Provocative Act Murder Ineligible for Resentencing

Under the felony murder rule, as effective in 2019, an individual may only be convicted of felony murder if he or she: 1) was the actual killer; 2) was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or 3) was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2. Penal Code §§ 188, 189. A person may no longer be convicted under the “natural and probable consequences” doctrine of murder.

Penal Code § 1172.6 (formerly Penal Code § 1170.95) provides “a procedural mechanism for those convicted of murder under prior law to seek retroactive relief.”

For a petitioner convicted of murder, the statute sets out three conditions for relief: (1) the accusatory pleading allowed prosecution on a theory of felony murder, the natural and probable consequences doctrine, or some other theory by which malice is imputed solely on participation in a crime; (2) the conviction followed a trial or guilty plea; and (3) the petitioner could not now be convicted of murder “because of changes to Section 188 or 189 made effective January 1, 2019.”

Under changes to the law, except in cases of felony murder, “in order to be convicted of murder, a principal in a crime must act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” Penal Code § 188(a)(3).

Mr. Edgar Antonio Flores was convicted of second degree murder of Alexis Melendez in Riverside Superior Court in 2009. He was also convicted of receiving a stolen vehicle (Penal Code § 496d) and reckless driving while attempting to evade a police officer (Vehicle Code § 2800.2). The jury also found true a gang enhancement against him (Penal Code § 186.22(b)(1)(C)).

Mr. Flores was acquitted of willful, deliberate and premeditated attempted murder (Penal Code §§ 21a, 187), assault with a firearm (Penal Code § 245(a)(2)) and shooting at an occupied vehicle (Penal Code § 246).

The case arose out of a gun battle during a high-speed vehicle chase. Mr. Flores drove a car that had been reported stolen. With him were Ms. Melendez in the front seat and Anthony Albert Paez in the back seat.

When California Highway Patrol (CHP) officers spotted the car and tried to stop it, Mr. Flores sped off. During the pursuit, Mr. Paez leaned out a rear window and fired a handgun at the officers. The officers returned fire and fatally shot Ms. Melendez.

At trial, the only theory of murder presented to the jury was the provocative act murder doctrine. Under this doctrine, the prosecution must prove “circumstances under which . . . when a defendant’s unlawful conduct provokes another into committing the fatal act.”

People v. Cervantes (2001) 26 Cal. 4th 860, 867, fn. 10. The doctrine applies “when the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act.” People v. Gonzalez (2012) 54 Cal. 4th 643, 655. It is the only murder theory available when someone other than the defendant or an accomplice kills during the commission or attempted commission of a crime.” People v. Antonelli (2023) 93 Cal. App. 5th 712, 721.

Mr. Flores then filed a petition for resentencing in Riverside Superior Court. Judge John Molloy denied the petition without holding an evidentiary hearing on the grounds that Mr. Flores was ineligible for resentencing because he had been convicted under the provocative act murder theory.

Mr. Flores then appealed to the California Court of Appeal for the Fourth District in Riverside.

The Fourth District affirmed, explaining that the jury found Flores aided and abetted Paez in the commission of attempted murder, assault with a firearm and shooting at an occupied vehicle while he shot at the pursuing CHP vehicle. Mr. Flores committed the provocative act of driving in a manner that allowed Paez to shoot at the pursuing CHP officers, which Flores knew was dangerous to human life, committed with conscious disregard for life, and should have foreseen it had a high probability of initiating a chain of events resulting in someone’s death, and did cause Ms. Melendez’s death.

The issue is whether the narrowing of the felony murder rule and elimination of the natural and probable consequences doctrine, along with making anyone eligible for relief if convicted of murder under any “other theory under which malice is imputed to a person solely based on that person’s participation in a crime” applies to Mr. Flores.

Flores, on appeal, argued that he aided and abetted Mr. Paez’s provocative act without himself acting with malice, but that malice was imputed to him, so he is eligible for relief and resentencing. “Malice shall not be imputed to a person solely based on his or her participation in a crime.” Penal Code § 188(a)(3). Thus, the jury might have imputed malice from Paez to him.

The Fourth District rejected this theory, explaining that provocative act murder is a completely different theory of murder and it had nothing to do with changes in the law that allow murderers to seek resentencing under Penal Code § 1172.6. Provocative act murder allows a conviction whether defendant or an accomplice who committed the provocative act; 1172.6 did not change this.