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Name: People v. Johnson
Case #: B241044
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 11/19/2013

Defendant who planned and directed home invasion robbery is culpable for provocative act murder even though he was not at the scene of the killing. Defendant sent his accomplices to the home of Peter Davis, who grew medical marijuana, to rob him. One accomplice, Baker-Riley, threatened Davis with a gun. In response, Davis grabbed his gun and fired it, killing accomplice Alvarez. Defendant was convicted of first degree provocative act murder and a Penal Code section 12022, subdivision (a)(1) gun enhancement, resulting in a 26-years-to-life sentence. Defendant challenged his conviction, claiming he could not be convicted of murder under the provocative act doctrine because he was not at the crime scene. Held: Affirmed. The physical element of the doctrine is satisfied when the defendant or a surviving accomplice in the crime commits an act, the natural and probable consequence of which is the use of deadly force by a third party. A defendant may thus be vicariously liable for the provocative acts of his surviving accomplice in committing the crime. The mental component is malice, which may be implied. Here, Baker-Riley’s conduct, which was committed in furtherance of the robbery masterminded by defendant, was sufficiently provocative to provoke a lethal response and supports a finding of implied malice.

The trial court did not err by failing to instruct on voluntary manslaughter. There is no authority supporting a theory of voluntary manslaughter where a robbery victim kills the defendant’s accomplice in response to a provocative act committed by a surviving accomplice.

The trial court did not abuse its discretion by admitting other crimes evidence. Over defense objection, the trial court admitted evidence of defendant’s involvement in another home invasion robbery. The other offense was sufficiently similar to the present one to show intent and common design. Admission of the evidence was not more prejudicial than probative.

Appellant’s 26-years-to-life sentence is not cruel and unusual. Appellant forfeited this issue by failing to assert it in the trial court. In any event, his sentence was not disproportionate to his offense. He masterminded a home invasion robbery and sent his armed accomplices to commit the offense. He could reasonably anticipate the killing.