Gonzalez’s claim about his mental state is also unavailing.
We have already concluded substantial evidence supports the
jury’s finding that Gonzalez premeditated the attempted murder
of Flores and that Gonzalez’s attempt to strike Flores with the
Acura and aid Briceno’s shooting evidenced that mental state. In
addition, it could be reasonably inferred that Gonzalez knew his
car maneuvers, in rival gang territory, would contribute to and
escalate the ongoing inter-gang gunfight and that those
maneuvers, along with his decision to remain on scene to
facilitate Briceno’s escape, put himself and Marin in significant
danger of responsive violence.
Gonzalez next invokes the “independent intervening cause”
defense to the provocative act theory, claiming Perez’s act of
firing a weapon was an independent cause of Marin’s death that
broke the chain of causation, thus absolving Gonzalez of criminal
liability. However, this defense is not compelled by the evidence.
To be independent, an intervening cause must be
“unforeseeable . . . an extraordinary and abnormal occurrence,
which rises to the level of an exonerating, superseding
cause.” (People v. Armitage (1987) 194 Cal.App.3d 405,
420−421.) If an intervening cause is a “reasonably foreseeable

14
result of defendant’s original act the intervening act is
‘dependent’ and not a superseding cause, and will not relieve
defendant of liability.” (People v. Harris (1975) 52 Cal.App.3d
419, 427.) A “dependent” cause “need not have been a strong
probability; a possible consequence which might reasonably have
been contemplated is enough.” (Ibid.)
Here, Gonzalez had reason to contemplate that his actions
might result in a response like Perez’s. He was a gang member
who traveled with multiple fellow gang members into enemy
gang territory and attempted to strike a rival gang member with
a vehicle amidst a gunfight. It was certainly neither
unforeseeable, extraordinary, or abnormal that, in such
circumstances, a nearby rival gang member, if not the victim
himself, would be armed and respond lethally to Gonzalez’s
actions. (See People v. Montes (1999) 74 Cal.App.4th 1050, 1056
[given great potential for escalating violence during gang
confrontations, shooting of rival gang member during retreat
from gang fight in which defendant wielded a chain was a likely
consequence]; People v. Godinez (1992) 2 Cal.App.4th 492, 499–
500 [fatal stabbing of rival gang member during or after fistfight
was a predictable consequence of fistfight].) Accordingly, Perez’s
lethal response was not an independent cause of Marin’s death.
Gonzalez’s citation of Cervantes to support his
“independent cause” argument is unpersuasive, as the facts here
are distinguishable. Cervantes and fellow Highland Street gang
members attended a party hosted by the Alley Boys gang. While
at the party, Cervantes argued with a woman affiliated with the
Alley Boys gang, causing an Alley Boys member to object to
Cervantes’s disrespectful statements. (Cervantes, supra,
26 Cal.4th at p. 863.) The conflict escalated, and after an Alley

15
Boys member pulled his gun on Cervantes, Cervantes shot
another Alley Boys member who intervened. (Id. at pp. 863, 872,
fn. 12.) A melee followed, and opposing gang members exchanged
challenges. A minute or two later, some Alley Boys members
shot and killed Hector Cabrera, a member of the Highland Street
gang, as he drove away from the party. (Id. at p. 863.)
Our Supreme Court concluded Cervantes was not liable
under the provocative act doctrine because his conduct was not a
proximate cause of Cabrera’s murder. (Cervantes, supra,
26 Cal.4th at p. 872.) Cervantes was not the initial aggressor in
the incident giving rise to his provocative act; he reacted after
having a gun drawn on him. (Ibid.) There was no evidence
either Cabrera or his murderers were present at or witnessed the
incident involving Cervantes. (Id. at p. 874, fn. 16.) Cabrera’s
murderers did not shoot at either Cervantes or an accomplice of
his; they were not responding directly to an ongoing incident but
instead shot at someone uninvolved with the initial provocative
act. (Id. at p. 874.) The evidence suggested Cervantes had
already left the party before Cabrera was killed. (Id. at p. 872.)
Based on these facts, the Supreme Court held there was an
insufficient nexus between Cervantes shooting an Alley Boys
member and other Alley Boys members shooting Cabrera for a
rational trier of fact to find the latter event was dependent upon
the former. (Id. at p. 874.) The court therefore held Cervantes
not liable for Cabrera’s murder. (Ibid.)
Here, Gonzalez was the initial aggressor in the provocative
act of driving his vehicle at Flores. Flores, who had not fired any
gunshots, proved little threat to either Gonzalez, Briceno, or the
passengers in the Acura. Certainly, Flores had not made any
effort to attack Gonzalez or Marin. Given the provocative act

16
took place directly in front of the house Perez was in mere
seconds before Perez began shooting in response, it is reasonable
to infer Perez witnessed the act. In proximity in time and
location, motive, and sequence of events, the circumstances here
differ from those in Cervantes and certainly do not “ ‘reveal a
cause so remote that a court may properly decide that no rational
trier of fact could find the needed nexus.’ ” (Cervantes, supra,
26 Cal. 4th at pp. 871−872.) Substantial evidence supports the
jury’s finding that Gonzalez’s action of swerving the vehicle at
Flores proximately caused Perez to respond lethally.
Finally, Gonzalez argues even if we find there was
sufficient evidence to support the murder conviction under the
provocative act doctrine, the conviction should be reduced from
first to second degree murder because “there was no substantial
evidence appellant personally premeditated the attempted
murder” of Flores that provoked Perez’s response. We rejected
this argument in part II.A of the opinion.
In sum, viewing the evidence in the light most favorable to
the prosecution, as we must, we conclude a rational trier of fact
could have found, beyond a reasonable doubt, that Gonzalez was
guilty of premeditated attempted murder of Flores and of first
degree murder of Marin under the provocative act doctrine. Our
conclusion on these points also disposes of Gonzalez’s related
claim the convictions violated his constitutional right to due
process. (See People v. Osband (1996) 13 Cal.4th 622, 690 [“If we
determine that a rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable
doubt, the due process clause of the United States Constitution is
satisfied”].)

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 DISPOSITION
We affirm the judgment.

SCHERB, J.

We concur:

STRATTON, P. J.

WILEY, J.

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