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Friday, August 20, 2021


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Person Convicted Under Provocative Act Doctrine’ Not Entitled to Resentencing Consideration—C.A.


By a MetNews Staff Writer


The Court of Appeal for this district has held that a person convicted of murder under the “provocative act doctrine”—which entails fictionally imputing intent to a wrongdoer who did not in fact intend to cause a death—is not entitled to the prospect of resentencing under Penal Code section 1170.95, created by SB 1437.

Justice John L. Segal wrote the opinion, filed Wednesday and not certified for publication. Agreeing with the analysis of Los Angeles Superior Court Judge H. Clay Jacke II in denying the petition of inmate Michael Powell, Segal said that  the “provocative act doctrine” is “something similar” to the now-repudiated “natural and probable consequences doctrine,” but declared:

“Similar, however, is not the same.”

Under 1170.95, as amended effective Jan. 1, 2019, a person convicted of felony murder or murder under the natural and probable consequences doctrine may, under specified circumstances, move to have the sentence recalled and to be resentenced. Powell had been sentenced to imprisonment for life without the possibility of parole, plus 10 years based on a firearm enhancement.

Intended Committing Robbery

His intended offense was armed robbery. It was committed in March 1999 in the company of one Dennis Smith.

Had Smith killed a victim, Powell would have been guilty, under the natural and probable consequences doctrine, of murder, even if the killing had not been planned and he lacked malice.

Powell’s lawyer argued before Jacke that if Smith “had pulled the trigger of a gun and killed the shopkeeper or her grandson or her nephew, Mr. Powell would be sitting before this court eligible for resentencing and in all likelihood receiving a new sentence.”

As it happened, however, a grandson of the store being robbed grabbed a gun and shot at the culprits, killing Smith. Powell was convicted of first degree murder under the provocative act doctrine.

Nature of Doctrine

Segal quoted the California Supreme as explaining in its 2012 decision in People v. Gonzalez:

“The provocative act doctrine does not define a crime....Rather, ‘provocative act murder’ is a descriptive term referring to a subset of intervening-act homicides in which the defendant’s conduct provokes an intermediary’s violent response that causes someone’s death.”

Powell insisted he had actually been convicted under the felony-murder rule, rendering him eligible for resentencing. Under that ancient rule (largely repudiated by SB 1437 in redefining murder), a killing in the course of the commission of specified felonies, including robbery, is first-degree murder/

Segal said the record reflects a conviction under the provocative act doctrine. He quoted Div. One of this district as saying in People v. Swanson, authored by Justice Victoria Chaney:

“The mere fact that a second degree provocative act murder may be elevated to first degree murder pursuant to felony-murder principles neither intertwines provocative act murder with felony murder nor transforms the former into the latter.”

That case has been taken up by the California Supreme Court.

Segal’s opinion came in People v. Powell, B304587.


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