People V Cunningham
Filed 7/23/25
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. OPINION ON TRANSFER
FROM SUPREME COURT
ROBERT WAYNE
CUNNINGHAM,
Defendant and Appellant.
This matter is before us on transfer from our Supreme
Court for reconsideration in light of People v. Antonelli (2025) 17
Cal.5th 719 (Antonelli), which resolved a conflict among the
Courts of Appeal concerning provocative act murder convictions
occurring before 2009, as well as the necessity of considering jury
instructions when a defendant petitions for resentencing
pursuant to Penal Code section 1172.6. 1 In accordance with the
direction of the Supreme Court, we vacated our earlier decision
and permitted supplemental briefing from the parties.
1 All further statutory references are to the Penal Code.
In 1997, Robert Wayne Cunningham was convicted by jury
of provocative act murder, among other offenses, as a result of a
1995 shootout with the police. In 2021, he sought sentencing
relief pursuant to section 1172.6. The trial court denied his
petition at the prima facie stage because he was convicted of
murder, and the only theory of murder on which the jury was
instructed was provocative act murder. The trial court concluded
appellant was ineligible for relief as a matter of law. Appellant
contends provocative murder is based upon the imputation of
malice and any such imputation is now barred by newly enacted
section 188, subdivision (a)(3). We rejected this contention in our
prior opinion, which we vacated. (People v. Cunningham (2024)
101 Cal.App.5th 678.)
Having reconsidered the matter in light of Antonelli, we
again conclude the trial court correctly denied appellant’s petition
for resentencing because the jury instructions, viewed together
with the verdict of first degree murder, establish that the jury
necessarily found appellant acted with personal malice,
rendering him ineligible for section 1172.6 relief as a matter of
law. Accordingly, we affirm.
Facts
Only a brief recitation of the facts is necessary to bring this
appeal into focus. Appellant and his cohort, Daniel Soly, were
suspected of committing a series of armed robberies. The police
had them under surveillance. The police followed appellant and
Soly to a liquor store. After appellant and Soly committed a
robbery at the liquor store, they were unable to escape because
police had blocked their car’s movement. Appellant stood up
through the open roof of the car and started shooting at the
police. They returned gun fire killing Soly and wounding
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appellant. At least one police officer was wounded in the gun
battle.
Procedural Background
Following a jury trial, appellant was convicted of one count
of special-circumstance murder (§§ 187, subd. (a), 190.2, subd.
(a)(17)), three counts of attempted murder of peace officers
without premeditation (§§ 664, 187, subd. (a)), two counts of
robbery (§ 211), one count of commercial burglary (§ 459), and
one count of conspiracy to commit robbery (§ 182(1)). As to these
counts, the jury found true a personal firearm use allegation. (§
12022.5, subd. (a).) Appellant was sentenced to state prison for
life without the possibility of parole. Consecutive determinate
sentences were also imposed. We affirmed appellant’s conviction
in an unpublished opinion. (People v. Cunningham (Oct. 21,
1999, B111504) [nonpub. opn.].)
In 2021, appellant filed a petition for resentencing
pursuant to section 1172.6. After appointing counsel and
permitting briefing, the trial court denied the petition without
issuing an order to show cause.
After we issued an opinion affirming the trial court’s
judgment, appellant petitioned for review and the petition was
granted.
On June 25, 2025, our Supreme Court transferred the
matter to this court with directions to vacate our prior opinion
and reconsider the cause in light of Antonelli, supra, 17 Cal.5th
719.
Senate Bill Nos. 1437 and 775
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437) amended the felony murder rule and the natural and
probable consequences doctrine, “to ensure that murder liability
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is not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
To that end, Senate Bill 1437 amended section 188 by
adding a requirement that, when the felony-murder rule does not
apply, a principal in the crime of murder “shall act with malice
aforethought” and “[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).)
Senate Bill 1437 also enacted section 1172.6, which created
a procedural mechanism for defendants who could not be
convicted of murder or attempted murder under the amended
laws to seek retroactive relief. (§ 1172.6, subd. (a)(3); People v.
Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
Senate Bill No. 775 (2021-2022 Reg. Sess.) amended section
1172.6 to expand eligibility for resentencing to include not only
those “convicted of felony murder or murder under the natural
and probable consequences doctrine,” but also those convicted of
murder on any “other theory under which malice is imputed to a
person based solely on that person’s participation in a crime.” (§
1172.6, subd. (a), as amended by Stats. 2021, ch. 551, § 2.) The
amended statute also expanded the categories of offenses eligible
for relief to include attempted murder and manslaughter. (Ibid.)
In determining whether a petitioner has made a prima
facie showing for relief, the court “‘“takes petitioner’s factual
allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. . . .”’” (Lewis, supra, 11
Cal.5th at p. 971.) The court may also rely on the record of
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conviction, including jury instructions and verdict forms. “‘[T]he
record of conviction will necessarily inform the trial court’s prima
facie inquiry . . ., allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.’” (Antonelli,
supra, 17 Cal.5th at p. 731.) “‘If the record, including the court’s
own documents, “contain[s] facts refuting the allegations made in
the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.”’” (Lewis, supra, 11
Cal.5th at p. 971.)
We independently review the trial court’s determination
that a petitioner failed to make a prima facie case for relief.
(People v. Harden (2022) 81 Cal.App.5th 45, 52.)
The Record of Conviction Conclusively Establishes
Appellant is Ineligible for Relief
In his supplemental brief, appellant contends Antonelli
compels remand because the jury “could have imputed malice to
[him as] a nonprovocateur defendant in a provocative act murder
prosecution” that occurred before People v. Concha (2009) 47
Cal.4th 653 (Concha). As we shall explain, appellant is ineligible
for relief because the record of conviction establishes that he was
convicted as an actual provocateur who acted with personal
malice.
The provocative act doctrine provides that a defendant may
be held liable for murder when a killing is committed by someone
other than the defendant or an accomplice, such as the crime
victim or a police officer, during the commission of a crime.
(Antonelli, supra, 17 Cal.5th at p. 727.) 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, reversed on other
grounds in Gilbert v. California (1967) 388 U.S. 263).
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In Antonelli, our Supreme Court held that for a
nonprovocateur defendant to be convicted of provocative act
murder, the nonprovocateur defendant must personally harbor
malice. (Antonelli, supra, 17 Cal.5th at pp. 727-731.) In so
holding, the Court explained that prior to its decision in Concha,
supra, 47 Cal.4th 653, caselaw on provocative act murder
“‘imposed culpability on all perpetrators of the underlying crime
so long as the provocateur acted with malice, and did so in
furtherance of the common criminal design,’ provided that the
deceased was not the sole provocateur.” (Antonelli, at p. 730,
quoting People v. Lee (2023) 95 Cal.App.5th 1164, 1182 (Lee),
citing cases.) Because “a jury could have imputed malice to a
nonprovocateur defendant” under pre-Concha precedent, such a
defendant was not “categorically ineligible for section 1172.6
relief.” (Antonelli, at p. 731.)
But the 2009 change in the law pertaining to a
nonprovocateur defendant after Concha has no bearing on the
provocative act doctrine when the defendant is the provocateur
because in such a case, the defendant must personally act with
malice. (See People v. Flores (2023) 96 Cal.App.5th 1164, 1172
[“the law has always required a defendant who committed a
provocative act personally harbor malice and still does”]; Lee,
supra, 95 Cal.App.5th at p. 1177 [explaining that “provocative act
murder, unlike felony murder, requires proof of malice
aforethought” on the part of the provocateur]; Antonelli, supra, 17
Cal.5th at p. 730 [prior to Concha, all perpetrators of underlying
crime liable for murder “‘so long as the provocateur acted with
malice’”].)
Further, since at least 1975, the law has provided that
when the deceased is the sole provocateur, his nonprovocateur
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accomplice cannot be liable for murder because “the provocateur
did not cause the death of another but only his own death.” (See
Antonelli, supra, 17 Cal.5th at p. 727, citing People v. Antick
(1975) 15 Cal.3d 79, 91 [so indicating].) Thus, when the person
killed was the defendant’s sole accomplice, the only way the
defendant can be found guilty of provocative murder under the
provocative act doctrine is if the defendant was an actual
provocateur who acted with personal malice. Such is the case
here.
In assessing section 1172.6 petitions from individuals
convicted following jury trials, our Supreme Court has explained
that “jury instructions will be critical.” (Antonelli, supra, 17
Cal.5th at p. 731.) The jury in this case was given a modified
version of CALJIC No. 8.12, 2 which required it to find
2 The instruction provided: “Defendant is accused in Count
1 of the indictment of having committed the crime of murder, a
violation of Penal Code section 187. [¶] A homicide committed
during the commission of a crime by a person who is not a
perpetrator of such crime, in response to an intentional
provocative act by a perpetrator of the crime other than the
deceased perpetrator, is considered in law to be an unlawful
killing by the surviving perpetrator of the crime.
“An ‘intentional provocative act is defined as follows: [¶] 1.
The act was intentional, [¶] 2. The natural consequences of the
act were dangerous to human life, [¶] 3. The act was deliberately
performed with knowledge of the danger to, and with conscious
disregard for human life, [¶] 4. The act was above and beyond the
act required for the commission of the crime of robbery, and [¶] 5.
The act was not in self defense.
“In order to prove this crime, each of the following elements
must be proved: [¶] 1. The crime of robbery was committed; [¶] 2.
During the commission of the crime, the defendant also
committed an intentional provocative act; [¶] 3. A peace officer in
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appellant—not any accomplice—personally committed an
intentional provocative act during the commission of a robbery.
The instruction defined an “intentional provocative act” as one
that was “deliberatively performed with knowledge of the danger
to, and with conscious disregard for human life.” This definition
mirrors the definition of implied malice. (See People v. Gonzalez
(2012) 54 Cal.4th 643, 655 [“Malice will be implied if the
defendant commits a provocative act knowing that this conduct
endangers human life and acts with conscious disregard of the
danger”].) Based on the language of CALJIC 8.12 as given, the
jury’s verdict of first degree murder establishes that it
necessarily found appellant personally committed an intentional
provocative act with implied malice. (See Antonelli, supra, 17
Cal.5th at p. 731 [section 1172.6 eligibility turns on both the
governing law at the time of trial and the record of conviction,
including the jury instructions].) Thus, malice was not imputed
to him based solely on his participation in a crime. (See § 1172.6,
subd. (a).)
Appellant also contends that he could have been convicted
under a natural and probable consequences theory. Although the
prosecutor argued that appellant started “the ball rolling” and
started “a snowball down [the] hill” when he initiated the gun
battle, the statute does not preclude the prosecutor’s argument.
It is the instructions given that inform the jury’s verdict.
response to the provocative act, killed a perpetrator of the crime
of robbery; [¶] 4. The defendant’s commission of the intentional
provocative act was a cause of the death of Daniel Soly.
“Murder which occurs during the commission or attempt to
commit the crime of robbery when there was in the mind of the
perpetrators of such crime, the specific intent to commit robbery,
is murder of the first degree.”
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Because the only viable theory of liability was based on
appellant’s personally committing a provocative act with malice
and the instructions required the jury to so find, he is precluded
from section 1172.6 relief. Contrary to appellant’s contention,
Antonelli does not compel a different result.
Disposition
The judgment (order denying sentencing relief) is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Susan Wolk, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, Michael C. Keller, Yun K. Lee, and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.