People v. Cunningham

Filed 4/23/24 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B323640 (Super. Ct. No. CR37135) Plaintiff and Respondent, (Ventura County)

v.

ROBERT WAYNE CUNNINGHAM,

Defendant and Appellant.

Robert Wayne Cunningham was convicted of provocative act murder as a result of a 1995 shootout with the police. He was also convicted of other offenses connected with the shootout. He was sentenced to state prison for life without the possibility of parole. Consecutive determinate sentences were also imposed. He unsuccessfully sought sentencing relief pursuant to Penal Code section 1172.6. He appeals contending that provocative murder is based upon the imputation of malice and any such imputation is now barred by newly enacted Penal Code section 188, subdivision (a)(3). We disagree and affirm. We cannot add the phrase “provocative act murder” to the statute. This species of murder liability has been the law in California

since the 1960s (see, e.g., People v. Gilbert (1965) 63 Cal.2d 690, 704-705). Surely the Legislature was aware of this murder theory when it made two changes to the statutory murder definitions. It’s failure to mention “provocative murder” is significant and leads to only one logical conclusion: the Legislature did not intend to jettison this theory. Only a brief recitation of the facts is necessary to bring this appeal into focus. Appellant and his cohort, Soley, were suspected of committing a series of armed robberies. The police had them under surveillance. They followed appellant and Soley to a liquor store. When appellant and Soley committed the robbery of this liquor store, they were unable to leave because the police blocked their car’s movement. Appellant arose through the open roof of the car and started shooting at the police. They returned gun fire killing Soley and wounding appellant. At least one police officer was wounded in the gun battle. The jury was only instructed on the elements of “provocative murder,” but the prosecutor did argue that appellant started “the ball rolling” and started “a snowball down the hill” when he initiated the gun battle. Appellant now contends that this argument is tantamount to arguing the now discarded “natural and probable consequences” doctrine and that relief should be granted. The statute does not preclude the prosecutor’s argument. It is the instructions given that inform the jury’s verdict. We recently held that the “provocative murder doctrine” survived the recent legislative enactments in People v. Antonelli (2023) 93 Cal.App.5th 712, review granted Oct. 18, 2023, S281599. Our holding was, and is, compelled by California Supreme Court precedent. (People v. Gonzales (2012) 54 Cal.4th