Cunningham

Filed 4/23/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B323640 (Super. Ct. No. CR37135) Plaintiff and Respondent, (Ventura County)

v.

ROBERT WAYNE

CUNNINGHAM,

Defendant and Appellant.

Robert Wayne Cunningham was convicted of provocative act murder as a result of a 1995 shootout with the police. He was also convicted of other offenses connected with the shootout. He was sentenced to state prison for life without the possibility of parole. Consecutive determinate sentences were also imposed. He unsuccessfully sought sentencing relief pursuant to Penal Code section 1172.6. He appeals contending that provocative murder is based upon the imputation of malice and any such imputation is now barred by newly enacted Penal Code section 188, subdivision (a)(3). We disagree and affirm. We cannot add the phrase “provocative act murder” to the statute. This species of murder liability has been the law in California since the 1960s (see, e.g., People v. Gilbert (1965) 63 Cal.2d 690, 704-705). Surely the Legislature was aware of this murder theory when it…