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Name: People v. Gonzalez
Case #: D055698
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/09/2010
Subsequent History: rev. granted 3/23/11 (S189856)

Substantial evidence supported appellant’s first degree murder conviction under the provocative act murder doctrine. Appellant and her boyfriend, Morales, drove to a location where they anticipated Canas would appear, They intended to beat him up for harassing appellant’s brother, Ricardo. Ricardo’s brother, Jorge, was with them and saw a rifle in the back of the car. Morales was not acquainted with Canas. When Canas arrived, Morales started throwing punches and then lunged at Canas with a knife, cutting his face. Canas threw Morales to the ground. Morales got up and ran toward appellant who handed the rifle to him, cocking it first and pointing it at Canas. Canas ran at Morales and they wrestled for the rifle. Canas was shot three times but then got the rifle from Morales. As Morales and appellant ran away, Canas shot at them. Morales was hit and later died. Appellant was convicted of first degree murder of Morales under a provocative act murder theory, and attempted murder of Canas. The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and where a victim of the underlying crime responds with privileged lethal force by shooting back and killing the perpetrator’s accomplice. The defendant will be liable for those unlawful killings of the accomplice, proximately caused by defendant. Here, there was sufficient evidence to support the first degree murder conviction. Appellant had the gun in her car. It was her idea to meet and assault Canas. She wanted to do so because he was harassing her brother. When Morales initiated the fight, she stayed by the car where the rifle was located. She then cocked the rifle and handed it to Morales when the tide turned against him. This conduct was sufficient to provoke the deadly response by Canas. The court also found no error in CALCRIM No. 560. As to the instruction for premeditation, CALCRIM No. 601, the trial court referred the jury to the instruction for first degree attempted murder. Although this was error, because a defendant cannot be held vicariously liable for the mens rea of an accomplice, the error was harmless because the evidence was such that the jury would have found that appellant personally deliberated and premeditated the attempted murder of Canas.