Concha

Certified For Partial Publication. [*]

The defendants, along with two accomplices, threatened to kill, attacked, beat, and stabbed the victim. The victim drew a pocket knife and in defending himself stabbed one of the accomplices to death. The defendants were convicted of first degree murder of the deceased accomplice under the provocative act theory and of the attempted first degree murder of the victim. In the published portion of the opinion, we hold that there was substantial evidence to support the conviction for murder based on the provocative act theory; that the first degree murder conviction is supported by the jury's finding that the attempted murder of the victim was deliberate and premeditated; that the trial court's instruction on the provocative act theory did not constitute prejudicial error; and that the trial court did not err in excluding evidence of one of the defendant's blood alcohol level and in not instructing the jury on voluntary intoxication. In the unpublished portion of the opinion, we deal with evidentiary and sentencing issues.

Jimmy Lee Harris owned the Cindy Lu Beauty Salon located at 4411 South Normandie Avenue, at the corner of Vernon…

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] OPINION

I concur in the judgment except I would reduce the murder convictions from first to second degree. I agree with the Attorney General that there is substantial evidence to support liability on a provocative act theory. But defendants are correct: the fact that the provocative act theory applies does not permit the return of first degree murder verdicts; transferred intent rules do not apply to this case; and because the decedent, Max Sanchez, was an accomplice, the first degree findings cannot be justified on a felony-murder rule theory. The provocative act doctrine is a form of implied malice which allows an accused to be convicted of second degree murder. The controlling authority is in the following language in People v. Nieto Benitez (1992) 4 Cal.4th 91 , 109-110 [ 13 Cal.Rptr.2d 864 , 840 P.2d 969 ]: "Other authority also supports the People's contention that, where the defendant obtains a lethal weapon and then engages the victim in an argument, malice may be implied — from the circumstances leading to the killing — to support a conviction of second degree murder. (See, e.g., People v. Rosenkrantz (1988) 198 Cal.App.3d 1187 [ 244 Cal.Rptr. 403 ] [defendant, incensed that his…