P. v. Gonzalez CA2/8 filed 7/20/26

Filed7/20/26 P. v. Gonzalez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANCISCO GONZALEZ,
Defendant and Appellant.
B337344
Los Angeles County
Super. Ct. No.BA502951

APPEAL from a judgment of the Superior Court of LosAngeles 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, turnedonto Beswick Streetjust after Jeremy Flores, who would later be identified as a rival gang member,was walking across the same intersection. Gonzalez slowed the Acuraas 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. Floresstarted jogging down the street after the Acura passed him. He stopped as hereached the front gate of a house on the street. He saw Briceno, who was then walking back down the street toward him.
Floresplaced his backpack on the ground, kept a small black bag in his handand, 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, Gonzalezremained 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 Acuraacross 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 gunfrom 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 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 aboveand 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 Streetis 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.”
Gonzalezdid 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 lifefor the attempted murder and the murder, respectively, totaling 32 years to life. Gonzalez timely appeals.
II.
Gonzalez contendsinsufficient evidence supports each of his two convictions.
A.
Gonzalez argues we must reverse his conviction for the premeditated attempted murder of Floresdue 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 substantialevidence—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 justifythe jury’s findings, a reviewing court’s opinion that the circumstances might also be reasonably reconciled with 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) 18Cal.4th 297, 331.)
The same standard governs in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th342, 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 alsoPeople v. Perez (1992) 2 Cal.4th 1117, 1127 [“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 aboutthe 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 degreemurder 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) 113Cal.App.4th 400, 413 [a jury could reasonably infer the 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. (SeePeople 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 showingFlores 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 isvery brief.” (People v. Sanchez (2001) 26 Cal.4th 834, 849.)
Gonzalez’s subsequent actions captured on the collected surveillance videosare also important. Jurors saw theconfrontation with Flores lasted more than two minutes, during which Gonzalez made several additional choices that could suggest premeditation and determination. (People v. 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 backtoward Flores, who was then ducking and weaving around a parked car, dodging the numerous shots from Briceno’s gun. The shots were audible, and Bricenowas firing his gun at Flores in full viewand 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) 210Cal.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 Perezbegan 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, 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) 51Cal. 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 claimregarding the count of premeditated attempted murder.
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) 54Cal.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.” (People v. Concha (2009) 47 Cal.4th 653, 663−664.) “To constitute theactus reus of provocative act murder, the defendant mustcommit an act that provokes a third party to fire a fatal shot.The mens rea element is satisfied if the defendant knows thathis or her provocative act has a high probability—not merelya foreseeable possibility—of eliciting a life-threateningresponse 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 withpremeditation. He acted willfully in committing this provocative act if he intended to kill. Heacted 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 killbefore committing the provocative act that [was] intended to cause death. [¶] . . . [¶] For defendant Gonzalez to be found guilty of first-degree murder, he personally must have actedwillfully, 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’schasing and shootingat Flores that provoked Perez’s lethal response to fire shots onthe 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 atp. 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 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 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. Itwas 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. (SeePeople v. Montes (1999) 74 Cal.App.4th 1050, 1056 [given great potential for escalating violence during gang confrontations, shooting of rival gangmember 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 gangmember 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, 26Cal.4th at p. 863.) The conflict escalated, and after an Alley 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, 26Cal.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 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 herediffer 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, 26Cal. 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’srelated 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”].)
DISPOSITION
We affirm the judgment.

SCHERB,J.

We concur:

STRATTON,P.J.

WILEY, J.