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Name: People v. Briscoe
Case #: A086570
District 1 DCA
Division: 4
Opinion Date: 09/26/2001
Subsequent History: Rev. denied 1/3/02.

Appellant and an accomplice committed a burglary and robbery, during which the accomplice was killed by the victim of the robbery. Appellant was convicted of first degree murder, as well as burglary and robbery, on a provocative act murder theory. Special circumstance and firearm use allegations were also found true. The appellate court here affirmed the first degree murder conviction. The provocative act murder doctrine requires that the perpetrator of a crime intentionally commit an act that is likely to result in death and which prompts the crime victim to kill in response to that conduct. Here, appellant’s act of pistol-whipping the victim of the robbery caused the level of mortal fear which caused the shooting. The fact that the accomplice’s act of taking the victim’s weapon may have been one cause of the shooting does not preclude the possibility that the pistol-whipping was another provocative act resulting in the shooting. Further, the pistol-whipping was a provocative act beyond that inherent in the crime of robbery. The fact that appellant was convicted of murder under an application of the provocative act murder doctrine rather than the felony-murder doctrine was irrelevant to the question of whether the murder qualified as a special circumstances murder on a felony-murder theory. The imposition of the special circumstance does not require a felony-murder conviction on the underlying murder. Further, the imposition of the special circumstance for a provocative act murder is authorized by the statute and does not impose cruel and unusual punishment. Any error which may have been caused by the trial court’s failure to instruct on the lesser included offense of involuntary manslaughter was necessarily harmless. The jury clearly rejected appellant’s mental defense when it found him guilty of robbery and murder, both specific intent crimes, on the first day of deliberations. It was not reasonably probable that there would have been a different outcome if the jury had been given an involuntary manslaughter instruction. There was no error when the trial court instructed the jury that the killing had to be in response to appellant’s provocative act, but not that it had to be a reasonable response to the act. The language of the standard jury instruction properly rejected the “reasonable” language, and therefore the court had no sua sponte duty to give it. The trial court did not err by failing to instruct the jury that they must have unanimity on which provocative act caused the death. Jury unanimity is required only on the issue of whether the defendant is guilty of the charged crime, not on the theory of guilt. The trial court did not err when it instructed the jury that the use of the gun during the robbery might constitute the provocative act beyond that inherent in robbery in an appropriate case. In some cases, use of a gun might not be a provocative act, but in this particular factual situation where the gun was used to pistol-whip the victim, use of a gun might well be the provocative act. Therefore, the trial court appropriately declined to answer the factual question for the jury.