White

In this case we examine the “provocative act” (or Washington-Gilbert) theory of murder, under which a person may be liable for the death of an accomplice. (People v. Washington (1965) 62 Cal.2d 777 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ], People v. Gilbert (1965) 62 Cal.2d 690 [ 47 Cal.Rptr. 909 , 408 P.2d 365 ].) A jury convicted defendant of murder under this theory and of other charges. Oii appeal he urges evidentiary, instructional and sentencing error. We shall remand for resentencing and otherwise affirm.

Facts

We use the term “victim” to refer to James Byrd and Anthony Martz, the young men whose desire for a night on the town led them to the brink of death. On January 16, 1992, they traveled to the City of Stockton to consort with prostitutes in a seedy motel. The men rented a room at the Crest Motel on Wilson Way. Two prostitutes, Tamara “TJ” Ponton and Alicia Hinojos, approached Byrd in the parking lot and then went with the men to their room. Byrd packaged some marijuana which he hoped to trade for sex, and he prepared a bag of methamphetamines as well. He put these bags in a first aid kit which he took downstairs to put in his truck. The men offered the…