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County to Use Unusual Legal Tactic to Charge 4 in Gang-Killing Case : Crime: Prosecutors will use the ‘provocative act’ to charge three teen-agers and a man with murder in the slaying of a fellow gang member by rivals.

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TIMES STAFF WRITER

In the county’s first use of a unique legal tactic to combat gang crime, prosecutors will charge three teen-agers and a 20-year-old man with the killing of a fellow gang member slain by rivals in a fierce gunfight three weeks ago.

Officials of the Orange County district attorney’s office said they plan to use a legal tactic known as the “provocative act” to charge Javier B. Romero, 20, and three youths, ages 14, 16 and 17, whose names are being withheld, in the death of their friend Robert Vasquez, 17, who was killed in Alona Park on Jan. 24. The suspects are currently charged with conspiracy to aid and abet in the commission of a homicide.

The provocative act, which has been used in Los Angeles County for several years against gang members, allows the prosecutors to argue that the youths were responsible for Vasquez’s death because they provoked the incident that led to the shoot-out.

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The battle that led to Vasquez’s death erupted when members of the two rival gangs brought baseball bats, knives and guns into the normally quiet park and began fighting at the park’s baseball diamond. The fight turned into a gun battle that stretched from the baseball field to the neighboring River View Golf Course, sending golfers and park visitors diving for cover.

“It went from a fight between two gang members and it escalated into an agreement to go into the park and have it out publicly,” said prosecutor Mark A. Sevigny. “But they weren’t there just to watch one member fight another. Their purpose was to battle. They collected all their friends and armed themselves to do just that.

“It was a situation very much like nitrogen meeting glycerin,” Sevigny said. “It was guaranteed that there would be an explosion of violence. People were either going to be knifed or shot. In this case, this guy was shot dead.”

Deputy Dist. Atty. Brent Romney, head of the county’s gang prosecution unit, said the case will be the first time that Orange County prosecutors will use the legal tactic to prosecute a “victim” gang whose members were fired on by a rival.

The use of the provocative act against gangs stems from a 1982 Los Angeles case in which prosecutors convicted a gang member of murder after an associate riding in his car was gunned down in a drive-by shooting by a rival. Although the gang member did not pull the trigger or intend to kill his gang associate, he provoked the murder by driving into enemy turf with the purpose of hurting a rival gang member.

Similarly, none of Vasquez’s friends intended to hurt their colleague in the Alona Park shoot-out, but they had gone to the park to commit violence against the rival gang, Romney said.

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John Allen, a Los Angeles assistant deputy district attorney assigned to the hard-core gang unit, said his office has successfully used the provocative act in other cases against gangs.

“It’s a legal strategy we use to deal with surviving members of such gang-related acts,” Allen said. “It’s great that Orange County is going to use it. . . . It can be very effective.”

The new tactic may prove to be a valuable tool against warring rivals in Orange County as well, Sevigny said.

“I say there’s going to be a lot of surprised kids when they find themselves hit with the murder rap,” he said. “. . . This could put the fear of God in these kids to stop shooting each other.”

Santa Ana police gang investigator Rick Reese said the beefed-up criminal charges will send a strong message to gangs.

“It’s a longer sentence to serve if they get a murder rap,” Reese said. “They might think twice when they pull out a gun.”

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Santa Ana police arrested Romero and the three youths in a series of raids Wednesday morning. Gang investigators are still looking for another gang member, Hugo A. Chavez, 20. The police confiscated a .380-caliber semiautomatic handgun at Chavez’s home on South Nottingham Avenue. Romero and Chavez were also wounded in the park shoot-out.

A day after the shooting, police arrested Dennis W. Durbin, 18, of Santa Ana and two 15-year-olds, members of the rival gang, and charged them with murder and attempted murder.

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