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The malice requirement for provocative act murder stands in marked contrast to the mens rea contemplated by the natural and probable consequences doctrine. Liability under that doctrine arose when a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted. The provocative act doctrine, on the other hand, requires that the perpetrator exhibit a conscious disregard for life.
On March 8, 1993, at approximately 8 p.m., Derrick Swanson and Anthony Chapple robbed four individuals at gunpoint at a Long [B]each gas station. One of the victims, Ruben Garcia, worked at the gas station. The other victims were Garcia's wife Rosa, his brother, and a female customer. Swanson and Chapple forced the victims into a storage room where they took Rosa's jewelry and purse and several cartons of cigarettes. Then Swanson, who had been told that Rosa was pregnant, grabbed her by the hair and dragged her into the front office. He called her a ‘fucking ***’ and told her he would kill her if she did not open the safe. After Rosa stated that she did not have the keys to the safe, Swanson shoved her toward the ground. When Garcia tried to stop appellant, Chapple threatened to shoot Garcia's brother. Meanwhile, the two assailants emptied the cash register and took all of the money that Garcia had in his wallet. Just before Swanson and Chapple left, Swanson pointed his gun at Garcia and Rosa and fired one shot, causing Rosa to scream. Garcia grabbed his gun from the desk drawer, loaded it, and gave chase. He testified at trial that he believed Rosa had been shot and was afraid that Swanson and Chapple would return to the gas station and kill the rest of them. As Swanson and Chapple ran toward an alley, Garcia fired two shots in their direction. He then saw Chapple stumble, but thereafter lost sight of both men. However, someone in the alley fired a shot at him, and he fired back once to frighten the shooter. Chapple died as a result of two bullet wounds inflicted by Garcia. In his defense, Swanson claimed that Garcia unreasonably responded to the situation by shooting at him and Chapple. In support of his claim, Swanson offered Garcia's initial statement to the defense investigator that he fired at the robbers because he wanted to retrieve the stolen money.” Swanson was convicted of first degree murder, assault with a firearm, and four counts of second degree robbery, and the jury found that he personally used a firearm to commit the crimes. He was sentenced to state prison for 32 years to life. Swanson appealed his conviction, but the appellate court affirmed it.
In 2018, the Legislature enacted Senate Bill No. 1437, which limited the felony-murder rule and “amend[ed] … the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” Senate Bill 1437 added section 1170.95, which establishes a procedure by which an individual convicted of murder under the natural and probable consequences doctrine or felony-murder rule can seek vacation of that conviction and resentencing. The provisions of Senate Bill 1437 became effective on January 1, 2019. Thus, on May 13, 2019, Swanson filed a petition for writ of habeas corpus alleging he was eligible for relief pursuant to section 1170.95 because he was found guilty of first degree murder under the felony-murder rule. The court construed the filing as a petition for recall and resentencing under section 1170.95, and summarily denied it without appointing counsel, finding Swanson ineligible for relief because he was convicted under the provocative act doctrine, not the natural and probable consequences doctrine or felony-murder rule.
Is Swanson eligible for resentencing under section 1170.95 because provocative act murder is merely a version of the natural and probable consequences doctrine?
The record of conviction in this case demonstrates that Swanson was convicted of first degree murder not under felony-murder or natural and probable consequences theories, but under the provocative act doctrine established by the Supreme Court in People v. Gilbert. There, the court declared: “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.” “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.” It is apparent, therefore, that “[a] murder conviction under the provocative act doctrine … requires proof that the defendant personally harbored the mental state of malice.” Section 188, as amended, establishes that “in order to be convicted of murder, a principal in a crime shall act with malice aforethought.” Because Swanson was convicted of provocative act murder, the jury necessarily found he acted with malice aforethought. He was therefore not convicted under the natural and probable consequences doctrine. Nor can he show that he “could not be convicted of first or second degree murder because of changes to Section 188 or 189” as required for relief under § 1170.95, subd. (a)(3).
Swanson argues provocative act murder has been characterized by the courts as one particular subset of the natural and probable consequences doctrine. He finds this characterization in several cases discussing the requirement, under the provocative act doctrine, that the victim's death result from the victim's or a police officer's “reasonable response” to the defendant's actions. Swanson misconstrues the courts' discussions. In Gonzalez, upon which Swanson relies, the court stated, “An important question in a provocative act case is whether the act proximately caused an unlawful death. ‘[T]he defendant is liable only for those unlawful killings proximately caused by the acts of the defendant or his accomplice. “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 [the defendant's] own conduct proximately caused the victim's death … .” “[I]f the eventual victim's death is not the natural and probable consequence of a defendant's act, then liability cannot attach.”” When the defendant commits an inherently dangerous felony, the victim's self-defensive killing is generally found to be a natural and probable response to the defendant's act, and not an independent intervening cause that relieves the defendant of liability. [Citations.] The question of proximate cause is ordinarily decided by the jury … .” Thus in any provocative act case, where by definition an intermediary's act killed the victim, an important question will be whether the defendant's conduct proximately caused the death. The court's analysis of proximate cause in terms of foreseeability of the natural and probable consequences of the defendant's malicious conduct does not somehow bring a provocative act killing within the malice-free natural and probable consequences doctrine. Other cases upon which Swanson relies for this point are similarly distinguished. None of these cases held that a provocative act murder falls under the natural and probable consequences theory of malice-free murder. They held merely that a provocative act murder requires a showing that defendant's act was the proximate cause of death, which can be shown where the death was a natural and probable consequence of the act.