People v. LeePeople v. Lee
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Our opinion from Lee‘s original appeal in 1996 indicates he was not convicted under either of these two theories, but instead was convicted under the provocative act doctrine. Provocative act murder requires proof of malice, which distinguishes it from felony murder and natural and probable consequences murder. Lee therefore is not entitled to resentencing under
Accordingly, we affirm.
FACTUAL BACKGROUND
We quote the summary of the facts in our 1996 opinion (1996 opinion) addressing Lee‘s appeal from his conviction. (People v. Lee (May 28, 1996, B088132 [nonpub. opn.]))2
“Three men arrived at a shopping center in a red sports car. While the driver (Chul Woong Choi) waited in the car, Lee and Joo Hyung Woo got out and went into a video store. Outside, a suspicious security guard (Agustin Nolasco) started to write down
the sports car‘s license number. Inside, Lee and Woo pointed guns at the video store‘s two employees, dragged them to the back of the store, beat them, and took their money and personal belongings. Lee and Woo then ransacked the store and took money from the cash register.” (People v. Lee, supra, B088132, at p. *2.) “Impatient, Choi (who was also carrying a gun) got out of the sports car, tried to open the door to the video store, and yelled to Lee and Woo, ‘Hey, let‘s go.’ As Lee and Woo ran out of the store, Nolasco (the guard) stepped out of his car and yelled (in English), ‘What‘s going on?’ In response, Lee and Choi pointed their guns at Nolasco and Nolasco, in turn, ducked down behind his open car door and grabbed his gun from his car. Lee and Woo got into the sports car and when Nolasco raised his head to see what was going on, Choi (then halfway into the driver‘s seat of the sports car) fired a shot at Nolasco. Nolasco shot back twice, hitting Choi. Lee (who was sitting next to Choi) stepped on the accelerator and, while shooting at Nolasco, drove slowly out of the parking lot.” (People v. Lee, supra, B088132, at p. *2.)
“Nolasco ran into the video store, made sure everyone was all right, then went back outside where he found Choi‘s dead body face down on the ground where he had been dumped by Lee and Woo.” (People v. Lee, supra, B088132, at p. *3.)
PROCEDURAL BACKGROUND
1. Trial, conviction, and appeal
Lee and Woo “both were charged with Choi‘s murder, three counts of robbery, the attempted murder of Nolasco, and a variety of firearm enhancements.” (People v. Lee, supra, B088132, at p. *3.) Woo was granted immunity to testify against Lee,
Lee‘s conviction for murder was based on the “provocative act” doctrine. (People v. Lee, supra, B088132, at p. *3.) Appealing from that conviction, Lee argued there was insufficient evidence to show that Lee committed a provocative act that was the proximate cause of Choi‘s death. (Ibid.) Lee argued the evidence instead showed that it was Choi pointing his gun at Nolasco that led to Nolasco shooting Choi. (Id. at p. *4.)
We rejected this argument, cоncluding that Nolasco‘s testimony at trial made clear that it was both Lee‘s and Choi‘s pointing their guns at Nolasco that caused him to reach for his own gun and shoot back, killing Choi. (People v. Lee, supra, B088132, at p. *5.) Thus, there was sufficient evidence that Lee‘s conduct was a “substantial factor in causing the shooting, and the fact that Choi‘s own conduct was also a contributing factor does not relieve Lee of criminal responsibility for this killing.” (Ibid.)
We further held that the jury was properly instructed “that a murder ‘which occurs during the commission or attempt to commit the crime of robbery, when there was in the mind of the perpetrators of such crime the specific intent to commit robbery, is murder of the first degree,’ ” citing former
After rejecting Lee‘s other claims of error, we affirmed the judgment. (People v. Lee, supra, B088132, at pp. *7–*8.)
2. Petition for resentencing
In February 2019, Lee filed a petition for resentencing pursuant to
The trial court denied the petition without Lee present or represented by counsel. The trial court found that Leе‘s jury was instructed on provocative act murder, conviction for which requires a finding of “at least implied malice.” The trial court further found that Lee‘s jury was instructed that it could not convict Lee of attempted murder unless he had express malice.3
The trial court concluded that in regard to Lee‘s murder conviction, “defendant had implied malice,” and therefore was ineligible for relief under
Lee timely appealed.
DISCUSSION
Lee argues his petition stated a prima faciе basis for relief under
A. Senate Bill No. 1437
As a general matter, a defendant may not be convicted of murder absent proof that he or she unlawfully killed a human being “with malice aforethought,” either express or implied. (
Under the felony murder rule, a defendant could be convicted of murder ” ’ “when the defendant or an accomplice kill[ed] someone during the commission, or attempted commission, of an inherently dangerous felony . . . .” ’ ” (People v. Powell (2018) 5 Cal.5th 921, 942 (Powell).) ” ’ “If the felony is
Similarly, under the natural and probable consequences doctrine, “a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of not only the target crime but also of the resulting murder or attempted murder. [Citations.] ‘This was true irrespective of whether the defendant harbored malice aforethought. Liability was imрosed ” ‘for the criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion.’ ” ’ ” (People v. Munoz (2019) 39 Cal.App.5th 738, 749, review granted on other grounds Nov. 26, 2019, S258234.) The natural and probable consequences doctrine “is not an implied malice theory; the mens rea of the aider and abettor with respect to the [murder or attempted murder], actual or imputed, is irrelevant.” (People v. Lopez (2019) 38 Cal.App.5th 1087, 1102 (Lopez), review granted on other grounds Nov. 13, 2019, S258175.)
The Legislature enacted Senate Bill No. 1437 “to amend the felony murder rule and the natural аnd probable
The bill significantly limited the felony murder rule by adding subdivision (e) to
Senate Bill No. 1437 also eliminated liability for murder under the natural and probable consequences doctrine. (Lopez, supra, 38 Cal.App.5th at p. 1092.) It did so by amending
B. Section 1170.95
This division and others have held that in determining whether a petitioner has made a prima facie showing for purposes of
We acknowledge that the Supreme Court has granted review in Lewis to decide (1) whether the trial court properly mаy consider the record of conviction when ruling on a petitioner‘s prima facie showing under
Lee, however, gives us no reason not to follow Lewis. Lee does not cite or discuss Lewis, Verdugo, or Cornelius in his appellate briefing, although the Attorney General invoked those cases in the respondent‘s brief. Lee himself requested we take judicial notice of our 1996 opinion, which he cites in his briefing, thus acknowledging that the record of conviction properly may be considered when evaluating the adequacy of his prima facie showing. Lee quotes
Having laid out the applicable legal principles underlying
We hold that the trial court reached the correct conclusion. Lee was not convicted of murder under either a felony murder or natural and probable consequences theory, but under the provоcative act doctrine, which permits a defendant to be “held liable for the killing of an accomplice by a third party.” (People v. Mejia (2012) 211 Cal.App.4th 586, 602 (Mejia).)
“The provocative act doctrine is to be distinguished from the felony-murder rule.” (Gonzalez, supra, 54 Cal.4th at p. 654.) The felony murder rule applies to killings “committed in the perpetration of, or attempt to perpetrate” certain crimes. (
Under such circumstances, the defendant may nonetheless be convicted of murder under the provocative act doctrine. “[W]hen thе perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable
Unlike felony murder or murder under the natural and probable consequences doctrine, “[a] murder conviction under the provocative act doctrine . . . requires proof that the defendant personally harbоred the mental state of malice, and either the defendant or an accomplice intentionally committed a provocative act that proximately caused” the death of another accomplice.6 (Gonzalez, supra, 54 Cal.4th at p. 655; see Mejia, supra, 211 Cal.App.4th at p. 603 [“With respect to the mental element of provocative act murder, a defendant cannot be vicariously liable; he must personally possess the requisite mental state of malice aforethought when hе either causes the death through his provocative act or aids and abets in the underlying crime the
Lee therefore cannot show that he “could not be convicted of first or second degree murder because of changes to
Lee misreads our 1996 opinion, which expressly stated he was convicted under the provocative act doctrine, and that it was both Choi‘s and Lee‘s conduct that caused Nolasco to fire his weapon and kill Choi. (People v. Lee, supra, B088132, at pp. *3–*5.) There is no indication that he was convicted under a felony murder theory, nor could he have been given that Choi was killed by a third party, Nolasco, not by Lee or the other accomplice, Woo. (See Gonzalez, supra, 54 Cal.4th at pp. 654–655.)
To the extent our 1996 opinion discussed the felony murder rule and
Lee argues that “[p]rovocative act murder as charged in the instant case is a combination of felony murder and natural and probable consequence murder.” In support, Lee quotes People v. Concha (2009) 47 Cal.4th 653 (Concha), in which our Supreme Court stated, “where the defendant perpetrates an inherently dangerous felony, the victim‘s self-defensive killing is a natural and probable response.” (Id. at p. 661.)
The Supreme Court made this statement in the context of explaining that a conviction for provocative act murder requires proof of proximate causation. (See Concha, supra, 47 Cal.4th at p. 661 [“the defendant is liable only for those unlawful killings proximately caused by the acts of the defendant or his accоmplice“].) There is no indication in Concha that the Supreme Court intended to suggest that provocative act murder was a subset of either felony murder or natural and probable consequences murder. Nor could it be, given that provocative act murder requires proof of malice, unlike the felony murder rule or
Indeed, Concha itself recognized the malice requirement for provocative act murder: “[A] defendant is liable for murder when the actus reus and mens rea elements of murder are satisfied. The defendant or an accomplice must proximately cause an unlawful death, and the defendant must personally act with malice. Once liability for murder is established in a provocative act murder case or in any other murder case, the degree of murder liability is determined by examining the defendant‘s personal mens rea and applying sеction 189.” (Concha, supra, 47 Cal.4th at p. 663, italics added.)
Lee argues that his conduct and mental state did not satisfy the elements under
The judgment is affirmed.
BENDIX, Acting P. J.
We concur:
JOHNSON, J.
WEINGART J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CERTIFICATION AND ORDER FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
The opinion in the above-entitled matter filed May 1, 2020, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.
There is no change in the judgment.
CERTIFIED FOR PUBLICATION.
BENDIX, Acting P. J. JOHNSON, J. WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.