Filed 7/10/26 P. v. Johnson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B340011
(Super. Ct. No. BA496577)
Plaintiff and Respondent, (Los Angeles County)
v.
QUINTON DEON JOHNSON,
Defendant and Appellant.
Caleb G. and Hasham H. were robbed at gunpoint by
Quinton Deon Johnson, Ethan Wilson, and a juvenile, T.B.1
Wilson pointed a firearm at a security guard, Keith Anderson,
and he fatally shot Wilson. Johnson was convicted of provocative
act murder.
Johnson appeals from the judgment after a jury convicted
1 We refer to the victims and the juvenile accomplice by
their initials or first names and last initials to protect their
privacy. (Cal. Rules of Court, rule 8.90(b)(4) & (10).)
him of first degree murder (Pen. Code,2 §§ 187, subd. (a), 189,
subd. (a); count 1), three counts of attempted murder (§§ 664,
subd. (a), 187, subd. (a); counts 2–4), second degree robbery
(§ 211; count 5), attempted second degree robbery (§§ 664, 211;
count 6), and conspiracy to commit robbery (§ 182, subd. (a)(1);
count 7). The jury also found true the allegation that Johnson
personally used a firearm in the commission of counts 1 through
6. (§ 12022.5, subd. (a).) The trial court sentenced Johnson to
state prison for 29 years to life plus a determinate term of 22
years and eight months.
Johnson contends the evidence was insufficient to establish
provocative act murder or, in the alternative, to establish the
murder was of the first degree. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Caleb G., Hasham H., and Richard S. attended an event at
a restaurant. They wore visibly expensive watches and jewelry.
Phone records showed Wilson and T.B. were waiting near the
restaurant. Caleb G., Hasham H., and Richard S. left the
restaurant together in a Rolls Royce convertible. They stopped at
a 7-Eleven convenience store and bought food. A gray Audi with
no license plates backed into the parking spot next to them.
When the Rolls Royce drove out of the parking lot, they did not
notice that the Audi followed them. The Rolls Royce then went to
Richard S.’s home. It was about 2:00 a.m.
Richard S. went inside his house. Caleb G. and Hasham H.
stayed outside and spoke to Richard S.’s security guard, Keith
Anderson, a retired sheriff’s deputy. Anderson was armed with a
2 Subsequent statutory references are to the Penal Code.
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handgun. Caleb G. and Hasham H. were unarmed.
Caleb G. heard brakes squealing. An Audi with no plates
drove up. Caleb G. screamed, “Fuck, no plates.” He immediately
knew he was about to get robbed and it “was going to be bad.” He
decided he would give up his property rather than someone
getting hurt.
Johnson, Wilson, and T.B. got out of the Audi with guns
drawn. They wore ski masks. Each was armed with a
semiautomatic handgun. A laser device was attached to
Johnson’s firearm and a flashlight was attached to Wilson’s
firearm. Caleb G. noticed the firearms had lights attached and
one had an extended magazine. Johnson, Wilson, and T.B.
pointed their firearms at Caleb G. and Hasham H.
Caleb G. and Hasham H. ran to the carport. T.B. and
Johnson also ran to the carport, with Wilson following. Caleb G.
and Hasham H. were “cornered” in the short driveway.
T.B. pointed a firearm toward Caleb G.’s and Hasham H.’s
heads and ordered them to get down. Caleb G. crouched down
with his hands over his head. He told the robbers they could
have what they wanted and took off his watch. Hasham H.
removed his necklace.
Wilson pointed his firearm with the flashlight at Anderson.
Anderson then shot Wilson in the abdomen. Wilson slouched,
then shot Anderson in his abdomen.3
Caleb G. believed the robbers fired first based on
Anderson’s location and the fact his firearm was still holstered.
A detective testified that based on his review of the video
evidence, it appeared to him that Anderson fired first. A forensic
3 The parties stipulated that Anderson died before trial of
unrelated causes.
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video analyst synchronized various video recordings and also
opined that Anderson fired first, followed “immediately” by a shot
from a robber.
There was constant rapid gunfire in “every which way.”
T.B. told Caleb G. to tell the security guard to stop shooting or
“I’ll fucking kill you.”
T.B. was shot in the ankle. He fell to the ground with a
firearm in one hand and a flashlight in the other, shooting
rapidly. T.B. shot upwards at Hasham H., hitting him in the
stomach. Caleb G. was also shot but the bullet lodged between
two cell phones in his pocket. Shrapnel lodged in his knee. The
robbers fled.
Police stopped the Audi with Johnson, Wilson, and T.B.
inside. Wilson died at the scene.
DISCUSSION
Provocative act murder
Johnson contends the murder conviction was not supported
by substantial evidence because he did not commit any
provocative acts that exceeded the acts necessary to commit
robbery until after Anderson shot Wilson. We disagree.
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Avila (2009) 46 Cal.4th 680, 701.)
“The provocative act murder doctrine has traditionally been
invoked in cases in which the perpetrator of the underlying crime
instigates a gun battle, either by firing first or by otherwise
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engaging in severe, life-threatening, and usually gun-wielding
conduct, and the police, or a victim of the underlying crime,
responds with privileged lethal force by shooting back and killing
the perpetrator’s accomplice or an innocent bystander.” (People v.
Cervantes (2001) 26 Cal.4th 860, 867.)
“A murder conviction under the provocative act doctrine
thus requires proof that the defendant personally harbored the
mental state of malice, and either the defendant or an accomplice
intentionally committed a provocative act that proximately
caused an unlawful killing. . . . 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.” (People v. Gonzalez (2012) 54 Cal.4th 643, 655.) The
qualifying provocative act cannot be committed by an accomplice
who is later killed by the crime victim, but may be committed by
either the defendant or a surviving accomplice. (People v. Mejia
(2012) 211 Cal.App.4th 586, 603 & fn. 4; People v. Briscoe (2001)
92 Cal.App.4th 568, 582, fn. 5 (Briscoe).)
In a crime such as robbery that does not involve an intent
to kill, “[t]he provocative act must be something beyond that
necessary to commit the underlying crime.” (Briscoe, supra, 92
Cal.App.4th at pp. 582–583.) “[A] central inquiry . . . is whether
the defendant’s conduct was sufficiently provocative of lethal
resistance to support a finding of implied malice.” (Id. at p. 583.)
Briscoe, supra, 92 Cal.App.4th 568, which affirmed a
provocative act murder, is instructive. There, a robbery victim,
Parovel, fatally shot the defendant’s accomplice, Pina. The court
held that defendant’s acts of placing Parovel’s girlfriend in a
headlock and holding a semiautomatic pistol equipped with a
laser to her head “dramatically increased the risk . . . of injury or
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death.” (Id. at pp. 588, 577.) That conduct, together with
defendant pistol-whipping Parovel, “went beyond those acts
necessary to accomplish the underlying offense” of robbery and
constituted substantial evidence of provocative act murder. (Id.
at p. 587.) “One who robs another while doing no more than
holding a weapon may not have committed a provocative act,
while a perpetrator who brandishes a deadly weapon, puts it to
the head of a robbery victim, cocks the gun or pistol-whips the
victim with it may have.” (Id. at pp. 589–590.)
Here, substantial evidence supports provocative act
murder. Johnson and his accomplices arrived in a vehicle with
no license plates and wore ski masks, which suggested a planned,
organized assault. A robbery may be accomplished with an
unloaded firearm but here the robbers increased the risk of death
by using loaded firearms. (People v. Gonzalez, supra, 54 Cal.4th
at p. 656.) The victims could reasonably interpret the laser
device attached to Johnson’s firearm as a threat that he would
aim and shoot. The robbers, including Johnson, trapped the
victims in a confined area. T.B. forced two victims to their knees
and threatened to kill Caleb G. T.B.’s actions of aiming a firearm
at the robbery victims’ heads increased the danger to their lives.
(Briscoe, supra, 92 Cal.App.4th at p. 588; People v. Kainzrants
(1996) 45 Cal.App.4th 1068, 1076–1077.)
When Wilson pointed his firearm at Anderson, Anderson
shot him. Johnson contends the evidence is insufficient because
he did not engage in provocative acts until after Anderson shot
Wilson. “By necessity, the provocative act must occur before a
victim may make a lethal response.” (Briscoe, supra, 92
Cal.App.4th at p. 584.) But here, the jury could credit Caleb G.’s
testimony that the robbers fired first. And “there may be more
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than one cause prompting an act of lethal resistance—that is,
more than one provocative act.” (Id. at p. 586.) Johnson and T.B.
engaged in provocative acts before and contemporaneously with
the fatal shooting. Substantial evidence supports the conclusion
that Johnson and T.B.’s conduct contributed to Anderson’s fear
for his life and caused him to shoot Wilson in response.
The timing here is similar to that in People v. Hunter
(2017) 15 Cal.App.5th 163. There, the robbers’ acts were “ ‘all
happening [at the] same time.’ ” (Id. at p. 185.) “When ‘as little
as five or six seconds’ separate the decedent perpetrator’s acts
from an accomplice defendant’s provocation [citation] or when, as
here, the accomplice’s initial act or acts ‘dramatically escalated
the level of violence in the encounter’ [citation], the trier of fact
reasonably may conclude the first perpetrator ‘set . . . into motion
. . . the chain reaction’ leading to his or her fellow assailant’s
death, even if the dead assailant also engaged in provocative
acts.” (Ibid.) Here, all three robbers, including Johnson,
participated in a rapid burst of gunfire. A video recording viewed
by the jury shows only a few seconds elapsed from when the
robbers exited their vehicle until the shooting ended.
This case is unlike In re Joe R. (1980) 27 Cal.3d 496 (Joe
R.). There, the minor participated in a robbery with an adult
accomplice. The accomplice pointed a gun at the robbery victim’s
head and ordered him into an alley. (Id. at p. 501.) The minor
said, “ ‘If you don’t do what he says he’ll kill you.’ ” (Ibid.) The
minor punched the back of the robbery victim’s head, dislodging
his glasses, but the victim said, “it was not severe enough for him
to ‘notice it.’ ” (Id. at pp. 507, 502.) The minor never displayed a
firearm. (Id. at p. 501.) The victim struggled with the
accomplice, disarmed him, and shot and killed him. (Id. at p.
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502.)
The majority in Joe R. concluded substantial evidence did
not support a provocative act murder. (Joe R., supra, 27 Cal.3d
at p. 508.) The court relied exclusively on the minor’s conduct
and not on “the ‘provocative conduct’ of the accomplice who was
killed.” (Id. at p. 506, fn. 5.) The court stated the minor did “no
more than participate actively in an armed robbery. His repeated
admonitions to do what [his accomplice] said or ‘he’ll kill you’
were directed toward safe completion of the underlying felony.”
(Id. at pp. 507–508.) The court reasoned that moving the victim a
short distance to an alley was “solely to lessen the risk that the
robbery would be observed.” (Id. at pp. 508, 507.)
Unlike the minor in Joe R., Johnson displayed a loaded
firearm with a laser device, wore a ski mask, and shot at the
victims who were cornered in the carport. Johnson and T.B.’s
acts went beyond that necessary for an armed robbery of Caleb G.
and Hasham H., who immediately surrendered their property.
Substantial evidence supports Johnson’s conviction for
provocative act murder.
First degree
Johnson also contends the evidence was insufficient to
support first degree murder. We are not persuaded. As he
acknowledges, binding precedent compels the contrary
conclusion.
A murder is of the first degree if it “is committed in the
perpetration of . . . robbery.” (§ 189, subd. (a).) As we concluded
in People v. Baker-Riley (2012) 207 Cal.App.4th 631, provocative
act murder is of the first degree if committed in the course of a
robbery. (Id. at pp. 635–636, citing People v. Sanchez (2001) 26
Cal.4th 834, 852; Pizano v. Superior Court (1978) 21 Cal.3d 128,
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139–140, fn. 4; and People v. Gilbert (1965) 63 Cal.2d 690, 705,
judgment vacated on other grounds, Gilbert v. California (1967)
388 U.S. 263.) We are bound to follow this Supreme Court
precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
YEGAN, Acting P. J.
CODY, J.
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Ronald S. Coen, Judge
Superior Court County of Los Angeles
______________________________
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.