F 8.12

F 8.12 n1 Liability For Death Of An Accomplice: Not Required For Attempted Murder.

Cases involving the death of an accomplice resulting from robberies have continued to adhere to the requirement that there be an independent provocative act in order for the defendant to be liable for the death of an accomplice. People v. Gallegos (97) 54 CA4th 453, 461 [63 CR2d 382] held that this rule does not apply when the underlying act is itself provocative such as attempted murder.

F 8.12 n2 Provocative Act Murder: Shooting Of Gang Member As “Provocative Act.”

See People v. Cervantes (2001) 26 C4th 860 [111 CR2d 148]; see also FORECITE F 8.12 n4; FORECITE F 8.12 n5.

F 8.12 n3 Provocative Act Murder: Conviction Based On Provocative Act Of Deceased Accomplice Who Is Not The Alleged Murder Victim.

An accomplice may not be convicted of murder based on the death of the other accomplice who caused his own death by committing a provocative act. (See People v. Antick (75) 15 C3d 79, 91 [123 CR 475]; see also People v. Garcia (99) 69 CA4th 1324, 1331 [82 CR2d 254].) However, when the deceased accomplice also killed another human being, the surviving accomplice may be liable for the murder of the other person. (69 CA4th at 1331.)

F 8.12 n4 Provocative Act Of Murder: Causation Requirement – Actual Killer Must Have Been Responding To The Provocative Act.

Where the killing was itself felonious, intentional, perpetrated with malice aforethought, and directed at a victim who was not involved in the original altercation, there is insufficient proximate causation for application of the provocative act doctrine. (See People v. Cervantes (2001) 26 C4th 860 [111 CR2d 148].) Even if the murder occurred a very short time after the defendant committed the provocative act (shooting at a rival gang member) and there was expert testimony that the killing was a foreseeable consequence of the defendant’s shooting at a rival gang member, that is not enough to establish the causation requirement for provocative act murder. (Ibid.)

See also FORECITE F 8.12 n5.

F 8.12 n5 Provocative Act Of Murder: Applicability Of Concurrent Causation And Transferred Intent.

As Justice Kennard explained in her concurring opinion in Sanchez, (People v. Sanchez (2001) 26 C4th 834 [111 CR2d 129]) the underlying distinction between Cervantes (People v. Cervantes (2001) 26 C4th 860 [111 CR2d 148]) and Sanchez is that the former was a revenge killing while the latter was mutual combat. In Sanchez the defendant and the rival gang member were firing at each other when a bullet from one of their guns killed the bystander. Hence, the defendant was guilty under the provocative act doctrine in light of the principles of concurrent causation and transferred intent. In Cervantes the defendant fired at a rival gang member after which other members of the rival gang shot and killed a third party in revenge. Because the person at whom the defendant had fired in Cervantes did not participate in the killing of the third party and because the third party was not killed during an exchange of shots at a single time and place, proximate and legal causation were not established. (Sanchez, 26 C4th at 857, Kennard, J., concurring.)

F 8.12 n6 Provocative Act Doctrine: No Juror Unanimity As To Provocative Act.

See People v. Briscoe (2001) 92 CA4th 568 [112 CR2d 401].

F 8.12 n7 Provocative Act Murder: Pointing A Gun Is Not A Provocative Act.

(See People v. Slaughter (2002) 27 C4th 1187, 1203 [120 CR2d 477] [defendant‘s testimony that the victim pointed a gun at him and demanded the cocaine is not sufficient to establish that the victim instigated a gun battle within the meaning of the provocative act murder doctrine].)

F 8.12a

Liability For Death Of Accomplice: Definition

Of “Provocative Act” And Specification Of Causation Requirements

(PC 187 & PC 189)

*Modify CJ 8.12 ¶ 3 to provide as follows [added language is capitalized; deleted language is between <<>>]:

A homicide committed during the commission of a crime by a person who is not a perpetrator of such crime, in a reasonable response to an intentional, provocative act by a perpetrator of the crime, is considered in law to be an unlawful killing by the perpetrator[s] of the crime IF THE PROVOCATIVE ACT WAS COMMITTED WITH MALICE AFORETHOUGHT. Malice AFORETHOUGHT is <<implied>> PROVEN when: <<the provocative act was deliberately performed with knowledge of the danger to and with conscious disregard for human life>> (1.) THE KILLING RESULTED FROM AN INTENTIONAL ACT; (2.) THE NATURAL CONSEQUENCES OF THE ACT WERE DANGEROUS TO HUMAN LIFE OR PHRASED IN A DIFFERENT WAY, THERE WAS A HIGH PROBABILITY THAT THE ACT WOULD RESULT IN DEATH; AND (3.) THE ACT WAS DELIBERATELY PERFORMED WITH KNOWLEDGE OF THE DANGER TO, AND WITH CONSCIOUS DISREGARD FOR, HUMAN LIFE.

ALTERNATIVE FORM:

A homicide committed during the commission of a crime by a person who is not a perpetrator of such crime IS AN UNLAWFUL KILLING WITH MALICE AFORETHOUGHT IF A PERPETRATOR OF THE CRIME, WITH CONSCIOUS DISREGARD FOR LIFE, INTENTIONALLY COMMITTED AN ACT THAT WAS LIKELY TO CAUSE DEATH, AND THE VICTIM OR A THIRD PARTY KILLED IN REASONABLE RESPONSE TO SUCH ACT.

* Modify element 2 to provide as follows:

2. During the commission of the __________ [insert underlying crime specified in preceding CALJIC paragraph], DEFENDANT also intentionally committed a provocative act WHICH ACT WAS NOT NECESSARY TO THE COMMISSION OF THE __________ [insert underlying crime].

*Modify element 3 to provide as follows:

3. Such provocative act was committed with malice aforethought. To establish malice aforethought, the prosecution must prove beyond a reasonable doubt that: (a) the killing resulted from an intentional act; (b) the natural consequences of the act were dangerous to human life, or phrased in a different way, there was a high probability that the act would result in death; and (c) the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, for human life.

ALTERNATIVE FORM:

2. During the commission of such crime a person, committing the crime with a conscious disregard for life, intentionally committed an act that was likely to cause death, and the victim or a third party killed in reasonable response to such act.

*Add the following to the list of CJ elements:

The provocative act was a cause of death. [Insert CJ 3.40 defining a “cause.]

*Add after the listing of elements:

In determining whether the prosecution has met its burden of proving the above elements, you may not consider any evidence as to provocative acts committed by __________ [insert name of the deceased accomplice].

Points and Authorities

The California Supreme Court has made it clear that vicarious liability for the death of an accomplice requires that the death be caused by the perpetrator’s commission of a provocative, life-endangering act. (See cases cited in People v. Mai (94) 22 CA4th 117, 123-26 [27 CR2d 141]; see also People v. Garcia (99) 69 CA4th 1324 [82 CR2d 254] [provocative act doctrine requires that defendant or surviving accomplice commit provocative act beyond that necessary to commit the underlying offense].) Because the mens rea requirement established by these cases is the equivalent of that required for implied malice, the definition of implied malice in CJ 8.11 or the language of the instruction given in People v. Antick (75) 15 C3d 79, 86, fn 7 [123 CR 475] should be given to the jury. (Mai, 22 CA4th at 126.) (See FORECITE F 8.11a regarding the “high probability of death“ language included in the above definition of malice.) The jury must also be instructed to find that the provocative act was the cause of death. (Id. at 127-28.)

Additionally, because the provocative conduct of the co-felon who was killed is “not relevant to the determination of whether his killing was, in fact, a murder for which his accomplices could be held responsible“ (Antick, 15 C3d at 92, fn 12), the trial court should instruct that the provocative acts of the deceased accomplice may not be considered.

Finally, “the life-threatening act on which the liability is premised must be something beyond the underlying felony itself ….“ (In re Joe R. (80) 27 C3d 496, 505 [165 CR 837]; People v. Superior Court (Bennett) (90) 223 CA3d 1166, 1172 [273 CR 71]; but see People v. Briscoe (2001) 92 CA4th 568, 580-93 [112 CR2d 401] [must be requested].)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

NOTES

In People v. White (95) 35 CA4th 758, 768, fn 2 [41 CR2d 510], the court held that the trial court erred in failing to define “provocative act“ as “life-threatening“ or “life endangering“ as requested by defense counsel and as proposed by FORECITE. White referred specifically to FORECITE F 8.12a in holding that the trial court erroneously failed to modify the standard CALJIC instruction with the language of the FORECITE instruction.

The provocative acts of the deceased accomplice cannot be considered because a person may not incur criminal liability in connection with his or her own killing. (Antick, 15 C3d at 92, fn 12.) However, even when the defendant on trial did not participate in the provocative act, he or she may be vicariously liable for the surviving accomplices conduct and may be convicted of murder in the death of the accomplice who is killed. (Mai, 22 CA4th at 127.)

RESEARCH NOTES

See Annotation, Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 ALR3d 239 and Later Case Service; see also Annotation, Application of felony-murder doctrine where person killed was co-felon, 89 ALR4th 683 and Later Case Service.

F 8.12b

Liability For Death Of An Accomplice: Instruction On Causation Principles

*Modify lines 1-3 of CJ 8.12 to provide as follows [deleted language is between <<>>]:

A homicide committed during the commission of a crime by a person who is not a perpetrator of such crime, in a <<reasonable>> response ….

Points and Authorities:

The defendant’s liability for the death of an accomplice is predicated upon principles of causation and foreseeability. (See People v. Caldwell (84) 36 C3d 210, 222-23 [203 CR 433] [liability for murder was upheld where the defendant’s legal acts in precipitating a gun battle were the proximate cause of the death of the victim, which was a natural and foreseeable result]; People v. Harris (75) 52 CA3d 419, 427 [125 CR 40] [“the determination of whether defendant’s unlawful act or acts were a proximate cause of the death is a question for resolution by the trier of fact [citation] and is determined according to the ordinary principles governing proximate causation”].) Hence, if the jury finds that the killing by the third party was an unreasonable response to the defendant’s act (e.g. the third party began firing a gun indiscriminately to apprehend an unarmed shoplifter), the jury would be warranted in finding that the causation and foreseeability requirements were not proven. Hence, when appropriate, the jury should be instructed upon the relationship between the reasonableness of the third party’s response and the causation/foreseeability requirements.

However, in People v. Gardner (95) 37 CA4th 473, 481 [43 CR2d 603], the court held that the “reasonable response” issue should not be addressed in the body of CJ 8.12, but should be encompassed within the causation instructions themselves. Gardner suggested that the term should be deleted from CJ 8.12 because there “would be some danger that the term might be taken to mean that liability for murder could only attach … if the acts of the third party … who fired in response to [the defendant’s] gunfire were subjectively reasonable.” (Original emphasis.) (Gardner, 37 CA4th at 481.)

It should be noted that proper instruction on causation also requires instruction on intervening causation when appropriate. In Gardner, the court noted that the jury was properly instructed on this issue as follows: “An intervening act may be so disconnected and unforeseeable as to be a superseding cause, so that in such a case the defendant’s act will be a remote and not a proximate cause.” (Gardner, 37 CA4th at 483.)

F 8.12c

Provocative Act Murder: Shooting In Response To “Drive-by”

*Add to CJ 8.12:

Before you may convict defendant ___(A)___ of murder you must unanimously agree that defendant ___(A)___ intentionally provoked the altercation by intentionally committing a provocative act which caused ___(B)___ to fire the fatal bullet. This requires the prosecution to prove that defendant ___(A)___ committed an act, other than driving by ___(B)___, which was an intentionally provocative act, as defined in these instructions, and which caused ___(B)___ to fire the bullet which killed ___(C)___. To be sufficiently provocative the act committed by defendant ___(A)___ must have caused ___(B)___ to reasonably believe that he was in immediate danger of great bodily injury or death. If you have a reasonable doubt whether defendant ___(A)___ committed an act other than driving by ___(B’s)___ residence, which was unlawful and willfully provocative, you must give him the benefit of that doubt and find him not guilty of murder on this basis.

Points and Authorities

Special concerns are present vis a vis the provocative act murder doctrine when an uninvolved third party is killed during a gun battle precipitated during a gang-related drive-by. The above instruction is designed to address some of these concerns.

As to the necessity of showing a provocative act beyond driving by the residence, see FORECITE F 5.12j. As to the requirement that the provocative act be sufficient to produce a reasonable belief that the person is in great danger, see In re Joe R. (80) 27 C3d 496, 506-07 [165 CR 837]. For the provocative act doctrine to apply the “victim” must “kill in reasonable response to [the provocative] act….” (In re Tyrone B. (76) 58 CA3d 884, 888 [130 CR 245]; see also People v. Gallegos (97) 54 CA4th 453 [63 CR2d 382]; People v. Karapetyan (2003) 106 CA4th 609 [130 CR2d 849] [defendant’s attempts to kill or assault someone with a firearm are by themselves provocative acts likely to draw a deadly response].)