The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY PATRIC ANTONELLI,
Defendant and Appellant.
S281599
Second Appellate District, Division Six
B321947
Ventura County Superior Court
CR27515-2
April 24, 2025
Justice Groban authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Jenkins, and Evans concurred.
PEOPLE v. ANTONELLI
S281599
Opinion of the Court by Groban, J.
In 1991, a jury convicted defendant Timothy Patric
Antonelli of first degree murder under the provocative act
doctrine based on his role in a home invasion robbery during
which one of his accomplices was killed by a victim. In 2018, the
Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437),1 which, as amended in 2021 by Senate Bill
No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775), makes eligible
for resentencing persons convicted of murder pursuant to a
“theory under which malice is imputed to a person based solely
on that person’s participation in a crime.” (Pen. Code, § 1172.6,
subd. (a), as amended by Stats. 2021, ch. 551, § 2.)2 Defendant
sought relief pursuant to the statute, arguing that he was
convicted of murder under “ ‘a provocative act theory whereby
malice was imputed to [him] based on his participation in the
robbery.’ ” (People v. Antonelli (2023) 93 Cal.App.5th 712, 718
(Antonelli).) The trial court summarily denied the petition.
Defendant appealed and the Court of Appeal below affirmed,
holding that defendant was categorically ineligible for relief
under section 1172.6 as a matter of law because the provocative
1
Statutes 2018, chapter 1015, section 4 (see fn. 5, post,
regarding the renumbering of former § 1170.95 as § 1172.6 in
2022).
2
All undesignated statutory references are to the Penal
Code.
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
act murder doctrine “requires that the defendant personally
harbor malice” (Antonelli, at p. 721), i.e., he was not convicted
under a theory by which malice could be imputed to him. Based
on this threshold conclusion, the Court of Appeal found the jury
instructions given at defendant’s trial to be irrelevant. (Ibid.)
Subsequently, the Court of Appeal in People v. Lee (2023)
95 Cal.App.5th 1164 (Lee) “disagree[d] with Antonelli that
provocative act murder has always had a personal malice
requirement.” (Id. at p. 1186, fn. 9.) Specifically, Lee held that
it was not until 2009 that our decision in People v. Concha (2009)
47 Cal.4th 653 (Concha) clearly articulated that a defendant
had to personally harbor malice to be convicted of provocative
act murder. According to Lee, individuals with pre-Concha
provocative act murder convictions, like defendant here and the
Lee defendant, are therefore not categorically barred from
seeking relief under section 1172.6. (Lee, at pp. 1184–1185.) In
consultation with the record of conviction, including the jury
instructions, the Lee court determined the defendant made a
prima facie case for relief from his murder conviction and was
entitled to an evidentiary hearing under section 1172.6,
subdivision (d). (Lee, at pp. 1190, 1191–1192.)
We granted review to resolve this conflict concerning
provocative act murder convictions occurring before 2009, as
well as the necessity of considering jury instructions when a
defendant petitions for resentencing under section 1172.6.3 The
3
The Lee court “express[ed] no opinion whether a defendant
convicted of provocative act murder post-Concha is categorically
barred from relief under section 1172.6, an issue that is not
before us.” (Lee, supra, 95 Cal.App.5th at p. 1184, fn. 7.) We
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Opinion of the Court by Groban, J.
parties agree, as do we, that “malice was not necessarily
required on the part of the non-provocateur accomplice under
the provocative act murder doctrine” at the time of defendant’s
conviction and that the jury instructions in any given case will
generally inform the prima facie inquiry under section 1172.6.
We therefore agree with the parties that Lee has the better view.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Proceedings
Early in the morning of January 1, 1991, defendant was
invited to a party in Ojai. Defendant, along with Frank
Stoddard and Ron Brown, devised a plan to rob the partygoers.
Brown and Stoddard armed themselves with guns.
Upon arriving at the party, Stoddard and Brown burst
through the doorway with their guns drawn. They yelled at
everyone to get on the floor and demanded their valuables.
Defendant threw one of the party hosts onto a couch and got
down next to her. Stoddard ordered one party guest to give him
his valuables, but when it became apparent the guest had
nothing, Stoddard threatened to kill him and repeatedly kicked
him in the head. Another party guest handed over his wallet to
Stoddard, but it only had five dollars in it, so Stoddard hit him
in the head with his gun until the guest fell unconscious.
Growing angrier, Stoddard threatened to “blow [the] brains out”
of the party host who was next to defendant and pulled her into
the kitchen by her hair. Defendant left the residence at some
point. Eventually, a violent struggle between Stoddard and
likewise do not weigh in on this distinct question, which is not
raised by the record here.
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
Brown and some of the partygoers ensued, during which one
partygoer gained control of Brown’s gun and fatally shot him.4
A jury thereafter convicted defendant of, inter alia,
Brown’s first degree murder (§ 187, subd. (a)) under the
provocative act doctrine. The trial court sentenced defendant to
25 years to life for the murder and ordered his remaining terms
to be served concurrently. On direct appeal, the Court of Appeal
affirmed defendant’s judgment of conviction with minor
sentence modifications not affecting the murder count.
B. Senate Bills 1437 and 775
Seventeen years after defendant’s murder conviction, the
Legislature, in Senate Bill 1437, “eliminated natural and
probable consequences liability for murder as it applies to aiding
and abetting, and limited the scope of the felony-murder rule.”
(People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Senate Bill
1437 also added section 1170.95, now section 1172.6, 5 to provide
“a procedure for convicted murderers who could not be convicted
under the law as amended to retroactively seek relief.” (Lewis,
at p. 957.) Thereafter, Senate Bill 775 amended section 1172.6
4
The summary of facts is drawn from the Court of Appeal’s
opinion below, as well as the unpublished opinion in defendant’s
direct appeal. We rely on these factual descriptions solely for
the purpose of summarizing the background of this case. We
observe that their factual descriptions differ in some respects.
(See Antonelli, supra, 93 Cal.App.5th at pp. 715–717; People v.
Antonelli and Stoddard (Sept. 28, 1993, B059426) [nonpub.
opn.].)
5
Effective June 30, 2022, Assembly Bill No. 200 (Reg. Sess.
2021–2022) renumbered section 1170.95 as section 1172.6
without substantive change. (Stats. 2022, ch. 58, § 10.) Unless
otherwise noted to provide clarity, we refer simply to section
1172.6.
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
to, inter alia, expand eligibility for resentencing to persons
convicted of murder pursuant to a “theory under which malice
is imputed to a person based solely on that person’s participation
in a crime.” (§ 1172.6, subd. (a), as amended by Stats. 2021, ch.
551, § 2.)
As we have detailed in prior opinions, the section 1172.6
petitioning “process begins with the filing of a petition
containing a declaration that all requirements for eligibility are
met ([§ 1172.6], subd. (b)(1)(A)), including that ‘[t]he petitioner
could not presently be convicted of murder or attempted murder
because of changes to Section 188 or 189 . . . .” (People v. Strong
(2022) 13 Cal.5th 698, 708 (Strong); see also People v. Curiel
(2023) 15 Cal.5th 433, 450 (Curiel) [quoting Strong’s description
of the § 1172.6 resentencing process].) Upon receiving a
complying petition, and after affording the parties an
opportunity to submit briefing, “the court shall hold a hearing
to determine whether the petitioner has made a prima facie case
for relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause. If the court declines to make an order to show
cause, it shall provide a statement fully setting forth its reasons
for doing so.” (§ 1172.6, subd. (c).) “If the petition and record in
the case establish conclusively that the defendant is ineligible
for relief, the trial court may dismiss the petition.” (Strong, at
p. 708.)
C. Defendant’s Resentencing Proceedings and
People v. Lee
In 2019, after the passage of Senate Bill 1437 but before
the passage of Senate Bill 775, defendant filed his first petition
for resentencing under section 1172.6. After issuing an order to
show cause and holding an evidentiary hearing, the superior
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
court denied the petition. In a written ruling after the
evidentiary hearing, the superior court concluded that
defendant was ineligible for relief because “the People have
proven beyond a reasonable doubt that Petitioner is guilty of
murder under the new law, under the theory that the defendant
was ‘a major participant’ and ‘acted with reckless indifference to
human life.’ ”
Defendant appealed and the Court of Appeal affirmed,
offering alternative bases for doing so. First, as a threshold
matter, a majority of the Court of Appeal concluded that
defendant was ineligible for relief under former section 1170.95
because he was convicted of provocative murder and not
pursuant to the felony-murder rule or the natural and probable
consequences doctrine. The Court of Appeal reasoned that
“S[enate] [Bill] 1437 does not use the phrase ‘provocative act
murder’ ” and “we do not add language and/or unarticulated
theories to a statu[t]e.” (People v. Antonelli (Dec. 1, 2020,
B299749) [nonpub. opn.]; see former § 1170.95, subd. (a).)
Second, the Court of Appeal held that even if defendant were
eligible for relief under former section 1170.95, substantial
evidence supported the trial court’s finding that he was not
entitled to resentencing because “petitioner was a major
participant in a home invasion robbery who acted with reckless
indifference to human life.” (People v. Antonelli, supra,
B299749, citing § 189, subd. (e)(3), added by Stats. 2018, ch.
1015, § 3 ; see also People v. Antonelli, supra, B299749.) Justice
Tangeman concurred in the result but questioned the majority’s
conclusion that defendant was ineligible for relief under former
section 1170.95 because the statute does not apply to persons
convicted of provocative act murder. (People v. Antonelli, supra,
B299749 (conc. opn. of Tangeman, J.).) Justice Tangeman
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
nonetheless concurred in the result because, as the majority also
concluded, the evidence supported the trial court’s finding that
defendant could be convicted of murder under current law as “a
major participant in the underlying felony who acted with
reckless indifference to human life . . . .” (People v. Antonelli,
supra, B299749 (conc. opn. of Tangeman, J.).)
In 2022, after the passage of Senate Bill 775 expanded
section 1172.6 to apply to individuals not only convicted of felony
murder and murder under the natural and probable
consequences theory, but to those convicted under any “other
theory under which malice is imputed to a person based solely
on that person’s participation in a crime” (§ 1172.6, subd. (a), as
amended by Stats. 2021, ch. 551, § 2), defendant filed a second
petition for resentencing. He argued that Senate Bill 775’s
“amendment to [section 1172.6] encompasses provocative act
murder where malice is imputed to the defendant based upon a
co-defendant’s commission of a provocative act.” The People
opposed the petition, explaining that even if Senate Bill 775 now
made clear that those convicted of provocative act murder may
petition for relief, defendant would still not be entitled to relief
because the trial court had already ruled that “the People had
proved beyond a reasonable doubt that the petitioner was guilty
of murder under the newly enacted Senate Bill 1437 . . . .
Specifically, [the judge] held that the petitioner was a major
participant and acted with reckless indifference to human life.”
Defendant responded that Senate Bill 775 represented a
relevant change in law since his first petition was denied,
entitling him to file a second petition for resentencing.
Furthermore, defendant asserted that the instructions given to
his jury and the prosecutor’s argument permitted jurors to
impute malice to him even though he did not commit the
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
provocative act and the court should therefore issue an order to
show cause.
At the hearing on the second petition, the prosecutor
argued that defendant essentially “wants a redo because he
didn’t like [the prior] holding, but there’s nothing in [the judge’s
prior] holdings that’s going to change. [¶] [. . .] [¶] [. . .] I think
the Court can make that ruling at the prima facie stage because
Mr. Antonelli had his hearing already . . . .” The trial court
agreed with the People and denied defendant’s request for a
second order to show cause. Defendant appealed.
The parties’ briefing before the Court of Appeal focused on
the basis for the trial court’s ruling described above, i.e.,
whether the finding on defendant’s first petition that he was
guilty of murder under the law as amended by Senate Bill 1437
procedurally barred him from seeking resentencing in a second
petition. However, the Court of Appeal affirmed the trial court’s
denial order on a different ground and it is that determination
that gives rise to the conflict we must now resolve: the Court of
Appeal concluded that Senate Bill 775 did not expand eligibility
for relief to provocative act murderers because a provocative act
murderer cannot be convicted based on imputed malice. (See
Antonelli, supra, 93 Cal.App.5th at p. 720.) Quoting our 2012
decision in People v. Gonzalez (2012) 54 Cal.4th 643, 655
(Gonzalez), the Court of Appeal explained, “ ‘A murder
conviction under the provocative act doctrine . . . requires proof
that the defendant personally harbored the mental state of
malice, and either the defendant or an accomplice intentionally
committed a provocative act that proximately caused an
unlawful killing.’ ” (Antonelli, at p. 720.) The Court of Appeal
therefore deemed it unnecessary to look at the specific jury
instructions in defendant’s case because he was rendered
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Opinion of the Court by Groban, J.
ineligible for section 1172.6 relief as a matter of law by virtue of
his provocative act murder conviction. (Antonelli, at p. 721.)
The court in Lee, supra, 95 Cal.App.5th 1164 subsequently
disagreed with this Court of Appeal’s conclusion that a
provocative act murder conviction “has always” required proof
that the defendant personally harbored malice. (Id. at p. 1186,
fn. 9, italics added.) Rather, upon its review of “case law
developing the provocative act doctrine,” such a requirement
was not made clear until this court’s 2009 decision in Concha,
supra, 47 Cal.4th 653. (Lee, at p. 1175.) Until then, “an
accomplice could be convicted so long as his confederate
committed a malicious and provocative act, regardless of the
defendant’s personal mental state.” (Ibid.) The instructions
given to Lee’s jury, which did not require jurors to find that Lee
personally acted with malice, confirmed “[t]his was the law in
effect at the time of Lee’s conviction in 1994.” (Id. at p. 1183.)
In view of “the clear and (at the time) correct instructions
allowing conviction under a now-invalid theory,” the Lee court
could not “conclude on the limited record before [it] that the
prosecutor’s closing argument overrode those instructions.” (Id.
at p. 1190.) The Lee court therefore reversed the trial court’s
summary denial of Lee’s petition for resentencing and directed
the trial court to issue an order to show cause as to his murder
conviction. (Id. at p. 1191.)
We granted defendant’s petition for review to resolve this
conflict between the Court of Appeal below and Lee. As
described more fully below, Lee has the better view.
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Opinion of the Court by Groban, J.
II. DISCUSSION
A. Defendant Is Not Categorically Ineligible for
Relief Under Section 1172.6
In People v. Washington (1965) 62 Cal.2d 777
(Washington), we acknowledged that the felony-murder rule
cannot be used to impose murder liability on a felon when, like
here, a killing is committed by the crime victim or a police officer
in an effort to thwart the commission of a listed felony. (Id. at
p. 781.) “Section 189 requires that the felon or his accomplice
commit the killing, for if he does not, the killing is not committed
to perpetrate the felony.” (Ibid., italics added.) However, “[w]hen
someone other than the defendant or an accomplice kills during
the commission or attempted commission of a crime, the
defendant . . . may nevertheless be prosecuted for murder under
the provocative act doctrine.” (Gonzalez, supra, 54 Cal.4th at
p. 654.) “ ‘A provocative act murder case necessarily involves at
least three people — . . . the perpetrator of the underlying
offense, an accomplice, and a victim of their crime.’ ” (Ibid.,
quoting People v. Briscoe (2001) 92 Cal.App.4th 568, 581; but see
People v. Antick (1975) 15 Cal.3d 79, 91 (Antick) [clarifying that
when the deceased himself is the sole provocateur, his
nonprovocateur accomplice cannot be liable for murder because
the provocateur did not cause the death of another but only his
own death].)
Until Concha, supra, 47 Cal.4th 653, our decisions allowed
for conviction for provocative act murder whereby malice could
be imputed to a nonprovocateur accomplice solely based on his
or her participation in a crime. (See Lee, supra, 95 Cal.App.5th
at p. 1179.) More specifically, over 50 years ago, the provocative
act doctrine was originally explained as follows, “When the
defendant or his accomplice, with a conscious disregard for life,
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
intentionally commits an act that is likely to cause death [the
“provocative act”], and his victim or a police officer kills in
reasonable response to such act, the defendant is guilty of
murder. In such a case, the killing is attributable, not merely to
the commission of a felony, but to the intentional act of the
defendant or his accomplice committed with conscious disregard
for life.” (People v. Gilbert (1965) 63 Cal.2d 690, 704, italics
added (Gilbert).) Thereafter, we repeatedly confirmed that the
provocative act doctrine is a theory of vicarious liability for
murder; an accomplice to a felony could “be vicariously
responsible for any killing [except where the decedent is the sole
provocateur] attributable to the intentional acts of his associates
committed with conscious disregard for life, and likely to result
in death.” (Taylor v. Superior Court (1970) 3 Cal.3d 578, 583
(Taylor); see also People v. Caldwell (1984) 36 Cal.3d 210, 223
[“The proper focus on the individual culpability of accomplices is
retained by the requirement that one or more of them engage in
conduct which it is highly probable (not merely foreseeable) will
result in death, evincing a conscious disregard of human life”],
first italics added.) The requisite provocative act only had to be
committed by a surviving accomplice “in furtherance of the
common design of all,” as in a criminal conspiracy, to hold a
nonprovocateur accomplice “vicariously liable for the murder.”
(Antick, supra, 15 Cal.3d at p. 89; see also Pizano v. Superior
Court (1978) 21 Cal.3d 128, 139 [a coconspirator in a robbery
“may be found guilty of murder for a killing attributable to the
act of his accomplice if the act was committed in furtherance of
the common design” (italics added)].)
Courts of Appeal necessarily adhered to our articulation of
the law. (See Lee, supra, 95 Cal.App.5th at p. 1180, quoting
People v. Mai (1994) 22 Cal.App.4th 117, 125 [relying on our
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
precedent to conclude that “ ‘it is a life-endangering act by a
defendant or surviving cofelon that supplies the requisite
implied malice to support a murder conviction’ ”]; People v.
Garcia (1999) 69 Cal.App.4th 1324, 1331 [holding, under our
precedent, that the nonprovocateur defendant was properly
convicted of provocative act murder “based upon defendant’s
vicarious responsibility for the crime of his accomplice” (italics
added)].) The parties agree that, under the governing law at the
time of defendant’s murder conviction in 1991, the provocative
act murder doctrine did not require proof that defendant
personally harbored malice. In other words, “[t]he defendant
could be a non-provocateur who did not personally act with
malice, so long as a provocateur accomplice did.”
As the Lee court explains, it was not until our November
2009 decision in Concha, supra, 47 Cal.4th 653 that we
“separated out the mens rea of individual defendants in
provocative act murder cases” and made clear that a defendant
must personally harbor malice to be convicted of provocative act
murder. (Lee, supra, 95 Cal.App.5th at p. 1182.) The Attorney
General only lightly pushes back on the proposition that our
2009 decision in Concha represents the relevant turning point
in our decisional law. The Attorney General acknowledges that
“any doubt” about the requisite mens rea for nonprovocateur
accomplices was necessarily resolved “in 2009 with Concha,” but
suggests that we made statements as early as 2001 to clarify the
law in this regard. In doing so, the Attorney General points to
our statement in People v. McCoy (2001) 25 Cal.4th 1111
(McCoy) that “outside of the natural and probable consequences
doctrine, an aider and abettor’s mental state must be at least
that required of the direct perpetrator.” (Id. at p. 1118.) The
Attorney General also quotes the following language from a
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
footnote in People v. Cervantes (2001) 26 Cal.4th 860
(Cervantes): “If the defendant proximately causes a homicide
through the acts of an intermediary and does so with malice and
premeditation, his crime will be murder in the first degree . . .
[but i]f the defendant proximately causes a homicide through
the acts of an intermediary and does so without malice, his crime
will be manslaughter.” (Id. at p. 872, fn. 15, citations omitted.)
Concha clearly relies on these precedents in concluding a
nonprovocateur accomplice must personally harbor malice to be
liable for murder. (See Concha, supra, 47 Cal.4th at p. 660, citing
McCoy, supra, 25 Cal.4th at p. 1118; Concha, at p. 662, citing
McCoy at pp. 1118–1119; Concha, at p. 663, quoting Cervantes,
supra, 26 Cal.4th at p. 872, fn. 15.) However, while McCoy and
Cervantes represent important building blocks in the evolution of
our decisional law, a close reading of those cases discloses that,
unlike Concha, they did not specifically clarify the requisite mens
rea that a nonprovocateur accomplice must harbor in order to be
convicted of provocative act murder. Critically, McCoy was not a
provocative act murder case. In McCoy, we instead examined “the
nature of aiding and abetting liability” in general (McCoy, at
p. 1116), not tailored to the specific “type of murder” that
provocative act murder represents (Concha, supra, 47 Cal.4th at
p. 663). Although Cervantes did consider a provocative act murder,
in that case we focused on the proximate cause element — not the
malice element. (Cervantes, supra, 26 Cal.4th at p. 866 [“In
particular, the essential element with which we are here concerned
is proximate causation in the context of a provocative act murder
prosecution”].) And while footnote 15 in Cervantes (see ante) may
have, in some respects, foreshadowed Concha, the opinion certainly
did not make clear that a nonprovocateur accomplice had to
personally harbor malice. While Concha relied in part on
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PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
Cervantes’s footnote 15 for its holding, Concha did not simply
restate the footnote in different words; it meaningfully expanded
on it and clarified the point, including by explicitly addressing the
role of personal malice in a second degree murder prosecution.
(Compare Concha, at p. 663 with Cervantes, at pp. 872–873, fn. 15.)
Thus, we are unconvinced that those earlier cases made clear that
malice could not be imputed to nonprovocateur accomplices in
provocative act murder cases. Notably, in the wake of Cervantes,
at least some Courts of Appeal continued to follow the principle
that the provocative act murder doctrine does not require proof that
a defendant personally harbor malice. (See, e.g., People v. Lima
(2004) 118 Cal.App.4th 259, 265.)
By contrast, Concha, supra, 47 Cal.4th 653, directly
addresses the relative mens rea requirements for multiple
actors in a provocative act murder case. There, four men, Reyes
Concha, Julio Hernandez, Max Sanchez, and an unidentified
individual, attempted to rob Jimmy Lee Harris. During the
attempted robbery, one of the assailants started to stab Harris,
but Harris fought back with his own pocketknife and fatally
wounded Sanchez. A jury convicted Concha and Hernandez of
Sanchez’s first degree murder under the provocative act murder
doctrine. We granted review “to determine whether a defendant
may be liable for first degree murder when his accomplice is
killed by the intended victim in the course of an attempted
murder.” (Id. at p. 658.) In addressing this issue, we observed,
“[w]hile joint participants involved in proximately causing a
murder ‘ “are tied to a ‘single and common actus reus,’ ‘the
individual mentes reae or levels of guilt of the joint participants
are permitted to float free and are not tied to each other in any
way. If their mentes reae are different, their independent levels
of guilt . . . will necessarily be different . . . .’ ” ’ ” (Id. at p. 662,
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PEOPLE v. ANTONELLI
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second italics added.) We then explained, “The defendant or an
accomplice must proximately cause an unlawful death, and the
defendant must personally act with malice.” (Id. at p. 663, italics
added; see also Gonzalez, supra, 54 Cal.4th at p. 655 [citing
Concha, supra, 47 Cal.4th at pp. 660–661 for the proposition
that a provocative act murderer must “personally harbor[] the
mental state of malice”].)6
In sum, prior to our decision in Concha, supra, 47 Cal.4th
653, our case law on provocative act murder “imposed
culpability on all perpetrators of the underlying crime so long as
the provocateur acted with malice, and did so in furtherance of
the common criminal design,” provided that the deceased was
not the sole provocateur. (Lee, supra, 95 Cal.App.5th at p. 1182,
citing Antick, supra, 15 Cal.3d at p. 89, Taylor, supra, 3 Cal.3d
at pp. 582–583, Gilbert, supra, 63 Cal.2d at pp. 704–705.)
Because, under previous precedent, a jury could have imputed
malice to a nonprovocateur defendant, the Court of Appeal was
6
We note that, after Concha, supra, 47 Cal.4th 653, the
same Court of Appeal that issued the opinion below quoted
language from our earlier opinions in Gilbert, supra, 63 Cal.2d
at page 704 and Taylor, supra, 3 Cal.3d 578 to find the evidence
sufficed to “impute[] malice and first degree murder liability” to
the “ ‘mastermind’ ” of a home-invasion robbery despite his
absence from the scene. (People v. Johnson (2013)
221 Cal.App.4th 623, 630, 631.) In deciding the instant appeal,
the Court of Appeal noted Johnson’s “use of the word ‘imputed’
was inartful” and it “did not mean to suggest that the
mastermind could be convicted of provocative act murder
regardless of whether he personally harbored malice.”
(Antonelli, supra, 93 Cal.App.5th at p. 721, fn. 4.) In an
abundance of caution, we disapprove of People v. Johnson,
supra, 221 Cal.App.4th 623 to the extent its analysis may be
read to suggest, contrary to Concha, that a nonprovocateur
accomplice need not personally harbor malice.
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wrong to conclude that such a defendant would be categorically
ineligible for section 1172.6 relief. (See § 188, subd. (a)(3), as
amended by Stats. 2018, ch. 1015, § 2 [“Malice shall not be
imputed to a person based solely on his or her participation in a
crime”]; see also Strong, supra, 13 Cal.5th at p. 712 [“[S]ection
1172.6, subdivision (a)(3)’s ‘because of’ language does not
require a showing that a claim to relief under Senate Bill 1437
arises from no other cause — only that the 2019 changes supply
a basis for the claim and so are a cause”].)7
B. The Court of Appeal Erred by Deeming the Jury
Instructions Irrelevant to the Prima Facie
Inquiry
We also granted review to decide a second question in this
matter: “Did the trial court err by not considering the jury
instructions in determining defendant was ineligible for
resentencing as a matter of law for a provocative act murder?”
As a general matter, we agree with the Attorney General that
“the [section 1172.6] eligibility question will turn on an
examination of both the governing law at the time of trial and
the record of conviction, including the jury instructions.” As we
7
In his reply brief, defendant seems to suggest that we
should revisit Concha’s articulation of the actus reus for
provocative act murder. (See Concha, supra, 47 Cal.4th at
p. 665 [explaining that “a defendant charged with murder or
attempted murder can be held vicariously liable for the actus
reus of an accomplice” (italics added)].) Defendant appears to
assert that, in the wake of Senate Bills 1437 and 775, defendant
himself must have committed, or directly aided and abetted, the
provocative act, i.e., a nonprovocateur can no longer be guilty of
provocative act murder. This question is beyond the scope of the
issues before us in this matter and we express no opinion on the
issue.
16
PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
have repeatedly said, “the record of conviction will necessarily
inform the trial court’s prima facie inquiry . . . , allowing the
court to distinguish petitions with potential merit from those
that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 957;
accord, Curiel, supra, 15 Cal.5th at p. 460; People v. Patton
(2025) 17 Cal.5th 549, 563.) In assessing section 1172.6
petitions from individuals convicted following jury trials, the
jury instructions will be critical. (See Curiel, supra, 15 Cal.5th
at p. 441 [looking at “[t]he jury’s verdicts, viewed in light of the
court’s jury instructions” to assess whether the defendant could
make a prima facie showing for relief under section 1172.6].)
Thus, the Court of Appeal below was incorrect to conclude that
the jury instructions were irrelevant to the determination of
whether defendant was convicted “pursuant to a ‘theory under
which malice is imputed to a person based solely on that person’s
participation in a crime.’ ” (Antonelli, supra, 93 Cal.App.5th at
p. 721, quoting § 1172.6, subd. (a).)
In both this matter and in Lee, the jury instructions
tracked the governing law at the time of the defendants’ trials.
Specifically, “[c]onsistent with Gilbert, Taylor . . ., and Antick,
the[] [jury] instructions did not require the jury to find that Lee
personally acted with malice.” (Lee, supra, 95 Cal.App.5th at
p. 1183.) At defendant’s trial, jurors were instructed under
CALJIC 8.12 that they could find defendant guilty of
provocative act murder if: (1) “[t]he crime of robbery [or]
[attempted robbery] was committed”; (2) “[d]uring the
commission of such crime, a person committing the crime also
committed a provocative act”; (3) “[t]he provocative act was
deliberately performed with knowledge of the danger to and
with conscious disregard for human life”; and (4) “[s]uch act was
sufficiently provocative that [the victim of the robbery]”
17
PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
reasonably killed one of the robbers. 8 As we have said before,
“the parties can, and should, use the record of conviction to aid
the trial court in reliably assessing whether a petitioner has
made a prima facie case for relief . . . .” (Lewis, supra,
11 Cal.5th at p. 972.) However, as we will explain in greater
detail below, the Attorney General now contends that, given the
unique procedural posture of this case, the trial court correctly
denied defendant’s second petition as successive without
reference to the trial record. We take no position on the merits
of this argument but instead conclude that the best course is for
the parties to litigate this issue in the first instance on remand.
(See post, at pp. 18–20.)
C. We Remand Defendant’s Case for Further
Proceedings
While the parties agree that the Court of Appeal’s
reasoning was incorrect, they seek different remedies. The
Attorney General argues that “[r]emand is appropriate to
8
The standard CALJIC 8.12 instruction was revised in the
Spring of 2019 in recognition of changes made to section 188 by
Senate Bill 1437. In its amicus curiae brief in support of
defendant, the Office of the State Public Defender suggests that
the corresponding CALCRIM instruction on provocative act
murder, CALCRIM No. 561, should be referred to the Judicial
Council for revisions to ensure that the instruction does not
permit a jury to impute malice to a nonprovocateur accomplice.
The Attorney General agrees that we should refer CALCRIM
No. 561 to the Judicial Council for revision “because the model
instruction, by itself, does not clearly convey a personal malice
requirement for a nonprovocateur.” In light of that potential
ambiguity, we conclude it is prudent to refer CALCRIM No. 561
to the Judicial Council of California and its Advisory Committee
on Criminal Jury Instructions for its consideration of a possible
revision. (See People v. Lemcke (2021) 11 Cal.5th 644, 647; Cal.
Rules of Court, rule 2.1050(b).)
18
PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
permit the Court of Appeal to consider in the first instance
whether relitigation of the issue decided at the evidentiary
hearing on [defendant’s] first petition is barred under principles
of collateral estoppel and law of the case.” More specifically, the
Attorney General explains that the trial court already held “an
evidentiary hearing, at which it determined beyond a
reasonable doubt that [defendant] is guilty of murder under a
currently valid theory,” i.e., that defendant was a major
participant who acted with reckless indifference to human life.
The Attorney General argues that regardless of the fact that
defendant was convicted of provocative act murder before 2009,
the trial court’s prior ruling after an evidentiary hearing
precludes defendant from proceeding to a new evidentiary
hearing on his current petition. In other words, the Attorney
General argues that the trial court’s independent grounds for
leaving defendant’s murder conviction undisturbed are now law
of the case and/or have a collateral estoppel effect, and the fact
that defendant was convicted of provocative act murder before
2009 (and the precise nature of the jury instructions given on
provocative act murder) is irrelevant.
Defendant acknowledges that “neither collateral estoppel
nor law of the case was presented as an issue for review,” but
nonetheless asks us to conclude that neither doctrine applies in
his case to bar him from proceeding to a second evidentiary
hearing. He asserts, in part, that he cannot be estopped from
seeking relief because his second petition was based on new,
intervening law in the form of Senate Bill 775. Moreover,
defendant contends that he is not precluded from seeking
resentencing for a second time because the trial court’s findings
on his first petition only sufficed for a felony-murder conviction
under current law, not a provocative act murder conviction.
19
PEOPLE v. ANTONELLI
Opinion of the Court by Groban, J.
According to defendant, the trial court’s prior findings that he
was a major participant in the robbery who acted with reckless
indifference to human life are insufficient because, under
current law, he cannot be guilty of provocative act murder
unless there is a finding that he committed or aided “the
commission of a provocative act with malice.” In other words,
defendant contends the superior court upheld defendant’s
provocative act murder conviction based on the felony-murder
doctrine — a doctrine that, as explained ante, cannot support a
murder conviction “[w]hen someone other than the defendant or
an accomplice kills during the commission or attempted
commission of a crime.” (Gonzalez, supra¸ 54 Cal.4th at p. 654.)
We agree with the Attorney General that the issue of
whether the trial court’s 2019 denial of section 1172.6 relief has
any preclusive effect on defendant’s current claim for section
1172.6 relief is best assessed by the Court of Appeal in the first
instance.
III. DISPOSITION
We reverse the judgment of the Court of Appeal. The
cause is remanded to the Court of Appeal for further proceedings
consistent with the views expressed herein.
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
EVANS, J.
20
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Antonelli
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 93 Cal.App.5th 712
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S281599
Date Filed: April 24, 2025
__________________________________________________________
Court: Superior
County: Ventura
Judge: Ryan J. Wright
__________________________________________________________
Counsel:
Claudia Y. Bautista, Public Defender, and William M. Quest, Deputy
Public Defender, for Defendant and Appellant.
Galit Lipa, State Public Defender, and Samuel Weiscovitz, Deputy
State Public Defender, for the Office of the State Public Defender as
Amicus Curiae on behalf of Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Idan Ivri and Theresa A. Patterson, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
William M. Quest
Deputy Public Defender
789 South Victoria Avenue, Suite 307
Ventura, CA 93003
(805) 654-3032
Theresa A. Patterson
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6004