People v. Cunningham
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The defendant, Robert Wayne Cunningham, was convicted of provocative act murder and other offenses related to a 1995 shootout with the police. He was sentenced to life in prison without the possibility of parole, along with consecutive determinate sentences. The incident occurred when Cunningham and his accomplice, Soley, were under police surveillance due to suspicion of committing a series of armed robberies. The police followed them to a liquor store, where they committed a robbery. The police blocked their car, leading to a shootout initiated by Cunningham, which resulted in Soley's death and injuries to Cunningham and at least one police officer.
Cunningham sought sentencing relief under Penal Code section 1172.6 but was unsuccessful. He appealed, arguing that provocative murder is based on the imputation of malice, which he claimed is now barred by the newly enacted Penal Code section 188, subdivision (a)(3). He also contended that the prosecutor's argument that he started the gun battle was equivalent to arguing the now discarded "natural and probable consequences" doctrine.
The Court of Appeal of the State of California Second Appellate District disagreed with Cunningham's arguments. The court noted that provocative act murder has been a part of California law since the 1960s and that the legislature's failure to mention it in the new statute indicates it did not intend to discard this theory. The court also stated that the prosecutor's argument did not preclude the statute and that the jury's verdict was informed by the instructions given. The court cited a recent case, People v. Antonelli, where it held that the provocative murder doctrine survived recent legislative enactments. The court affirmed the lower court's judgment, denying Cunningham's sentencing relief.
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