(1) Is defendant entitled to resentencing pursuant to Penal Code section 1172.6 on the ground that malice could be imputed to the defendant under the provocative act theory of murder for convictions occurring before 2009 (see Sen. Bill No. 775 (2021-2022 Reg. Sess.); People v. Concha (2009) 47 Cal.4th 653)? (2) Did the trial court err by not considering the jury instructions in determining defendant was ineligible for resentencing as a matter of law for a provocative act murder?

Held:

A defendant convicted under the theory of provocative act murder is not categorically ineligible for relief under Penal Code section 1172.6. Defendant was convicted of first-degree murder in 1991 under the provocative act doctrine based on his role in a home invasion robbery during which one of his accomplices was killed by a victim. It was not until 2009 that People v. Concha (2009) 47 Cal.4th 653 clearly articulated that a defendant had to personally harbor malice to be convicted of provocative act murder. Pre-Concha, CSC decisions allowed provocative act murder convictions whereby malice could be imputed to a nonprovocateur accomplice solely based on his or her participation in a crime.

The jury instructions given at defendant’s trial were not “irrelevant” to the PC 1172.6 prima facie determination. Jury instructions are critical to the prima facie inquiry because they track the governing law at the time of defendants’ trials. At defendant’s trial, the jury was instructed with CALJIC 8.12 that they could convict defendant provocative act murder if during the commission of the underlying felony, a person committing the crime also committed a provocative act.

The Court reversed the judgment of the Court of Appeal and remanded the case for further proceedings on whether the trial court’s previous denial of PC 1172.6 relief in 2019 had any preclusive effect on defendant’s current claim.

This case was decided on 4/24/25. Justice Groban authored the opinion.

Review on this issue had also been granted with briefing deferred in:

Second District

• People v. Concha (B319341) [nonpub. opn.], review granted 4/10/2024 (S284059)
• People v. Cunningham (2024) 101 Cal.App.5th 678, review granted 7/10/2024 (S285205/B323640)
• People v. Calhoun (B332567) [nonpub. opn.], review granted 11/13/2024 (S287109)
• People v. Gomez (B329629) [nonpub. opn.], review granted 5/14/2025 (S290104)

Fifth District

• People v. Ware (F085695) [nonpub. opn.], review granted 7/24/2024 (S285494)