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C.A. Says No Resentencing for Robber Convicted of Associate’s Death in Unknown Shooter Case
Opinion Says That Convict Who Pled Guilty Months After Case Established That Personal Malice is Required for Provocative Act Murder Is Precluded From Arguing That He Was Convicted Without Requisite Intent
By a MetNews Staff Writer
Div. Three of this district’s Court of Appeal has held that a robber, who pled guilty to first-degree murder relating to the death of a purported co-conspirator a few months after the California Supreme Court announced that a defendant accused of a provocative act killing must personally harbor malice, is precluded from seeking resentencing based on assertions that he might have been convicted without a showing of the requisite intent.
In Friday’s opinion, authored by Acting Presiding Justice Anne H. Egerton, the court said that the issue implicates two California Supreme Court cases.
In the first of those decisions, the 2009 case of People v. Concha, the high court held that prosecutors seeking to hold a defendant liable for murder based on a provocative act theory—under which the defendant is accused of doing something that incited the other person to kill—must prove that the accused acted with personal malice.
The application of that decision to cases that predate it was the subject of this year’s opinion in People v. Antonelli, which found that a robber convicted of killing of a co-conspirator—who was shot by the victim—in 1991 may be entitled to resentencing because the prosecution did not necessarily prove the requisite intent given that the law at the time did not mandate a finding of personal malice.
Unusual Case
Egerton acknowledged that the preliminary hearing relied upon for the stipulated factual basis for the defendant’s plea occurred before the Concha decision, but reasoned:
“Because [the defendant] entered his plea and was convicted after the court decided Concha, he necessarily was convicted under a theory of murder that required him personally to harbor malice. Because that theory of murder remains valid, Venancio is ineligible for [resentencing] as a matter of law.”
Egerton acknowledged that the case—in which the decedent was killed during a shootout between a neighbor and the robbery suspects—is unusual because it is unknown who fired the fatal shots. Under those circumstances, the court said that resentencing relief was categorically unavailable to the defendant because other theories of liability that were viable at the time but have since been statutorily eliminated—such as felony murder and the natural and probable consequences doctrines—could not have formed the basis for the defendant’s conviction, as neither doctrine applies if an innocent party kills a co-conspirator.
Egerton reasoned that because the shooter’s identity remained a mystery, “[t]he prosecutor could not rely on felony murder or the natural and probable consequences doctrine because the People could not prove one of [the defendant’s] accomplices fired the bullets that killed [his accomplice].”
The question arose after Miguel Venancio was identified as one of a group of armed men who entered the home of Sergio Uriarte in May 2008. After Uriarte’s neighbor and relative, Luis Perez, observed a man with a ski mask exit the residence, he drew a gun and shouted for the suspect to stay still.
After the man in the mask fired off multiple rounds, Perez returned fire. Suspects still inside the home also began shooting. Jesse Ruiz, who was identified by Uriarte as one of the robbers, was hit in the chest and died at a nearby hospital after Venancio transported him from the scene to the facility.
Because the fatal shot exited the decedent’s body, prosecutors said that they were unable to prove whether the bullet came from the victim’s gun or a weapon fired by the intruders. At a preliminary hearing, the prosecution relied exclusively on a theory of provocative act murder.
In April 2010, Venancio pled no contest to a single count of first-degree murder, stipulating to a factual basis for the plea based on the preliminary hearing transcript. The defendant was sentenced to 25 years to life in prison.
Petition for Relief
Venancio filed a petition for resentencing relief in 2022, citing Penal Code §1172.6, which provides:
“A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime…may file a petition with the court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts….”
Venancio argued he is entitled to resentencing relief because he could not be convicted of provocative act murder where there is no evidence he possessed an intent to kill, committed a provocative act, or aided and abetted a provocative act.
Los Angeles Superior Court Judge George G. Lomeli rejected his arguments and denied the petition.
Friday’s decision, joined in by Justices Rashida A. Adams and Mark K. Hanasono, affirms the denial.
Viable Theory
Egerton noted that provocative act murder remains a viable theory and explained:
“We see no reason why a provocative act murder theory—or at least the broader principles from which it arises—would not apply where the decedent is killed by friendly fire during a gun battle caused by the defendant’s provocative act. As in a typical provocative act case, the defendant would be liable for murder only if his provocative conduct was the proximate cause of the death and he acted with the requisite mental state. The fact that the accomplice was killed by another accomplice might break the chain of causation in some cases, but it would not categorically absolve the defendant of liability for murder under such a theory.”
She continued:
“[T]he People could have proved Venancio’s guilt without having to prove the shooter’s identity. The shooter’s identity was not relevant to the mental state or provocative act elements. The only issue it might have affected was causation….In this case, it was enough for the People to prove it was foreseeable that Venancio’s provocative conduct would cause a gun battle with an armed neighbor at which someone would be killed; the issue did not depend on whether Luis or an accomplice ultimately fired the fatal shots during that battle. Therefore, the People did not have to prove the shooter’s identity to establish Venancio’s guilt under a provocative act theory.”
Addressing whether his conviction could be said to be based on other theories of murder liability given the testimony provided at the preliminary hearing, she wrote:
“The record of conviction shows Venancio was prosecuted and convicted under a provocative act murder theory. It is undisputed the prosecutor pursued that theory at the preliminary hearing, and Venancio stipulated to the transcript of the hearing as a factual basis for his plea….The evidence at the preliminary hearing would not have supported a conviction under a theory of felony murder or the natural and probable consequences doctrine. Nor has Venancio pointed to any facts that would have supported a conviction under some other theory that could potentially entitle him to relief. Accordingly, without having to weigh evidence or exercise discretion, we conclude Venancio was convicted under a provocative act murder theory.”
The jurist declared:
“Concha was the governing law when Venancio was convicted, and Concha plainly prohibits the imputation of malice to a defendant under a provocative act theory, including to a nonprovocateur accomplice. Accordingly, Venancio’s conviction for provocative act murder necessarily establishes that he personally harbored malice….Because that theory of murder is still valid, Venancio is ineligible for relief under section 1172.6 as a matter of law.”
The case is People v. Venancio, 2025 S.O.S. 2531.
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