Filed 5/1/20 Certified for Publication 5/22/20 (order attached)
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`
`
`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`
`SECOND APPELLATE DISTRICT
`
`DIVISION ONE
`
`
`
` B297928
`
` (Los Angeles County
` Super. Ct. No. BA079332)
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`Plaintiff and Respondent,
`
`v.
`
`THE PEOPLE,
`
`
`
`
`
`KENNY INKWON LEE,
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`
`
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`Defendant and Appellant.
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`
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`APPEAL from a judgment of the Superior Court of
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`Los Angeles County, Ronald S. Coen, Judge. Affirmed.
`
`Marilee Marshall, under appointment by the Court of
`
`Appeal, for Defendant and Appellant.
`
`Xavier Becerra, Attorney General, Lance E. Winters, Chief
`
`Assistant Attorney General, Susan Sullivan Pithey, Assistant
`
`Attorney General, Amanda V. Lopez and David W. Williams,
`
`Deputy Attorneys General, for Plaintiff and Respondent.
`
`____________________________
`
`
`
`
`
`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`
`SECOND APPELLATE DISTRICT
`
`DIVISION ONE
`
`
`
` B297928
`
` (Los Angeles County
` Super. Ct. No. BA079332)
`
`Plaintiff and Respondent,
`
`v.
`
`THE PEOPLE,
`
`
`
`
`
`KENNY INKWON LEE,
`
`
`
`
`Defendant and Appellant.
`
`
`
`APPEAL from a judgment of the Superior Court of
`
`Los Angeles County, Ronald S. Coen, Judge. Affirmed.
`
`Marilee Marshall, under appointment by the Court of
`
`Appeal, for Defendant and Appellant.
`
`Xavier Becerra, Attorney General, Lance E. Winters, Chief
`
`Assistant Attorney General, Susan Sullivan Pithey, Assistant
`
`Attorney General, Amanda V. Lopez and David W. Williams,
`
`Deputy Attorneys General, for Plaintiff and Respondent.
`
`____________________________
`
`
`
`
`Defendant and appellant Kenny InKwon Lee appeals from
`the trial court’s denial of his petition under Penal Code1
`
`section 1170.95. That statutory section permits defendants
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`convicted of murder under the felony murder rule or natural and
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`probable consequences doctrine to petition for resentencing based
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`on changes to the Penal Code enacted under Senate Bill No. 1437
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`(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015).
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`Our opinion from Lee’s original appeal in 1996 indicates he
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`was not convicted under either of these two theories, but instead
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`was convicted under the provocative act doctrine. Provocative act
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`murder requires proof of malice, which distinguishes it from
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`felony murder and natural and probable consequences murder.
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`Lee therefore is not entitled to resentencing under section
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`1170.95.
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`Accordingly, we affirm.
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`FACTUAL BACKGROUND
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`
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`We quote the summary of the facts in our 1996 opinion
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`(1996 opinion) addressing Lee’s appeal from his conviction.
`(People v. Lee (May 28, 1996, B088132 [nonpub. opn.])2
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`
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`“Three men arrived at a shopping center in a red sports car.
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`While the driver (Chul Woong Choi) waited in the car, Lee and
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`Joo Hyung Woo got out and went into a video store. Outside, a
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`suspicious security guard (Agustin Nolasco) started to write down
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`
`1 Undesignated statutory citations are to the Penal Code.
`
`2 We granted Lee’s request to take judicial notice of our
`1996 opinion. Apart from that opinion, the record before us
`does not contain any of the trial or appellate record pertaining to
`Lee’s original conviction.
`
`
`
`2
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`
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`the sports car’s license number. Inside, Lee and Woo pointed
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`guns at the video store’s two employees, dragged them to the
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`back of the store, beat them, and took their money and personal
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`belongings. Lee and Woo then ransacked the store and took
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`money from the cash register.” (People v. Lee, supra, B088132,
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`at p. *2.)
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`“Impatient, Choi (who was also carrying a gun) got out of
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`the sports car, tried to open the door to the video store, and yelled
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`to Lee and Woo, ‘Hey, let’s go.’ As Lee and Woo ran out of the
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`store, Nolasco (the guard) stepped out of his car and yelled (in
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`English), ‘What’s going on?’ In response, Lee and Choi
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`pointed their guns at Nolasco and Nolasco, in turn, ducked down
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`behind his open car door and grabbed his gun from his car. Lee
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`and Woo got into the sports car and when Nolasco raised his head
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`to see what was going on, Choi (then halfway into the driver’s
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`seat of the sports car) fired a shot at Nolasco. Nolasco shot back
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`twice, hitting Choi. Lee (who was sitting next to Choi) stepped on
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`the accelerator and, while shooting at Nolasco, drove slowly out of
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`the parking lot.” (People v. Lee, supra, B088132, at p. *2.)
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`“Nolasco ran into the video store, made sure everyone was
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`all right, then went back outside where he found Choi’s dead
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`body face down on the ground where he had been dumped by Lee
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`and Woo.” (People v. Lee, supra, B088132, at p. *3.)
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`PROCEDURAL BACKGROUND
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`1.
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`Trial, conviction, and appeal
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`Lee and Woo “both were charged with Choi’s murder, three
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`counts of robbery, the attempted murder of Nolasco, and a variety
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`of firearm enhancements.” (People v. Lee, supra, B088132,
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`at p. *3.) Woo was granted immunity to testify against Lee,
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`
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`3
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`
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`although he ultimately was not called as a witness. (Ibid.) After
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`a jury trial, Lee was convicted of first degree murder, attempted
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`murder, two counts of robbery, and one count of receiving stolen
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`property, with enhancements. (Id. at pp. *2–*3.)
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`Lee’s conviction for murder was based on the “provocative
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`act” doctrine. (People v. Lee, supra, B088132, at p. *3.)
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`Appealing from that conviction, Lee argued there was insufficient
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`evidence to show that Lee committed a provocative act that was
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`the proximate cause of Choi’s death. (Ibid.) Lee argued the
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`evidence instead showed that it was Choi pointing his gun at
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`Nolasco that led to Nolasco shooting Choi. (Id. at p. *4.)
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`We rejected this argument, concluding that Nolasco’s
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`testimony at trial made clear that it was both Lee’s and Choi’s
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`pointing their guns at Nolasco that caused him to reach for his
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`own gun and shoot back, killing Choi. (People v. Lee, supra,
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`B088132, at p. *5.) Thus, there was sufficient evidence that Lee’s
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`conduct was a “substantial factor in causing the shooting, and
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`the fact that Choi’s own conduct was also a contributing factor
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`does not relieve Lee of criminal responsibility for this killing.”
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`(Ibid.)
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`We further held that the jury was properly instructed “that
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`a murder ‘which occurs during the commission or attempt to
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`commit the crime of robbery, when there was in the mind of the
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`perpetrators of such crime the specific intent to commit robbery,
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`is murder of the first degree,’ ” citing former section 189. (People
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`v. Lee, supra, B088132, at p. *6.) Lee argued that “because the
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`felony-murder rule does not apply to provocative-act killings for
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`the purpose of proving malice aforethought, the felony-murder
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`rule ought not to have anything to do with determining the
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`degree of a provocative-act murder.” (Id. at pp. *6–*7.) We held
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`
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`4
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`
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`that Lee’s argument was contrary to established law under
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`People v. Gilbert (1965) 63 Cal.2d 690, 705 (Gilbert), reversed on
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`other grounds by Gilbert v. California (1967) 388 U.S. 263.
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`After rejecting Lee’s other claims of error, we affirmed the
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`judgment. (People v. Lee, supra, B088132, at pp. *7–*8.)
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`2.
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`Petition for resentencing
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`
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`In February 2019, Lee filed a petition for resentencing
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`pursuant to section 1170.95. Lee checked boxes on the petition
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`form indicating that he was convicted of first or second degree
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`murder under the felony murder rule or the natural and probable
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`consequences doctrine, and could not now be convicted of murder
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`because of changes to sections 188 and 189 effective January 1,
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`2019. As to his specific conviction, Lee checked the box indicating
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`he was convicted for first degree felony murder; he did not check
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`the box indicating a conviction for second degree murder under
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`the natural and probable consequences or second degree felony
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`murder doctrines.
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`
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`The trial court denied the petition without Lee present or
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`represented by counsel. The trial court found that Lee’s jury was
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`instructed on provocative act murder, conviction for which
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`requires a finding of “at least implied malice.” The trial court
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`further found that Lee’s jury was instructed that it could not
`convict Lee of attempted murder unless he had express malice.3
`
`
`3 The record before us does not contain the jury
`instructions for Lee’s trial, and our 1996 opinion does not discuss
`any instructions for attempted murder. The trial court may have
`reviewed additional documents not in our current appellate
`record. Because our 1996 opinion provides sufficient information
`to resolve this appeal, any discrepancy between what the
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`
`
`5
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`
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`The trial court concluded that in regard to Lee’s murder
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`conviction, “defendant had implied malice,” and therefore was
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`ineligible for relief under section 1170.95.
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`
`
`
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`Lee timely appealed.
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`DISCUSSION
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`Lee argues his petition stated a prima facie basis for relief
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`under section 1170.95, and the trial court erred in concluding
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`otherwise. We disagree. We begin with a discussion of
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`Senate Bill No. 1437, the legislation enacting section 1170.95.
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`(Stats. 2018, ch. 1015, § 4.)
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`A.
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`Senate Bill No. 1437
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`
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`As a general matter, a defendant may not be convicted of
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`murder absent proof that he or she unlawfully killed a human
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`being “with malice aforethought,” either express or implied.
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`(§§ 187, subd. (a), 188, subd. (a).) Prior to the enactment of
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`Senate Bill No. 1437, however, both the felony murder rule and
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`the natural and probable consequences doctrine provided theories
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`under which a defendant could be found guilty of murder without
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`proof of malice.
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`Under the felony murder rule, a defendant could be
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`convicted of murder “ ‘ “when the defendant or an accomplice
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`kill[ed] someone during the commission, or attempted
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`commission, of an inherently dangerous felony . . . .” ’ ” (People v.
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`Powell (2018) 5 Cal.5th 921, 942 (Powell).) “ ‘ “If the felony is
`
`
`trial court reviewed and what is before us on appeal is
`immaterial.
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`
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`6
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`
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`listed in section 189, the murder is of the first degree;[4] if not,
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`the murder is of the second degree.” ’ ” (Ibid.) Prior to the
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`enactment of Senate Bill No. 1437, “[f]elony-murder liability d[id]
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`not require an intent to kill, or even implied malice, but merely
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`an intent to commit the underlying felony.” (People v. Gonzalez
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`(2012) 54 Cal.4th 643, 654 (Gonzalez).)
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`
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`Similarly, under the natural and probable consequences
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`doctrine, “a person who knowingly aided and abetted a crime, the
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`natural and probable consequence of which was murder or
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`attempted murder, could be convicted of not only the target crime
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`but also of the resulting murder or attempted murder.
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`[Citations.] ‘This was true irrespective of whether the defendant
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`harbored malice aforethought. Liability was imposed “ ‘for the
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`criminal harms [the defendant] . . . naturally, probably, and
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`foreseeably put in motion.’ ” ’ ” (People v. Munoz (2019)
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`39 Cal.App.5th 738, 749, review granted on other grounds
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`Nov. 26, 2019, S258234.) The natural and probable consequences
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`doctrine “is not an implied malice theory; the mens rea of the
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`aider and abettor with respect to the [murder or attempted
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`murder], actual or imputed, is irrelevant.” (People v. Lopez
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`(2019) 38 Cal.App.5th 1087, 1102 (Lopez), review granted on
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`other grounds Nov. 13, 2019, S258175.)
`
`
`
`The Legislature enacted Senate Bill No. 1437 “to amend
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`the felony murder rule and the natural and probable
`
`
`4 Section 189, subdivision (a), reads, in relevant part, “All
`murder . . . that is committed in the perpetration of, or attempt to
`perpetrate, arson, rape, carjacking, robbery, burglary, mayhem,
`kidnapping, train wrecking, or any act punishable under
`Section 206, 286, 287, 288, or 289, or former Section 288a, . . . is
`murder of the first degree.”
`
`
`
`7
`
`
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`consequences doctrine, as it relates to murder,” such that “[a]
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`person’s culpability for murder must be premised upon that
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`person’s own actions and subjective mens rea.” (Stats. 2018,
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`ch. 1015, § 1(f), (g).)
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`The bill significantly limited the felony murder rule by
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`adding subdivision (e) to section 189. (Stats. 2018, ch. 1015, § 3.)
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`That subdivision provides that “[a] participant in the
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`perpetration or attempted perpetration of a felony listed in
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`subdivision (a) in which a death occurs is liable for murder only if
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`one of the following is proven: [¶] (1) The person was the actual
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`killer. [¶] (2) The person was not the actual killer, but, with the
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`intent to kill, aided, abetted, counseled, commanded, induced,
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`solicited, requested, or assisted the actual killer in the
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`commission of murder in the first degree. [¶] (3) The person was
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`a major participant in the underlying felony and acted with
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`reckless indifference to human life, as described in subdivision (d)
`of Section 190.2.”5
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`
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`Senate Bill No. 1437 also eliminated liability for murder
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`under the natural and probable consequences doctrine. (Lopez,
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`supra, 38 Cal.App.5th at p. 1092.) It did so by amending
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`section 188, which now provides, “Except as stated in
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`subdivision (e) of Section 189, in order to be convicted of murder,
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`a principal in a crime shall act with malice aforethought. Malice
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`shall not be imputed to a person based solely on his or her
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`participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018,
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`
`5 “Subdivision (e) does not apply to a defendant when the
`victim is a peace officer who was killed while in the course of the
`peace officer’s duties, where the defendant knew or reasonably
`should have known that the victim was a peace officer engaged in
`the performance of the peace officer’s duties.” (§ 189, subd. (f).)
`
`
`
`8
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`
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`ch. 1015, § 2; see Lopez, at pp. 1102–1103.) In short, after the
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`enactment of Senate Bill No. 1437, a defendant cannot be
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`convicted of murder absent a showing of malice, with the
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`exception of felony murder as limited by section 189,
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`subdivision (e). (See Lopez, at p. 1102.)
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`B.
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`Section 1170.95
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`
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`Section 1170.95 permits “[a] person convicted of felony
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`murder or murder under a natural and probable consequences
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`theory” to petition the trial court for resentencing if, among other
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`things, “[t]he petitioner could not be convicted of first or second
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`degree murder because of changes to Section 188 or 189” effected
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`under Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).) After
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`confirming that the petition contains the statutorily required
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`information, “[t]he [trial] court shall review the petition and
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`determine if the petitioner has made a prima facie showing that
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`the petitioner falls within the provisions of this section.” (Id.,
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`subd. (c); see id., subd. (b)(2) [court may deny petition without
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`prejudice if statutorily required information is missing from
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`petition].) If the trial court determines the petitioner has made
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`an adequate prima facie showing, the court must appoint counsel
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`for the petitioner and conduct further proceedings as set forth in
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`the statute. (§ 1170.95, subds. (c)–(e); People v. Verdugo (2020)
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`44 Cal.App.5th 320, 332–333 (Verdugo), review granted Mar. 18,
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`2020, S260493; People v. Lewis (2020) 43 Cal.App.5th 1128, 1140
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`(Lewis), review granted Mar. 18, 2020, S260598.)
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`This division and others have held that in determining
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`whether a petitioner has made a prima facie showing for
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`purposes of section 1170.95, the trial court may review the record
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`of conviction, including the opinion from the petitioner’s original
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`appeal from his or her conviction. (Lewis, supra, 43 Cal.App.5th
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`
`
`9
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`
`
`at pp. 1137–1138; accord, Verdugo, supra, 44 Cal.App.5th at pp.
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`329–330, 333; see People v. Cornelius (2020) 44 Cal.App.5th 54,
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`57–58 [affirming denial of section 1170.95 petition when “the
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`verdict, the trial transcript and the prior appeal” indicated
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`petitioner could not make a prima facie showing for relief]
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`(Cornelius), review granted Mar. 18, 2020, S260410.)
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`We acknowledge that the Supreme Court has granted
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`review in Lewis to decide (1) whether the trial court properly may
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`consider the record of conviction when ruling on a petitioner’s
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`prima facie showing under section 1170.95, and (2) when in the
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`process outlined under that section the right to appointed counsel
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`arises. (See Lewis, supra, S260598.) The Supreme Court also
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`has granted review in Verdugo and Cornelius, deferring further
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`action pending disposition of the issues in Lewis. (See Verdugo,
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`supra, S260493; Cornelius, supra, S260410.)
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`Lee, however, gives us no reason not to follow Lewis. Lee
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`does not cite or discuss Lewis, Verdugo, or Cornelius in his
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`appellate briefing, although the Attorney General invoked those
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`cases in the respondent’s brief. Lee himself requested we take
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`judicial notice of our 1996 opinion, which he cites in his briefing,
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`thus acknowledging that the record of conviction properly may be
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`considered when evaluating the adequacy of his prima facie
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`showing. Lee quotes section 1170.95’s requirement that the trial
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`court appoint counsel, but makes no argument as to whether that
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`appointment must occur before the trial court assesses the
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`petitioner’s prima facie showing. Pending further guidance from
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`the Supreme Court, therefore, we apply our holding in Lewis.
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`
`
`10
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`
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`C.
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`Lee is not eligible for resentencing under section
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`1170.95 for provocative act murder
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`
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`Having laid out the applicable legal principles underlying
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`section 1170.95, we review Lee’s record of conviction—in this case
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`our 1996 opinion—to determine if the trial court correctly
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`concluded that Lee is ineligible for relief under section 1170.95.
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`
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`We hold that the trial court reached the correct conclusion.
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`Lee was not convicted of murder under either a felony murder or
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`natural and probable consequences theory, but under the
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`provocative act doctrine, which permits a defendant to be “held
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`liable for the killing of an accomplice by a third party.” (People v.
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`Mejia (2012) 211 Cal.App.4th 586, 602 (Mejia).)
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`
`
`“The provocative act doctrine is to be distinguished from
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`the felony-murder rule.” (Gonzalez, supra, 54 Cal.4th at p. 654.)
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`The felony murder rule applies to killings “committed in the
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`perpetration of, or attempt to perpetrate” certain crimes. (§ 189,
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`subd. (a).) “When a killing is not committed by [the defendant] or
`
`by his accomplice but by his victim,” however, “malice
`
`aforethought is not attributable to the [defendant], for the killing
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`is not committed by him in the perpetration or attempt to
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`perpetrate” the underlying felony. (People v. Washington (1965)
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`62 Cal.2d 777, 781 (Washington).) Thus, the felony murder rule
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`cannot support a murder conviction when an accomplice is killed
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`by a third party rather than by the defendant or another
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`accomplice. (Gonzalez, at pp. 654–655; accord, Washington,
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`at p. 781.)
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`Under such circumstances, the defendant may nonetheless
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`be convicted of murder under the provocative act doctrine.
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`“[W]hen the perpetrator of a crime maliciously commits an act
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`that is likely to result in death, and the victim kills in reasonable
`
`
`
`11
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`
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`response to that act, the perpetrator is guilty of murder.
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`[Citations.] ‘In such a case, the killing is attributable, not merely
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`to the commission of a felony, but to the intentional act of the
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`defendant or his accomplice committed with conscious disregard
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`for life.’ ” (Gonzalez, supra, 54 Cal.4th at p. 655.) “The classic
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`provocative act scenario occurs when a perpetrator of the
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`underlying crime instigates a gun battle, usually by firing first,
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`and a police officer, or victim of the underlying crime, responds
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`with privileged lethal force by returning fire and kills the
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`perpetrator’s accomplice . . . .” (Mejia, supra, 211 Cal.App.4th
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`at pp. 602–603.)
`
`Unlike felony murder or murder under the natural and
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`probable consequences doctrine, “[a] murder conviction under the
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`provocative act doctrine . . . requires proof that the defendant
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`personally harbored the mental state of malice, and either the
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`defendant or an accomplice intentionally committed a provocative
`act that proximately caused” the death of another accomplice.6
`
`(Gonzalez, supra, 54 Cal.4th at p. 655; see Mejia, supra,
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`211 Cal.App.4th at p. 603 [“With respect to the mental element of
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`provocative act murder, a defendant cannot be vicariously liable;
`
`he must personally possess the requisite mental state of malice
`
`aforethought when he either causes the death through his
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`provocative act or aids and abets in the underlying crime the
`
`
`6 The provocative act doctrine does not apply when the sole
`provocateur is the deceased accomplice. (People v. Hunter (2017)
`15 Cal.App.5th 163, 171; see Mejia, supra, 211 Cal.App.4th at
`p. 603 [provocative act must be performed by defendant or a
`surviving accomplice].)
`
`
`
`12
`
`
`
`provocateur who causes the death,” italics omitted].)7 The malice
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`requirement for provocative act murder was well established in
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`1996 when we affirmed Lee’s conviction. (See, e.g., People v. Mai
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`(1994) 22 Cal.App.4th 117, 124 [“an element of the provocative
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`act doctrine is implied malice”], disapproved of on other grounds
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`by People v. Nguyen (2000) 24 Cal.4th 756, 757; see also Gilbert,
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`supra, 63 Cal.2d at pp. 703–704 [defendant’s murder conviction
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`based on police officer’s killing of accomplice required proof of
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`malice].)
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`Lee therefore cannot show that he “could not be convicted
`
`of first or second degree murder because of changes to
`
`Section 188 or 189” as required for relief under section 1170.95,
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`subdivision (a)(3). Section 188, as amended, establishes that “in
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`order to be convicted of murder, a principal in a crime shall act
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`with malice aforethought.” Because Lee was convicted of
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`provocative act murder, the jury necessarily found he acted with
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`malice aforethought. Section 189, as amended, changed the
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`felony murder rule, but Lee was not convicted under that rule.
`
`
`7 Mejia notes that provocative act murder has both a
`physical and a mental element. (Mejia, supra, 211 Cal.App.4th
`at p. 603.) As discussed, the mental element is malice
`aforethought. (Ibid.) The physical element is the provocative act
`itself, defined in Mejia as “an act, the natural and probable
`consequence of which is the use of deadly forced by a third party.”
`(Ibid.) Although there is no vicarious liability as to the mental
`element, the defendant may be vicariously liable for the physical
`element: “[A] participant in the underlying crime who does not
`actually commit a provocative act himself may nevertheless be
`vicariously liable for the killing caused by his provocateur
`accomplice based upon having aided and abetted commission of
`the underlying crime.” (Ibid.)
`
`
`
`13
`
`
`
`Although not entirely clear, Lee appears to dispute that he
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`was convicted under the provocative act doctrine. He claims that
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`our 1996 opinion establishes that he “did not initiate a gun
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`battle,” and it was Choi’s shooting at the security guard that led
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`to Choi’s death. Lee claims he was instead convicted “as an aider
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`an[d] abettor based on Choi’s action during their mutual
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`participation in a felony listed in section 189.”
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`Lee misreads our 1996 opinion, which expressly stated he
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`was convicted under the provocative act doctrine, and that it
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`was both Choi’s and Lee’s conduct that caused Nolasco to fire
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`his weapon and kill Choi. (People v. Lee, supra, B088132,
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`at pp. *3–*5.) There is no indication that he was convicted under
`
`a felony murder theory, nor could he have been given that
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`Choi was killed by a third party, Nolasco, not by Lee or the
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`other accomplice, Woo. (See Gonzalez, supra, 54 Cal.4th
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`at pp. 654–655.)
`
`To the extent our 1996 opinion discussed the felony murder
`
`rule and section 189, it was in the context of Supreme Court
`
`authority holding that, although the felony murder rule does not
`
`provide a basis to convict a defendant of murder when a third
`
`party kills the defendant’s accomplice, section 189 nonetheless is
`
`relevant in determining whether a provocative act murder is in
`
`the first or second degree. (People v. Lee, supra, B088132, at
`
`pp. *6–*7; see Gilbert, supra, 63 Cal.2d at p. 705 [“even though
`
`malice aforethought may not be implied under section 189 to
`
`make a killing murder unless the defendant or his accomplice
`
`commits the killing in the perpetration of an inherently
`
`dangerous felony [citations], when a murder is otherwise
`
`established, section 189 may be invoked to determine its
`
`degree”].)
`
`
`
`14
`
`
`
`Applying the above quoted rule from Gilbert, we rejected
`
`Lee’s challenge to a jury instruction “that a murder ‘which occurs
`
`during the commission or attempt to commit the crime of robbery,
`
`when there was in the mind of the perpetrators of such crime the
`
`specific intent to commit robbery, is murder of the first degree.’ ”
`
`(People v. Lee, supra, B088132, at pp. *6–*7.) Our discussion of
`
`the felony murder rule in this context does not establish that Lee
`
`was convicted of felony murder, as would be required under
`
`section 1170.95, and Lee does not argue otherwise. Nor does Lee
`argue that Senate Bill No. 1437 impacts the rule from Gilbert.8
`
`Lee argues that “[p]rovocative act murder as charged in the
`
`instant case is a combination of felony murder and natural and
`
`probable consequence murder.” In support, Lee quotes People v.
`
`Concha (2009) 47 Cal.4th 653 (Concha), in which our Supreme
`
`Court stated, “where the defendant perpetrates an inherently
`
`dangerous felony, the victim’s self-defensive killing is a natural
`
`and probable response.” (Id. at p. 661.)
`
`The Supreme Court made this statement in the context of
`
`explaining that a conviction for provocative act murder requires
`
`proof of proximate causation. (See Concha, supra, 47 Cal.4th
`
`at p. 661 [“the defendant is liable only for those unlawful killings
`
`proximately caused by the acts of the defendant or his
`
`accomplice”].) There is no indication in Concha that the Supreme
`
`Court intended to suggest that provocative act murder was a
`
`subset of either felony murder or natural and probable
`
`consequences murder. Nor could it be, given that provocative act
`
`murder requires proof of malice, unlike the felony murder rule or
`
`
`8 Neither the current viability of the rule from Gilbert nor
`the correctness of our application of that rule in our 1996 opinion
`is at issue in this appeal, and we express no opinion as to either.
`
`
`
`15
`
`
`
`natural and probable consequences doctrine as they existed
`
`before Senate Bill No. 1437.
`
`Indeed, Concha itself recognized the malice requirement for
`
`provocative act murder: “[A] defendant is liable for murder when
`
`the actus reus and mens rea elements of murder are satisfied.
`
`The defendant or an accomplice must proximately cause an
`
`unlawful death, and the defendant must personally act with
`
`malice. Once liability for murder is established in a provocative
`
`act murder case or in any other murder case, the degree of
`
`murder liability is determined by examining the defendant’s
`
`personal mens rea and applying section 189.” (Concha, supra,
`
`47 Cal.4th at p. 663, italics added.)
`
`Lee argues that his conduct and mental state did not
`
`satisfy the elements under section 189, subdivision (e) that
`
`would make him culpable for murder, nor did we consider
`
`those elements in our 1996 opinion. Because section 189,
`
`subdivision (e) applies only to felony murder, and Lee was not
`
`convicted of felony murder, this argument fails.
`
`
`
`16
`
`
`
`DISPOSITION
`
`The judgment is affirmed.
`
`
`
`
`
`
`
`
`
`
`
`
`We concur:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`BENDIX, Acting P. J.
`
`JOHNSON, J.
`
`WEINGART J.*
`
`
`* Judge of the Los Angeles Superior Court, assigned by the
`Chief Justice pursuant to article VI, section 6 of the California
`Constitution.
`
`
`
`17
`
`
`
`
`
`Filed 5/22/20
`
`CERFIFIED FOR PUBLICATION
`
`
`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`
`SECOND APPELLATE DISTRICT
`
`DIVISION ONE
`
`
`
`Plaintiff and Respondent,
`
`v.
`
`THE PEOPLE,
`
`
`
`
`
`KENNY INKWON LEE,
`
`
`
`
`Defendant and Appellant.
`
` B297928
`
` (Los Angeles County
` Super. Ct. No. BA079332)
`
` CERTIFICATION AND ORDER
` FOR PUBLICATION
`
` [NO CHANGE IN JUDGMENT]
`
`
`
`
`
`The opinion in the above-entitled matter filed May 1, 2020,
`
`was not certified for publication in the Official Reports. For good
`
`cause it now appears that the opinion should be published in the
`
`Official Reports and it is so ordered.
`
`
`
`
`
`There is no change in the judgment.
`
`CERTIFIED FOR PUBLICATION.
`
`
`
`____________________________________________________________
`WEINGART, J.*
`BENDIX, Acting P. J.
` JOHNSON, J.
`
`
`* Judge of the Los Angeles Superior Court, assigned
`by the Chief Justice pursuant to article VI, section 6 of the
`California Constitution.
`
`
`
`
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