People v. Lee

Filed 9/27/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B323940
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA079332)
v.
KENNY INKWON LEE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed in part,
reversed in part, and remanded with instructions.
Marilee Marshall, 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, Wyatt E. Bloomfield and William H. Shin,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Kenny Inkwon Lee appeals from the denial of his
resentencing petition under Penal Code1 former section 1170.95,
since renumbered as section 1172.6. This is Lee’s second petition;
we affirmed the denial of his first one because he was convicted of
murder under the provocative act doctrine, whereas the version
of former section 1170.95 in effect at the time extended relief only
to those convicted of murder under a felony murder or natural
and probable consequences theory.
Subsequently, the Legislature amended former section
1170.95, expanding it to provide relief to defendants convicted
under any theory in which malice was imputed to them based
solely on their participation in a crime. The Legislature also
amended the statute to encompass defendants convicted of
attempted murder and manslaughter.
Lee filed his second petition under the amended statute,
seeking resentencing for his murder and attempted murder
convictions. He contended, inter alia, that the jury instructions
at his trial permitted him to be convicted solely on the malicious
provocative acts of his confederates in the underlying robbery,
without any findings as to Lee’s mental state. The resentencing
court denied his petition without an evidentiary hearing, finding
Lee was ineligible for relief as a matter of law.
Although recent case law, including our opinion addressing
Lee’s first petition, has held that a conviction for provocative act
murder requires proof that the defendant personally harbored
the mental state of malice, our review of the history of the
provocative act doctrine reveals this was not the case when Lee
was convicted in 1994. Under the then-applicable Supreme Court
1 Unspecified statutory citations are to the Penal Code.
2
authority, a defendant could be convicted for a killing by a third
party provoked by an accomplice’s actions with malice
aforethought, regardless of the defendant’s personal mental state.
Lee’s jury was so instructed. We therefore conclude Lee may
have been convicted under a theory of imputed malice, and thus,
he is not barred as a matter of law from relief under
section 1172.6.
We reject Lee’s contention, however, that he is entitled to
relief for his attempted murder conviction, which did not
implicate the provocative act doctrine nor any theory of imputed
malice.
Accordingly, we affirm in part, reverse in part, and remand
for the resentencing court to issue an order to show cause
regarding Lee’s murder conviction.
BACKGROUND
1. Facts as summarized in our opinion from Lee’s direct
appeal
We quote the factual summary from our 1996 opinion
addressing Lee’s appeal from his conviction. (People v. Lee
(May 28, 1996, B088132 [nonpub. opn.] (Lee I).) As we address in
our Discussion, post, we no longer can rely on factual summaries
from prior appellate opinions to determine eligibility for
resentencing in section 1172.6 proceedings. (See People v. Flores
(2022) 76 Cal.App.5th 974, 988 (Flores).) We provide the
summary solely as context for the issues in the case.
“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
3
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.” (Lee I, supra, B088132.)
“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.” (Lee I, supra, B088132.)
“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.” (Lee I, supra, B088132.)
2. Trial, conviction, and appeal
A jury convicted Lee of the first degree murder of Choi, the
attempted murder of Nolasco, two counts of robbery, and one
count of receiving stolen goods, and found firearm enhancements
true. The trial court sentenced Lee to 28 years to life for the
murder, to run concurrently with a determinate sentence of 16
years 4 months for the other counts.
4
We affirmed the judgment. (Lee I, supra, B088132.) We
rejected, inter alia, Lee’s argument that the evidence was
insufficient to convict him for the murder of his accomplice Choi
under the provocative act doctrine. Lee contended on appeal that
the evidence showed that Choi, not Lee, provoked Nolasco, and
therefore Lee’s conduct was not a proximate cause of Choi’s
death. We concluded the evidence that Nolasco opened fire after
Choi and Lee pointed guns at him established 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.)
3. First resentencing petition and appeal
In February 2019, Lee filed a petition for resentencing
pursuant to former section 1170.95 (Stats. 2018, ch. 1015, § 4),
the predecessor to section 1172.6. The resentencing court denied
the petition without Lee present or represented by counsel. The
resentencing court found Lee’s jury was instructed on provocative
act murder, conviction for which requires a finding of “at least
implied malice,” and therefore Lee was ineligible for relief. The
resentencing court further found Lee’s jury was instructed that it
could not convict Lee of attempted murder unless he had express
malice.
Lee appealed the denial of his petition, and we affirmed.
(People v. Lee (2020) 49 Cal.App.5th 254 (Lee II).) The appellate
record as to that petition did not contain any of the trial or
appellate record pertaining to Lee’s original conviction, including
any jury instructions. (Id. at pp. 258, fn. 2, 260, fn. 3.) At Lee’s
request, we took judicial notice of our 1996 opinion from Lee’s
original appeal. (Id. at p. 258, fn. 2.) We concluded our opinion
5
from the original appeal “provides sufficient information to
resolve this appeal.” (Id. at p. 260, fn. 3.)
In accordance with decisions from this division and others,
we first held that when the resentencing court assessed whether
Lee had made a prima facie showing for relief under former
section 1170.95, the resentencing court could rely on the record of
conviction, including our opinion from Lee’s original appeal. (Lee
II, supra, 49 Cal.App.5th at p. 262.) We also held the
resentencing court could make this prima facie determination
without first appointing counsel. (Ibid.)
As to the merits of Lee’s petition, we held Lee was ineligible
for relief because he had not been convicted under either the
felony-murder rule or the natural and probable consequences
doctrine, but instead, under the provocative act doctrine. (Lee II,
supra, 49 Cal.App.5th at pp. 257–258.) We distinguished
provocative act murder from the other two theories because
provocative act murder “ ‘requires proof that the defendant
personally harbored the mental state of malice . . . .’ ” (Id. at
p. 264.) “Lee therefore cannot show that he ‘could not be
convicted of first or second degree murder because of changes
to Section 188 or 189’ as required for relief under section 1170.95,
subdivision (a)(3).” (Id. at p. 265.)
The Supreme Court granted review of our decision and held
it pending a decision in People v. Lewis. (July 15, 2020,
S262459.) The high court subsequently issued its Lewis decision,
holding that a petitioner under former section 1170.95 was
entitled to appointed counsel upon filing of a facially sufficient
petition, before the resentencing court evaluated the petitioner’s
prima facie showing. (People v. Lewis (2021) 11 Cal.5th 952,
957.) The court further held that when evaluating the prima
6
facie showing, “a trial court should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’
[Citation.]” (Id. at p. 972.) Instead, the resentencing court must
conduct an evidentiary hearing. (See id. at p. 971.)
The Supreme Court then dismissed review in Lee II,
ordering our decision noncitable and nonprecedential to the
extent our decision was inconsistent with Lewis. Because Lewis
did not address the provocative act doctrine, our holding that
Lee’s murder conviction under that theory was ineligible for
resentencing remained intact.
4. Second resentencing petition
The Legislature amended former section 1170.95 effective
January 1, 2022. (Stats. 2021, ch. 551, § 2.) On January 28,
2022, Lee filed a new petition under the amended former section
1170.95, indicating he had been convicted of murder, attempted
murder, or manslaughter and could not presently be convicted
given amendments to the Penal Code. The resentencing court
appointed counsel and directed the district attorney to file a
response. The district attorney opposed the petition, arguing
defendants convicted of provocative act murder remain ineligible
for relief. The district attorney’s filing included a copy of the jury
instructions from Lee’s trial.
Lee’s arguments in reply included that the particular
instructions given to Lee’s jury “d[id] not establish whether
Mr. Lee’s malice was imputed to him based solely on his
participation in the underlying robbery and the provocative act of
a co-perpetrator, or whether [Lee] was himself a provocateur.”
7
After reviewing the parties’ filings, the resentencing court
denied Lee’s petition, concluding Lee was ineligible for
resentencing as a matter of law.2
Lee timely appealed. We requested and received
supplemental briefing regarding the development of the law of
provocative act murder, including whether at the time of Lee’s
conviction, a conviction for provocative act murder required proof
that the defendant personally harbored the mental state of
malice, or whether the defendant could be convicted based on
provocation by an accomplice who acted with express or implied
malice.
DISCUSSION
A. Senate Bill Nos. 1437 and 775
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018,
ch. 1015) amended sections 188 and 189 of the Penal Code to
“eliminate[ ] natural and probable consequences liability for
murder as it applies to aiding and abetting, and [to] limit[ ] the
scope of the felony-murder rule.” (Lewis, supra, 11 Cal.5th at
p. 957.) As significant here, the amended section 188 provides
that, except as stated in the amended section 189 governing
2 It appears from the minute order the resentencing court
made its prima facie determination without holding a hearing.
(See § 1172.6, subd. (c) [“After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for
relief.”].) Lee does not raise this as an issue on appeal.
Regardless, our holding that Lee is entitled to an evidentiary
hearing resolves any prejudice caused by lack of hearing at the
prima facie stage.
8
felony murder, “in order to be convicted of murder, a principal in
a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3).)
The bill also added former section 1170.95, “which creates a
procedure for convicted murderers who could not be convicted
under the law as amended to retroactively seek relief.” (Lewis,
supra, 11 Cal.5th at p. 957.) The original version of former
section 1170.95 provided that, assuming certain conditions were
met, “[a] person convicted of felony murder or murder under a
natural and probable consequences theory may file a petition . . .
to have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts.” (Former § 1170.95,
subd. (a) (Stats. 2018, ch. 1015, § 4.) Lee’s first petition, which
we addressed in Lee II, was filed under this original version of
the statute.
In 2021, the Legislature passed Senate Bill No. 775 (2020–
2021 Reg Sess.) (Stats. 2021, ch. 551), amending former section
1170.95 effective January 1, 2022. In addition to providing relief
for those convicted of felony murder or under the natural and
probable consequences doctrine, the amended statute extended
relief to defendants convicted under any “other theory under
which malice is imputed to a person based solely on that person’s
participation in a crime.” (Former § 1170.95, subd. (a) (Stats.
2021, ch. 551, § 2).) The amended statute also expanded the
categories of offenses eligible for relief to include attempted
murder and manslaughter as well as murder. (Ibid.) The
Legislature later renumbered former section 1170.95 as section
1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.)
9
If a petitioner makes a prima facie showing of relief under
section 1172.6—that is, a showing that the petitioner was
convicted of murder, attempted murder, or manslaughter under a
theory no longer valid under the amended Penal Code—the
resentencing court must issue an order to show cause for an
evidentiary hearing. (§ 1172.6, subd. (c); People v. Hurtado
(2023) 89 Cal.App.5th 887, 891.) At that hearing, the prosecution
must prove beyond a reasonable doubt that the petitioner
remains guilty of murder or attempted murder despite the
amendments to section 188 and 189. (§ 1172.6, subd. (d)(3).)
If, however, the record of conviction or the court’s own
documents indicate the petitioner is ineligible for resentencing as
a matter of law, the resentencing court may deny the petition
without issuing an order to show cause. (See Lewis, supra,
11 Cal.5th at p. 971 [“The 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.”].) In relying on the record of conviction at
the prima facie stage, however, the resentencing court “should
not engage in ‘factfinding involving the weighing of evidence or
the exercise of discretion.’ [Citation.]” (Id. at p. 972.) Such
factfinding, instead, must take place following an evidentiary
hearing. (People v. Harden (2022) 81 Cal.App.5th 45, 51
(Harden).)
“We independently review a trial court’s determination on
whether a petitioner has made a prima facie showing.” (Harden,
supra, 81 Cal.App.5th at p. 52.)
10
B. Lee’s Murder Conviction Does Not Bar Him as a
Matter of Law From Relief Under Section 1172.6
Because the version of former section 1170.95 in effect at
the time of Lee’s first resentencing petition limited relief to those
convicted of felony murder or murder under the natural and
probable consequences doctrine, our opinion in Lee II focused on
whether Lee had been convicted under either of those theories.
We concluded, correctly, that he had not, instead having been
convicted of provocative act murder.
Now, however, section 1172.6 has been expanded to afford
relief to defendants convicted not only for felony murder or
natural and probable consequences murder, but also under any
theory in which malice was imputed to the defendant solely based
on the defendant’s participation in a crime. (§ 1172.6, subd. (a).)
We thus examine whether provocative act murder is such a
theory.
Although we concluded in Lee II that conviction for
provocative act murder “ ‘requires proof that the defendant
personally harbored the mental state of malice’ ” (Lee II, supra,
49 Cal.App.5th at p. 264), our review of the case law indicates
this element is a fairly recent development of the past 15 years or
so. As we explain, and as the Attorney General concedes, at the
time of Lee’s conviction, the law was different, and an accomplice
could be convicted so long as his confederate committed a
malicious and provocative act, regardless of the defendant’s
personal mental state. Thus, Lee’s conviction under the
provocative act doctrine does not, as a matter of law, bar relief
under section 1172.6.
We begin with a summary of the case law developing the
provocative act doctrine.
11
1. Provocative act murder
a. Washington and Gilbert
The provocative act murder doctrine arose from two
Supreme Court cases authored by Chief Justice Traynor and
decided within months of one another, People v. Washington
(1965) 62 Cal.2d 777 (Washington), and People v. Gilbert (1965)
63 Cal.2d 690 (Gilbert), reversed on other grounds in Gilbert v.
California (1967) 388 U.S. 263.
In Washington, the court held that a defendant could not be
convicted of murder under the felony-murder rule for the death of
his accomplice at the hands of an intended robbery victim.
(Washington, supra, 62 Cal.2d at pp. 779, 783.) The court
explained that, as codified in section 189, the felony-murder rule
applies to killings “committed in the perpetration or attempt to
perpetrate” specified crimes.3 (Washington, at p. 780.) The rule
“ascribes malice aforethought” to the perpetrators without the
need to prove “an intent to kill or an intent with conscious
disregard for life to commit acts likely to kill.” (See ibid.)
“When a killing is not committed by a robber or by his
accomplice but by his victim,” however, “malice aforethought is
not attributable to the robber, for the killing is not committed by
him in the perpetration or attempt to perpetrate” the underlying
crime. (Washington, supra, 62 Cal.2d at p. 781.) Thus, concluded
the court, “for a defendant to be guilty of murder under the
felony-murder rule the act of killing must be committed by the
defendant or by his accomplice acting in furtherance of their
common design.” (Id. at p. 783.)
3 The quoted language is materially identical to the
current version of section 189.
12
In reaching this conclusion, the court noted that “[a]
defendant need not do the killing himself . . . to be guilty of
murder,” and could be “vicariously responsible under the rules
defining principals and criminal conspiracies.” (Washington,
supra, 62 Cal.2d at pp. 781–782.) “All persons aiding and
abetting the commission of a robbery are guilty of first degree
murder when one of them kills while acting in furtherance of the
common design.” (Id. at p. 782.)
The court further observed that defendants also could be
found guilty of murder for “initiat[ing] gun battles . . . if their
victims resist and kill. Under such circumstances, ‘the defendant
for a base, antisocial motive and with wanton disregard for
human life, does an act that involves a high degree of probability
that it will result in death’ [citation], and it is unnecessary to
imply malice by invoking the felony-murder doctrine.”
(Washington, supra, 62 Cal.2d at p. 782.) The court did not
address whether this principle might apply to the defendant in
Washington, and instead reversed his murder conviction. (Id. at
pp. 784–785.)
Gilbert involved the gun battle fact pattern contemplated in
Washington. Gilbert, a bank robber, opened fire at police, who
fired back, killing his accomplice, Weaver. (Gilbert, supra,
63 Cal.2d at pp. 696–697.) Gilbert was convicted of Weaver’s
murder, as was another confederate, King, who was not present
at the robbery or gun battle, but who assisted with obtaining
Gilbert’s and Weaver’s getaway vehicle. (Id. at pp. 698, 703.)
Citing Washington, the Supreme Court reversed Gilbert’s
and King’s convictions for Weaver’s murder: “Although the
evidence in the present case would support a conviction of first
degree murder on the ground that Weaver was killed in response
13
to a shooting initiated by Gilbert, the [trial] court did not instruct
the jury on that ground, but gave an erroneous instruction that
defendants could be convicted of murder for that killing without
proof of malice and solely on the ground that they committed a
robbery that was the proximate cause of their accomplice’s
death.” (Gilbert, supra, 63 Cal.2d at pp. 703–704.)
To provide guidance for retrial, the court laid out
“principles [that] may be invoked to convict a defendant of first
degree murder for a killing committed by another.” (Gilbert,
supra, 63 Cal.2d at p. 704.) First, there must be “[p]roof of malice
aforethought.” (Ibid.) The court noted that initiating a gun
battle established implied malice under section 188, thus
satisfying this element. (Gilbert, at p. 704.)
Second, “[t]he killing must be attributable to the act of the
defendant or his accomplice. 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.” (Gilbert, supra, 63 Cal.2d at p. 704.)
Third, “[v]icarious criminal liability. Under the rules
defining principals and criminal conspiracies, the defendant may
be guilty of murder for a killing attributable to the act of his
accomplice. To be so guilty, however, the accomplice must cause
the death of another human being by an act committed in
furtherance of the common design.” (Gilbert, supra, 63 Cal.2d at
p. 705.)
14
Fourth, “[w]hen murder is established under Penal Code
sections 187 and 188 pursuant to the principles defined
above, section 189 may properly be invoked to determine the
degree of that murder. Thus, even though malice aforethought
may not be implied under section 189 to make a killing murder
unless the defendant or his accomplice commits the killing in the
perpetration of an inherently dangerous felony [citations], when a
murder is otherwise established, section 189 may be invoked to
determine its degree.” (Gilbert, supra, 63 Cal.2d at p. 705.)
Although the term was not used in Washington or Gilbert,
later cases have referred to the theory of murder defined by the
above principles as “provocative act murder.” (See, e.g., People v.
Sanchez (2001) 26 Cal.4th 834, 839 & fn. 3; In re Aurelio R.
(1985) 167 Cal.App.3d 52, 57.)
b. Accomplice liability for provocative act murder
after Gilbert
Although Gilbert established that provocative act murder,
unlike felony murder, requires proof of malice aforethought,
under that case it was sufficient that only the provocateur him-
or herself—the perpetrator who initiates the gun battle, for
example—acts with that mental state. The nonprovocateur
accomplices would then be equally culpable “[u]nder the rules
defining principals and criminal conspiracies.” (Gilbert, supra,
63 Cal.2d at p. 705.) This is clear from Gilbert’s articulation of
the provocative act murder rule itself, which imposes liability on
the defendant when either “the defendant or his accomplice”
commits a life-threatening act “with a conscious disregard for
life.” (Id. at p. 704.) Further, a “defendant may be guilty of
murder for a killing attributable to the act of his accomplice” if
15
the accomplice’s act is “committed in furtherance of the common
[criminal] design.” (Id. at p. 705.)
The Supreme Court confirmed in subsequent cases that a
defendant could be guilty of provocative act murder based on the
malicious and provocative acts of his confederates, without a
showing that the defendant himself harbored malice. In Taylor v.
Superior Court (1970) 3 Cal.3d 578 (Taylor I), overruled on other
grounds by People v. Antick (1975) 15 Cal.3d 79 (Antick), liquor
store employees shot at two robbers, Smith and Daniels, killing
Smith. (Taylor I, at p. 581.) A third accomplice, Taylor, sat
outside in the getaway car, and was not present during the
robbery or the gun battle. (Ibid.) Taylor and Daniels were
charged with Smith’s murder. (Id. at p. 580.) The trial court
denied Taylor’s motion to set aside the murder charge, and he
sought a writ of prohibition from the Supreme Court. (Id. at
pp. 580–581.)
The Supreme Court held the murder charge was proper.
(Taylor I, supra, 3 Cal.3d at p. 585.) Citing Gilbert and
Washington, the court stated that “if [Taylor] were an accomplice
to the robbery, he would 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.”
(Id. at pp. 582–583, fn. omitted.) The court concluded the
evidence from the preliminary hearing “discloses acts of
provocation on the part of Daniels and Smith from which the
trier of facts could infer malice,” and therefore “the evidence
supported the magistrate’s finding that reasonable and probable
cause existed to charge [Taylor] with first degree murder.” (Id. at
pp. 584–585.) The court did not discuss Taylor’s individual
16
mental state or whether any of his own actions demonstrated
malice.
Taylor’s case returned to the Supreme Court following his
conviction. (People v. Taylor (1974) 12 Cal.3d 686, 688, fn. 2
(Taylor II), overruled on other grounds by People v. Superior
Court (Sparks) (2010) 48 Cal.4th 1 (Sparks).) The Supreme Court
summarized its earlier Taylor I holding, stating that Taylor
“might . . . be found guilty [of Smith’s murder] on a theory of
vicarious liability if it independently appeared that his
confederates entertained malice aforethought [citation].”
(Taylor II, at p. 691, italics added.) Taylor’s accomplice Daniels
had been acquitted in his separate trial, however. The court thus
held the prosecution was collaterally estopped from basing
Taylor’s criminal liability on Daniels’s alleged conduct, because
the jury necessarily must have found Daniels’s and his
confederate, Smith’s, acts were not “sufficiently provocative to
support a finding of implied malice.” (Id. at pp. 689, 691–692.)4
In Antick, supra, 15 Cal.3d 79, the Supreme Court held
when the deceased himself is the sole provocateur, his
nonprovocateur accomplice cannot be liable for murder because
the provocateur did not cause the death of another but only his
own death. (Id. at p. 91.) In dicta, however, the court provided
an example demonstrating when a nonprovocateur accomplice
would be liable for murder. The court posited a robbery
committed by three perpetrators, the first of whom initiates a
gun battle that results in the death of the second perpetrator.
4 Sparks overruled Taylor II, holding “a verdict regarding
one defendant has no effect on the trial of a different defendant,”
and “[n]onmutual collateral estoppel does not apply to verdicts in
criminal cases.” (Sparks, supra, 48 Cal.4th at p. 5.)
17
(Id. at p. 88.) The court explained that the first robber has
“commit[ted] a homicide,” because his conduct initiating the gun
battle both established malice and was the proximate cause of the
second robber’s death. (Ibid.) Further, because “the robber
initiating the gun battle is acting in furtherance of the common
design of all three participants, the third robber as well may be
held vicariously liable for the murder.” (Id. at p. 89.)
In People v. Caldwell (1984) 36 Cal.3d 210, the Supreme
Court rejected an argument that provocative act murder, like
felony murder, “ ‘impos[ed] malice as to one crime because of [a]
defendant’s commission of another . . . .’ [Citations.]” (Id. at
pp. 222–223.) The court nonetheless reaffirmed that provocative
act murder required that only one of several cofelons act with
malice. The court explained, “[t]he proper focus on the individual
culpability of accomplices is retained by the requirement that one
or more of them engage in conduct” demonstrating implied
malice. (Id. at p. 223, italics added.) “Only where one or more of
the co-felons has thus exhibited a culpable, murderous state of
mind does a resulting death predicate liability for murder.”
(Ibid., italics added.)
Court of Appeal decisions establish that at the time of Lee’s
conviction in 1994, and for some years after, the principles of
nonprovocateur liability first established in Gilbert and developed
in Taylor I and Antick remained good law, including that a
nonprovocateur defendant could be convicted of murder based on
a finding that his provocateur accomplice acted with malice
aforethought.
For example, in People v. Mai (1994) 22 Cal.App.4th 117(Mai), disapproved on other grounds by People v. Nguyen (2000)
24 Cal.4th 756, the court explained that under the provocative
18
act doctrine, “it is a life-endangering act by a defendant or
surviving cofelon that supplies the requisite implied malice to
support a murder conviction.” (Mai, at p. 125, italics added.)
Mai favorably cited Taylor I, and explained, “[E]ven when the
defendant on trial did not participate in the provocative act, he or
she is nevertheless vicariously responsible for the surviving
accomplice’s conduct and may be convicted of murder in the death
of the accomplice who is killed.” (Id. at pp. 127–128 & fn. 9.) Mai
posited a hypothetical akin to that of Antick, in which a getaway
driver, despite having “engaged in no life-endangering conduct,”
was “vicariously liable” when a co-perpetrator opened fire on a
security guard, who shot back and killed a third accomplice. (Id.
at pp. 127–128, fn. 9.)
People v. Garcia (1999) 69 Cal.App.4th 1324 similarly
relied on Taylor I for the proposition “that a nonprovocateur
defendant could be charged with murder under the provocative
act theory based on vicarious liability.” (Garcia, at p. 1331, fn. 4.)
c. Concha, Gonzalez, and Mejia
People v. Concha (2009) 47 Cal.4th 653 (Concha) was the
first case in which our Supreme Court discussed provocative act
murder in terms of the individual mental states of multiple
surviving accomplices, in that case to analyze if, and under what
conditions a defendant could be liable for willful, deliberate, and
premeditated provocative act murder. In Concha, three men,
Concha, Hernandez, and Sanchez, attempted to murder a fourth
man, Harris. (Id. at p. 658.) Harris fought back and stabbed
Sanchez to death. (Ibid.) The jury convicted Concha and
Hernandez of the first degree attempted murder of Harris, and
the first degree murder of Sanchez under the provocative act
doctrine. (Id. at p. 659.) The question before the Supreme Court
19
was whether a killing by a third party in response to an
attempted murder could support a first degree, as opposed to
second degree murder conviction of the surviving perpetrators.
(Id. at pp. 658, 660.)
The Supreme Court concluded yes, so long as the jury found
“that the individual defendant personally acted willfully, and
with deliberation and premeditation during the attempted
murder.” (Concha, supra, 47 Cal.4th at p. 666.) The court noted
that, under section 189, murder is of the second degree except
under specified circumstances, including when the killing is
“ ‘willful, deliberate, and premeditated.’ ”5 (Concha, at pp. 661–
662.) The court also 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 as well.’ ” ’ [Citations.]” (Id. at p. 662.) “[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.” (Id. at p. 665.)
The court stated, “[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
5 Murder also is elevated to the first degree when
committed in the perpetration or attempt to perpetrate specified
felonies. (§ 189, subd. (a).) Attempted murder is not one of the
specified felonies. (Ibid.; Concha, supra, 47 Cal.4th at p. 661,
fn. 2.)
20
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.” (Concha, supra,
47 Cal.4th at pp. 663–664.)
The court concluded the trial court had erred by failing to
instruct the jury “that for a defendant to be found guilty of first
degree murder, he personally had to have acted willfully,
deliberately, and with premeditation when he committed the
attempted murder.” (Concha, supra, 47 Cal.4th at p. 666.) The
court remanded the case to the Court of Appeal for a
determination whether the instructional error was prejudicial.6
(Concha, at p. 666.)
6 The fact the jury also convicted the defendants of first
degree attempted murder did not resolve the issue because, as
the Supreme Court explained, first degree attempted murder, as
opposed to first degree murder, does not require proof that each
individual defendant acted willfully, deliberately, and with
premeditation. (Concha, supra, 47 Cal.4th at p. 665.) “For such
an attempted murder, although each defendant must have the
intent to kill, a defendant may be vicariously liable for the
21
Although Concha concerned the circumstances in which a
provocative act murder could be elevated to first degree murder,
its language indicated more broadly that a murder conviction,
whether first or second degree, requires proof of a defendant’s
individual mental state. (See Concha, supra, 47 Cal.4th at p. 663
[“The defendant or an accomplice must proximately cause an
unlawful death, and the defendant must personally act with
malice”]; id. at p. 665 [“for murder, a defendant cannot be held
vicariously liable for the mens rea of an accomplice”]).
In People v. Gonzalez (2012) 54 Cal.4th 643 (Gonzalez), our
high court cited Concha for the broader principle that all
provocative act murder requires proof that the defendant
personally harbored malice: “A murder conviction under the
provocative act doctrine . . . requires proof that the defendant
personally harbored the mental state of malice, and either the
defendant or an accomplice intentionally committed a provocative
act that proximately caused an unlawful killing.” (Gonzalez, at
p. 655, citing Concha, supra, 47 Cal.4th at pp. 660–661.)
Similarly, in People v. Mejia (2012) 211 Cal.App.4th 586,
our colleagues in Division Eight wrote: “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 he either
causes the death through his provocative act or aids and abets in
the underlying crime the provocateur who causes the death.” (Id.
at p. 603, citing Concha, supra, 47 Cal.4th at pp. 660, 662–663.)
premeditated and deliberate component of the mens rea of an
accomplice.” (Id., citing People v. Lee (2003) 31 Cal.4th 613, 626.)
22
2. Lee was convicted of murder under a theory in
which malice could have been imputed to him
based solely on his participation in a robbery
As summarized above, until Concha, the Supreme Court
had not separated out the mens rea of individual defendants in
provocative act murder cases. Instead, the case law 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. (Antick, supra, 15 Cal.3d at p. 89;
Taylor I, supra, 3 Cal.3d at pp. 582–583; Gilbert, supra, 63 Cal.2d
at pp. 704–705.)
This was the law in effect at the time of Lee’s conviction in
1994, 15 years before Concha. That law is reflected in the
instructions given to Lee’s jury, which stated, “A homicide
committed during the commission of a crime by a person who is
not a perpetrator of such crime, in a reasonable response to an
intentional provocative act likely to cause death by a perpetrator
of the crime who is not the homicide victim, is considered in law
to be an unlawful killing by the perpetrators of the crime. Malice
is implied when the provocative life-threatening act was
deliberately performed with knowledge of the danger to and with
conscious disregard for human life.”
The instruction continued, in relevant part, “In order to
prove such crime, each of the following elements must be proved:
[¶] 1. The crime of robbery was committed; [¶] 2. During the
commission of such crime, defendant or another surviving
perpetrator also intentionally committed a provocative life-
threatening act which act was not necessary to the commission of
the robbery; [¶] 3. The provocative life-threatening act was
deliberately performed with knowledge of the danger to and with
23
conscious disregard for human life; and [¶] 4. Such act was
sufficiently provocative and life threatening that another person
not a perpetrator of the crime of robbery in a reasonable response
thereto killed a perpetrator of such crime, and [¶] 5. The
provocative life-threatening act was a proximate cause of the
accomplice’s death.” (Italics added.)
Consistent with Gilbert, Taylor I, and Antick, these
instructions did not require the jury to find that Lee personally
acted with malice. Rather, the instructions allowed the jury to
convict Lee of murder if “[t]he crime of robbery was committed,”
and “[d]uring the commission of such crime, . . . another
surviving perpetrator . . . intentionally committed a provocative
life-threatening act . . . [¶] . . . with knowledge of the danger to
and with conscious disregard for human life.” Read this way, the
instruction allowed a conviction without a finding as to Lee’s
personal mental state.
It is therefore conceivable that the jury found Lee guilty of
murder not based on his own malicious conduct, but on that of a
surviving co-perpetrator. In so doing, the jury would have
imputed malice to Lee solely based on his participation in the
underlying robbery. Although permissible in 1994, Lee “could not
presently be convicted of murder” on this basis in light of Senate
Bill No. 1437. (§ 1172.6, subd. (a)(3); § 188, subd. (a)(3) [“Malice
shall not be imputed to a person based solely on his or her
participation in a crime.”].) Thus, Lee has made a prima facie
showing of eligibility for resentencing. The resentencing court
must hold an evidentiary hearing to determine if, beyond a
reasonable doubt, Lee is guilty of murder under the law as
amended by Senate Bill No. 1457. (§ 1172.6, subd. (d)(3).)
24
We recognize that under the facts as summarized in Lee I,
the only two provocateurs were Lee and his deceased co-
perpetrator Choi. There is no indication in that opinion that the
other surviving perpetrator, Woo, committed any provocative act.
After Senate Bill No. 775, however, “the factual summary in an
appellate opinion is not evidence that may be considered at an
evidentiary hearing to determine a petitioner’s eligibility for
resentencing.” (Flores, supra, 76 Cal.App.5th at p. 988; § 1172.6,
subd. (d)(3) [limiting reliance on prior appellate opinions to “the
procedural history of the case”].) By logical extension, the factual
summary also may not be used to determine a petitioner’s
eligibility at the prima facie stage. (See Flores, at p. 988 [“If [the
factual summary in an appellate opinion] may not be considered
at an evidentiary hearing to determine a petitioner’s ultimate
eligibility for resentencing, we fail to see how such evidence could
establish, as a matter of law, a petitioner’s ineligibility for
resentencing at the prima facie stage”].)
We further acknowledge that, in addition to Lee II, several
courts, including this division, have held that defendants
convicted of provocative act murder were ineligible as a matter of
law for resentencing under former section 1170.95 or
section 1172.6. (People v. Antonelli (2023) 93 Cal.App.5th 712,
715 (Antonelli); People v. Mancilla (2021) 67 Cal.App.5th 854, 859
(Mancilla); People v. Johnson (2020) 57 Cal.App.5th 257, 271
(Johnson); People v. Swanson (2020) 57 Cal.App.5th 604, 608
(Swanson).)
We note that all but one of those cases were decided before
Senate Bill No. 775 expanded relief under then section 1170.95
beyond those convicted of felony murder or murder under the
natural and probable consequences doctrine. Thus, to the extent
25
those pre-Senate Bill No. 775 holdings were based on the fact
that a defendant convicted of provocative act murder had not
been convicted under felony murder or natural or probable
consequences theories, those cases, like Lee II, were correctly
decided.
To the extent those opinions suggest that a jury convicting
a defendant of provocative act murder has necessarily found that
the defendant personally harbored a mental state of malice, we
disagree as to convictions predating Concha.7 The opinions relied
on Gonzalez, Concha, and/or Mejia for the proposition that
provocative act murder requires proof that the defendant
personally harbored a mental state of malice. (Antonelli, supra,
93 Cal.App.5th at p. 720; Mancilla, supra, 67 Cal.App.5th at
p. 866; Johnson, supra, 57 Cal.App.5th at p. 271; Swanson,
supra, 57 Cal.App.5th at p. 613.) The cases do not address the
earlier case law imputing malice to nonprovocateurs based on the
malicious acts of their confederates, or discuss how the law has
shifted after Concha. Those cases therefore provide no basis to
question our analysis of pre-Concha case law.
The Attorney General in his supplemental brief concedes
that “[a]t the time of [Lee’s] conviction in 1994, the case law on
provocative act murder did not clearly require that
nonprovocateur accomplices in a provocative act murder
personally harbor the mental state of malice as long as any of the
accomplices (i.e., the provocateur) acted with express or implied
malice.” The Attorney General nonetheless argues defendants
convicted of provocative act murder fall outside the ambit of
7 We express no opinion whether a defendant convicted of
provocative act murder post-Concha is categorically barred from
relief under section 1172.6, an issue that is not before us.
26
section 1172.6, which requires that “[t]he petitioner could not
presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019,”
that is, changes to the Penal Code enacted through Senate Bill
No. 1437. (§ 1172.6, subd. (a)(3).) The Attorney General
contends it was Concha and its progeny that changed the mental
state requirement of provocative act murder, not Senate Bill No.
1437, and therefore section 1172.6 does not apply. In support,
the Attorney General cites Antonelli, which reached a similar
conclusion, stating, “Before the amendment [under Senate Bill
No. 1437], the law of provocative act murder required that the
defendant personally harbor malice. (Gonzalez, supra, 54 Cal.4th
at p. 655 . . . .) It still does.” (Antonelli, supra, 93 Cal.App.5th at
p. 721.)
The question presented by section 1172.6, subdivision (a)(3)
is whether, had the amendments to Penal Code sections 188 and
189 existed at the time of the defendant’s conviction, the
defendant could have been convicted of murder or attempted
murder. Section 188’s bar on imputed malice based solely on
participation in a crime would prohibit conviction for provocative
act murder of a nonprovocateur defendant absent proof of
personal malice. Provocative act murder convictions therefore
fall within the criteria of section 1172.6 to the extent that before
Concha, a provocative murder conviction could have been based
on a theory of imputed malice.
To conclude otherwise would thwart the intent of section
1172.6. The Legislature has declared that imputed malice based
on participation in a crime is no longer a valid basis for murder
or attempted murder convictions, absent certain exceptions for
felony murder. Through section 1172.6, the Legislature created
27
an avenue of relief for anyone convicted on the basis of imputed
malice, even decades before section 1172.6 was enacted. To deny
resentencing to individuals simply because case law in the
interim also has rejected imputed malice under certain theories
would be contrary to the broad relief embodied in section 1172.6.8
The Attorney General further argues we should stand by
our holding in Lee II as law of the case. “ ‘The law of the case
doctrine states that when, in deciding an appeal, an appellate
court “states in its opinion a principle or rule of law necessary to
the decision, that principle or rule becomes the law of the case
and must be adhered to throughout its subsequent progress, both
in the lower court and upon subsequent appeal . . . , and this
although in its subsequent consideration this court may be
clearly of the opinion that the former decision is erroneous in that
particular.” ’ [Citation.]” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 374, fn. 6.) “Because the rule is merely one
of procedure and does not go to the jurisdiction of the court,”
however, “the doctrine will not be adhered to where its
application will result in an unjust decision, e.g., where there has
been a ‘manifest misapplication of existing principles resulting in
substantial injustice’ [citation], or the controlling rules of law
8 In a recent decision, Division One of the Fourth District
Court of Appeal held that a defendant convicted under an
erroneous jury instruction allowing imputation of malice was not
entitled to section 1172.6 relief because he could have challenged
the erroneous instruction on appeal from his conviction. (People
v. Burns (Sept. 21, 2023, D080779) _____ Cal.App.5th ______
[2023 WL 6157410].) Burns is not instructive here, where Lee’s
jury instructions on provocative act murder were correct under
the law at the time, and therefore he had no basis to challenge
them on appeal.
28
have been altered or clarified by a decision intervening between
the first and second appellate determinations.” (People v. Stanley
(1995) 10 Cal.4th 764, 787.) The doctrine also does not apply if
there is a “ ‘significant change in circumstances’ ” since the
earlier appellate decision. (People v. Boyer (2006) 38 Cal.4th 412,
441.)
Senate Bill No. 775, which expanded former section
1170.95 to include defendants convicted under any theory in
which malice is imputed based on their participation in a crime,
modified the controlling rules of law and constitutes a significant
change in circumstances.
Before that expansion, we had no reason to analyze the
history of provocative act murder beyond concluding that it
required proof of malice, thus distinguishing it from felony
murder and natural and probable consequences murder. After
Senate Bill No. 775, we must look further to determine whether
the defendant convicted of provocative act murder personally
harbored malice, or had that malice imputed to him based on the
malicious acts of his confederate. Thus, the doctrine of law of the
case does not apply.9
9 Antonelli relied in part on law of the case, based on its
conclusion that provocative act murder always included a
personal malice element and therefore was ineligible for relief
even under the expanded former section 1170.95. (Antonelli,
supra, 93 Cal.App.5th at pp. 719–720.) As we have explained, we
disagree with Antonelli that provocative act murder has always
had a personal malice requirement, and therefore we disagree
that we are bound by law of the case after Senate Bill No. 775.
29
3. The prosecutor’s closing argument at trial
does not establish as a matter of law that Lee
was convicted under a valid theory
The Attorney General argues in his supplemental brief that
when Lee’s jury instructions are “considered together with the
prosecutor’s closing argument,” it is evident “that appellant
himself was alleged to be a provocateur who acted with malice,”
and therefore that Lee was convicted under a still-valid theory.10
As we explain, although we agree the prosecutor in closing
proceeded on a theory that Lee himself committed a provocative
act, we cannot conclude the jury necessarily convicted him on
that basis.
a. Additional background
The prosecutor gave her closing argument before the trial
court had instructed the jury on the offenses, including murder.
In summarizing the anticipated instruction for provocative act
murder, the prosecutor stated the jury must find “that this
defendant intentionally committed a provocative life threatening
act . . . deliberately performed with knowledge of its danger and
with a conscious disregard for human life.” Further, the jury
10 We grant the Attorney General’s request that we take
judicial notice of the fourth volume of the reporter’s transcript
from the record of Lee’s original appeal, which contains the
prosecutor’s closing argument at Lee’s trial. (Evid. Code, §§ 452,
subd. (d), 459, subd. (a).) As the Attorney General notes, the
record in this appeal does not indicate that the resentencing
court considered or relied on the closing arguments when denying
Lee’s resentencing petition.
30
must find “this defendant’s provocative act was a substantial
factor in the death of victim Choi.”
The prosecutor then addressed whether Lee “intentionally
commit[ted] a provocative life threatening act,” and argued that
“pulling a gun and pointing [it] at somebody” satisfied this
requirement.
The prosecutor continued, “[W]as the act deliberately
performed with the knowledge of the danger and with a conscious
disregard for human life? . . . [I]f he intentionally pulled the gun
and pointed it, you can bet your boots that he did it on purpose, it
was deliberate, and that he did it and didn’t care what would
happen to Agustin Nolasco. [¶] . . . The question is when
somebody pulls a gun, a reasonable person and points it at
somebody, do you know that someone could get hurt if you do
that? Yeah. That’s a conscious disregard for human life. [¶] Did
he do it on purpose? Yeah. Maybe it was a reflex reaction, but
you know you’re doing it when your hand goes up and the gun is
extended.”
The prosecutor asked the rhetorical question, “What did
Agustin Nolasco do when this defendant and the victim [Choi]
drew their guns? He reached down for his gun immediately and
came back up. . . . But for this defendant pointing his gun,
Agustin Nolasco wouldn’t have gone for his gun.”
The prosecutor emphasized to the jury that they could not
consider victim Choi’s actions, and “[i]f Charlie Choi was the only
person that had done something [provocative], we wouldn’t be
talking about murder.” After further argument, the prosecutor
stated, “[B]ut you have to remember that there were two people
pulling guns.” Later, the prosecution again stated, “[B]ut for this
31
defendant and Charlie Choi pulling guns simultaneously, . . .
[Nolasco] wouldn’t have gone for his gun.”
Lee’s counsel in closing challenged the evidence that Lee
pointed a gun at Nolasco, or that Nolasco opened fire because Lee
had a gun in his hand. Counsel also disputed that pointing a gun
was in all instances an act likely to cause death, or that Lee, if he
did point a gun, thought it would provoke a lethal response.
b. Analysis
The Attorney General contends, based on the prosecutor’s
closing argument, “that the sole theory of murder offered to the
jury was that [Lee] must have personally committed a
provocative act, and thus the jury had to find that he personally
harbored malice. A nonprovocateur theory was not offered.
Therefore, the trial court properly found that appellant was
ineligible for resentencing relief as a matter of law under
section 1172.6.”
We acknowledge that the prosecutor in closing proceeded
solely on the theory that Lee personally committed a provocative
act, with no suggestion that he was liable because of a
provocative act committed by someone else. The jury
instructions, however, were not so limited, and permitted the jury
to convict Lee based on the act of a surviving accomplice. We
do not know if, based on the evidence, the jury might have
convicted Lee on this latter theory, because we do not have the
full record before us. We therefore are unwilling to conclude,
based solely on the prosecution’s closing argument and summary
of the evidence, that the jury necessarily convicted Lee as a
provocateur as opposed to a nonprovocateur accomplice.
The Attorney General cites People v. Estrada (2022)
77 Cal.App.5th 941 (Estrada) as an example of a reviewing court
32
relying in part on the prosecution’s closing argument to conclude
a petitioner was ineligible for relief under former section 1170.95.
Estrada is distinguishable and does not undercut our conclusion.
The court in defendant Estrada’s original trial, when giving
a general instruction on aiding and abetting liability, erroneously
inserted bracketed language referencing the natural and
probable consequences doctrine, although the prosecutor was not
proceeding on that theory. (Estrada, supra, 77 Cal.App.5th at
p. 948.) On this basis, as well as statements in the prosecutor’s
closing argument, Estrada argued he might have been convicted
under a now-invalid theory and was eligible for relief under
former section 1170.95. (Id. at p. 946.)
Our colleagues in Division Eight rejected this argument for
several reasons. First, the court noted that in Estrada’s direct
appeal, the court held that, based on the jury instructions, the
jury necessarily found he had acted willfully and with intent to
kill, a finding incompatible with the natural and probable
consequences theory. (Estrada, supra, 77 Cal.App.5th at
pp. 945–946.)
Second, the court in Estrada’s original trial never provided
the complete instructions on natural and probable consequences,
only the erroneous language inserted into the general instruction
on aiding and abetting liability. (Estrada, supra, 77 Cal.App.5th
at p. 947.) Given other, proper instructions on direct aiding and
abetting liability, as well as the holding in Estrada’s direct
appeal that he acted with intent to kill, the appellate court
stated, “[W]e do not find that the [erroneous] language alone is
sufficient to find that the jury was instructed on a natural and
probable consequences theory.” (Ibid.)
33
The appellate court also cited Supreme Court authority
holding that an erroneous natural and probable consequences
instruction is harmless when “the prosecutor never requested
instructions identifying and describing the target offense, . . . and
the prosecutor argued to the jury that the defendants intended to
commit all the charged offenses, so there was no reasonable
likelihood the jury misunderstood or misapplied the law.”
(Estrada, supra, 77 Cal.App.5th at p. 948, citing People v. Letner
and Tobin (2010) 50 Cal.4th 99, 183–184.) In Estrada’s original
trial, as in Letner and Tobin, the prosecution had not requested
instructions regarding target offenses, and had argued Estrada
had intent to commit all charged offenses. (Estrada, at p. 948.)
Finally, the appellate court rejected Estrada’s argument that the
prosecution’s closing argument implicitly urged a natural and
probable consequences theory. (Id. at pp. 948–949.)
Estrada does not help the Attorney General because the
Court of Appeal in that case did not rely solely on the prosecutor’s
closing argument to conclude Estrada had been convicted under a
valid theory. First and foremost, there had been a prior judicial
finding in Estrada’s direct appeal that he had acted with intent to
kill. Second, Estrada’s jury had never been fully instructed on
the natural and probable consequences doctrine, but received
only an erroneous fragment, the significance of which was
weakened by other, correct instructions. In addition, the
prosecutor never argued the natural and probable consequences
theory to the jury. The appellate court concluded “there was no
reasonable likelihood the jury misunderstood or misapplied the
law.” (Estrada, supra, 77 Cal.App.5th at p. 948.)
In contrast, here the jury was fully and correctly instructed
on provocative act murder according to the law at the time,
34
including that Lee could be held liable based on the mental state
of a surviving accomplice. There was no prior judicial finding
that the jury instructions necessarily required the jury to convict
Lee based on his own provocative act, only a finding that the
evidence was sufficient to support such a theory. Thus, unlike in
Estrada, the jury instructions alone do not compel the conclusion,
or indeed even suggest, that he was convicted based on his own
provocative act. Given the clear and (at the time) correct
instructions allowing conviction under a now-invalid theory, we
cannot conclude on the limited record before us that the
prosecutor’s closing argument overrode those instructions.
C. Lee Is Not Eligible For Relief On His Attempted
Murder Conviction
In his opening brief, Lee states, “It is undisputed that
appellant was convicted of murder and attempted murder under
the provocative act theory of culpability.” Lee does not otherwise
address his attempted murder conviction in his opening brief. To
the extent Lee is suggesting he is entitled to relief under section
1172.6 for the attempted murder conviction because he was
convicted under the provocative act theory, we disagree.
Setting aside whether there is such a thing as attempted
provocative act murder, a proposition for which Lee cites no
authority, the record makes clear Lee was not convicted under
that theory. The procedural history as reflected in Lee I indicates
Lee was convicted of the attempted murder of Nolasco, the
security guard. Lee’s jury was instructed on the following
elements for that crime: “1. A direct but ineffectual act was done
by one person towards killing another human being; and [¶] 2.
The person committing such act harbored express malice
aforethought, namely, a specific intent to kill unlawfully another
35
human being.” Absent from this instruction is any language
regarding a third party responding with lethal force to
provocation by Lee or an accomplice, as would be required under
the provocative act doctrine.
In his reply brief, Lee appears to make a new argument
that he was convicted of attempted murder as an aider and
abettor, and that certain instructions could have led the jury to
convict him without a finding that he acted with malice. This
argument is forfeited for failure to raise it in the opening brief.
(People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
The argument also fails on the merits. Lee’s jury was
instructed, “The persons concerned in the commission of a crime
who are regarded by law as principals in the crime thus
committed and equally guilty thereof include: [¶] 1. Those who
directly and actively commit the act constituting the crime, or [¶]
2. Those who aid and abet the commission of the crime.” The
instruction then explained, “A person aids and abets the
commission of a crime when he or she, [¶] (1) with knowledge of
the unlawful purpose of the perpetrator and [¶] (2) with the
intent or purpose of committing, encouraging, or facilitating the
commission of the crime, by act or advice aids, promotes,
encourages or instigates the commission of the crime.”
As discussed above, the attempted murder instruction
required that the perpetrator of the attempted murder “harbor[ ]
express malice aforethought, namely, a specific intent to kill
unlawfully another human being.” Assuming arguendo the jury
convicted Lee not as a direct perpetrator, but for aiding and
abetting an attempted murder (for example, Choi’s firing at
Nolasco), the jury necessarily found Lee had “knowledge of the
unlawful purpose of the perpetrator,” that being “a specific intent
36
to kill unlawfully another human being,” and aided and abetted
“with the intent or purpose” of committing the crime. Thus, the
jury necessarily found Lee intended to aid and abet an unlawful
killing, that is, that Lee had an intent to kill, the very definition
of express malice. (§ 188, subd. (a)(1).)11
Lee cites cases in which courts took issue with jury
instructions for aiding and abetting second degree implied malice
murder and first degree lying-in-wait murder, holding those
instructions potentially permitted juries to convict aiders and
abettors without a finding of malice. (People v. Langi (2022)
73 Cal.App.5th 972, 982–983; People v. Maldonado (2023)
87 Cal.App.5th 1257, 1266.) Lee does not explain how the jury
instructions in his case are analogous to those in Langi and
Maldonado such that those decisions are instructive. We note in
Langi and Maldonado, the concern centered on the fact that the
direct perpetrator of an implied malice murder or lying-in-wait
murder need not harbor an intent to kill. (Langi, at p. 982;
Maldonado, at p. 1266.) That concern is not present under the
instructions given in Lee’s case, which required the perpetrator of
the attempted murder to “harbor[ ] express malice aforethought,
namely, a specific intent to kill . . . .”
11 The jury’s finding that Lee had intent to kill as to the
attempted murder does not necessarily mean the jury found he
harbored malice as to the provocative act murder. The attempted
murder could have taken place after Nolasco shot Choi, for
example if Lee fired at Nolasco as Lee and Woo fled, as described
in Lee I.
37
DISPOSITION
The order denying Kenny Inkwon Lee’s petition under
Penal Code former section 1170.95 is affirmed as to the
conviction for attempted murder and reversed as to the conviction
for murder. The matter is remanded, and the resentencing court
is directed to issue an order to show cause under subdivision (c)
of Penal Code section 1172.6 as to the murder conviction. The
resentencing court shall then hold an evidentiary hearing under
Penal Code section 1172.6, subdivisions (d)(1) and (3), unless the
parties waive the hearing and stipulate to Lee’s eligibility for
resentencing (id., subd. (d)(2)).
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
38