Landmark California Cases on the Provocative Act Murder Doctrine

"The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, responds with privileged lethal force by shooting back and killing the perpetrator's accomplice or an innocent bystander. " (People v. Cervantes (2001) 26 Cal.4th 860, 867; see also People v. Concha (2009) 47 Cal.4th 653, 663 (Concha I) the provocative act murder doctrine is shorthand " 'for that category of intervening-act causation cases in which, during commission of a crime, the intermediary (i.e., a police officer or crime victim) is provoked by the defendant's conduct into a response that results in someone's death.' ".) Under this doctrine, " 'when the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felon, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.' " (People v. Cervantes, supra, 26 Cal.4th at p. 868.) "However, the defendant is liable only for those unlawful killings proximately caused by the acts of the defendant or his accomplice. (People v. Roberts (1992) 2 Cal.4th 271, 320.) 'In all homicide cases in which the conduct of an intermediary is the actual cause of death, the defendant's liability will depend on whether it can be demonstrated that his own conduct proximately caused the victim's death ... . ' (People v. Cervantes, supra, 26 Cal.4th at pp. 872-873, fn. 15 ... .) 'If the eventual victim's death is not the natural and probable consequence of a defendant's act, then liability cannot attach.' (People v. Roberts, supra, 2 Cal.4th at p. 321.) The prior decisions make clear that, where the defendant perpetrates an inherently dangerous felony, the victim's self-defensive killing is a natural and probable response. (See, e.g., People v. Gilbert (1965) 63 Cal.2d 690, 705 47 Cal. Rptr. 909, 408 P.2d 365 ... ; People v. Caldwell (1984) 36 Cal.3d 210, 220-222 203 Cal. Rptr. 433, 681 P.2d 274 ... .)" (Concha I, supra, 47 Cal.4th at p. 661.) A key issue regarding the application of the doctrine is whether the defendant committed a provocative act (e.g., the physical or "actus reus" element) that proximately caused (e.g., the mental or "mens rea" element) the killing. (Concha I, supra, 47 Cal.4th at p. 660; People v. Briscoe (2001) 92 Cal.App.4th 568, 582 112 Cal. Rptr. 2d 401 "Cases often discuss these two elements actus reus and mens rea in terms of whether the defendant committed a provocative act which proximately caused the killing.".) To constitute a provocative act, the defendant "must commit an act that provokes a third party to fire a fatal shot." (People v. Briscoe, supra, 92 Cal.App.4th at p. 582.) "In cases in which the underlying crime does not involve an intent to kill ... the mere participation in the underlying criminal offense is not sufficient to invoke the doctrine of provocative act murder." (Id. at pp. 582-583.) In addition, the conduct must demonstrate malice, which is properly implied when "the defendant commits an act with a high probability that it will result in death and does so with a base antisocial motive or a wanton disregard for human life." (Id. at p. 583.) "Unless the defendant's conduct is sufficiently provocative of a lethal response, it cannot support the finding of implied malice necessary for a verdict of guilt on a charge of murder. Thus, a central inquiry in determining a defendant's criminal liability for a killing committed by a resisting victim is whether the defendant's conduct was sufficiently provocative of lethal resistance to support a finding of implied malice. " (Id. at p. 583.) "The prosecutor must also establish that the defendant's conduct proximately caused the killing. Courts use traditional notions of concurrent and proximate cause in order to determine whether the killing was the result of the defendant's conduct. To be considered the proximate cause of the victim's death, the defendant's act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. A defendant's provocative acts must actually provoke a victim response resulting in an accomplice's death. " (People v. Briscoe, supra, 92 Cal.App.4th at pp. 583-584, ) "The timing of the events is critical. By necessity, the provocative act must occur before a victim may make a lethal response. There may be more than one act constituting the proximate cause of the killing. If the defendant commits several acts but only one of them actually provoked a lethal response, only that act may constitute the provocative act on which culpability for provocative act murder can be based. When the chain of causation is somewhat attenuated, the jury decides whether murder liability attaches or not. " (People v. Briscoe, supra, 92 Cal.App.4th at p. 584; see also People v. Roberts, supra, 2 Cal.4th at p. 320, fn. 11 "There is no bright line demarcating a legally sufficient proximate cause from one that is too remote," and thus "ordinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus.".)