Metropolitan News-Enterprise


Friday, November 13, 2009


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Supreme Court Clarifies ‘Provocative Acts’ Murder Doctrine




A defendant whose accomplice is killed by the intended victim in the course of an attempted murder may be guilty of first degree murder of the accomplice, if the defendant personally acted willfully, deliberately and with premeditation during the attempted murder, the California Supreme Court ruled yesterday.

  In a unanimous decision, the justices held that two men whose accomplice was killed by a man they allegedly tried to rob were properly charged with first degree murder, but may be entitled to a new trial.

The court held that Los Angeles Superior Court Judge Kathleen Kennedy-Powell, while correct in instructing the jury that the defendants could be found guilty of first degree murder if their “provocative acts” led to the killing of their accomplice by their intended victim, erred in failing to emphasize that the doctrine only applies to a defendant who personally acts with the requisite premeditation.

The high court sent the case back to Div. Five of this district’s Court of Appeal for a determination as to whether the error was prejudicial.

Decision Reversed

The justices reversed a 2-1 decision of Div. Five, which last year affirmed the convictions of Reyas Concha and Julio Hernandez for the murder of Hernandez’s cousin, Max Sanchez, and the attempted murder of Jimmy Lee Harris.

Harris, the owner of a beauty salon at Normandie and Vernon avenues in Los Angeles, said Concha and Hernandez approached him in the parking lot of his shop, demanded money and “smokes,” and threatened to kill him if he didn’t give them any.

When he ran off, he said, the two were joined by Sanchez and another man, and all four them chased him to a house and grabbed him as he tried to scale a five-foot fence. He was stabbed in the back, he said, before he remembered that he had a knife in his pocket and began stabbing his assailants.

He eventually ran to another house, where the occupants noticed blood all over their porch and cuts all over Harris, and called police. Paramedics took Harris to California Hospital Medical Center, where he received 60 stitches.

Stab Wounds

Sanchez and Concha both showed up at California Hospital Medical Center that night with stab wounds. A police officer who went to Concha’s residence found bloody clothing in the house and in a van, which matched the description given by a witness who saw it near the scene of the assault.

Police interviewed Concha, who acknowledged having fought with a black man, and admitted that he owned the van and had taken Sanchez to the hospital.

Hernandez told police that he went to the hospital with Sanchez after the two of them fought with “some black fool” and that he learned the next day that his cousin had died.

A deputy medical examiner determined the cause of death as stab wounds to the heart and lung.

Jury Findings

A Los Angeles Superior Court jury found both defendants guilty of first murder and attempted murder with premeditation, and found that Hernandez used a deadly weapon, but deadlocked as to robbery charges. Hernandez admitted a “strike” prior conviction and was sentenced to 81 years to life in prison by Kennedy-Powell, who sentenced Concha to 40 years to life in prison.

Justice Ming Chin, writing for the high court, rejected the contention that since neither defendant intended for Harris to kill Sanchez, they could be guilty of no greater crime than second degree murder.

“In the present case,” the justice explained, “though it is apparent that defendants Concha and Hernandez did not intend to kill their accomplice, they had the intent to kill a person when they attacked their intended victim, and therefore are guilty of murder as to any killing either of them proximately caused while acting together pursuant to their intent to kill. “

Mental State

If the killing of Sanchez was murder under the provocative acts doctrine, Chin went on to say, the next step in the analysis is to determine what degree of murder it was, and this depends on each defendant’s mental state.

“While each of our prior decisions dealing with provocative act murder found the defendant liable for second degree murder, a statement that provocative act murder is second degree murder is not universally correct,” the justice wrote. “In our prior cases, malice was implied from the provocative act.  However, as here, when malice is express because the defendant possessed a specific intent to kill, first degree murder liability may be proper if the charged defendant personally acted willfully, deliberately, and with premeditation.”

The case was argued in the Supreme Court by Los Angeles attorney Maria Morrison of the California Appellate Project, as court-appointed counsel for Concha; Diana M. Teran of Newport Beach as court-appointed counsel for Hernandez; and Deputy Attorney General Stephanie A. Miyoshi of Los Angeles for the prosecution.

The case is People v. Concha, 09 S.O.S. 6469.


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