Supreme Court of California Justia
Citation 47 Cal. 4th 653, 218 P.3d 660, 101 Cal. Rptr. 3d 141

People v. Concha

Filed 11/12/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S163811
v.
Ct.App. 2/5 B195197
REYES CONCHA et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. BA287017
____________________________________)

Reyas Concha, Julio Hernandez, and Max Sanchez attempted to murder
Jimmy Lee Harris. During the attempt, Harris responded in self-defense by
stabbing Max Sanchez to death. Relying on the so-called provocative act murder
doctrine, the jury convicted defendants Concha and Hernandez of first degree
murder for the death of Sanchez. We granted review 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. We hold that a
defendant may be convicted of first degree murder under these circumstances if the
defendant personally acted willfully, deliberately, and with premeditation during
the attempted murder.
I. FACTS AND PROCEDURAL HISTORY
On July 14, 2005, Reyas Concha, Julio Hernandez, Max Sanchez, and a
fourth unidentified man threatened to kill Jimmy Lee Harris during an apparent
attempted robbery. Harris fled from the assailants and ran down the middle of a
1


street in Los Angeles. The four men pursued Harris for over a quarter of a mile
before cornering him against a fence. Harris attempted to scale the fence and one
or more of the assailants began stabbing him. The stabbing continued for several
seconds. Harris, realizing that his life was in danger, turned around and attempted
to fight the four men off. Harris pulled a pocket knife from his pocket and “began
to stab as many of them as [he] could.” Harris then fled and found someone who
called the police. Harris suffered severe injuries, but he survived. Sanchez died
from the stab wounds that Harris inflicted during the attack.
The jury convicted defendants of attempted first degree murder of Harris.
(Pen. Code, §§ 187, 664, subd. (a).)1 Relying on the provocative act murder
doctrine, the jury also convicted defendants of the first degree murder of Sanchez.
(Pen. Code, § 187 subd. (a).) The jury found true that Hernandez personally used a
deadly and dangerous weapon during both the attempted murder and the murder.
(§ 12022, subd. (b)(1).) The jury specifically found true allegations that the
attempted murder of Harris was committed willfully, deliberately, and with
premeditation (§ 664, subd. (a)). However, the jury was not asked to find, and did
not specifically find, that each defendant personally acted willfully, deliberately,
and with premeditation during the attempt. Hernandez admitted that he had
suffered a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
The jury deadlocked as to each defendant on an attempted second degree robbery
charge (§§ 211, 664) and the trial court granted the prosecution‟s motion to
dismiss the attempted robbery charges.

1
All further statutory references are to the Penal Code.
2


The Court of Appeal affirmed the convictions. In an opinion by Justice
Mosk, the majority held that defendants‟ first degree murder convictions for the
death of their accomplice based on the provocative act doctrine was supported by
the jury‟s finding that the attempted murder of the victim was willful, deliberate
and premeditated. The majority reasoned that the murder convictions “were not
based on a provocative act implied malice theory that would have required a
finding of second degree murder. Instead, the convictions were based on
defendants‟ express malice in attempting to kill Harris.” The majority applied the
doctrine of transferred intent to reach its conclusion that defendants‟ mental state
in connection with the attempted murder made them guilty of Sanchez‟s murder in
the first degree, reasoning as follows: “Section 189 expressly provides that a
willful, deliberate, and premeditated killing is murder of the first degree. The jury
found that defendants acted with malice, premeditation, and deliberation in
attempting to murder Harris, and found that each committed at least one act in the
course of attempted murder that was a proximate cause of Sanchez‟s killing. Thus,
defendants‟ mental state—express malice, willfulness, deliberation, and
premeditation—in connection with the attempted murder of Harris transferred to
the killing of Sanchez, making them guilty of his murder in the first degree.”
In a separate concurring opinion, Justice Turner concluded that the murder
conviction should be reduced from first degree to second degree because the jury‟s
express malice and premeditation finding with respect to the attempted murder
count cannot be transferred to the provocative act murder of defendants‟
accomplice.
We granted review limited to the following issue: “Did the trial court err in
allowing the jury to return verdicts of first degree murder when the case was tried
on a theory of provocative-act murder?”
3
II. DISCUSSION
Defendants contend the provocative act murder doctrine limits a
defendant‟s liability to second degree murder when the defendant‟s accomplice is
killed by the victim during a willful, deliberate, and premeditated attempt to
commit murder. We disagree.
Murder is the unlawful killing of a person with malice aforethought.
(§ 187.) Murder includes both actus reus and mens rea elements. To satisfy the
actus reus element of murder, an act of either the defendant or an accomplice must
be the proximate cause of death. (People v. Roberts (1992) 2 Cal.4th 271, 320
(Roberts); People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy).) For the
crime of murder, as for any crime other than strict liability offenses, “there must
exist a union, or joint operation of act and intent, or criminal negligence.” (§ 20.)
To satisfy the mens rea element of murder, the defendant must personally act with
malice aforethought. (McCoy, supra, 25 Cal.4th at p. 1118.)
A defendant can be liable for the unlawful killings of both the intended
victims and any unintended victims. “ „[T]here is no requirement of an unlawful
intent to kill an intended victim. The law speaks in terms of an unlawful intent to
kill a person, not the person intended to be killed.‟ ” (People v. Bland (2002) 28
Cal.4th 313, 323 (Bland), quoting People v. Scott (1996) 14 Cal.4th 544, 556
(Scott) (conc. opn. of Mosk, J.).)
For example, a defendant is liable for both murder and attempted murder if
he or an accomplice attempts to kill a specific person and instead kills a bystander.
(Scott, supra, 14 Cal.4th at p. 546.) Similarly, a defendant is liable for two
murders if, in the course of killing his intended victim, he or an accomplice also
kills a bystander. (Bland, supra, 28 Cal.4th at pp. 325-326.) In short, a defendant
may be liable for murder when he possesses the appropriate mens rea and either
the defendant or an accomplice causes an unlawful death. As we explained in
4
Bland, “ „[a] mens rea . . . is an elastic thing of unlimited supply. . . . It may
combine with a single actus reus to make a single crime. It may as readily
combine with a hundred acti rei, intended and unintended, to make a hundred
crimes . . . . Unforeseen circumstances may multiply the criminal acts for which
the criminal agent is responsible. A single state of mind, however, will control the
fact of guilt and the level of guilt of them all.‟ ” (Id. at p. 325, quoting Harvey v.
State (Md.Ct.App. 1996) 681 A.2d 628, 637.)
However, the defendant is liable only for those unlawful killings
proximately caused by the acts of the defendant or his accomplice. (Roberts,
supra, 2 Cal.4th at p. 320.) “In all homicide cases in which the conduct of an
intermediary is the actual cause of death, the defendant‟s liability will depend on
whether it can be demonstrated that his own conduct proximately caused the
victim‟s death . . . .” (People v. Cervantes (2001) 26 Cal.4th 860, 872, fn. 15
(Cervantes).) “[I]f the eventual victim‟s death is not the natural and probable
consequence of a defendant‟s act, then liability cannot attach.” (Roberts, supra, 2
Cal.4th at p. 321.) 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. (See, e.g., People v. Gilbert (1965) 63 Cal.2d 690,
705 (Gilbert); People v. Caldwell (1984) 36 Cal.3d 210, 220-222 (Caldwell).)
In the present case, although it is apparent that defendants Concha and
Hernandez did not intend to kill their accomplice, they had the intent to kill a
person when they attacked their intended victim, and therefore are guilty of murder
as to any killing either of them proximately caused while acting together pursuant
to their intent to kill.
Once liability for murder “is otherwise established, section 189 may be
invoked to determine its degree.” (Gilbert, supra, 63 Cal.2d at p. 705; see also
Caldwell, supra, 36 Cal.3d at p. 217, fn. 2, quoting Gilbert with approval;
5
Cervantes, supra, 26 Cal.4th at p. 872, fn. 15 [“If proximate causation is
established, the defendant‟s level of culpability for the homicide in turn will vary
in accordance with his criminal intent.”].) Section 189 states that if an unlawful
killing is “willful, deliberate, and premeditated,” or is perpetrated by means of
“poison, lying in wait, torture . . . , discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict
death,” specific types of weapons, destructive devices, explosives, or ammunition,
or in the perpetration of certain enumerated felonies,2 it is murder of the first
degree. (§ 189.) “All other kinds of murders are of the second degree.” (Ibid.)
Therefore, “assuming legal causation, a person maliciously intending to kill is
guilty of the murder of all persons actually killed. If the intent is premeditated, the
murder or murders are first degree.” (Bland, supra, 28 Cal.4th at pp. 323-324, fn.
omitted.) While 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 as well.” ‟ ” (Dressler, Understanding
Criminal Law (2d ed. 1995) § 30.06[C], p. 450, fns. omitted, as quoted with
approval in McCoy, supra, 25 Cal.4th at pp. 1118-1119.)

2
We note that the felony-murder rule cannot support liability for first degree
murder under the facts presented here for two reasons. First, the felony-murder
rule can be invoked only when the defendant or an accomplice actually commits
the killing. (People v. Washington (1965) 62 Cal.2d 777, 781 (Washington)
[“Section 189 requires that the felon or his accomplice commit the killing, for if he
does not, the killing is not committed to perpetrate the felony.”]; People v. Antick
(1975) 15 Cal.3d 79, 90.) Second, attempted murder is not one of the enumerated
felonies in section 189.
6


Therefore, “[i]f a jury finds that a defendant proximately caused a death,
either solely through his own conduct or through the actions of others where his
conduct is shown to be a substantial concurrent cause of the death, and the
defendant did so with a premeditated intent to kill, then the defendant is guilty of
first degree murder.” (People v. Sanchez (2001) 26 Cal.4th 834, 849 (Sanchez).)
Defendants contend provocative act murder is limited to “second degree as
a matter of law,” impliedly arguing that provocative act murder is an independent
crime with a fixed level of liability. However, that is not the case. While each of
our prior decisions dealing with provocative act murder found the defendant liable
for second degree murder, a statement that provocative act murder is second
degree murder is not universally correct. In our prior cases, malice was implied
from the provocative act. However, as here, when malice is express because the
defendant possessed a specific intent to kill, first degree murder liability may be
proper if the charged defendant personally acted willfully, deliberately, and with
premeditation.
One of this court‟s earliest statements regarding provocative act murder is
found in Gilbert, supra, 63 Cal.2d 690. “When the defendant or his accomplice,
with a conscious disregard for life, intentionally commits an act that is likely to
cause death, and his victim or a police officer kills in reasonable response to such
act, the defendant is guilty of murder. In such a case, the killing is attributable, not
merely to the commission of a felony, but to the intentional act of the defendant or
his accomplice committed with conscious disregard for life. Thus, the victim‟s
self-defensive killing or the police officer‟s killing in the performance of his duty
cannot be considered an independent intervening cause for which the defendant is
not liable, for it is a reasonable response to the dilemma thrust upon the victim or
the policeman by the intentional act of the defendant or his accomplice.” (Id. at
pp. 704-705.) We later stated that, “[i]n the classic provocative act murder
7
prosecution, malice is implied from the provocative act, and the resulting crime is
murder in the second degree.” (Cervantes, supra, 26 Cal.4th at p. 872, fn. 15; see
also Washington, supra, 62 Cal.2d at p. 782 [in a typical case of provocative act
murder, malice is implied from the defendant‟s participation in “ „an act that
involves a high degree of probability that it will result in death‟ ”].)
This statement regarding a classic provocative act murder prosecution is
often, but not always, true. Provocative act murder is not an independent crime
with a fixed level of liability. (Cervantes, supra, 26 Cal.4th at p. 867, fn. 10.) It is
simply a type of murder. The words “provocative act murder” are merely
shorthand used “for that category of intervening-act causation cases in which,
during commission of a crime, the intermediary (i.e., a police officer or crime
victim) is provoked by the defendant‟s conduct into [a response that results] in
someone‟s death.” (Id. at p. 872, fn. 15)
Gilbert makes it clear that liability for provocative act murder is not limited
to second degree murder. “[W]hen a murder is otherwise established, section 189
may be invoked to determine its degree.” (Gilbert, supra, 63 Cal.2d at p. 705.)
Consequently, the provocative act murder doctrine does not limit a defendant‟s
liability to second degree murder where a defendant‟s accomplice is killed by the
victim or a police officer in the course of an attempted murder. As discussed
above, a defendant‟s culpability for an unlawful killing is commensurate with his
mens rea. (Cervantes, supra, 26 Cal.4th at p. 872, fn. 15.) As we explained in
Cervantes, “whether or not a defendant‟s unlawful conduct is „provocative‟ in the
literal sense, when it proximately causes an intermediary to kill through a
dependent intervening act, the defendant‟s liability for the homicide will be fixed
in accordance with his criminal mens rea. If the defendant proximately causes a
homicide through the acts of an intermediary and does so with malice and
premeditation, his crime will be murder in the first degree . . . .” (Ibid.) Similarly,
8
where malice is merely implied from the defendant‟s conduct, the defendant is
liable only for second degree murder. Finally, “[i]f the defendant proximately
causes a homicide through the acts of an intermediary and does so without malice,
his crime will be manslaughter . . . .” (Ibid.)
To summarize, 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 section 189. Where the
individual defendant personally intends to kill and acts with that intent willfully,
deliberately, and with premeditation, the defendant may be liable for first degree
murder for each unlawful killing proximately caused by his or her acts, including a
provocative act murder. Where malice is implied from the defendant‟s conduct or
where the defendant did not personally act willfully, deliberately, and with
premeditation, the defendant cannot be held liable for first degree murder.
We note that the doctrine of transferred intent occasionally has been used to
explain defendant‟s liability in provocative act murder cases. Under the “classic
formulation” of the transferred intent doctrine, where a defendant intends to kill a
victim but misses and instead kills a bystander, the intent to kill the intended
victim is imputed to the resulting death of the bystander and the defendant is liable
for murder. (People v. Shabazz (2006) 38 Cal.4th 55, 62; see also 1 Witkin &
Epstein, Cal. Criminal Law (3d. ed. 2000) Elements, § 13, p. 215-216.) However,
under the transferred intent doctrine, the defendant‟s intent is not actually
transferred from the intended victim to the unintended victim. “Rather, as applied
here, [the transferred intent doctrine] connotes a policy — that a defendant who
shoots at an intended victim with intent to kill but misses and hits a bystander
9
instead should be subject to the same criminal liability that would have been
imposed had he hit his intended mark.” (Scott, supra, 14 Cal.4th at p. 551.) “ „For
purposes of applying the rule of transferred intent, it does not matter whether
defendant himself fired the fatal shot or instead induced or provoked another to do
so; in either situation, defendant‟s culpable mental state is determined as if the
person harmed were the person defendant meant to harm.‟ ” (Sanchez, supra, 26
Cal.4th at p. 850, fn. 9, quoting id. at p. 856 (conc. opn. of Kennard, J.).)
While the transferred intent doctrine would reach the same result as the
proximate cause analysis adopted above if the defendant proximately caused the
death of someone other than his intended victim and the jury found that the
defendant personally acted during an attempted murder willfully, deliberately, and
with premeditation, we choose not to rely on the transferred intent doctrine in our
analysis of provocative act murder. We have recognized that the transferred intent
doctrine has the potential to cause “conceptual difficulties” (Bland, supra, 28
Cal.4th at p. 317), when applied to some factual scenarios because,
notwithstanding its name, “[i]t does not denote an actual transfer of intent from the
intended to the unintended victim.” (1 Witkin & Epstein, Cal. Criminal Law,
supra, Elements, § 15, p. 218, citing Scott, supra, 14 Cal.4th at p. 550.)3 Here,
although the traditional transferred intent formulation and a proximate causation
analysis reach the same result, we shall rely on a proximate cause analysis to

3
As we noted in Bland, “[t]he term „transferred intent,‟ if taken literally, is
underinclusive. In his concurring opinion in Scott, Justice Mosk suggested that the
term „transferred malice‟ might be more accurate (Scott, supra, 14 Cal.4th at p.
554 (conc. opn. of Mosk, J.)), but even that term is too narrow. Someone who
premeditates a killing but kills the wrong person is guilty of a premeditated, not
just intentional, murder. (People v. Sanchez (2001) 26 Cal.4th 834, 850-851.) A
more accurate designation might be „transferred mental state.‟ ” (Bland, supra, 28
Cal.4th at p. 319, fn. 1.)
10


explain the general basis for criminal liability and, in a provocative act murder
case, the available degrees of murder.
We next address the need for the jury to consider whether a defendant
personally acted willfully, deliberately, and with premeditation during an
attempted murder that proximately caused the death of an unintended person (a
provocative act murder) when two or more defendants are charged with joint
participation in the attempted murder.
As discussed above, a defendant charged with murder or attempted murder
can be held vicariously liable for the actus reus of an accomplice, but, for murder,
a defendant cannot be held vicariously liable for the mens rea of an accomplice.
(McCoy, supra, 25 Cal.4th at p. 1118.) The same is not true for an attempted
murder that is willful, deliberate, and premeditated. For such an attempted murder,
although each defendant must have the intent to kill, a defendant may be
vicariously liable for the premeditated and deliberate component of the mens rea of
an accomplice. (People v. Lee (2003) 31 Cal.4th 613, 626.)
Subdivision (a) of section 664 provides that, as a general matter, a person
guilty of attempted murder must be punished by imprisonment for five, seven or
nine years. It goes on to provide, that “if the [murder] attempted is willful,
deliberate, and premeditated . . . , the person guilty of the attempt shall be punished
by imprisonment . . . for life . . . . The additional terms provided . . . for attempted
willful, deliberate, and premeditated murder shall not be imposed unless the fact
that the attempted murder was willful, deliberate, and premeditated is charged in
the accusatory pleading and admitted or found to be true by the trier of fact.”
(Ibid.) In People v. Lee, supra, 31 Cal.4th 613, we construed section 664,
subdivision (a), as requiring “only a certain quality characterizing the crime itself,
that is that the attempted murder was willful, deliberate and premeditated,” and we
declined the “defendants‟ invitation to insert a personal-mental-state requirement
11
not imposed by section 664(a).” (Id. at p. 626.) Therefore, to be liable under
section 664, subdivision (a), all that is necessary is that the defendant or his
accomplice attempted a murder, that both intended to kill, and that either the
defendant or an accomplice acted with willfulness, deliberation, and premeditation.
(Lee, at p. 626.) Accordingly, the trial court instructed the jury on the
premeditation allegation for the attempted murder charge, pursuant to CALCRIM
No. 601, as follows: “If you find the defendant guilty of attempted murder, you
must then decide whether the People have proved the additional allegation that the
attempted murder was done willfully, and with deliberation and premeditation.
The defendant and/or a principal acted willfully if he intended to kill when he
acted. The defendant and/or principal deliberated if he carefully weighed the
considerations for and against his choice and, knowing the consequences, decided
to kill. The defendant and/or principal premeditated if he decided to kill before
acting. The attempted murder was done willfully and with deliberation and
premeditation if either the defendant or a principal or both of them acted with that
state of mind.” In turn, the court asked the jury to find whether an attempted
murder “was committed willfully, deliberately, and with premeditation within the
meaning of Penal Code Section 664(a).”
However, with regard to the mens rea required for a first degree murder
conviction, the jury must find that the individual defendant personally acted
willfully, and with deliberation and premeditation during the attempted murder.
(McCoy, supra, 25 Cal.4th at p. 1118.) Consequently, it appears defendants are
correct that the trial court inadequately instructed the jury on first degree murder
for Sanchez‟s death because the instructions failed to require that the jury resolve
whether each defendant acted willfully, deliberately, and with premeditation
during the course of the attempted murder of Harris.
12
Although we have concluded that the trial court did not err by allowing the
jury to consider returning a verdict of first degree murder against defendants for
the death of their accomplice under the provocative act doctrine, it appears that the
trial court did err when instructing on first degree murder, as opposed to attempted
murder, by not providing an instruction that explained that for a defendant to be
found guilty of first degree murder, he personally has to have acted willfully,
deliberately, and with premeditation when he committed the attempted murder.
(McCoy, supra, 25 Cal.4th at p. 1118.) The Court of Appeal in its opinion did not
focus on this point. We therefore remand the matter for the Court of Appeal to
consider whether this instructional error was prejudicial.
III. DISPOSITION
We agree with the Court of Appeal that first degree murder liability can be
established in a provocative act murder case. However, under our decision in
McCoy, supra, 25 Cal.4th 1111, the instructions on first degree murder for the
death of Sanchez failed to require the jury to find whether each defendant
personally acted willfully, deliberately, and with premeditation during the course
of the attempted murder of Harris. Accordingly, we reverse the judgment of the
Court of Appeal and remand the matter to that court for further proceedings
consistent with this opinion.
CHIN, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN. J.


13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Concha
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 160 Cal.App.4th 1441
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S163811
Date Filed: November 12, 2009
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Kathleen Kennedy-Powell

__________________________________________________________________________________

Attorneys for Appellant:

Maria Morrison, under appointment by the Supreme Court, for Defendant and Appellant Reyas Concha.

Diana M. Teran, under appointment by the Supreme Court, for Defendant and Appellant Julio Hernandez.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., Scott A. Taryle and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.

Mitchell Keiter as Amicus Curiae on behalf of Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Maria Morrison
California Appellate Project
520 South Grand Avenue, 4th Floor
Los Angeles, CA 90071
(213) 243-0300

Diana M. Teran
1048 Irvine Avenue, PMB 613
Newport Beach, CA 92660
(949) 759-8556

Stephanie A. Miyoshi
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-8784


Petition for review after the Court of Appeal modified and affirmed judgments of conviction of criminal offenses. The court limited review to the following issue: Did the trial court err in allowing the jury to return verdicts of first degree murder when the case was tried on a theory of provocative act murder? Compare People v. Concha (2008) 160 Cal.App.4th 1441 at pages 1457 through 1461, and pages 1463 through 1465.

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 11/12/200947 Cal. 4th 653, 218 P.3d 660, 101 Cal. Rptr. 3d 141S163811Review - Criminal Appealopinion issued

Parties
1The People (Plaintiff and Respondent)
Represented by Stephanie A. Miyoshi
Office of the Attorney General
300 S. Spring Street, 5th Floor
Los Angeles, CA

2Concha, Reyas (Defendant and Appellant)
California State Prison, Sacramento
P. O. Box 290066
Represa, CA 95671

Represented by Maria Morrison
California Appellate Project
520 S. Grand Avenue, 4th Floor
Los Angeles, CA

3Hernandez, Julio (Defendant and Appellant)
Represented by Diana M. Teran
Attorney at Law
1048 Irvine Avenue, PMB 613
Newport Beach, CA

4Keitner, Mitchell (Amicus curiae)
17621 Irviine Boulevard, Suite 200
Tustin, CA 92780


Opinion Authors
OpinionJustice Ming W. Chin

Disposition
Nov 12 2009Opinion: Reversed

Dockets
May 23 2008Petition for review filed
  Appellant Reyas Concha Attorney Maria Morrison
May 23 2008Record requested
 
May 27 20082nd petition for review filed
  Juliio Hernandez, Appellant Diana M. Teran, Attorney
May 27 2008Received Court of Appeal record
 
Jul 17 2008Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including August 25, 2008, or the date upon which review is either granted or denied.
Jul 30 2008Petition for review granted; issues limited (criminal case)
  The petitions for review are granted. The parties are directed to limit their briefs and arguments to the following issue and any issues fairly included (Cal. Rules of Court, rule 8.516(a)(1)): Did the trial court err in allowing the jury to return verdicts of first degree murder when the case was tried on a theory of provocative- act murder? Compare People v. Concha (2008) 160 Cal.App.4th 1441 at pages 1457 through 1461, and pages 1463 through 1465. George, C.J., was absent and did not participate. Votes: Moreno, A.C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
Aug 1 2008Received Court of Appeal record
 
Aug 8 2008Counsel appointment order filed
  Upon request of appellant Julio Hernandez for appointment of counsel, Diana M. Teran is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Aug 8 2008Counsel appointment order filed
  Upon request of appellant Reyas Concha for appointment of counsel, the California Appellate Project is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Sep 4 2008Request for extension of time filed
  to file opening brief to September 29, 2008 Maria Morrison, attorney for appellant
Sep 8 2008Opening brief on the merits filed
  counsel for aplt. Julio Hernandez
Sep 9 2008Extension of time granted
  On application of appellant Reyas Concha and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 29, 2008.
Sep 29 2008Opening brief on the merits filed
  Reyes Concha, appellant
Oct 24 2008Request for extension of time filed
  to file respondent's answer brief November 28, 2008
Oct 29 2008Extension of time granted
  On application of respondent and good cause appearing, it ordered that the time to serve and file the answer brief on the merits is extended to and including November 28, 2008.
Dec 1 2008Answer brief on the merits filed
  The People, respondent Attorney General Stephanie A. Miyoshi
Dec 17 2008Request for extension of time filed
  to file reply brief on the merits to January 12, 2009 Reyas Concha, appellant Attorney Maria Morrison
Dec 22 2008Reply brief filed (case not yet fully briefed)
  counsel for aplt. Julio Hernandez
Jan 2 2009Extension of time granted
  On application of appellant Reyas Concha and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is hereby extended to and including January 12, 2009.
Jan 12 2009Reply brief filed (case fully briefed)
  Appellant Reyes Concha Attorney Maria Morrison
Jan 15 2009Order filed
  The order filed on January 2, 2009, to extend time to file appellant's Reyas Concha reply brief on the merits is amended to reflect the title above.
Apr 24 2009Application to file amicus curiae brief filed
  Mitchell Keiter, non-party.
Apr 24 2009Received:
  Application to permit filing of the untimely amicus brief
Apr 24 2009Received:
  Attorney Mitchell Keiter, Application to file late amicus curiae brief in support of respondent.
Apr 24 2009Application to file amicus curiae brief filed
  Attorney Mitchell Keiter in support of respondent.
Apr 30 2009Permission to file amicus curiae brief granted
  Attorney Mitchell Keiter (non-party)
Apr 30 2009Amicus curiae brief filed
Amicus curiae: Keitner, Mitchell   The application of Attorney Mitchell Keiter for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 20 2009Response to amicus curiae brief filed
Defendant and Appellant: Concha, ReyasAttorney: Maria Morrison   Appellant Concha's Answer to AC brief, filed Apr 30th in support of respondent.
May 26 2009Received:
  Counsel for petnr. (Hernandez) late joinder in response of co-deft's Concha answer to amicus curiae.
Jun 1 2009Filed:
  counsel for petnr. (Hernandez) Joinder in co-petnr. Concha's answer to amicus curiae.
Jul 15 2009Received:
  appln. t/file supplemental amicus curiae brief and supplemental brief in support of respondent. Mitchell Keiter, counsel (non party)
Jul 21 2009Order filed
  The application of Mitchell Keiter for permission to file a supplemental amicus curiae brief in support of respondent is hereby granted.
Jul 21 2009Filed:
  Supplemental Amicus Curiae Brief, by Mitchell Keiter, in supp of respondent. The People of the State of California
Jul 31 2009Case ordered on calendar
  to be argued Wednesday, September 2, 2009, at 1:30 p.m., in San Francisco
Jul 31 2009Received:
  Application to file response to Mitchell Keiter's supplemental amicus curiae brief in support of respondent from Diana M. Teran counsel for appellant Julio Hernandez (to court for permission)
Aug 4 2009Response to amicus curiae brief filed
Defendant and Appellant: Hernandez, JulioAttorney: Diana M. Teran   w/permission to supplemental amicus brief by Mitchell Keitner.
Aug 10 2009Filed:
  "Joint Request for Permission to Share Time" letter filed by Diana M. Teran, counsel for appellant Hernandez. Asking that argument time be divided 20 minutes for appellant Concha and 10 minutes for appellant Hernandez.
Aug 7 2009Filed:
  Request by appellant CONCHA, to file joinder, joining in the response of appellant HERNANDEZ to supplemental brief of Michael Keiter'
Aug 12 2009Order filed
  The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to appellant Concha 20 minutes and appellant Hernandez 10 minutes of appellants' 30-minute allotted time for oral argument is granted.
Sep 2 2009Cause argued and submitted
 
Nov 10 2009Notice of forthcoming opinion posted
  To be filed on Thursday, November 12, 2009 at 10 a.m.
Nov 12 2009Opinion filed: Judgment reversed
  and remanded. We agree with the Court of Appeal that first degree murder liability can be established in a provocative act murder case. However, under our decision in McCoy, supra, 25 Cal.4th 1111, the instructions on first degree murder for the death of Sanchez failed to require the jury to find whether each defendant personally acted willfully, deliberately, and with premeditation during the course of the attempted murder of Harris. Accordingly, we reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with this opinion. OPINION BY: Chin, J. --joined by: George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ.

Briefs
Sep 8 2008Opening brief on the merits filed
 
Sep 29 2008Opening brief on the merits filed
 
Dec 1 2008Answer brief on the merits filed
 
Dec 22 2008Reply brief filed (case not yet fully briefed)
 
Jan 12 2009Reply brief filed (case fully briefed)
 
Apr 30 2009Amicus curiae brief filed
Amicus curiae: Keitner, Mitchell  
May 20 2009Response to amicus curiae brief filed
Defendant and Appellant: Concha, ReyasAttorney: Maria Morrison  
Aug 4 2009Response to amicus curiae brief filed
Defendant and Appellant: Hernandez, JulioAttorney: Diana M. Teran  
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Apr 30, 2010
Annotated by cgrieco

Facts:
Four assailants, Reyas Concha, Julio Hernandez, and Max Sanchez, and an unidentified man attempted to rob Jimmy Lee Harris at knifepoint. Harris fled but was eventually cornered at which point the assailants drew knives on the victim Harris. During the attempt, Harris, fearing for his life, responded in self-defense by stabbing one of the assailants Max Sanchez to death with a pocket knife. Harris himself suffered severe injuries but recovered. Assailants were charged with attempted murder of Harris, the victim, as well as the murder of their co-assailant, Sanchez, under the provocative act doctrine.

Procedural Posture:
The jury convicted the defendants of the attempted murder of Harris as well as the murder of their co-assailant. The jury found that Hernandez used a deadly and dangerous weapon during both the attempted murder and the murder, (§ 12022, subd. (b)(1).) and specifically found true the allegations that the attempted murder of Harris was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)). The Court of Appeals upheld the murder convictions under the provocative act doctrine. In a separate concurring opinion, Justice Turner concluded that the murder conviction must be reduced from first degree to second degree because the jury’s express malice and premeditation finding with respect to the attempted murder count cannot be transferred to the provocative act murder of defendants’ accomplice. The California Supreme Court granted review on the issue: “Did the trial court err in allowing the jury to return verdicts of first degree murder when the case was tried on a theory of provocative-act murder?”

Opinion (J. Chin):
The Court reversed the Court of Appeals and remanded the matter to determine whether the failure to issue a jury instruction which clarified the difference between the different mental states needed for the attempted murder and the provocative-act murder was prejudicial to the defendant.

Under the provocative-act doctrine, a person may be convicted of a crime that is the natural consequence of his provocative-act. For example, a criminal may be convicted of murder if in the course of committing a crime, the victim fires a gun in self defense and accidentally kills a bystander. The Court stated that it was possible under these circumstances presented for the defendant to be guilty of a provocative-act murder. All that is necessary under the theory is that the defendant or his accomplice attempted a murder, that both intended to kill, and that either the defendant or an accomplice acted with the mens rea of willfulness, deliberation, and premeditation.

However, the Court clarified this in Concha by stating, “the jury must find that the individual defendant personally acted willfully, and with deliberation and premeditation during the attempted murder,” to be convicted of murder of the co-assailant under the provocative-act doctrine.

Concha’s conviction was problematic in this regard because the trial court only instructed the jury that “If you find the defendant guilty of attempted murder, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. The defendant and/or a principal acted willfully if he intended to kill when he acted. The defendant and/or principal deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant and/or principal premeditated if he decided to kill before acting. The attempted murder was done willfully and with deliberation and premeditation if either the defendant or a principal or both of them acted with that state of mind,” and if the attempted murder “was committed willfully, deliberately, and with premeditation within the meaning of Penal Code Section 664(a).”

This trial court instruction was inadequate because the jury charge for Sanchez’s first degree murder failed to require that the jury resolve whether each defendant acted willfully, deliberately, and with premeditation during the course of the attempted murder of Harris. The Court found that the “jury must find that the individual defendant personally acted willfully, and with deliberation and premeditation during the attempted murder.” So while the trial court did not err by allowing the jury to decide whether or not the co-assailant could be found guilty of murder of his co-assailant, the trial court did err “when instructing on first degree murder, as opposed to attempted murder, by not providing an instruction that explained that for a defendant to be found guilty of first degree murder, he personally has to have acted willfully, deliberately, and with premeditation when he committed the attempted murder.”

Dissent (none):

Issues: first degree murder, Mens Rea, Provocative-Act Doctrine

By Christopher K Grieco