by Sagi Schwartzberg

In resolving a conflict among Courts of Appeal, the Supreme Court of California held that defendants convicted of provocative act murder before its 2009 decision in People v. Concha, 218 P.3d 660 (Cal. 2009), are not categorically ineligible for resentencing under Cal. Pen. Code § 1172.6 because, prior to Concha, California law permitted malice to be imputed to nonprovocateur accomplices solely based on their participation in a crime. The Court further held that jury instructions are critical to the prima facie inquiry under § 1172.6 and must be considered in determining whether a petitioner was convicted under a theory by which malice was imputed.

Background

In 1991, Timothy P. Antonelli, along with Frank Stoddard and Ron Brown, devised a plan to rob partygoers at a gathering in California. Brown and Stoddard armed themselves with guns. Upon arriving, Stoddard and Brown entered the location of the party with their guns drawn and demanded valuables. During the robbery, Stoddard committed violent acts against several guests while Antonelli participated in subduing one of the hosts. Eventually, a violent struggle ensued during which one partygoer gained control of Brown’s gun and fatally shot him.

A jury convicted Antonelli of Brown’s first-degree murder under the provocative act doctrine. The trial court sentenced him to 25 years to life. On direct appeal, the Court of Appeal affirmed.

Procedural History

In 2018, the California Legislature enacted Senate Bill No. 1437, which “eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule.” People v. Lewis, 491 P.3d 309 (Cal. 2021). Senate Bill 1437 also added what is now § 1172.6 to provide a procedure for eligible individuals to seek retroactive relief.

In 2019, Antonelli filed his first petition for resentencing under § 1172.6. The Superior Court denied the petition after an evidentiary hearing, concluding that the People proved beyond a reasonable doubt that Antonelli was guilty as “a major participant” who “acted with reckless indifference to human life.” The Court of Appeal affirmed, concluding that Antonelli was ineligible for relief because he was convicted of provocative act murder and not pursuant to the felony-murder rule or the natural and probable consequences doctrine.

In 2021, the Legislature enacted Senate Bill No. 775, which amended § 1172.6 to expand eligibility for resentencing to individuals convicted of murder pursuant to “any[] theory under which malice is imputed to a person based solely on that person’s participation in a crime.” Cal. Pen. Code § 1172.6(a), as amended by Stats. 2021, ch. 551, § 2.

Antonelli filed a second petition, arguing that Senate Bill 775 encompasses provocative act murder where malice is imputed based on a co-defendant’s provocative act. The trial court denied the petition. On appeal, the Court of Appeal affirmed, relying on People v. Gonzalez, 278 P.3d 1242 (Cal. 2012), to conclude that Senate Bill 775 does not expand eligibility to provocative act murderers because such a conviction cannot be based on imputed malice.

Subsequently, the Court of Appeal in People v. Lee, 95 Cal.App.5th 1164 (2023), disagreed, ruling that the personal malice requirement was not clearly articulated until Concha. Prior to Concha, “an accomplice could be convicted so long as his confederate committed a malicious and provocative act, regardless of the defendant’s personal mental state.” Lee. The California Supreme Court granted review to resolve this conflict.

Analysis

The Court began its analysis by discussing the felony-murder rule, stating that it cannot be used to impose murder liability on a felon when a killing is committed by the crime victim or a police officer in an effort to thwart the commission of a listed felony. People v. Washington, 402 P.2d 130 (Cal. 1965). However, “[w]hen someone other than the defendant or an accomplice kills during the commission or attempted commission of a crime, the defendant … may nevertheless be prosecuted for murder under the provocative act doctrine.” Gonzalez. “A provocative act murder case necessarily involves at least three people … the perpetrator of the underlying offense, an accomplice, and a victim of their crime.” Id.

The Court stated that until Concha, California decisions allowed for conviction for provocative act murder whereby malice could be imputed to a nonprovocateur accomplice solely based on his participation in a crime. Over 50 years ago, the provocative act doctrine was originally explained as follows: “When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death [the ‘provocative act’], and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder.” People v. Gilbert, 408 P.2d 365 (Cal. 1965).

Thereafter, the Supreme Court repeatedly confirmed that the provocative act doctrine is a theory of vicarious liability for murder; an accomplice to a felony could “be vicariously responsible for any killing … attributable to the intentional acts of his associates committed with conscious disregard for life, and likely to result in death.” Taylor v. Superior Court, 477 P.2d 131 (Cal. 1970). The requisite provocative act only had to be committed by a surviving accomplice “in furtherance of the common design of all” to hold a nonprovocateur accomplice “vicariously liable for the murder.” People v. Antick, 539 P.2d 43 (Cal. 1975).

Categorical Eligibility for
§ 1172.6 Relief

The Court observed that it was not until its November 2009 decision in Concha that it “separated out the mens rea of individual defendants in provocative act murder cases” and made clear that a defendant must personally harbor malice to be convicted of provocative act murder. Lee. In Concha, the Supreme Court had to determine “whether a defendant may be liable for first degree murder when his accomplice is killed by the intended victim in the course of an attempted murder.” In addressing that issue, the Concha Court observed that “[w]hile joint participants involved in proximately causing a murder ‘are tied to a single and common actus reus,’ ‘the individual mentes reae or levels of guilt of the joint participants are permitted to float free and are not tied to each other in any way. If their mentes reae are different, their independent levels of guilt … will necessarily be different ….’” Concha. The Concha Court then held: “The defendant or an accomplice must proximately cause an unlawful death, and the defendant must personally act with malice.” Id.

The Attorney General acknowledged that “any doubt” about the requisite mens rea was resolved “in 2009 with Concha” but argued that earlier decisions had clarified the law. Specifically, the Attorney General pointed to the Supreme Court’s statement in People v. McCoy, 24 P.3d 1210 (Cal. 2001), that “outside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator.” The Attorney General also relied on footnote language in People v. Cervantes, 29 P.3d 225 (Cal. 2001), suggesting that a defendant who proximately causes a homicide through an intermediary without malice is guilty of manslaughter, not murder.

The Court rejected this argument. While Concha relied on these precedents, the Court explained that McCoy and Cervantes, though representing “important building blocks in the evolution of our decisional law,” did not specifically address the mens rea required for nonprovocateur accomplices in provocative act murder cases. Importantly, McCoy examined aiding and abetting liability generally, not the specific “type of murder” that provocative act murder represents. And although Cervantes considered a provocative act murder, the Cervantes Court focused on proximate cause, not malice. While footnote 15 in Cervantes may have foreshadowed Concha, the opinion “certainly did not make clear that a nonprovocateur accomplice had to personally harbor malice,” the Court explained. Notably, in the wake of Cervantes, at least some Courts of Appeal continued following the principle that provocative act murder does not require proof that a defendant personally harbor malice.

The Court concluded that prior to Concha, California case law on provocative act murder “imposed culpability on all perpetrators of the underlying crime so long as the provocateur acted with malice, and did so in furtherance of the common criminal design.” Lee. Because, under previous precedent, a jury could have imputed malice to a nonprovocateur defendant, the Court held that the Court of Appeal was wrong to conclude that such a defendant would be categorically ineligible for § 1172.6 relief.

Relevance of Jury Instructions

Having concluded that the Court of Appeal erred, the Court proceeded to decide a second question raised: “Did the trial court err by not considering the jury instructions in determining that defendant was ineligible for resentencing as a matter of law for a provocative act murder?”

The Court agreed with the Attorney General that “the [§ 1172.6] eligibility question will turn on an examination of both the governing law at the time of trial and the record of conviction, including the jury instructions.” As the Supreme Court has repeatedly stated, “[t]he record of conviction will necessarily inform the trial court’s prima facie inquiry … , allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” Lewis; People v. Curiel, 538 P.3d 993 (Cal. 2023). The Court stated that in assessing § 1172.6 petitions from individuals convicted following jury trials, the jury instructions will be critical. Curiel.

In both the present case and in Lee, the jury instructions tracked the governing law at the time of the defendants’ trials, according to the Court. At Antonelli’s trial, jurors were instructed under CALJIC 8.12 that they could find him guilty of provocative act murder if: (1) the crime of robbery or attempted robbery was committed, (2) during the commission of such crime, a person committing the crime also committed a provocative act, (3) the provocative act was deliberately performed with knowledge of the danger to and with conscious disregard for human life, and (4) such act was sufficiently provocative that the victim of the robbery reasonably killed one of the robbers. Notably, these instructions did not require the jury to find that Antonelli personally acted with malice. Thus, the Court concluded that the Court of Appeal “was incorrect to conclude that the jury instructions were irrelevant to the determination of whether defendant was convicted ‘pursuant to a theory under which malice is imputed to a person based solely on that person’s participation in a crime.’”

While the parties agreed that the Court of Appeal’s reasoning was incorrect, each sought a different remedy. The Attorney General argued that remand was appropriate to permit the Court of Appeal to consider in the first instance whether relitigation of the issues decided at the evidentiary hearing on Antonelli’s first petition is barred under principles of collateral estoppel and law of the case. Antonelli acknowledged that “neither collateral estoppel nor law of the case was presented as an issue for review” but asked the Court to conclude that neither doctrine applies to bar him from proceeding to an evidentiary hearing on his second petition. Antonelli asserted that he cannot be estopped from seeking relief because his second petition was based on new, intervening law in the form of Senate Bill 775. Additionally, Antonelli contended that the trial court’s prior findings that he was a major participant who acted with reckless indifference to human life were insufficient because, under current law, he cannot be guilty of provocative act murder unless there is a finding that he committed or aided “the commission of a provocative act with malice.”

The Court agreed with the Attorney General, concluding that the Court of Appeal should first address whether the trial court’s 2019 denial of Antonelli’s initial § 1172.6 petition bars his subsequent petition.

Conclusion

Accordingly, the Court reversed the judgment of the Court of Appeal and remanded the case for further proceedings consistent with its opinion. See: People v. Antonelli, 567 P.3d 690 (Cal. 2025).  

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