Filed 11/19/13

CERTIFIED 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. B241044

(Super. Ct. No. F435613)

(San Luis Obispo County)

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),1first 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.
2

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." 
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. 

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 BakerRiley'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.)
4

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 
5

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, 
6

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.
7

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 felonymurder 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 BakerRiley 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 
8

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. BakerRiley, 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 
9

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.
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. 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 
11

"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.)
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 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 
13

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.
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, 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.