Gardner

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…