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Name: People v. Cunningham (2024) 101 Cal.App.5th 678
Case #: B323640
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 04/23/2024

Provocative act murder remains a viable theory of culpability under Penal Code section 188, subdivision (a)(3). Cunningham, who was convicted of provocative act murder, unsuccessfully sought resentencing under section 1172.6. He argued that provocative murder is based upon the imputation of malice and is no longer a valid theory of murder liability. Held: Affirmed. The Legislature’s failure to mention “provocative murder” when revising section 188 reflects that it did not intend to invalidate this theory. Notwithstanding the prosecutor’s argument that Cunningham “started the ball rolling,” the jury was only instructed on the elements of “provocative murder.” This remains a valid theory. [Editor’s Notes: (1) The concurring opinion found the instruction given (CALJIC No. 8.12) required a finding that defendant committed an “intentional provocative act” during a robbery. This mandated a determination that defendant “deliberately performed [the act] with knowledge of the danger to, and with conscious disregard for human life,” i.e., that he acted with implied malice. (2) Whether the “provocative murder doctrine” survived recent legislative enactments is pending in People v. Antonelli (2023) 93 Cal.App.5th 712, rev. granted Oct. 18, 2023, S281599.]