A San Jose gang member was found guilty Wednesday of trying to kill a rival at an Easter Sunday barbecue, but the jury stalled on whether he’s legally responsible for the murder of his close friend and fellow Sureno.

After taking the partial verdict on the attempted murder charge, Judge Jerome E. Brock told the Santa Clara County Superior Court jury of three women and nine men to keep deliberating on the vicarious-liability murder charge against Daniel Pena, 25.

The foreman told the court the jury was hung 10-2, after about 3 1/2 days of deliberations, but he was not allowed to specify how the majority was leaning.

However, even if the jury remains at an impasse, Pena could wind up behind bars for life on the attempted murder charge because of gang and gun enhancements that add significant amounts of time.

Pena is being tried under a seldom-used legal theory called the “provocative act murder” doctrine. Prosecutors couldn’t make it fly recently in another gang case in Gilroy, dropping the charges after it became apparent the theory didn’t fit the circumstances.

Under the theory, prosecutors consider Pena legally responsible for the death of his close friend even though he didn’t fire the fatal shot that blasted through Alvaro Galindo’s left eye — rival gangbangers did.

Prosecutor David Boyd contended Pena was so intimately familiar with gang culture — and with Galindo’s violent history — that he knew or should have

The prosecutor contended that by venturing into a rival’s home — on Easter Sunday, no less — Pena was exhibiting extreme disrespect, which could easily trigger a lethal retaliation.

But Pena’s lawyer, Allen H. Schwartz, argued that his client went into the Sunny Court apartment complex seeking a fistfight, without realizing his buddy was armed. Schwartz said Pena’s actions did not meet the legal threshold of a “high probability” of provoking a lethal response because most gang confrontations in San Jose are not lethal.

In 2009 when the killing occurred, there were 520 reported gang incidents, Schwartz said, but there were only 28 murders — some of which were not gang-related.

It was impossible to know early Wednesday afternoon if that argument swayed any jurors.

Prosecutors typically face a challenge in overcoming jurors’ resistance to convicting someone who didn’t pull the trigger. But in this case, prosecutors had a backup plan — the attempted murder charge.

Pena didn’t actually pull the trigger in that case either — Galindo did, wounding Norteno gang member Jeremy Luna. But it is commonplace for an accomplice to be held legally responsible for a shooter’s actions.

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