There was sufficient evidence that appellants were liable for the killing of their accomplice by a rival gang member under the theory of provocative act murder. At approximately 3:00 a.m., appellants, members of the 18th Street criminal street gang, went to the apartment of Pulido, a member of the rival criminal street gang, the Big Top Locos, intending to kill Pulido. One of the 18th Street gang members was Lorenzo. The gang members knocked on the door and asked for Pulido, who became suspicious and frightened. He retrieved a shotgun from under the bed in his bedroom and loaded it with one round. Not receiving a response to the knock on the door, appellants went to the alley behind the apartment and Lorenzo and another gang member, both armed, scaled the wall to the second floor apartment. As Lorenzo was climbing in the bedroom window, Pulido fired the shotgun and killed Lorenzo. A jury convicted appellants of the provocative act murder of Lorenzo. Affirmed. Under provocative act murder theory, the perpetrator of an underlying crime is held liable for the killing of an accomplice by a third party. The physical element is satisfied when a defendant or surviving accomplice in the underlying crime commits an act, the natural and probable consequence of which is the use of deadly force by a third party. A defendant may be vicariously liable for the provocative conduct of his surviving accomplice in the underlying crime. As to the mental element, a defendant cannot be vicariously liable unless he personally possesses the requisite mental state of malice aforethought when he either causes the death through his provocative act or aids and abets in the underlying crime with the same state of mind. Here, there was sufficient evidence for a finding of murder based on the provocative act murder theory. Appellants went to Pulido’s apartment, intending to kill him; each aided and abetted the others in the intent; and the shotgun blast was the natural and probable consequence of the acts of the gang members. Lorenzo’s decision to attempt entry into the bedroom was a foreseeable possibility of the plan to murder.
The gang murder special circumstance and gang enhancement may apply to provocative act murder. In addition to convicting appellants of first degree murder, a jury also found true a gang murder special circumstance (Pen. Code, § 190.2, subd. (a)(22)) and a criminal street gang enhancement (Pen. Code, § 186.22, subd. (b)(1)). Appellants challenged the sufficiency of the evidence to support these findings. Affirmed. Before addressing this issue, the Court of Appeal concluded that the gang murder special circumstance and the criminal street gang enhancement can apply where liability for first degree murder attaches based upon the theory of provocative act murder. To the extent that a defendant, with express malice, premeditation, and deliberation, proximately causes a death by committing the requisite provocative act, he has intentionally killed the ultimate victim despite the intervening deadly force by a third party. To the extent a defendant is not the actual provocateur, he may be liable for the special circumstance as an accomplice of the provocateur under section 190.2, subdivision (c). If the course of conduct initiated by the provocateur or his accomplices that proximately causes the killing is originally intended to further the activities of the gang, the resulting murder can be said to have been “carried out to further the activities of the gang.” Based on the same reasoning, provocative act murder may also be found to have benefitted the gang and to have been committed with the intent to promote criminal conduct by gang members under the gang enhancement. Both the special circumstance and the enhancement may still be found true even though the motive of the actual killer may be to thwart gang activities. Here, there was sufficient evidence to support the special circumstance and the enhancement based on the attempted murder of Pulido, which resulted in the provocative act murder of Lorenzo. In addition to the above findings, the court found no error or harmless error, or forfeiture in the giving of the following instructions: CALJIC Nos. 8.12, 3.00, 3.02, 5.44, 8.80.1.