Filed 4/23/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ROBERT WAYNE 

CUNNINGHAM,

 Defendant and Appellant.

2d Crim. No. B323640

(Super. Ct. No. CR37135)

(Ventura County)

Robert Wayne Cunningham was convicted of provocative 

act murder as a result of a 1995 shootout with the police. He was 

also convicted of other offenses connected with the shootout. He 

was sentenced to state prison for life without the possibility of 

parole. Consecutive determinate sentences were also imposed.

He unsuccessfully sought sentencing relief pursuant to 

Penal Code section 1172.6. He appeals contending that 

provocative murder is based upon the imputation of malice and 

any such imputation is now barred by newly enacted Penal Code 

section 188, subdivision (a)(3). We disagree and affirm. We 

cannot add the phrase “provocative act murder” to the statute. 

This species of murder liability has been the law in California 
2

since the 1960s (see, e.g., People v. Gilbert (1965) 63 Cal.2d 690, 

704-705). Surely the Legislature was aware of this murder 

theory when it made two changes to the statutory murder 

definitions. It’s failure to mention “provocative murder” is 

significant and leads to only one logical conclusion: the 

Legislature did not intend to jettison this theory. 

Only a brief recitation of the facts is necessary to bring this 

appeal into focus. Appellant and his cohort, Soley, were 

suspected of committing a series of armed robberies. The police 

had them under surveillance. They followed appellant and Soley 

to a liquor store. When appellant and Soley committed the 

robbery of this liquor store, they were unable to leave because the 

police blocked their car’s movement. Appellant arose through the 

open roof of the car and started shooting at the police. They 

returned gun fire killing Soley and wounding appellant. At least 

one police officer was wounded in the gun battle. 

The jury was only instructed on the elements of 

“provocative murder,” but the prosecutor did argue that appellant 

started “the ball rolling” and started “a snowball down the hill” 

when he initiated the gun battle. Appellant now contends that 

this argument is tantamount to arguing the now discarded 

“natural and probable consequences” doctrine and that relief 

should be granted. The statute does not preclude the prosecutor’s 

argument. It is the instructions given that inform the jury’s 

verdict. 

We recently held that the “provocative murder doctrine” 

survived the recent legislative enactments in People v. Antonelli

(2023) 93 Cal.App.5th 712, review granted Oct. 18, 2023, 

S281599. Our holding was, and is, compelled by California 

Supreme Court precedent. (People v. Gonzales (2012) 54 Cal.4th
3

643, 654.) The Supreme Court has granted review in Antonelli, 

supra, and, so, it should grant review here. 

Disposition

The judgment (order denying sentencing relief) is affirmed. 

CERTIFIED FOR PUBLICATION.

YEGAN, J.

I concur:

GILBERT, P. J.
1

CODY, J. CONCURRING:

I agree appellant is ineligible for Penal Code section 1172.6 

relief. However, I reach that conclusion because appellant’s jury 

instructions entail a finding he personally acted with implied 

malice. 

The trial court instructed on provocative act murder with a 

version of CALJIC No. 8.12. That instruction required the jury to 

determine whether appellant—not any accomplice—committed 

an “intentional provocative act” during the commission of 

robbery. Given the instruction’s definition of an “intentional 

provocative act,” the jury must have found that appellant 

“deliberately performed [the act] with knowledge of the danger to, 

and with conscious disregard for human life.” Accordingly, the 

jury determined appellant himself acted with 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”].) Malice was not imputed based solely 

on appellant’s participation in a crime. (See Pen. Code, § 1172.6, 

subd. (a).)

I base my conclusion on the jury’s specific mens rea finding 

in lieu of relying, as the majority does, on the broader rationale 

expressed in People v. Antonelli (2023) 93 Cal.App.5th 712, 

review granted October 18, 2023, S281599. (Maj. opn. ante, at 

pp. 2-3.) Whether or not all provocative act murderers are 

ineligible under Penal Code section 1172.6, the jury finding in 

appellant’s case precludes relief under that section.

CERTIFIED FOR PUBLICATION.

CODY, J.
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, Assistant 

Attorney General, Michael C. Keller and Yun K. Lee, Deputy 

Attorneys General, for Plaintiff and Respondent.