People v. Concha

I concur in the judgment except I would reduce the murder convictions from first to second degree. I agree with the Attorney General that there is substantial evidence to support liability on a provocative act theory. But defendants are correct: the fact that the provocative act theory applies does not permit the return of first degree murder verdicts; transferred intent rules do not apply to this case; and because the decedent, Max Sanchez, was an accomplice, the first degree findings cannot be justified on a felony-murder rule theory. The provocative act doctrine is a form of implied malice…