Filed 11/19/13

C ERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

RYAN JAMES JOHNSON,

Defendant and Appellant. 2d Crim. No. B 241044 (S uper. Ct. No. F435613) (San Luis Obispo County)

The "mastermind" of an armed home

- invasion robbery who sends his accomplice s to do his bidding can be convicted of first degree murder if one of his accomplices engages in provocative conduct and the victi m 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 firs t 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 othe rwise stated.2

211 ), and two counts of first degree res idential robbery. (§§ 211, 212.5, s ubd. (a). ) The jury found true firearm enhancement s within the meaning of section 12022 , subdivision (a)(1). Appellan t was sentenced to prison for 26 years to life. The murder conviction was based on the provocative act murder doctrine. In People v. Bak er

- 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 t o 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 punishm ent 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 suf ficient 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 doin g a home invasion." Lindemans asked , " 'Are you talking about a home invasi on robbery? ' " Appellant replied , " 'Well, yeah, I guess, i f you want to call it that.' " Appellant identified
one of his " homies " as "Kels ey " (Kelsey Alvarez)

. Appellant said t hat th ey 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."3

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.
B aker

- 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 gu n, 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 m e, homie.' " He asked Baumann, "You ever seen 'Pulp Fiction,' homie?" 2
Baker

- Rile y saw a fortune cookie on a table. He po inted 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 opportun ities. Take advantage of t hem.' " 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.)4

Baker

- Riley saw marijuana drying in a back bed room. 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. On e 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 wit h con scious 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 i s 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 provo cative act doctrine, a defendant may be vicariously liable for the provocative conduct of his5

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 murde r, 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, m alice may be implied: "[T]he central inquiry in determining crim inal 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 (1 970) 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." T o credit this contention we
would have t o 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. Su

perior Court , supra , 3 C al.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 v ictims shot Smith in reasonable response to Daniels's provocative acts

. The Taylor court concluded that "the evide nce 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

conseque nces 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 m urder liability to the
"w heelman" of a robbery/homicide even though he was "just" a g eta w ay driver. Here,6

a ppellant wa s 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. W e are bou nd 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 robber y takes place, has provoc ative 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. Gilber t, supr a, 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 guil ty of murder"] .) 4

In Taylor the Supreme Court observed that, to find a defendant guilty based on the provocative act s of his accomplice, the act s must be " ' committed in furtherance of the
common desi gn. [Citations.]' [Citation.]" ( Tayl or , 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 117 8.7

murder . . . is attributable not to the acts of the defendant himself, but rather to the acts of his accomplice, the defend ant'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 furt herance 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 Oso s 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 1 89 [e.g., robbery ] that would support a first degree felony

murder conviction. [Citation.]' [Citation.]" Thus, the re 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 mur der . . . 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 t he 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

- Riley8

and this case involve a killing committed during both a robbery and burglary , our decision s 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 degr ee 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 murd er 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 c riminal 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 tha t 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 i t 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 instructi on would have misstated the law as declared in People v. B aker

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 of9

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 wi th conscious disregard f

or 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 whethe r the trial court had a duty to instruct sua sponte on common design. 5 Assuming for purposes of
discus sion that it had such a duty, it i s " '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

. Instruc tions/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 fu rtherance of the common design.10

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. Br yant (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 support ing a theory of voluntary manslaughter where, as here, the victim of a robbery ki lls the defendant's accomp lice in reasonable response to the intentionally committed
, provocative acts of a surviving accomplice.
Other Crime Evidence Appellant contends th at 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 managemen t. Appellant, who was
Foulk 's neighbor, asked h im 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 fo rced 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 ki tchen

. 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" man ner, " '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 out weighed by its prejudicial impact. (Evid. Code, § 352.) The court ins tructed the jury that it may consider evidence of the prior robbery11

"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 o ffense 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 admissib le 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 requi red 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 tr ial 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 no t be disturbed, and rev ersal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a man ifest miscarriage of justice." [Citation.]' [Citation.]" ( People v. Foster
, supra , 50 Cal.4th at p p. 1328

- 1329.)12

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 s ame: knocking on the front door and forcing entry when the victim opened the door. In both crimes, appellant was assisted by two accomplice s 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 co mmit prec isely 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 (19 99 ) 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" r eferred 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 ve ry little effect on the issues. ' " ( People v. Karis (1988) 46 Cal.3d 612, 638.)
C ruel and U nusual Punishment Appellan t 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

ant icipated violates the cruel and unusual punishment clauses o f the United States and
California Constitutions." Under the Eighth Amendment of the United States
C onstitution, "the courts examine whether a punishment is grossly disproportionate to the13

crime." ( People v. Murray (2012) 203 Cal.App.4th 277, 284.) "Und er 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 unusua l 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 he inous 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" t he killing is a prem ise 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.14 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, D ane 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.