Skip to content
Name: People v. Antonelli (2023) 93 Cal.App.5th 712
Case #: B321947
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 07/18/2023

A defendant convicted of provocative act murder is not eligible for Penal Code section 1172.6 relief as a matter of law. In 1991, defendant and two cohorts planned an armed robbery of a party. Members of the party defended themselves and a melee ensued in which one of the cohorts was killed. Defendant was convicted of provocative act murder. In 2020, the Court of Appeal affirmed the denial of defendant’s first section 1170.95 (now 1172.6) petition, finding that the provocative act murder theory survived the changes made to Penal Code sections 188 and 189 by Senate Bill No. 1437. After Senate Bill No. 775 amended section 1172.6, defendant filed a second petition for resentencing, arguing that his murder conviction was pursuant to a “theory under which malice is imputed to a person based solely on that person’s participation in a crime.” The trial court denied the petition at the prima facie stage. Defendant appealed. Held: Affirmed. When the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of provocative act murder. A defendant cannot be convicted of provocative act murder premised on malice imputed to him based solely on his participation in a crime, because a murder conviction under the provocative act doctrine requires proof that the defendant personally harbored the mental state of malice. As a result, SB 775’s amendment of section 1172.6 is of no benefit to defendant.