A defendant convicted of provocative act murder after People v. Concha (2009) 47 Cal.4th 653, is ineligible for resentencing under PC 1172.6. The record of conviction—including the preliminary hearing transcript stipulated as the factual basis for his plea—showed defendant was convicted under a provocative act murder theory, and not under felony murder or natural and probable consequences, which were unavailable given the unknown identity of the shooter. Defendant entered his plea in this case five months after Concha was decided. After Concha, the theory of provocative act murder required proof the defendant personally harbored malice. Because defendant’s conviction necessarily required proof of personal malice, which continues to be a valid basis for murder liability, defendant failed to make a prima facie case for relief.

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/B338191.PDF