95 Cal.App.5th 1164
Cal. Ct. App.2023Background
- In 1994 Lee participated in a robbery during which he and an accomplice pointed guns; their confederate Choi was later found dead after the store security guard (Nolasco) fired; Lee was convicted of first‑degree murder (for Choi), attempted murder (of Nolasco), robbery, and related enhancements.
- Lee’s jury was instructed on the provocative‑act doctrine, allowing conviction if a co‑perpetrator’s life‑threatening act (committed with malice) proximately caused a co‑felon’s death; the instruction did not require the jury to find Lee personally acted with malice.
- Lee filed a petition under former Penal Code §1170.95 (2019); the trial court denied it and the Court of Appeal (Lee II) affirmed, concluding provocative‑act murder required personal malice. The Supreme Court later granted and dismissed review; Lewis changed precedents on procedure for §1172.6 petitions.
- Senate Bill 775 (amending former §1170.95, now §1172.6) expanded relief to convictions based on any theory that imputed malice solely from participation in a crime, and added attempted murder/manslaughter to covered offenses.
- Lee filed a second petition after SB 775; the trial court denied it without an evidentiary hearing. On appeal the court held Lee is not barred as a matter of law from §1172.6 relief as to his murder conviction (because, at the time of conviction, provocative‑act liability could rest on an accomplice’s malice), but affirmed the denial as to attempted murder and remanded for an order to show cause on the murder count.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Lee) | Held |
|---|---|---|---|
| 1) Is Lee categorically ineligible for §1172.6 relief because he was convicted under the provocative‑act doctrine? | Provocative‑act murder has always required that the defendant personally harbor malice, so Lee is ineligible. | The jury instructions permitted conviction by imputed malice based on a co‑perpetrator’s provocative act; post‑SB 775 Lee may be eligible. | Lee may have been convicted under a theory imputing malice from a co‑perpetrator; he is not barred as a matter of law and is entitled to an OSC and evidentiary hearing on the murder count. |
| 2) Can the prosecutor’s closing argument (which emphasized Lee as the provocateur) overcome the jury instructions and establish as a matter of law that Lee personally acted with malice? | The closing shows the prosecution tried the case on Lee as the provocateur, so the jury must have found personal malice. | The instructions allowed conviction based on a surviving accomplice’s malice; a prosecutor’s theory in closing does not compel that the jury convicted on that sole theory. | The closing argument alone does not conclusively prove the jury found Lee personally harbored malice; the record is insufficient to decide as a matter of law. |
| 3) Is Lee eligible for relief on his attempted murder conviction? | (Implicit) Attempted murder is covered by SB 775 only if conviction imputed malice; here jury instructions required express malice. | Lee claims attempted murder was tied to provocative‑act theory and thus eligible. | Denied — the attempted murder instruction required express malice (specific intent to kill); the record shows the jury necessarily found intent to kill, so Lee is ineligible for relief on attempted murder. |
| 4) Does the law‑of‑the‑case or pre‑Concha precedent bar reconsideration of whether provocative‑act liability ever allowed imputed malice? | Earlier appellate rulings (including Lee II) settled that provocative‑act requires personal malice; law of the case should apply. | SB 775 and intervening decisions altered the controlling law and require revisiting pre‑Concha doctrine; law of the case should not foreclose relief. | Law‑of‑the‑case does not bind here because statutory amendments and intervening changes (SB 775/Concha developments) materially changed the legal landscape; court reanalyzed pre‑Concha law. |
Key Cases Cited
- People v. Washington, 62 Cal.2d 777 (1965) (recognized limits of felony‑murder where victim—not perpetrator—causes death; foundational for provocative‑act analysis)
- People v. Gilbert, 63 Cal.2d 690 (1965) (articulated principles for guilt when a third party kills in response to a provocateur; held malice must be proven but could be satisfied by provocateur’s conduct)
- Taylor v. Superior Court, 3 Cal.3d 578 (1970) (Taylor I) (held an absent accomplice may be vicariously liable where a co‑felon’s provocative act supplies implied malice)
- People v. Taylor, 12 Cal.3d 686 (1974) (Taylor II) (discussed collateral estoppel limits where co‑felon acquittal affects reliance on the co‑felon’s mental state)
- People v. Antick, 15 Cal.3d 79 (1975) (explained vicarious liability when a provocateur acts in furtherance of common design; nonprovocateur may be liable)
- People v. Caldwell, 36 Cal.3d 210 (1984) (reaffirmed that provocative‑act liability could be based on a co‑felon’s implied malice)
- People v. Concha, 47 Cal.4th 653 (2009) (clarified that for murder the defendant must personally act with malice for degree determinations; key turning point in mens‑rea analysis)
- People v. Gonzalez, 54 Cal.4th 643 (2012) (held provocative‑act murder requires proof the defendant personally harbored malice under Concha's framework)
- People v. Lewis, 11 Cal.5th 952 (2021) (procedural rule: appointed counsel on facially sufficient §1172.6 petitions and limits on factfinding at prima facie stage)
- People v. Flores, 76 Cal.App.5th 974 (2022) (limits use of prior appellate factual summaries in §1172.6 evidentiary hearings)
- People v. Mai, 22 Cal.App.4th 117 (1994) (applied pre‑Concha law that a nonprovocateur may be vicariously liable based on a provocateur’s life‑threatening act)
- People v. Mejia, 211 Cal.App.4th 586 (2012) (reinforced that under then‑existing law an aider/abettor could be convicted when an accomplice’s provocative act supplied implied malice)