Opinion
A148658
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. LAQUISHA ALLEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C173144)
Laquisha Allen appeals her conviction, following a jury trial, of second degree murder. The sole issue on appeal is whether the trial court erred in its instructions to the jury on provocative act murder. We affirm.
BACKGROUND
Appellant drove her boyfriend, Thomas Lacy III, and her son, Douglas Andrews, to a West Oakland neighborhood. Appellant's intent was to find Marjon Fuller—whom she believed was responsible for the recent murder of her previous boyfriend—and have Andrews and Lacy shoot him. Appellant found Fuller standing in front of Sharif Market. Andrews exited the car and began shooting at Fuller. Fuller shot back. When Lacy exited the car, he was struck and killed by a bullet.
Appellant disputed this fact at trial but does not challenge it for purposes of this appeal. We therefore omit the extensive evidence presented on this issue, as well as on other issues appellant does not challenge on appeal.
The bullet that killed Lacy was never recovered and no physical evidence indicated where the bullet originated. Fuller was shooting at Andrews and Lacy, and he could have shot Lacy. However, an eyewitness testified Andrews shot Lacy. Yet another person could have fired the fatal shot: Johniesha Jones was near Sharif Market at the time of the shooting, and one witness testified she retrieved a gun and gave it to Fuller.
There was also evidence bullets were fired from another location altogether. An officer opined that in surveillance video footage from Sharif Market, "it sounded like there were additional gunshots going off other[] than the ones that were right there by the store." There was testimony that partway down the next block was an area known in the neighborhood as the Dug Out, where people hung out on the street, drinking and talking. Five or six people were at the Dug Out that day. When Andrews began shooting at Fuller, he was shooting in the direction of the Dug Out. A car located between Sharif Market and the Dug Out had its windows shot out. Andrews, testifying for the defense, claimed he fired his gun only after being shot at, he believed by someone in the Dug Out, and in response he fired several times in the direction of the Dug Out.
Because the fatal bullet was not recovered, the identity of the shooter could not be conclusively determined. The jury was instructed that appellant could be found guilty of murder under the provocative act doctrine if, in response to her provocative act, "Marjon Fuller, Johniesha Jones, or an unknown person, other than Douglas Andrews, killed Tommy Lacy III. . . . ." The jury was similarly instructed under the theory of provocative act of an accomplice. The jury found appellant guilty of second degree murder.
The jury was separately instructed on aiding and abetting murder.
DISCUSSION
Appellant argues the instruction that she could be found guilty if Lacy was killed by "an unknown person" permitted the jury to convict her on a legally inadequate theory because it could not be determined whether, if Lacy was shot by an unknown person, appellant's acts proximately caused his death.
I. Legal Background
"A variation on the law of transferred intent, the provocative act doctrine holds the perpetrator of a violent crime vicariously liable for the killing of an accomplice by a third party, usually the intended victim or a police officer. [Citations.] . . . . Under the provocative act doctrine, 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, the perpetrator is guilty of murder." (People v. Gonzalez (2012) 54 Cal.4th 643, 654-655 (Gonzalez).)
"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. [Citation.] . . . . "[I]f the eventual victim's death is not the natural and probable consequence of a defendant's act, then liability cannot attach." [Citation.]' [Citation.] . . . . The question of proximate cause is ordinarily decided by the jury, unless undisputed evidence reveals 'a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus.' " (Gonzalez, supra, 54 Cal.4th at pp. 655-656.)
" '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.' " (People v. Cervantes (2001) 26 Cal.4th 860, 868.) " '[T]he victim's self-defensive killing or the police officer's killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice.' " (Ibid.) In contrast, "no criminal liability attaches to an initial remote actor for an unlawful killing that results from an independent intervening cause (i.e., a superseding cause)." (Ibid.) Thus " '[t]he free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.' " (Id. at p. 871.)
II. Analysis
The jury was instructed, as part of the provocative act murder instructions, that the People must prove "[Lacy]'s death was the natural and probable consequence of the defendant's provocative act," which in turn required the People to prove, among other elements, "[t]he defendant's act was a direct and substantial factor in causing [Lacy]'s death." The jury was further instructed: "A defendant is not guilty of murder if the killing of [Lacy] was caused solely by the independent criminal act of someone else. An independent criminal act is a free, deliberate, and informed criminal act by a person who is not acting with the defendant." (Italics omitted.) The jury was thus properly instructed on proximate cause.
Appellant frames her argument in terms of legal inadequacy, but it is more appropriately characterized as one of factual inadequacy. "When one of the theories presented to a jury is legally inadequate, such as a theory which ' "fails to come within the statutory definition of the crime" ' [citation], the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless 'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.' [Citation.] [¶] In contrast, when one of the theories presented to a jury is factually inadequate, such as a theory that, while legally correct, has no application to the facts of the case, we apply a different standard. [Citation.] . . . . We will affirm 'unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.' " (People v. Perez (2005) 35 Cal.4th 1219, 1233.)
Here, the jury was instructed that, if an unknown person killed Lacy, appellant could be convicted of provocative act murder if all the other required elements were found, including proximate cause and absence of an independent intervening cause. Appellant does not contend that any other instruction weakened the People's burden or misstated the proximate cause requirement. Instead, appellant effectively argues there was no substantial evidence that, if an unknown person killed Lacy, the killing was proximately caused by appellant's provocative act. Even if there were no such substantial evidence, the result would simply be that the instruction regarding "an unknown person" had no factual application to the case, and we would find no prejudice. (See People v. Cross (2008) 45 Cal.4th 58, 67 ["giving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal" ' "].)
Although appellant points to the prosecutor's argument that it "[d]oes not matter" who actually killed Lacy, the prosecutor also argued: "A defendant is not guilty if [Lacy]'s death was caused solely by an independent criminal act of someone else. And I want to explain that to you. An independent criminal act is a free, deliberate and informed criminal act by a person who is not acting with the defendant. So for instance, if someone at the same time that she pulled up there decides to do a drive-by, totally not knowing that the defendant and these guys are out there doing what they are doing, totally independent; someone out there goes and bang, bang, bang, bang, bang, bang that corner, and then [Lacy] dies, that's the independent crime. Nothing in evidence to show an independent crime. There's absolutely nothing in evidence." --------
In any event, there was substantial evidence to support a finding that an unknown person killed Lacy in response to appellant's provocative act. There was ample evidence that Andrews fired shots in the direction of the Dug Out. Several people were at the Dug Out that day, and the jury could reasonably infer that one of them mistakenly thought the bullets were intended for them, rather than Fuller, and fired back in self-defense. Proximate cause for provocative act murder purposes is " 'not limited to cases in which the person actually committing the homicide is either a victim of the felony or a police officer.' " (Cervantes, supra, 26 Cal.4th at p. 868, fn. 11.) "When a defendant commits assault with a deadly weapon on a victim by firing upon him, and this act causes another person to believe he is being fired upon and therefore to return the gunfire, the defendant may be guilty of proximately causing the death of the victim in the gun battle, whether the victim is killed by the defendant's bullets or the third party's." (People v. Gardner (1995) 37 Cal.App.4th 473, 480.) We conclude there was no instructional error.
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.