Petitioner convicted of provocative act murder that was potentially based on a theory of imputed malice is not barred from relief under Penal Code section 1172.6. Lee’s first section 1170.95 (now 1172.6) petition for resentencing was denied because his murder conviction was based on the provocative act doctrine. The relief accorded by former section 1170.95 extended only to those convicted under a felony murder or natural and probable consequences theory. After Senate Bill No. 775 amended the statute (effective 1/1/2022), to expand relief to defendants convicted under any theory in which malice was imputed to them based on their participation in a crime, Lee again sought relief. It was denied and he appealed. Held: Reversed and remanded. The Court of Appeal reviewed the development of the provocative act murder doctrine, which did not always require proof that the defendant personally harbored malice. At the time of Lee’s conviction in 1994, an accomplice could be convicted so long as his confederate committed a malicious and provocative act, regardless of the defendant’s mental state. It was not until People v. Concha (2009) 47 Cal.4th 653, in the context of the degree of murder in a provocative act prosecution, that the court determined a defendant cannot be held vicariously liable for the mens rea of an accomplice. The relevant instruction in Lee’s case allowed conviction absent a finding as to his mental state. This requires reversal for a (d)(3) hearing. [Editor’s Note: For convictions predating Concha, the court disagreed with other Court of Appeal opinions that suggest a jury convicting a defendant of provocative act murder has necessarily found the defendant personally harbored a mental state of malice.]

The prosecutor’s closing argument at trial does not establish as a matter of law that petitioner was convicted under a still valid murder theory. Respondent argued that when Lee’s jury instructions are considered together with the prosecutor’s closing argument, it reflects that Lee was alleged to be a provocateur who acted with malice, and therefore he was convicted under a still-valid theory of murder. However, the instructions given do not compel the conclusion that he was convicted based on his own provocative act or that the prosecution’s closing argument overrode those instructions.

Petitioner is not eligible for relief on his attempted murder conviction. Even assuming there is a theory of attempted provocative act murder, the record shows Lee was not convicted under that theory. The attempted murder instruction required that the perpetrator harbor express malice aforethought, namely, a specific intent to kill unlawfully another human being. Thus, the jury was required to find that Lee either committed the attempted murder as a direct perpetrator or as an aider and abettor of an unlawful killing.