## Facts

- Reyas Concha, Julio Hernandez, Max Sanchez, and another man confronted Jimmy Lee Harris in Los Angeles during an apparent attempted robbery and threatened to kill him.
- Harris fled down the street; the group chased him for more than a quarter mile and cornered him against a fence.
- As Harris tried to climb the fence, one or more assailants stabbed him for several seconds.
- Harris drew a pocketknife and stabbed back in self-defense, then escaped with severe but nonfatal injuries.
- Sanchez died from stab wounds inflicted by Harris during the struggle.
- A jury convicted Concha and Hernandez of attempted first-degree murder of Harris and first-degree murder of Sanchez under the provocative act murder doctrine; the jury also found the attempted murder was willful, deliberate, and premeditated.
- The jury deadlocked on an attempted robbery count, and the trial court dismissed that charge.
- The Court of Appeal reversed the first-degree murder conviction, reasoning first-degree provocative act murder requires that a defendant or accomplice personally kill the victim.
- The California Supreme Court granted review to determine whether, and under what mental-state requirements, first-degree provocative act murder applies when the intended victim kills an accomplice.

## Issues

1. Whether a defendant may be convicted of first-degree murder under the provocative act murder doctrine when the intended victim kills an accomplice during an attempted murder.
2. If first-degree liability is permissible, what mental state must be found as to each defendant.

## Decision

- The California Supreme Court held that first-degree provocative act murder is legally available when an accomplice is killed by the intended victim, if the defendant personally acted willfully, deliberately, and with premeditation in committing the underlying attempted murder.
- The court rejected a categorical rule limiting first-degree provocative act murder to cases where a defendant or accomplice personally performs the fatal act.
- The court emphasized that the heightened mental state for first degree must be found personally as to each defendant, not imputed from an accomplice or from the offense “in the abstract.”
- The court reversed the Court of Appeal’s contrary limitation and remanded for further proceedings, including assessment of whether the jury instructions and findings adequately required (and established) the personal willful, deliberate, and premeditated intent for each defendant, and whether any instructional error was harmless.

## Legal Principles

- Under the provocative act murder doctrine, a defendant may be liable for murder when the defendant or an accomplice intentionally commits a life-endangering, highly provocative act that is likely to elicit a lethal response and proximately causes a third party (including the victim) to kill an accomplice.
- Provocative act murder is not felony murder; it rests on traditional malice principles plus proximate causation and foreseeability.
- To satisfy the mens rea for murder in this setting, the defendant must personally act with malice aforethought.
- For first-degree provocative act murder based on attempted murder conduct, the prosecution must prove the defendant personally acted willfully, deliberately, and with premeditation in committing the attempted murder that provoked the fatal third-party response.
- Degree cannot be established solely by the fact that an attempted murder was found premeditated unless the jury was required to determine that the premeditation was personal to each defendant.

## Conclusion

A defendant can be convicted of first-degree murder under the provocative act doctrine when an intended victim kills an accomplice in foreseeable self-defense, but only if the jury finds that the defendant personally acted with willfulness, deliberation, and premeditation in the attempted murder that proximately caused the killing; the case was remanded to address whether the jury was properly instructed and whether any error was harmless.


People v. Concha, 47 Cal. 4th 653, 218 P.3d 660 (Cal. 2009)