People v. Cunningham ( 2024 )

Filed 4/23/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B323640
(Super. Ct. No. CR37135)
Plaintiff and Respondent, (Ventura County)
v.
ROBERT WAYNE
CUNNINGHAM,
Defendant and Appellant.
Robert Wayne Cunningham was convicted of provocative
act murder as a result of a 1995 shootout with the police. He was
also convicted of other offenses connected with the shootout. He
was sentenced to state prison for life without the possibility of
parole. Consecutive determinate sentences were also imposed.
He unsuccessfully sought sentencing relief pursuant to
Penal Code section 1172.6. He appeals contending that
provocative murder is based upon the imputation of malice and
any such imputation is now barred by newly enacted Penal Code
section 188, subdivision (a)(3). We disagree and affirm. We
cannot add the phrase “provocative act murder” to the statute.
This species of murder liability has been the law in California
since the 1960s (see, e.g., People v. Gilbert (1965) 63 Cal.2d 690,
704-705). Surely the Legislature was aware of this murder
theory when it made two changes to the statutory murder
definitions. It’s failure to mention “provocative murder” is
significant and leads to only one logical conclusion: the
Legislature did not intend to jettison this theory.
Only a brief recitation of the facts is necessary to bring this
appeal into focus. Appellant and his cohort, Soley, were
suspected of committing a series of armed robberies. The police
had them under surveillance. They followed appellant and Soley
to a liquor store. When appellant and Soley committed the
robbery of this liquor store, they were unable to leave because the
police blocked their car’s movement. Appellant arose through the
open roof of the car and started shooting at the police. They
returned gun fire killing Soley and wounding appellant. At least
one police officer was wounded in the gun battle.
The jury was only instructed on the elements of
“provocative murder,” but the prosecutor did argue that appellant
started “the ball rolling” and started “a snowball down the hill”
when he initiated the gun battle. Appellant now contends that
this argument is tantamount to arguing the now discarded
“natural and probable consequences” doctrine and that relief
should be granted. The statute does not preclude the prosecutor’s
argument. It is the instructions given that inform the jury’s
verdict.
We recently held that the “provocative murder doctrine”
survived the recent legislative enactments in People v. Antonelli
(2023) 93 Cal.App.5th 712, review granted Oct. 18, 2023,
S281599. Our holding was, and is, compelled by California
Supreme Court precedent. (People v. Gonzales (2012) 54 Cal.4th
2
643, 654.) The Supreme Court has granted review in Antonelli,
supra, and, so, it should grant review here.
Disposition
The judgment (order denying sentencing relief) is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
I concur:
GILBERT, P. J.
3
CODY, J. CONCURRING:
I agree appellant is ineligible for Penal Code section 1172.6
relief. However, I reach that conclusion because appellant’s jury
instructions entail a finding he personally acted with implied
malice.
The trial court instructed on provocative act murder with a
version of CALJIC No. 8.12. That instruction required the jury to
determine whether appellant—not any accomplice—committed
an “intentional provocative act” during the commission of
robbery. Given the instruction’s definition of an “intentional
provocative act,” the jury must have found that appellant
“deliberately performed [the act] with knowledge of the danger to,
and with conscious disregard for human life.” Accordingly, the
jury determined appellant himself acted with implied malice.
(See People v. Gonzalez (2012) 54 Cal.4th 643, 655 [“Malice will
be implied if the defendant commits a provocative act knowing
that this conduct endangers human life and acts with conscious
disregard of the danger”].) Malice was not imputed based solely
on appellant’s participation in a crime. (See Pen. Code, § 1172.6,
subd. (a).)
I base my conclusion on the jury’s specific mens rea finding
in lieu of relying, as the majority does, on the broader rationale
expressed in People v. Antonelli (2023) 93 Cal.App.5th 712,
review granted October 18, 2023, S281599. (Maj. opn. ante, at
pp. 2-3.) Whether or not all provocative act murderers are
ineligible under Penal Code section 1172.6, the jury finding in
appellant’s case precludes relief under that section.
CERTIFIED FOR PUBLICATION.
CODY, J.
1
David R. Worley, Judge
Superior Court County of Ventura
______________________________
Susan Wolk, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.