P. v. Antonelli
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Defendant acknowledged that in 1991 he “was convicted of provocative act murder.” He appeals a post-judgment order denying his Penal Code section 1172.6 (formerly Section 1170.95) petition to vacate the first-degree murder conviction.1 Section 1172.6 was added to the Penal Code by Senate Bill No. 1437 (S.B. 1437). Effective January 1, 2022, section 1172.6 was amended by Senate Bill No. 775 (S.B. 775). Appellant claimed the trial court erred in denying the second petition without conducting an evidentiary hearing. He argued he made a prima facie case for relief based on S.B. 775’s amendment of section 1172.6, subdivision (a) to add the following ground for relief: the petitioner’s murder conviction was pursuant to a “theory under which malice is imputed to a person based solely on that person’s participation in a crime.” Appellant maintains he was convicted of provocative act murder pursuant to such a theory of “imputed” malice because he did not personally commit a provocative act. The provocative acts allegedly were committed by his accomplices.
The Second Appellate District affirmed. The court explained that because Appellant was convicted of provocative act murder, as a matter of law, he is not eligible for section 1172.6 relief. The court explained that a conviction of provocative act murder cannot be premised on “malice that is imputed to a person based solely on that person’s participation in a crime.” The court further explained that the law of provocative act murder requires that the defendant personally harbor malice.
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