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Name: People v. Baker-Riley
Case #: B233733
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 07/02/2012
Summary

The acts of peculiar instability and a propensity for gratuitous violence are the kind of provocative acts, committed during the course of a robbery, that support implied malice and a first degree murder conviction. Appellant and an accomplice entered an occupied residence. He taunted, terrorized and toyed with the victims. The occupant pleaded for his life and believing that he was to be killed, pulled out his own gun, fired several times at appellant, but struck and killed the accomplice. The jury was instructed on CALCRIM No. 560 that if the jury found appellant guilty of provocative act murder, the murder would be in the first degree if the People proved: “1. As a result of [appellant’s] provocative act[,] [the accomplice] was killed during the commission of robbery; AND 2. [Appellant] intended to commit robbery when he did the provocative act.” Appellant challenged the instruction and the sufficiency of the evidence to support a first degree murder conviction. Affirmed. The instruction is correct where the underlying felony is robbery and the felony-murder rule applies. Appellant’s egregious conduct was sufficient to support a conviction based on provocative acts because the appellant committed acts beyond those necessary to commit the underlying felony of robbery.