SB 1437 and Provocative Act Murder

As discussed here previously, Senate Bill 1437 dramatically amended the law governing murder prosecutions in California. The goal of the law was to significantly limit murder prosecutions of people who were not the actual killer. The law accomplished this by narrowing those who could be prosecuted under a felony-murder theory and abolishing the “natural and probable consequence” theory of murder. The law also allows people previously convicted under a now invalid theory to petition the court to vacate their murder convictions. Specifically, the bill was intended “to amend the felony murder rule and 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.”

A grey area in all of this is a theory known as provocative act murder. Essentially, provocative act murder imposes liability on someone who does something that causes another person, other than an accomplice, to use deadly force. The most obvious example would be if person A shoots at person X and person X returns fire in self-defense and kills person B, person A could be prosecuted for the murder of person B under this theory. However, the doctrine has also been used by prosecutors over the years in much more expansive ways. For instance, I have seen numerous prosecutions in which gang member A “hit up” (challenged) gang member X, gang member X then shot person B and gang member A is prosecuted for the murder of person B.

I previously assumed that provocative act murder was simply a subset of the natural and probable consequence theory; when you do an act where you should have known that a probable consequence is someone being killed, you could (under the old law) be prosecuted for murder. Thus, I assumed that SB 1437, by getting rid of the natural and probable consequence theory, had also gotten rid of the provocative act theory.

It appears I was wrong. There is a slight, but important, distinction in prosecutions for provocative act murder as opposed to natural and probable consequence murder that it appears will allow provocative act murder to survive SB 1437 unless the legislature acts. Under the old natural and probable consequence and felony murder laws, the prosecution was not required to prove that the defendant acted with malice (the intent to kill or the conscious disregard of risk to human life). Because the jury instructions for provocative act murder have always required proof that the defendant did the provocative act with a conscious disregard for human life, the theory seems to survive SB 1437 and, thus far, every appellate court has reached this conclusion.

Ultimately, just as a person can still be convicted under the current law if they directly aid and abet an actual killer with express or implied malice or if they are a major participant in a felony murder acting with reckless indifference to human life, the provocative act theory of murder is still viable where a person individually acts with conscious disregard to human life, or so the appellate courts have thus far ruled.

This may lead to some rather absurd results, but for now, it appears to be the state of the law. The California Supreme Court has not weighed in on the issue yet and it remains possible that the legislature will clarify that they indeed intend to abrogate provocative act murder as well.

All that said, SB 1437 and Sb 775 have still created a path to redemption for many, many people previously convicted of murder and attempted murder. Even if you were convicted under a provocative act theory, if your jury received instructions on other theories, you may be eligible for relief. If you have any questions about whether you or a loved one may be eligible for relief, contact my office immediately.