SAN JOSE (KCBS/AP) – Santa Clara County prosecutors are turning to a seldom-used legal theory to charge a man with murder in his friend’s death although he did not fire the fatal shot.

Prosecutors say 25-year-old Daniel Pena is responsible for his friend, Alvaro Galindo’s, death on April 12, 2009, Easter Sunday, in San Jose because he provoked rival gang members into firing at Galindo.

Galindo and Pena, Sureno gang members tried to shoot up the barbecue of a rival gang, the Nortenos. The group fired back, killing Galindo.

San Jose legal analyst Steven Clark said that that the so-called “provocative act murder” theory has rarely been used in the county.

”I think the DA’s office is recognizing how pervasive gang violence has become, and they’re using this as one more tool to try to put people away who are participating in gangs,” said Clark.

KCBS’ Matt Bigler Reports:

Police say Pena told investigators he went looking for Nortenos with Galindo earlier on April 12 so he could beat one of them up.

Nortenos later fired the shot that killed Galindo. Authorities say they are not being charged, however, because they may have acted in self-defense.

The San Jose Mercury News reports that Pena’s attorney said that prosecutors are overreaching by charging his client with murder.

(Copyright 2011 by CBS San Francisco. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)


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