Filed 11/19/13


                                CERTIFIED FOR PUBLICATION
              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                SECOND APPELLATE DISTRICT
                                           DIVISION SIX




THE PEOPLE,                                          2d Crim. No. B241044
                                                     (Super. Ct. No. F435613)
     Plaintiff and Respondent,                       (San Luis Obispo County)


v.


RYAN JAMES JOHNSON,


     Defendant and Appellant.




          The "mastermind" of an armed home-invasion robbery who sends his accomplices
to do his bidding can be convicted of first degree murder if one of his accomplices
engages in provocative conduct and the victim kills in reasonable response to that
conduct. In these circumstances malice is implied by law and imputed to the
"mastermind" despite his absence from the scene of the crime.
          Ryan James Johnson appeals from the judgment entered after his conviction by a
jury of first degree murder (Pen.Code, §§ 187, subd. (a), 189),1 first degree residential
burglary (§§ 459, 460, subd. (a)), conspiracy to commit robbery (§§ 182, subd. (a)(1),


1
    All statutory references are to the Penal Code unless otherwise stated.
211), and two counts of first degree residential robbery. (§§ 211, 212.5, subd. (a).) The
jury found true firearm enhancements within the meaning of section 12022, subdivision
(a)(1). Appellant was sentenced to prison for 26 years to life. The murder conviction was
based on the provocative act murder doctrine. In People v. Baker-Riley (2012) 207
Cal.App.4th 631, we affirmed the first degree murder conviction of appellant's
codefendant and accomplice, Jesse Baker-Riley. Appellant and Baker-Riley were
separately tried.
       Appellant contends that (1) the evidence is insufficient to support his conviction of
first degree murder, (2) the trial court erroneously instructed the jury, (3) the trial court
abused its discretion in admitting evidence of a prior residential robbery, and (4) his
sentence constitutes cruel and unusual punishment in violation of the federal and state
constitutions. We affirm.
                                             Facts
       Peter Davis lived in Los Osos. He had a physician's recommendation for medical
marijuana and grew marijuana plants in his backyard. A narcotics expert testified that he
had a sufficient quantity of marijuana to be a supplier to people seeking to purchase it.
       Appellant knew Davis and on July 18, 2009, he told Janine Lindemans that he
"and his homies are taking care of something" and " '[w]e are going to come up big.' "
Appellant explained "that they were taking care of somebody that was selling pot or dope
. . . in our town, meaning Los Osos, and that the person had no business doing business
like that in []our town, and that [appellant] . . . [and] his homies were basically doing a
home invasion." Lindemans asked, " 'Are you talking about a home invasion robbery?' "
Appellant replied, " 'Well, yeah, I guess, if you want to call it that.' " Appellant identified
one of his "homies" as "Kelsey" (Kelsey Alvarez). Appellant said that they were going to
"take . . . Pete's [Peter Davis's] pot, and that they had a gun." They intended to use the
gun during the robbery. Appellant boasted "that he was running things," and he appeared
to be "pretty proud of himself that he was the shot caller."



                                               2
         That same day Peter Davis and his friend, Dylan Baumann, were inside Davis's
residence when they heard a knock on the door. Davis opened the door and saw two
persons whom he did not recognize. They were Kelsey Alvarez and Jesse Baker-Riley.
Baker-Riley "pulled out a large firearm and put it in [Davis's] face." Baker-Riley and
Alvarez entered the residence. Baker-Riley said to Baumann, "[S]it down or I'll shoot
you." Baumann testified that Baker-Riley "put his gun on my kneecaps and told me he
was going to shoot off my kneecaps."
         Baker-Riley demanded cash and marijuana. Baumann emptied his pockets of all
items, including a cell phone. Baker-Riley took the cell phone and put it in his pocket.
         Baker-Riley "pointed to a pile of vaporized pot that was on the table." He ordered
Davis to wrap it in a paper towel and give it to him. Davis complied with the order.
Baker-Riley was "clicking the safety" of his gun "on and off" and was "taunting" Davis
and Baumann. He made them look at the gun, threatened to kill them if they "did
anything," and said, "I'm quick on the trigger, homie." Baker-Riley warned: " 'I'm a
fucking thug. You don't want[] to fuck with me, homie.' " He asked Baumann, "You
ever seen 'Pulp Fiction,' homie?"2
         Baker-Riley saw a fortune cookie on a table. He pointed the gun at Davis and
said: " 'Open that fortune cookie, homie.' " Davis opened the cookie and, at Baker-
Riley's direction, read the fortune inside. The fortune said: " 'There will be many
upcoming opportunities. Take advantage of them.' " Baker-Riley laughed and "made a
statement about how he was taking advantage of us." Baker-Riley ate some food that
was on the table and, at gunpoint, forced Baumann and Davis to eat some of the food.
Baker-Riley "kept asking, Where is the grass? Where is the marijuana? Where is your
grass at? Where do you keep all your weed?' " Davis "kept repeating that [he] didn't
have anything."

2
    "Pursuant to Evidence Code sections 452, subdivision (h), and 459, we take judicial notice that
'Pulp Fiction' is a 1994 crime movie that depicts taunting and terrorizing of a victim before
killing." (People v. Baker-Riley, supra, 207 Cal.App.4th at p. 637, fn. 3.)

                                                  3
       Baker-Riley saw marijuana drying in a back bedroom. He said, " 'Oh, here is their
f-ing weed. Here is their grass.' " Baker-Riley pointed his gun at Davis and ordered him
to walk into the back bedroom and sit on the bed. Davis complied with the order. He
pleaded: " 'Don't kill me. I'm not going to do anything. Take what you want. Just don't
kill me.' " Baker-Riley did not respond. Davis thought that he "was going to die," that
Baker-Riley "was separating me to kill me."
       Davis saw his own firearm next to the bed. He picked it up, aimed at Baker-Riley,
and started firing. One of the bullets struck Alvarez in the chest and killed him.
                             Provocative Act Murder Doctrine
       "Under the provocative act [murder] doctrine, when the perpetrator of a crime
maliciously commits an act that is likely to result in death, and the victim kills in
reasonable response to that act, the perpetrator is guilty of murder. [Citation.] 'In such a
case, the killing is attributable, not merely to the commission of a felony, but to the
intentional act of the defendant or his accomplice committed with conscious disregard for
life.' [Citation.]" (People v. Gonzalez (2012) 54 Cal.4th 643, 655.)
       "Provocative act murder has both a physical and a mental element which the
prosecution must prove beyond a reasonable doubt. [Citation.] The physical element is
satisfied when the defendant, or a surviving accomplice in the underlying crime, commits
an act, the natural and probable consequence of which is the use of deadly force by a
third party. [Citations.] When the defendant or surviving accomplice acts in such a
manner and the third party kills in response, the provocateur can be said to have
proximately caused the resulting death notwithstanding the intervening use of deadly
force by the third party. [Citations.] And a participant in the underlying crime who does
not actually commit a provocative act himself may nevertheless be vicariously liable for
the killing caused by his provocateur accomplice based upon having aided and abetted
commission of the underlying crime. [Citations.] Thus, under the provocative act
doctrine, a defendant may be vicariously liable for the provocative conduct of his



                                              4
surviving accomplice in the underlying crime. [Citation.]" (People v. Mejia (2012) 211
Cal.App.4th 586, 603.)
       As to the mental element of provocative act murder, the People must prove "that
the defendant personally harbored . . . malice." (People v. Gonzales, supra, 54 Cal.4th at
p. 655; accord, People v. Concha (2009) 47 Cal.4th 653, 663.) But, malice may be
implied: "[T]he central inquiry in determining criminal liability for a killing committed
by a resisting victim or police officer is whether the conduct of a defendant or his
accomplices was sufficiently provocative of lethal resistance to support a finding of
implied malice." (Taylor v. Superior Court (1970) 3 Cal.3d 578, 583.)
       Appellant contends that the evidence is insufficient to support his conviction for
murder because "he did not personally harbor malice." "[T]he evidence showed at best
that [he] harbored the intent to commit an armed robbery." To credit this contention we
would have to hold, as a matter of law, that malice cannot be imputed to the
"mastermind" of an armed home-invasion robbery if he is not personally present at the
scene of the murder. We will not do so.
       Based on Taylor v. Superior Court, supra, 3 Cal.3d 578 (Taylor), the evidence is
sufficient. Taylor's accomplices, Daniels and Smith, committed a robbery inside a liquor
store. Taylor "was waiting outside . . . in a getaway car." (Id., at p. 581.) During the
robbery, the victims shot Smith in reasonable response to Daniels's provocative acts. The
Taylor court concluded that "the evidence supported the magistrate's finding that
reasonable and probable cause existed to charge [Taylor] with first degree murder." (Id.,
at p. 585.) The court reasoned: "If the trier of fact concludes that under the particular
circumstances of the instant case Smith's death proximately resulted from acts of
[Taylor's] accomplices done with conscious disregard for human life, the natural
consequences of which were dangerous to life, then [Taylor] may be convicted of first
degree murder." (Id., at p. 583.)
       Thus, our Supreme Court imputed malice and first degree murder liability to the
"wheelman" of a robbery/homicide even though he was "just" a getaway driver. Here,

                                              5
appellant was the "mastermind" of an armed home-invasion robbery. He planned,
directed, and supervised this crime. He is far more culpable than a getaway driver who
may have played no role in the planning of the robbery. We are bound by, and adhere to
the Supreme Court's opinion in Taylor, supra, 3 Cal.3d 578. (Auto Equity Sales Inc, v.
Superior Court (1962) 57 Cal.2d 450. 455.) If a getaway driver, not actually present
inside the building where the robbery takes place, has provocative conduct first degree
murder liability, surely an absent "mastermind" of the robbery also has such liability.
          In People v. Antick (1975) 15 Cal.3d 79, 91-92, our Supreme Court noted that in
Taylor it had taken "the position that the conduct of the defendant's accomplice Daniels
which resulted in accomplice Smith's death 'was sufficiently provocative of lethal
resistance' to support a finding of implied malice. [Citation.] Therefore, Daniels could
be held criminally responsible for Smith's death, although the actual killing was
committed by the resisting victims, and the defendant Taylor could be vicariously liable
for Daniels' crimes."3 Likewise, here the conduct of appellant's accomplice, Baker-Riley,
which resulted in accomplice Alvarez's death, was sufficiently provocative of lethal
resistance to support a finding of implied malice. Thus, Baker-Riley was criminally
responsible for Alvarez's death, and appellant was vicariously liable for Baker-Riley's
crimes. (See also People v. Gilbert, supra, 63 Cal.2d at p. 704, italics added ["When the
defendant or his accomplice, with a conscious disregard for life, intentionally commits an
act that is likely to cause death, and his victim or a police officer kills in reasonable
response to such act, the defendant is guilty of murder"].)4
          In Taylor the Supreme Court observed that, to find a defendant guilty based on the
provocative acts of his accomplice, the acts must be " 'committed in furtherance of the
common design. [Citations.]' [Citation.]" (Taylor, supra, 3 Cal.3d at p. 583, fn. 1.) The
court reiterated this principle in People v. Antick, supra, 15 Cal.3d at p. 88: "Where a

3
    Taylor was overruled on other grounds in People v. Antick, supra, 15 Cal.3d at p. 92, fn. 12.
4
 The judgment in Gilbert was vacated on other grounds in Gilbert v. California (1967) 388 U.S.
263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

                                                   6
murder . . . is attributable not to the acts of the defendant himself, but rather to the acts of
his accomplice, the defendant's vicarious liability for the killing is based upon 'the rules
defining principals and criminal conspiracies . . . . [For the defendant] [t]o be so guilty,
however, the accomplice must cause the death of another human being by an act
committed in furtherance of the common design.' [Citation.]" Substantial evidence
supports the inference that Baker-Riley's provocative acts were committed in furtherance
of the common design of facilitating the robbery and making it clear, to use appellant's
words, that Davis "had no business" selling marijuana "in our town," i.e., Los Osos. It is
reasonable to infer that Baker-Riley's aim was to so terrorize Davis that, not only would
he surrender his property, but he would also desist from selling marijuana in Los Osos
and would not report the robbery to the police.
       Appellant claims that, even if the evidence is sufficient to support his conviction
of murder, it is insufficient to establish murder in the first degree because the People
failed to show "that he harbored a deliberate and premeditated intent to kill." As we
noted in People v. Baker-Riley, supra, 207 Cal.App.4th at p. 635, " 'provocative act
implied malice murders are first degree murders when they occur during the course of a
felony enumerated in section 189 [e.g., robbery] that would support a first degree felony-
murder conviction. [Citation.]' [Citation.]" Thus, there is no requirement that the People
prove "a deliberate and premeditated intent to kill."
       Relying on People v. Concha, supra, 47 Cal.4th 653, appellant argues that Baker-
Riley was wrongly decided. In Concha the Supreme Court held that, when the
defendant's "accomplice is killed by the intended victim in the course of an attempted
murder," the "defendant may be convicted of first degree murder . . . if the defendant
personally acted willfully, deliberately, and with premeditation during the attempted
murder." (Id., at p. 658.) In a subsequent opinion, the Supreme Court explained that it
had so held because "attempted murder is not one of the enumerated felonies in section
189. [Citation.]" (People v. Gonzalez, supra, 54 Cal.4th at p. 661, fn. 13.) Robbery and
burglary, on the other hand, are felonies enumerated in section 189. Since Baker-Riley

                                               7
and this case involve a killing committed during both a robbery and burglary, our
decisions in these two cases do not conflict with Concha. (See also People v. Mejia,
supra, 211 Cal.App.4th at p. 620 ["section 189 still may be used to elevate an implied
malice provocative act murder to first degree so long as the provocative act which
prompts the third party's use of lethal force occurs during the commission of a section
189 felony"].)
       One final observation of the provocative act murder doctrine seems in order: a
"mastermind's" conviction of murder based on that doctrine is sound public policy.
Allowing a "mastermind" to escape liability for murder while his provocateur accomplice
(Baker-Riley) suffers a first degree murder conviction would be inconsistent and unfair.
It could also encourage a criminal planner to employ accomplices to do his bidding in his
absence to shield himself from the application of the provocative act murder doctrine.
Nothing in People v. McCoy (2001) 25 Cal.4th 1111, 1118-1119 compels, or even
suggests the conclusion that a "mastermind" of an armed home-invasion robbery should
not have first degree murder liability where the provocative act murder doctrine applies.
                                     Instructions/Intent
       Appellant claims that "the trial court erroneously failed to instruct the jury that it
could not return a first degree murder conviction without finding that [he] personally
acted with willfulness, deliberation, and premeditation." For the reasons discussed
above, such an instruction would have misstated the law as declared in People v. Baker-
Riley, supra, 207 Cal.App.4th at p. 635.
                                     Instructions/Malice
       Appellant argues that the trial court erroneously failed to instruct sua sponte that
he could be convicted of murder only if he had personally harbored malice. The court
was not required to so instruct because it gave CALCRIM No. 561, the standard
instruction on provocative act murder when the defendant is an accomplice of the
perpetrator of the provocative act. That instruction adequately explained the requirement
of implied malice. The instruction stated that appellant could not be found guilty of

                                              8
murder unless the People proved that (1) appellant was an accomplice of Baker-Riley; (2)
Baker-Riley intentionally committed an act "[w]hose natural and probable consequences
are dangerous to human life, because there is a high probability that the act will provoke
a deadly response"; and (3) Baker-Riley "knew that the natural and probable
consequences of the provocative act were dangerous to human life and then acted with
conscious disregard for life."
                                 Instructions/Common Design
       Appellant asserts that the trial court erroneously failed to instruct sua sponte "that
it could find [him] guilty of murder based on Mr. Baker-Riley's acts [only] if it found that
Mr. Baker-Riley caused Mr. Alvarez's death 'by an act committed in furtherance of the
common design.' [Citation.]" We need not and do not determine whether the trial court
had a duty to instruct sua sponte on common design.5 Assuming for purposes of
discussion that it had such a duty, it is " 'clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error.' [Citation.]" (People v.
Gonzalez, supra, 54 Cal.4th at p. 663.) Davis was the intended target of the home
invasion robbery. As previously discussed, Baker-Riley's provocative acts were
committed in furtherance of the common design of facilitating the robbery and making it
clear, to use appellant's words, that Davis "had no business" selling marijuana "in our
town," i.e., Los Osos.
                           Instructions/Voluntary Manslaughter
       Appellant argues that the trial court erroneously failed to instruct sua sponte on the
lesser included offense of voluntary manslaughter. "[A] trial court errs if it fails to
instruct, sua sponte, on all theories of a lesser included offense which find substantial
support in the evidence. On the other hand, the court is not obliged to instruct on theories
that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142,
162.) The lesser included offense of voluntary manslaughter is without evidentiary

5
 To prevent this issue from arising in future cases, we suggest that CALCRIM No. 561
(Homicide: Provocative Act by Accomplice) be modified to require a finding that the
accomplice's provocative act was in furtherance of the common design.
                                                 9
support. That offense is committed when the defendant or his accomplice kills another
person with either an intent to kill or with conscious disregard for life, but without malice
aforethought. (People v. Bryant (2013) 56 Cal.4th 959, 969-970.) Voluntary
manslaughter includes "a killing upon a sudden quarrel or heat of passion (§ 192, subd.
(a)), [and] a killing in unreasonable self-defense [citation]." (Ibid.) Appellant has not
cited any authority supporting a theory of voluntary manslaughter where, as here, the
victim of a robbery kills the defendant's accomplice in reasonable response to the
intentionally committed, provocative acts of a surviving accomplice.
                                   Other Crime Evidence
       Appellant contends that the trial court abused its discretion in admitting evidence
of a prior home invasion robbery. The evidence was as follows: In March 2008 Ron
Foulk was taking prescription Dilaudid pills for pain management. Appellant, who was
Foulk's neighbor, asked him for some of the pills. Foulk replied that he "didn't have
enough to be handing them out to the neighbors." Four days later at about 9:30 p.m.,
Foulk heard "a loud, aggressive knock" on his door. When he opened the door, appellant
and two other men forced their way inside, shut the door, and locked it. They were
wearing latex gloves. Foulk did not see a weapon. Appellant demanded Foulk's Dilaudid
pills. One of appellant's accomplices was "ransacking through all of" Foulk's pill
containers in the kitchen. Another accomplice stood at the door to block Foulk's escape.
Appellant took Foulk's cell phone and corded home phone. An accomplice took Foulk's
Dilaudid pills. Before appellant and his accomplices left, appellant said to Foulk in a
"cocky" manner, " 'If you call the police, I'm going to kill you.' "
       The trial court ruled that evidence of the prior robbery was admissible under
Evidence Code section 1101, subdivision (b), to show intent and "common plan and
scheme." The court acknowledged that the evidence was "clearly . . . prejudicial because
it's the exact same kind of crime." But the court concluded that the probative value of the
prior robbery was not substantially outweighed by its prejudicial impact. (Evid. Code,
§ 352.) The court instructed the jury that it may consider evidence of the prior robbery

                                              10
"for the limited purpose of deciding whether or not: [¶] 1. The defendant acted with the
intent to commit robbery in this case, or [¶] 2. The defendant had a plan or scheme to
commit the offense alleged in this case."
       " 'Evidence of uncharged crimes is admissible to prove . . . common design or
plan, or intent only if the charged and uncharged crimes are sufficiently similar to support
a rational inference of . . . common design or plan, or intent. [Citation.]' [Citation.]"
(People v. Foster (2010) 50 Cal.4th 1301, 1328.) " 'The least degree of similarity
(between the uncharged act and the charged offense) is required in order to prove intent.
[Citation.] . . . In order to be admissible to prove intent, the uncharged conduct must be
sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the
same intent in each instance.' [Citations.]" [Citation.]' [Citation.] 'A greater degree of
similarity is required in order to prove the existence of a common design or plan. . . .
[E]vidence of uncharged misconduct must demonstrate "not merely a similarity in the
results, but such a concurrence of common features that the various acts are naturally to
be explained as caused by a general plan of which they are individual manifestations." '
[Citation.]" (Ibid.)
       "If evidence of prior conduct is sufficiently similar to the charged crimes to be
relevant to prove the defendant's intent [or] common plan, . . . the trial court then must
consider whether the probative value of the evidence 'is "substantially outweighed by the
probability that its admission [would] . . . create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury." (Evid.Code, § 352.)' [Citation.]
'Rulings made under [Evidence Code sections 1101 and 352] are reviewed for an abuse
of discretion. [Citation.]' [Citation.] 'Under the abuse of discretion standard, "a trial
court's ruling will not be disturbed, and reversal . . . is not required, unless the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice." [Citation.]' [Citation.]" (People v. Foster, supra,
50 Cal.4th at pp. 1328-1329.)



                                               11
       Appellant maintains that "the other-crimes evidence was insufficiently similar to
the charged incident to justify its admission" to prove intent and common design or plan.
We disagree. Both crimes were home invasion robberies. The main purpose of the
crimes was to obtain drugs. The modus operandi used to gain admission into the
residences was the same: knocking on the front door and forcing entry when the victim
opened the door. In both crimes, appellant was assisted by two accomplices and was the
"mastermind."
       Appellant argues that the trial court abused its discretion because the probative
value of the other crime evidence "was greatly outweighed by the prejudicial effect of the
evidence in showing [his] disposition to commit precisely the criminal act charged in this
case -- residential robbery -- and in 'tending to evoke an emotional bias against' [him]."
The trial court did not abuse its discretion. The prior residential robbery was highly
probative evidence. "There was not a substantial danger of undue prejudice because the
circumstances of the [Foulk] incident were no more inflammatory [actually much less
inflammatory] than the circumstances of the current incident involving [Davis].
[Citation.]" (People v. Callahan (1999) 74 Cal.App.4th 356, 371.) "The prejudice which
exclusion of evidence under Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from relevant, highly probative
evidence. . . . 'The "prejudice" referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues.' " (People v. Karis (1988) 46
Cal.3d 612, 638.)
                              Cruel and Unusual Punishment
       Appellant argues that "sentencing him to a term of 25 years to life for a killing that
occurred during a robbery he was not present for and that he could not have reasonably
anticipated violates the cruel and unusual punishment clauses of the United States and
California Constitutions." Under the Eighth Amendment of the United States
Constitution, "the courts examine whether a punishment is grossly disproportionate to the

                                             12
crime." (People v. Murray (2012) 203 Cal.App.4th 277, 284.) "Under the California
Constitution, a sentence is cruel or unusual if it is so disproportionate to the crime
committed that it shocks the conscience and offends fundamental notions of human
dignity." (Id., at p. 285.)
       Appellant forfeited the cruel and unusual punishment issue by not asserting it in
the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.) In any event,
appellant's sentence is not disproportionate to his crime. "Harmelin v. Michigan (1991)
501 U.S. 957 [111 S.Ct. 2680, 115 L.Ed.2d 836], . . . upheld a sentence of LWOP [life
without the possibility of parole] for possession of 672 grams of cocaine, a serious crime,
but less heinous than" the crimes committed by appellant. (People v. Rodriguez (1998)
66 Cal.App.4th 157, 173.) Appellant was the "mastermind" of the home-invasion
robbery. He sent his accomplices to do his bidding and knew that they were going to use
a gun to accomplish his goals. To say that appellant "could not have reasonably
anticipated" the killing is a premise which, to put it bluntly, is far-fetched. Moreover,
appellant is a recidivist. He has been convicted of numerous misdemeanors and four
felonies, and he has served prior prison terms.
                                         Disposition
       The judgment is affirmed.
       CERTIFIED FOR PUBLICATION


                                                          YEGAN, J.


We concur:


       GILBERT, P.J.


       PERREN, J.



                                              13
                              Barry T. LaBarbera, Judge
                      Superior Court County of San Luis Obispo




      Peter Gold , under appointment by the Court of Appeal, for Defendant and
Appellant.


      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Peggy
G. Huang, Deputy Attorneys General, for Plaintiff and Respondent.




                                          14
