People v. Gardner (37 Cal. App. 4th 473, 1995)

Opinion

PETERSON, P. J.

In this decision, we hold that a defendant who provokes a gun battle by shooting at a victim may be guilty of proximately causing the murder of the victim, even if the victim is killed by shots fired by a third party during the gun battle. We also hold that, in such a situation, CALJIC No. 8.12 is properly modified by deleting the requirement, imposed in other contexts, that the death of the victim result from a “reasonable” response by a third party to the defendant’s acts. This reasonable response requirement is unnecessary and confusing. Derivative liability for homicide attaches under the provocative act doctrine, when the defendant’s intentional provocative act proximately causes the death of a victim through the action of a third party.

I. Facts and Procedural History

Appellant and his companion, as well as the victim, were drug dealers in an area of Richmond notorious for drug dealing. Appellant and his companion, Mims, approached the victim on the street, either to rob him or to intimidate him into leaving their drug turf. Appellant drew his pistol for use against the victim, who ran away while appellant fired shots at him. While appellant was firing shots at the fleeing victim, yet another armed drug dealer in the area, Miller, apparently believed the shots were being fired at him, and also began firing his semiautomatic weapon in response, toward the area where appellant was shooting.

The victim was found by police at the scene, bleeding from three gunshot wounds. Two wounds, which were not fatal, were in his legs. The fatal wound was a shot in the back which perforated the victim’s liver and exited through the front of the victim’s chest. It is most likely given the fragment characteristics, site, and direction of the back wound that the fatal shot was fired by appellant, but the defense presented some scientific evidence that the fatal shot could have been fired by the third party, Miller, who thought appellant’s shots were aimed at him and fired back.

An information charged appellant with the first degree murder of the victim, with the special circumstance that the murder was committed dining a robbery. The prosecution sought the death penalty.

After a jury trial, the jury returned a verdict finding appellant guilty of second degree murder, and found true the allegation that appellant had used a firearm in the offense. The jury also acquitted appellant of robbery, but found him guilty of assault with a deadly weapon, and the possession of a firearm by an ex-felon. The trial court sentenced appellant to a total unstayed term of 19 years to life.

II. Discussion

For almost a century, California courts and the courts of other states have been struggling to define the contours of a defendant’s criminal liability for a killing where the fatal wound is received not from the defendant, but from another person in response to the defendant’s provocative acts. For the most part, the evolution of this criminal liability has been influenced by other legal doctrines which are not directly applicable here—such as the felony-murder rule or vicarious liability for the acts of a coconspirator or aider and abettor, although there are a few decisions which find a defendant criminally liable outside the bounds of those other doctrines and simply as the proximate cause of the victim’s death, as we do here. A brief review of the case law is necessary in order to understand the proper application of proximate cause principles in this context.

We must begin at the end of the 19th century. In People v. Lewis (1899) 124 Cal. 551 [57 P. 470] {Lewis), the defendant had been found liable for manslaughter as the proximate cause of the death of his brother-in-law, even though the shot fired by the defendant was not necessarily the cause of the victim’s death. The defendant had, during a quarrel, fired on his brother-in-law and struck him in the intestines, delivering a wound which was very painful and which would, given the medical practices of the time, have eventually been mortal. The victim realized the wound would eventually be mortal and slit his own throat with a knife, dying soon thereafter. It was argued on appeal that the defendant, therefore, could not be guilty of a homicide because the victim killed himself. {Id. at pp. 554-555.)

Justice Temple affirmed the conviction, holding a defendant could be liable for a homicide where the death of the victim resulted from a fatal knife wound self-administered in response to, and caused by, the defendant’s gunfire: “[I]f the deceased did die from the effect of the knife wound alone, no doubt the defendant would be responsible, if it was made to appear, and the jury could have found from the evidence, that the knife wound was caused by -the wound inflicted by the defendant in the natural course of events. If the relation was causal, and the wounded condition of the deceased was not merely the occasion upon which another cause intervened, not produced by the first wound or related to it in other than a causal way, then defendant is guilty of a homicide.” (Lewis, supra, 124 Cal. at p. 555.) Under Lewis, appellant here could be criminally liable for the homicide of the victim, even if appellant did not administer the fatal wound, provided the fatal wound was “caused . . . in the natural course of events” by appellant’s acts in firing on the victim.

We see the same result a couple of decades later, in People v. Fowler (1918) 178 Cal. 657 [174 P. 892] (Fowler). In Fowler, our Supreme Court upheld the defendant’s conviction for first degree murder, even though it was unclear whether death resulted directly from a wound administered by the defendant, or resulted from the action of a third party in running over the victim who was sprawled wounded on a road. (Pp. 660, 669.) The high court indicated the defendant’s criminal liability “would be similar to many that are given in the books where the defendant was held responsible for the natural and probable result of his unlawful acts.” (Id. at p. 669.) “For these reasons we conclude that the instruction was not erroneous and that the claim that the death might possibly have been caused by the wheel of an automobile was not sufficient to exonerate the defendant from the charge.” (Id. at p. 670.) Similarly, in the present case, appellant could be liable for the murder of the victim if the victim’s death was the natural and probable consequence of the lethal acts in which appellant intentionally engaged.

In a number of subsequent decisions, our Supreme Court also addressed this point, often in the context of or against the background of the limits of the felony-murder rule. Thus, in People v. Washington (1965) 62 Cal.2d 777, 781-783 [44 Cal.Rptr. 442, 402 P.2d 130], Chief Justice Traynor’s opinion held that a robber was not liable for murder under the felony-murder rule where one of the robber’s accomplices was killed by a victim of the robbery, since the murder was not perpetrated by the robber and the implied malice necessary for murder was not attributable to him. However, Chief Justice Traynor also observed, in dicta, that the felony-murder doctrine was certainly not the only method of attaching murder liability on those who fire weapons and provoke a gunfight in which another person is killed: “Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill.” (Id. at p. 782.)

Chief Justice Traynor expanded upon this dicta a few months later in People v. Gilbert (1965) 63 Cal.2d 690 [47 Cal.Rptr. 909, 408 P.2d 365] (Gilbert) (judgment vacated on other grounds (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951]). In Gilbert, our high court reversed a felony-murder conviction because the victim was an accomplice, as in Washington, supra, and sent the case back for retrial on proper legal principles. (63 Cal.2d 703-704.) The high court first noted that a murder conviction requires proof of malice, which may be shown when the defendant for a base or antisocial motive does an act that involves a high probability it will result in death; the high court quickly concluded: “Initiating a gun battle is such an act.” (Gilbert, supra, 63 Cal.2d at p. 704.)

The high court also observed that the death of the victim must be “attributable” to the act of the defendant or an accomplice: “When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life. Thus, the victim’s self-defensive killing or the police officer’s killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice.” (Gilbert, supra, 63 Cal.2d at pp. 704-705.)

The high court subsequently clarified these principles in Pizano v. Superior Court (1978) 21 Cal.3d 128 [145 Cal.Rptr. 524, 577 P.2d 659] (Pizano). In Pizano, the defendant and an accomplice robbed the home of a victim. Fearing that the police had been called, they took the robbery victim hostage and used him as a human shield during their getaway. A third party, a neighbor, who did not know the victim had been taken hostage and was being used as a shield, fired at the robbers and killed the victim. (Id. at p. 132.) The high court held, after reviewing Gilbert, supra, that the defendant could be tried for murder in the death of the victim on a proximate cause theory, even though the fatal shot was fired by a third party. (Pizano, supra, 21 Cal.3d at pp. 136-139.)

In so ruling, the high court rejected the defense theory that the chain of causation was necessarily broken because the neighbor’s shots were not the result of a “reasonable response” by the third party to the acts of the defendant. “The People contend that the question whether a killing was ‘in reasonable response’ to the malicious conduct should be treated as ‘an objective proximate cause determination, and not a subjective response determination.’ They argue that the use of the term ‘independent intervening cause’ in the same passage indicates that the Gilbert court had proximate cause in mind. [