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Name: People v. Concha
Case #: B195197
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 03/18/2008
Subsequent History: rev. granted 7/30/07 (S163811)
Summary

There was sufficient evidence of a provocative act and therefore of first degree murder. The defendants, along with two accomplices attacked and stabbed the victim, Harris, threatening to kill him. Harris, while defending himself, stabbed and killed one of the accomplices, Sanchez. The defendants were convicted of first degree murder of Sanchez under the provocative act theory, as well as the attempted murder of Harris. On appeal, appellants challenged the sufficiency of evidence to support the murder based upon a provocative act theory. They contended that the provocative act doctrine did not apply because there was insufficient evidence that they engaged in any life-threatening conduct involving a high probability that it would provoke a lethal response from Harris. The appellate court rejected the argument, finding that based on the evidence the jury could reasonably have concluded that the conduct in threatening to kill Harris and then assaulting him constituted intentional acts which were likely to cause death and with a high probability of evoking a lethal response. Although appellants may not have known that Harris had a knife, there was substantial evidence that their actions instilled in him a fear for his life, making it likely and foreseeable that he would respond in a lethal manner to save his own life.
The trial court did not err when it instructed on provocative act murder. Appellants also contended that the trial court erred when it instructed the jury on the provocative act theory of murder because the instruction failed to distinguish between the surviving accomplices and the deceased one, Sanchez. They argued that the failure to make that distinction allowed the jury to find them guilty of Sanchez’s killing based solely on Sanchez’s own provocative acts towards Harris. The appellate court rejected the argument, finding that in light of the facts, the jury’s express findings on the verdict form, and the instruction, there was not a reasonable probability that the jury found the defendants liable for Sanchez’s murder based solely on Sanchez’s provocative acts.
The trial court did not err when it excluded evidence of appellant’s blood alcohol level and refused to instruct on voluntary intoxication. Appellant Concha also contended that the trial court erred when it refused evidence of his blood alcohol level and refused to instruct on voluntary intoxication. The appellate court rejected the argument, finding that there was little evidence that Concha was intoxicated at the time of the incident, and no evidence that it might have affected his ability to form specific intent or engage in premeditation or deliberation.