People v Concha

Filed 11/12/09


Plaintiff and Respondent,
Ct.App. 2/5 B195197
Los Angeles County
Defendants and Appellants.
Super. Ct. No. BA287017

Reyas Concha, Julio Hernandez, and Max Sanchez attempted to murder Jimmy Lee Harris. During the attempt, Harris responded in self-defense by stabbing Max Sanchez to death. Relying on the so-called provocative act murder doctrine, the jury convicted defendants Concha and Hernandez of first degree murder for the death of Sanchez. 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. We hold that a defendant may be convicted of first degree murder under these circumstances if the defendant personally acted willfully, deliberately, and with premeditation during the attempted murder.


On July 14, 2005, Reyas Concha, Julio Hernandez, Max Sanchez, and a fourth unidentified man threatened to kill Jimmy Lee Harris during an apparent attempted robbery. Harris fled from the assailants and ran down the middle of a street in Los Angeles. The four men pursued Harris for over a quarter of a mile before cornering him against a fence. Harris attempted to scale the fence and one or more of the assailants began stabbing him. The stabbing continued for several seconds. Harris, realizing that his life was in danger, turned around and attempted to fight the four men off. Harris pulled a pocket knife from his pocket and “began to stab as many of them as [he] could.” Harris then fled and found someone who called the police. Harris suffered severe injuries, but he survived. Sanchez died from the stab wounds that Harris inflicted during the attack. The jury convicted defendants of attempted first degree murder of Harris. (Pen. Code, §§ 187, 664, subd. (a).)1 Relying on the provocative act murder doctrine, the jury also convicted defendants of the first degree murder of Sanchez. (Pen. Code, § 187 subd. (a).) The jury found true that Hernandez personally used a deadly and dangerous weapon during both the attempted murder and the murder. (§ 12022, subd. (b)(1).) The jury specifically found true allegations that the attempted murder of Harris was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)). However, the jury was not asked to find, and did not specifically find, that each defendant personally acted willfully, deliberately, and with premeditation during the attempt. Hernandez admitted that he had suffered a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The jury deadlocked as to each defendant on an attempted second degree robbery charge (§§ 211, 664) and the trial court granted the prosecution‟s motion to dismiss the attempted robbery charges.

1 All further statutory references are to the Penal Code.

The Court of Appeal affirmed the convictions. In an opinion by Justice Mosk, the majority held that defendants‟ first degree murder convictions for the death of their accomplice based on the provocative act doctrine was supported by the jury‟s finding that the attempted murder of the victim was willful, deliberate and premeditated. The majority reasoned that the murder convictions “were not based on a provocative act implied malice theory that would have required a finding of second degree murder. Instead, the convictions were based on defendants‟ express malice in attempting to kill Harris.” The majority applied the doctrine of transferred intent to reach its conclusion that defendants‟ mental state in connection with the attempted murder made them guilty of Sanchez‟s murder in the first degree, reasoning as follows: “Section 189 expressly provides that a willful, deliberate, and premeditated killing is murder of the first degree. The jury found that defendants acted with malice, premeditation, and deliberation in attempting to murder Harris, and found that each committed at least one act in the course of attempted murder that was a proximate cause of Sanchez‟s killing. Thus, defendants‟ mental state—express malice, willfulness, deliberation, and premeditation—in connection with the attempted murder of Harris transferred to the killing of Sanchez, making them guilty of his murder in the first degree.”

In a separate concurring opinion, Justice Turner concluded that the murder conviction should be reduced from first degree to second degree because the jury‟s express malice and premeditation finding with respect to the attempted murder count cannot be transferred to the provocative act murder of defendants‟ accomplice.

We granted review limited to the following issue: “Did the trial court err in allowing the jury to return verdicts of first degree murder when the case was tried on a theory of provocative-act murder?”


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