SERIES 500 HOMICIDE
F 560 NOTES
TABLE OF CONTENTS
F 560 Note 1 Homicide: Provocative Act by Defendant—CALCRIM Cross References And Research Notes
F 560 Note 2 Provocative Act Murder: Shooting Of Gang Member As “Provocative Act”
F 560 Note 3 Provocative Act Murder: Conviction Based On Provocative Act Of Deceased Accomplice Who Is Not The Alleged Murder Victim
F 560 Note 4 Provocative Act Of Murder: Causation Requirement—Actual Killer Must Have Been Responding To The Provocative Act
F 560 Note 5 Provocative Act Of Murder: Applicability Of Concurrent Causation And Transferred Intent
F 560 Note 6 Provocative Act Doctrine: No Juror Unanimity As To Provocative Act
F 560 Note 7 Provocative Act Murder: Pointing A Gun Is Not A Provocative Act
F 560 Note 8 Liability For Death Of An Accomplice: Provocative Act Not Required For Attempted Murder
F 560 Note 9 Provocative Act Murder: Defendant Must Personally Form Required Mental State For Murder
Return to Series 500 Table of Contents.
F 560 Note 1 Homicide: Provocative Act by Defendant—CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 561 [Homicide: Provocative Act By Accomplice]
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 560 Note 2 Provocative Act Murder: Shooting Of Gang Member As “Provocative Act“
See People v. Concha (2009) 47 C4th 653 [“Our prior decisions make clear that, where the defendant perpetrates an inherently dangerous felony, the victim’s self-defensive killing is a natural and probable response”]; but see People v. Cervantes (2001) 26 C4th 860 [defendant’s shooting of a gang member was not the proximate cause of a subsequent gang shooting].)
See also FORECITE F 560 n4.
CALJIC NOTE: See FORECITE F 8.12 n2.
F 560 Note 3 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 (1975) 15 C3d 79, 91; see also People v. Garcia (1999) 69 CA4th 1324, 1331.) 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.)
CALJIC NOTE: See FORECITE F 8.12 n3.
F 560 Note 4 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.) 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.)
CALJIC NOTE: See FORECITE F 8.12 n4.
F 560 Note 5 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) the underlying distinction between Cervantes (People v. Cervantes (2001) 26 C4th 860) 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.)
CALJIC NOTE: See FORECITE F 8.12 n5.
F 560 Note 6 Provocative Act Doctrine: No Juror Unanimity As To Provocative Act
See People v. Briscoe (2001) 92 CA4th 568.
CALJIC NOTE: See FORECITE F 8.12 n6.
F 560 Note 7 Provocative Act Murder: Pointing A Gun Is Not A Provocative Act
(See People v. Slaughter (2002) 27 C4th 1187, 1203 [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].)
CALJIC NOTE: See FORECITE F 8.12 n7.
F 560 Note 8 Liability For Death Of An Accomplice: Provocative Act 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 (1997) 54 CA4th 453, 461 held that this rule does not apply when the underlying act is itself provocative such as attempted murder.
CALJIC NOTE: See FORECITE F 8.12 n1.
F 560 Note 9 Provocative Act Murder: Defendant Must Personally Form Required Mental State For Murder
In People v. Concha (2009) 47 C4th 653 the defendants were charged with attempted murder (of the robbery victim) and murder (of their co-accomplice, who was killed by the robbery victim). While a defendant can be convicted of attempted murder based on the mens rea of an accomplice, murder requires that the defendant personally have the requisite mens rea. Here, while the trial court instructed properly with regard to the attempted murder count, it “inadequately instructed the jury on first degree murder,” failing “to require that the jury resolve whether each defendant acted willfully, deliberately, and with premeditation….”
