Filed 9/16/26 P. v. Kainzrants CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B348028
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA059523)
v.
FABIAN KAINZRANTS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Olivia Rosales, Judge. Affirmed.
George L. Schraer, 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, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Chung L. Mar, Deputy Attorney General,
for Plaintiff and Respondent.
______________________________
In 1994 a jury convicted Fabian Kainzrants of the first
degree murder of La Keisha Reeves under a provocative act
theory, as well as attempted robbery and two counts of assault
with a deadly weapon. The murder occurred while Kainzrants
and two accomplices were attempting to rob the home of Reeves’s
fiancé, Anthony Bell: After Kainzrants held a gun to Reeves’s
head and repeatedly threatened to kill her if Bell did not open the
door to the house, Bell emerged with a gun and started shooting
at Kainzrants, killing Reeves.
In 2022 Kainzrants petitioned for resentencing under Penal
Code former section 1170.95 (now section 1172.6).1 Following an
evidentiary hearing, the superior court denied the petition,
finding beyond a reasonable doubt that Kainzrants was guilty of
murder under a currently valid theory because he personally
acted with malice in committing the provocative act that
proximately caused Reeves’s death.
Kainzrants contends substantial evidence did not support
the trial court’s finding of malice. He also relies on the Supreme
Court’s recent holding in People v. Morris (2026) 19 Cal.5th 671
(Morris) that an aider and abettor may only be convicted of felony
murder under section 189, subdivision (e)(2), if he or she aided
and abetted the actual killer in the lethal act (not just the
underlying felony). He contends Morris’s holding applies to
provocative act murder, and thus, Kainzrants cannot be convicted
under current law because he did not aid and abet Bell in
shooting Reeves. But Kainzrants was the provocateur, not the
aider and abettor, and the Supreme Court in People v. Antonelli
1 Further undesignated statutory references are to the Penal
Code.
2
(2025) 17 Cal.5th 719 (Antonelli), just a year before Morris,
reaffirmed that the provocative act doctrine remains a valid
theory of liability for murder so long as the defendant or an
accomplice proximately causes an unlawful death and the
defendant personally acts with malice. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
In June 1992 Bell and Reeves lived together in a one-
bedroom house, along with Bell’s two sons (ages five and six) and
Reeves’s three-year-old daughter. Bell testified that “everybody”
in the neighborhood knew that he had recently received a large
cash settlement ($55,000) for a workplace injury.
On June 4 Ball and Reeves were hosting a birthday party
for Bell’s son at their home. There were several adults and
several children at the party. Bell testified that around
9:15 p.m., when the children were inside the house watching
television and the adults were out on the porch, three men came
out of an alley adjacent to the house. Two of the men stopped at
the edge of the alley while Kainzrants walked toward the porch.
Kainzrants said, “‘What’s up?’” and Bell responded, “‘Who are
you?’” Kainzrants turned briefly and held up an “Uzi-type” gun,
which was later identified as a MAC-11 semiautomatic pistol.2
2 “MAC-11” stands for “Military Armament Corporation
Model 11” and is a semiautomatic “machine pistol.” (See People
v. Abel (2012) 53 Cal.4th 891, 902; U.S. v. Davis (E.D.Cal. 2014)
2014 WL 2993805 at p. *3, fn. 2.) An Uzi is a submachine gun.
(See People v. Roldan (2005) 35 Cal.4th 646, 709, disapproved on
another ground in People v. Doolin (2009) 45 Cal.4th 390.)
3
Kainzrants pointed the gun at Bell with the barrel three inches
away from Bell’s stomach.
Kainzrants announced, “‘This is a robbery,’” and he ordered
everyone inside the house. Kainzrants allowed Bell to walk up
the porch steps first and go inside, but as Bell walked up the
steps, Bell saw Kainzrants grab Reeves in a chokehold, holding
the gun to her head. Once inside the house, Bell pulled the door
shut and locked it. He reasoned he could not let Kainzrants in
because there were six small children inside, and he believed
Kainzrants would kill everyone once they were inside because
they had seen his face. Bell was scared and told the children to
get down, and he removed his 9-millimeter semiautomatic
handgun and an ammunition clip from his bedroom drawer.
Through the front door, Kainzrants loudly and angrily
demanded Bell open the door, saying, “‘If you don’t open the door
I’m going to kill Keisha.’” Bell believed Kainzrants was going to
kill Reeves, and he loaded his gun, thinking, “if he’s going to kill
her, he’s going to have to kill me first. I’m going out shooting.”
As Bell returned to the doorway with the loaded gun, he heard
Kainzrants again threaten to kill Reeves if Bell did not open the
door.
Bell “open[ed] the door up and just started shooting.” Bell
shot “straight ahead,” without aiming at anything. Kainzrants
fled down the porch steps as Bell kept firing, and Bell believed he
hit Kainzrants because Kainzrants repeatedly fell to the ground,
before getting up and stumbling off. Bell’s gun jammed, and he
went back into the house to get a second gun. When he came
back outside, he realized Reeves had been shot and lay bleeding
at the bottom of the porch steps. Reeves died; the cause of death
was a single gunshot wound to the head.
4
La Donna Wheelock (La Donna) and her former husband
Moses Wheelock (Moses) attended the birthday party with their
three daughters. La Donna provided a similar account of the
assault, testifying Kainzrants grabbed Reeves by the arm,
pointed an “Uzi” at her head, and twice threatened to shoot her,
stating, “‘Open up the door,’” “‘I’m going to kill your girlfriend,’”
and “‘I’m going to kill this bitch.’” Kainzrants also pointed the
gun at La Donna and exclaimed, “‘I’ll kill her too.’” La Donna hid
behind a car when the shooting started; she heard multiple
gunshots. Of the three assailants, only Kainzrants approached
the house and threatened to kill Reeves.
Moses testified that while Kainzrants approached Bell, the
other two assailants pulled out guns that looked like a .22 caliber
handgun and a .380 caliber pistol and pointed them at Moses and
two other guests, telling them to lie on the ground. Moses heard
Kainzrants address Bell as “Tony” and threaten to kill Reeves.
Moses heard a “lot of shooting” but did not know who fired.
Terrill Riley testified that he and Sylvester Anderson left
the party earlier but returned and saw four men dressed in all-
black walking side-by-side down the alley near Bell’s home.
Three of those men arrived at the home just after Riley and
Anderson. Kainzrants asked the partygoers, “‘Who’s Tony?’” or
“‘Where’s Tony?’” Bell responded to Kainzrants, although Riley
could not hear what was said after that. Meanwhile, the other
two assailants told everybody else to get down, one pointed either
a 9-millimeter or .45-caliber semiautomatic handgun at Riley,
and the other pointed a gun at Anderson. Riley saw Kainzrants
grab Reeves and hold a gun to her head, but he did not hear
Kainzrants threaten to shoot her. Bell came out of the house
shooting, and after Bell fired about seven or eight shots, Riley
5
thought he heard additional shots from a different gun. After
Kainzrants ran off, Bell yelled that Reeves had been shot and
gave Riley his second gun. Riley chased Kainzrants down the
alley and fired a shot at him before Kainzrants disappeared over
a fence.
Kainzrants was later found in the vicinity and hospitalized
for three gunshot wounds in his back. Police investigators found
several expended .380-calliber bullet casings in the alley near
Bell’s home and numerous expended 9-millimeter casings inside
and around Bell’s house. They also found a live 9-millimeter
bullet at the scene and recovered the 9-millimeter bullet that
killed Reeves and a 9-millimeter bullet fragment from La Donna’s
leg. Kainzrants’s MAC-11 was also found near where he fled.
The forensics firearms examiner determined three different guns
were fired at the scene, one 9-millimeter and two .380-caliber
guns. All of the 9-millimeter evidence (including the fatal bullet)
matched Bell’s handgun; there was no evidence the MAC-11 was
fired at the scene. The MAC-11 had 21 live rounds in its
magazine, but an expended cartridge was jammed between the
bolt and chamber, meaning the gun could not be fired until the
jam was cleared. The gun was dirty inside and not lubricated,
increasing the likelihood it would jam.
Kainzrants, who was 18 years old at the time of the
shooting, testified in his own defense. He testified that his friend
Damion Washington had given him the MAC-11 two months
before the shooting for safekeeping but later told Kainzrants he
could keep it. Kainzrants kept the gun under his bed and never
fired, loaded, or worked on it. Kainzrants decided to sell it, and a
friend told him that Bell might be interested in buying it because
Bell supplied guns to the Six-Deuce Brims gang. On the
6
afternoon of the shooting Kainzrants went to Bell’s home and
introduced himself, and Bell told him to come back that night
with the gun. Kainzrants returned alone with the MAC-11 at
around 9:00 p.m., and Bell examined the gun and ammunition
clip outside the house. After Bell said he would pay for the gun
with marijuana instead of cash, Kainzrants tried to take the gun
back, and the two men began “tussling.” Bell ran into the house,
and Kainzrants ran after him with the gun and encountered
Reeves. Reeves told Kainzrants to leave, and at the same time
Kainzrants heard gunshots and the front door slam open.
Kainzrants was shot three times and was chased down the alley.
B. The Jury Instructions, Verdict, and Sentencing
In her closing argument, the prosecutor relied exclusively
on the provocative act theory as a basis for murder liability,
arguing that Kainzrants was guilty of Reeves’s murder because
he provoked her fatal shooting by grabbing her, placing a gun to
her head, and threatening Bell that he would kill her during the
attempted robbery. The trial court instructed the jury with
CALJIC No. 8.12 on the elements of provocative act murder; it
did not instruct on any other theory of murder.
The jury convicted Kainzrants of the first degree murder of
Reeves (§ 187, subd. (a); count 1); attempted second degree
robbery (§§ 211, 664; count 2); and two counts of assault with a
firearm of Bell and La Donna (§ 245, subd. (a)(2); counts 3 and 4).
The jury also found true the special-circumstance allegation that
Kainzrants committed the murder while engaged in the
commission of robbery (§ 190.2, subd. (a)(17)) and, as to all four
counts, the allegation he personally used a firearm in committing
the offenses (§ 12022.5, subd. (a)). The trial court sentenced
Kainzrants to life without the possibility of parole for the murder
7
with the robbery special circumstance, plus five years for the
firearm enhancement. The court stayed sentencing on the
remaining counts under section 654.
Kainzrants appealed from the judgment, and we affirmed.
(People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1072.)
C. Kainzrants’s Petition for Resentencing and the Evidentiary
Hearing
On May 4, 2022 Kainzrants filed a form petition for
resentencing under former section 1170.95, stating he had been
convicted of murder on a theory of imputed malice and could not
presently be convicted of murder because of changes made to
sections 188 and 189, effective January 1, 2019. The superior
court appointed counsel for Kainzrants and ordered further
briefing.
On December 12, 2022, after a hearing, the superior court
summarily denied the petition. The court found that provocative
act murder required the defendant to personally harbor malice,
and therefore Kainzrants was ineligible for relief as a matter of
law.
On March 11, 2024 Kainzrants filed a motion for
reconsideration based on the recent decision in People v. Lee
(2023) 95 Cal.App.5th 1164, which held that defendants convicted
of provocative act murder prior to the Supreme Court’s decision
in People v. Concha (2009) 47 Cal.4th 653 (Concha) were not
categorically ineligible for relief under section 1172.6 because
prior to Concha, the law did specifically require that a participant
in the underlying offense who was not the provocateur personally
harbor malice to be convicted of murder. The prosecutor
conceded that Kainzrants made a prima facie showing of
8
eligibility, and the superior court set the matter for an
evidentiary hearing.
In the People’s brief, the prosecutor requested the superior
court take judicial notice of the clerk’s transcript and reporter’s
transcript from Kainzrants’s trial and our opinion in People v.
Kainzrants, supra, 45 Cal.App.4th 1068; the court admitted the
requested items at the hearing. The prosecutor argued the trial
record provided proof beyond a reasonable doubt that Kainzrants
could be convicted of murder under current law “because he
personally acted with malice in committing a provocative act that
caused Reeves to die.”
Kainzrants’s attorney submitted the declaration of Hollins
Tizeno with her hearing brief. Tizeno averred, among other
things, that he gave Kainzrants his MAC-11, which Tizeno no
longer used because it was irreparably jammed. Tizeno told
Kainzrants the gun did not work. Kainzrants’s attorney argued
the evidence that Kainzrants knew the gun was inoperative, in
light of his youth and the evidence at trial, precluded a finding
beyond a reasonable doubt that Kainzrants acted with express or
implied malice.
At the July 16, 2025 evidentiary hearing, Tizeno testified
that Kainzrants was a “really good guy” and “momma’s boy” who
was involved in school and sports and not involved in gangs. At
some point, Kainzrants asked Tizeno, who was a gang member,
for a weapon. Tizeno had no use for his MAC-11 because he had
determined the gun was broken beyond repair, so he gave it to
Kainzrants, knowing it could not fire. Tizeno told Kainzrants,
“‘Look, you can’t do too much with it because it’s not going to
shoot,’” and it had no use beyond “the look of it alone.”
9
Kainzrants’s attorney argued that prior to Concha, supra,
47 Cal.4th 653, juries were not clearly instructed with respect to
the provocative act theory that they had to find the defendant
acted with malice. Further, the evidence did not show malice:
Kainzrants knew the MAC-11 did not work, so “he did not go into
that robbery planning on killing anybody.” Moreover, Bell was
not armed at the beginning of the robbery, so when Kainzrants
threatened Reeves, Kainzrants could not have anticipated that
Bell would come out of the house with a gun and start shooting.
Proof of implied malice “require[d] [Kainzrants] knowing that
Mr. Bell was going to respond with fire.”
The prosecutor argued Kainzrants did not qualify for
resentencing as a matter of law because he was convicted as the
actual provocateur whose personal malice caused Reeves’s death,
and there was no evidence his accomplices committed a
provocative act. The fact the MAC-11 did not function was
irrelevant.
The superior court denied the petition. The court found
that Concha, supra, 47 Cal.4th 653 and Antonelli, supra,
17 Cal.5th 719 concerned robbery participants who were not the
provocateur, and the requirements for conviction of provocative
act murder changed only with respect to the imputation of malice
to accomplices. Kainzrants was the “provocateur that led this
deadly chain of events.” Further, it was not necessary to prove he
had the intent to kill, “but that he is engaging in dangerous
activity with reckless indifference to human life.”3 His
3 We recognize the superior court inartfully referred to
Kainzrants acting with “reckless indifference to human life,” a
standard applicable only to felony murder. Kainzrants points out
that “reckless indifference” is not a “form of malice,” but he does
10
provocative conduct included going to an active gang member to
get a gun to arm himself to rob Bell, who had just won a large
amount of money, then arming himself with a machine-gun-like
weapon, pointing it at Reeves’s head and threatening to kill her,
then threatening to kill La Donna, while attempting to rob Bell
at his home at a crowded party with children present. This
demonstrated “beyond a reasonable doubt that [Kainzrants]
acted with a reckless of malice [sic] in committing the provocative
act.”4
Kainzrants timely appealed.
not argue we should reverse based on the court applying an
incorrect standard (instead focusing on whether substantial
evidence supported a finding of implied malice). It is clear from
the court’s reliance on Concha and Antonelli in denying the
petition that the court misspoke in its oral ruling, referring to a
defendant who engages in dangerous activity with “reckless
indifference to human life” instead of “with a conscious disregard
for life,” as required for provocative act murder. (See Antonelli,
supra, 17 Cal.5th at pp. 727-728 [“‘[w]hen the defendant or his
accomplice, with a conscious disregard for life, intentionally
commits an act that is likely to cause death [the “provocative
act”], and his victim or a police officer kills in reasonable
response to such act, the defendant is guilty of murder.’”], italics
omitted; Concha, supra, 47 Cal.4th at p. 662 [same].) Further, as
we will discuss, the court’s analysis of the facts reflects an
understanding that it had to determine whether Kainzrants
acted with conscious disregard for life.
4 The trial court stated it considered Kainzrants’s age in
evaluating his mens rea and found there was little evidence he
was acting under peer pressure and the evidence instead
indicated Kainzrants was the “ring leader” of the robbery who
acted alone in threatening to kill the victims.
11
DISCUSSION
A. Section 1172.6 Resentencing and Standard of Review
Effective January 1, 2019, the Legislature eliminated the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder and significantly limited the scope
of the felony-murder rule. (People v. Curiel (2023) 15 Cal.5th
433, 448-449 (Curiel); People v. Strong (2022) 13 Cal.5th 698,
707-708.) Section 1172.6 authorizes a person convicted of felony
murder, murder under the natural and probable consequences
doctrine, attempted murder under the natural and probable
consequences doctrine, or manslaughter to petition the superior
court to vacate the conviction and resentence the defendant on
any remaining counts if he or she could not now be convicted of
murder or attempted murder because of the legislative changes to
the definitions of murder under sections 188 and 189 made
effective January 1, 2019. (People v. Emanuel (2025) 17 Cal.5th
867, 880; People v. Arellano (2024) 16 Cal.5th 457, 468-469;
Curiel, supra, 15 Cal.5th at pp. 449-450.)
Section 188, subdivision (a)(3), now prohibits imputing
malice based solely on an individual’s participation in a crime
and requires proof of malice to convict a defendant of murder,
except under the revised felony murder rule as set forth in
section 189, subdivision (e). (Curiel, supra, 15 Cal.5th at pp. 448-
449.) Section 189, subdivision (e), now requires for liability under
the felony murder rule that the People prove specific facts
relating to the defendant’s individual culpability: the defendant
was the actual killer (§ 189, subd. (e)(1)); although not the actual
killer, the defendant, with the intent to kill, aided or assisted in
the commission of murder in the first degree (§ 189, subd. (e)(2));
or the defendant was a major participant in an underlying felony
12
listed in section 189, subdivision (a), and acted with reckless
indifference to human life as described in section 190.2,
subdivision (d) (§ 189, subd. (e)(3)). (Curiel, at p. 448.)
Section 1172.6 provides a procedure for individuals
convicted of murder, attempted murder, or manslaughter on a
theory of imputed liability based on their participation in a crime
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if the individual could
presently not be convicted of murder, attempted murder, or
manslaughter because of the changes to sections 188 and 189.
(Curiel, supra, 15 Cal.5th at pp. 449-450; People v. Strong, supra,
13 Cal.5th at p. 708.) If the petitioner makes the requisite prima
facie showing of entitlement to relief, the superior court must
issue an order to show cause and hold an evidentiary hearing to
determine whether to vacate the challenged conviction and
resentence the petitioner on any remaining counts. (§ 1172.6,
subds. (c) & (d)(1).)
Section 1172.6, subdivision (d)(3), provides that at the
evidentiary hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” Further, “[t]he admission of
evidence in the hearing shall be governed by the Evidence Code,
except that the court may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters
judicially noticed . . . . The prosecutor and the petitioner may
also offer new or additional evidence to meet their respective
burdens.” (§ 1172.6, subd. (d)(3).)
13
We review the superior court’s decision to deny the petition
after an evidentiary hearing for substantial evidence but review
independently “whether the trial court misunderstood the
elements of the applicable offense.” (People v. Reyes (2023)
14 Cal.5th 981, 988; accord, People v. Emanuel, supra, 17 Cal.5th
at p. 885.) “Under this standard, we review the record ‘“‘in the
light most favorable to the judgment below to determine whether
it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’”’” (Reyes, at p. 988; accord, Emanuel, at p. 885.)
B. Provocative Act Murder
“Under the provocative act 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.” (People v. Gonzalez (2012)
54 Cal.4th 643, 655 (Gonzalez).) “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 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 (Cervantes); accord, Gonzalez, at pp. 654-655.)
For a conviction of provocative act murder, “‘[t]he
defendant or an accomplice must proximately cause an unlawful
death, and the defendant must personally act with malice.’”
(Antonelli, supra, 17 Cal.5th at p. 730, quoting Concha, supra,
47 Cal.4th at p. 663; accord, Gonzalez, supra, 54 Cal.4th at
14
p. 653.) To satisfy the actus reus element for provocative act
murder, the defendant must commit an act that “‘sets in motion a
chain of events that produces as a direct, natural and probable
consequence of the act . . . the death of [the decedent] and
without which the death would not occur.’” (Cervantes, supra,
26 Cal.4th at p. 866, accord, Gonzalez at p. 655 [the provocative
act doctrine requires “either the defendant or an accomplice [to]
intentionally commit[] a provocative act that proximately caused
an unlawful killing”].) “To satisfy the mens rea element of
murder, the defendant must personally act with malice
aforethought.” (Concha, at p. 660; accord, Gonzalez, at p. 655 [it
must be proven “defendant personally harbored the mental state
of malice”].)
“Malice may be either express or implied. [Citation.]
Express malice is an intent to kill.” (Gonzalez, supra, 54 Cal.4th
at p. 653.) “Implied malice does not require an intent to kill”
(ibid.), and under a provocative act theory, “[m]alice 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.” (Id. at p. 655; accord, Concha, supra,
47 Cal.4th at p. 662; see People v. Soto (2018) 4 Cal.5th 968, 974
[generally, implied malice requires “the performance of ‘an act,
the natural consequences of which are dangerous to life’” and
that the defendant “‘knows that his conduct endangers the life of
another and . . . acts with conscious disregard for life’”].)
In Antonelli, supra, 17 Cal.5th 719, the Supreme Court
considered whether a defendant convicted of provocative act
murder in 1991 was categorically ineligible for relief under
section 1172.6. In that case, the defendant and two accomplices
committed a home invasion robbery, during which one of the
15
accomplices assaulted and threatened to kill the robbery victims.
(Antonelli, at p. 723.) In response, one of the victims shot and
killed the other accomplice. (Ibid.) The defendant filed a
section 1172.6 resentencing petition after the Legislature
expanded eligibility for relief under section 1172.6 to include a
defendant convicted under any theory of imputed malice (other
than the revised felony murder rule). (Antonelli, at p. 725.)
The superior court summarily denied the petition, and the
Supreme Court reversed, holding the defendant was not
categorically ineligible for relief under section 1172.6. (Antonelli,
supra, 17 Cal.5th at pp. 726-727.) The court reaffirmed its
holding in Concha, supra, 47 Cal.4th 653, which “clearly
articulated that a defendant had to personally harbor malice to
be convicted of provocative act murder.” (Antonelli, at p. 722.)
The Antonelli court observed that before Concha, however, the
law “allowed for conviction for provocative act murder whereby
malice could be imputed to a nonprovocateur accomplice solely
based on his or her participation in a crime,” but that is no longer
a valid theory of murder. (Antonelli, at p. 727; see People v. Lee,
supra, 95 Cal.App.5th at p. 1169 [observing that jury instructions
supporting defendant’s 1994 conviction required only that the
defendant or an accomplice intentionally commit a provocative
life-threatening act, with no required finding as to defendant’s
mental state].) Consequently, the defendant in Antonelli was not
categorically ineligible because he was convicted at a time when
“under previous precedent, a jury could have imputed malice to a
nonprovocateur defendant.” (Antonelli, at p. 731.)
16
C. Substantial Evidence Supports the Superior Court’s
Finding Kainzrants Personally Acted with Malice
Kainzrants contends the evidence before the superior court
did not establish beyond a reasonable doubt that he personally
acted with express or implied malice under current law.5 As
discussed, under current law, malice is implied in the context of
provocative act murder “if the defendant commits a provocative
act knowing that this conduct endangers human life and acts
with conscious disregard of the danger.” (Gonzalez, supra,
54 Cal.4th at p. 655; accord, Concha, supra, 47 Cal.4th at p. 662.)
Substantial evidence supports the court’s finding under this
standard that Kainzrants personally acted with implied malice
when he committed the provocative acts that proximately caused
Reeves’s death.
The circumstances leading up to the robbery showed
Kainzrants consciously created a lethal danger. As the superior
court explained, Kainzrants obtained a weapon from a gang
member that had the appearance of a machine gun. He and his
accomplices, who were also armed, planned to rob Bell at his
family home. Kainzrants was familiar with Bell and Reeves
(both of whom he addressed by their first names) and where they
lived, and there was evidence he targeted Bell because Bell had
come into a large sum of money. Kainzrants’s testimony was that
he believed Bell supplied guns to gang members. Kainzrants and
his accomplices commenced the robbery even though there were
several witnesses present.
5 Kainzrants does not on appeal challenge the evidence that
he is guilty of the actus reus of provocative act murder.
17
Kainzrants’s acts of provocation escalated the danger and
showed his disregard for the lethal consequences that predictably
followed. Once the robbers reached Bell’s house, Kainzrants
alone approached Bell. Kainzrants pointed the MAC-11 at Bell
and ordered him into the house; grabbed Reeves around her neck
in a chokehold; held the MAC-11 to Reeves’s head; and
threatened multiple times to kill Reeves if Bell did not open the
door. Kainzrants also pointed his gun at La Donna and
threatened to kill her if Bell did not comply.
These facts provided substantial evidence that Kainzrants
knew his actions endangered human life and acted with conscious
disregard of that danger. (Concha, supra, 47 Cal.4th at p. 662;
Gonzalez, supra, 54 Cal.4th at p. 655; see People v. Thomas
(2012) 53 Cal.4th 771, 815 [eyewitness testimony that defendant
put a gun to the victim’s head and threatened to kill him was
“highly dangerous and exhibits a conscious disregard for life” that
supported a manslaughter conviction in an accidental shooting];
People v. Nieto Benitez (1992) 4 Cal.4th 91, 110 [brandishing a
weapon that accidentally discharged during a scuffle was
sufficient to support implied malice murder because “the
circumstances surrounding the act may evince implied malice”].)
Indeed, this case is a paradigmatic provocative act murder case:
Kainzrants “instigate[d] a gun battle, . . . [by] engaging in severe,
life-threatening, and . . . gun-wielding conduct, and . . . a victim
of the underlying crime, respond[ed] with privileged lethal force
by shooting back and killing . . . an innocent bystander.”
(Cervantes, supra, 26 Cal.4th at p. 867.)
Kainzrants argues Tizeno’s testimony proved that
Kainzrants knew the MAC-11 was inoperable, precluding a
finding he either had the intent to kill or that he consciously
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engaged in life-endangering conduct because “the probability of
death occurring from trying to fire an inoperable gun is zero.”
But it is irrelevant whether the gun was inoperable. As
discussed, implied malice in this context looks to the lethal
danger created by the provocation (Gonzalez, supra, 54 Cal.4th at
p. 655), and “gun-wielding conduct” can support a murder
conviction where it provokes a shooting. (Cervantes, supra,
26 Cal.4th at p. 867.) Bell and the other witnesses did not know
that the MAC-11 was inoperative; on the contrary, Bell decided to
emerge from the house firing multiple shots because the
alternative was the killing of his family and the children at the
party. He reasoned that if Kainzrants was going to kill his
fiancée, “he’s going to have to kill me first. I’m going out
shooting.” In addition, Tizeno stated in his declaration that
Kainzrants wanted a gun to “look tough,” and Tizeno told
Kainzrants the MAC-11 “will be scary even if it does not work.”
Thus, regardless of whether his gun could fire, Kainzrants
intended to convey an extreme lethal threat to Bell and Reeves
and the other partygoers, which is to say, an extreme
provocation.
Kainzrants also argues the sequence of events—Bell
shutting himself in the house, then emerging and
indiscriminately firing his gun, killing the person he was trying
to protect—was too improbable to establish implied malice.
Kainzrants cites People v. Reyes, supra, 14 Cal.5th 981 for its
holding that “[t]o suffice for implied malice murder, the
defendant’s act must not merely be dangerous to life in some
vague or speculative sense; it must ‘“involve[] a high degree of
probability it will result in death.”’” (Id. at p. 989.) However,
Reyes considered whether substantial evidence supported a
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finding that a participant in a gang shooting who was not the
actual killer and had been convicted of murder under the natural
and probable consequences doctrine was guilty of implied malice
murder based on a theory of direct aiding and abetting. (Id. at
pp. 987-988.) This distinction is significant because the Reyes
defendant’s culpable “act” was bicycling with a group of fellow
gang members, one of whom was armed, into rival gang territory.
(Id. at p. 987.) Although it was foreseeable a gang confrontation
might follow, resulting in injury or even death, the Reyes court
concluded “the act does not by itself give rise to a high degree of
probability death will result.” (Id. at p. 989.)
In this case, the relevant “act” was Kainzrants holding a
gun to Reeves’s head and repeatedly shouting he would kill her if
Bell did not open the door. And for the reasons discussed, it was
entirely foreseeable Bell would be provoked to a violent response
resulting in the death of someone present.
D. The Supreme Court’s Decision in Morris Is Inapplicable
Because Kainzrants Was a Provocateur Who Caused
Reeves’s Death
Kainzrants contends the Supreme Court’s holding in
Morris, supra, 19 Cal.5th 671 clarifying the actus reus for felony-
murder aiding and abetting liability under section 189,
subdivision (e)(2), precludes his conviction for provocative act
murder because he did not aid and abet Bell in killing Reeves.
Morris has no application here.
As discussed, section 189, subdivision (e), provides three
options for a conviction under the revised felony murder rule.
Under section 189, subdivision (e)(2), the prosecution must prove
a defendant who was not the actual killer, “with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited,
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requested, or assisted the actual killer in the commission of
murder in the first degree.” In Morris, the Supreme Court
resolved a split in appellate authority as to “what acts are
required to prove the actus reus under section 189,
subdivision (e)(2).” (Morris, supra, 19 Cal.5th at p. 681.) The
court held that “section 189, subdivision (e)(2) requires that the
nonkiller aid or abet the actual killer in the lethal act itself, and
not just the underlying felony.” (Id. at p. 693.) In reaching this
conclusion, the court interpreted the statutory language and held
the “commonsense meaning” of the requirement the defendant
aid and abet “‘the actual killer in the commission of murder in
the first degree’” required the defendant to aid and abet “the
killing of a human being,” and not just “another in the
commission of an enumerated felony by an act that does not aid
in the killing.” (Id. at p. 683.)
The Supreme Court made clear that “[i]n this case we
address only the second theory of [felony-murder] liability
concerning a nonkiller who, with intent to kill, aids or abets” the
actual killer as provided in section 189, subdivision (e)(2).
(Morris, supra, 19 Cal.5th at p. 680.) Kainzrants was not
convicted of felony murder, nor was he a direct aider and abettor:
He was convicted of provocative act murder as the perpetrator of
a homicide. As discussed, the People proved Kainzrants was the
provocateur, that is, he “‘“intentionally committed a provocative
act that proximately caused an unlawful killing.”’” (Antonelli,
supra, 17 Cal.5th at p. 726; see Concha, supra, 47 Cal.4th at
pp. 660-661.)
Kainzrants argues the principle enunciated in Morris—that
a defendant must aid and abet the lethal act, not the underlying
crime—should be extended to provocative act murder because
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under both theories “a defendant should not be found guilty of
murder when he has not participated in any fashion in the
homicidal act.” This framing flips provocative act murder on its
head. By definition, Kainzrants “participated in” Reeves’s killing
by threatening to kill her during a violent armed robbery,
proximately causing her death. And just a year before Morris,
the Supreme Court in Antonelli affirmed the viability of the
provocative act doctrine as articulated in Concha, supra,
47 Cal.4th at page 660. (Antonelli, supra, 17 Cal.5th at p. 730.)
DISPOSITION
The July 16, 2025 order denying Kainzrants’s petition for
resentencing is affirmed.
FEUER, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
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