Hindsight: 1 Year Ago

by Thomas L. Libby

Last November, the California Supreme Court narrowed the controversial "provocative act doctrine," one among a handful of vicarious liability theories available to prosecutors. In a case involving three men who tried to rob the owner of a Los Angeles hair salon (People v. Concha, 47 Cal. 4th 653 (2009)), the intended victim stabbed one of his attackers to death in self-defense with a pocketknife. The two surviving robbers were eventually convicted of first-degree murder under the doctrine, which holds that accomplices can be held responsible for an associate's murder at the hands of a third party.

The doctrine came to prominence after a 1965 state Supreme Court decision affirmed the first-degree murder conviction of a robbery suspect whose accomplice was killed by an Alhambra police officer attempting to avert the crime (People v. Gilbert, 63 Cal. 2d 690 (1965)). The court affirmed the doctrine more than 40 years later in Concha, but also limited its reach in remanding the case to confirm that provocative act doctrine cases require defendants to have "acted willfully, deliberately and with premeditation during the attempted murder." This March, an appeals court upheld that finding (People v. Concha, 182 Cal. App. 4th 1072 (2010)).

Though still rarely used, the doctrine has been raised in recent California cases involving gangs in Gilroy, a robbery in Riverside, and - in a racially charged Lake County case - medical marijuana theft.

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