People v. Antonelli CA2/6

Filed 12/1/20 P. v. Antonelli 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B299749
(Super. Ct. No. CR27515)
Plaintiff and Respondent, (Ventura County)
v.
TIMOTHY PATRIC
ANTONELLI,
Defendant and Appellant.

In the companion case of (People v. Johnson and
People v. Baker-Riley (2020) __ Cal.App.5th __ [2020 Cal.App.
LEXIS 1060) (Johnson/Baker-Riley) we held that the provocative
act murder theory survives Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (S.B. 1437) and no evidentiary hearing was required. In
the instant case, we again so hold. What is different here, is that
there was a full evidentiary hearing. Thus, in appellate parlance,
this appeal has now morphed into a “substantial evidence” case.
And substantial evidence supports the trial court’s express
“major participant” and “reckless indifference” findings.
 Timothy Patric Antonelli appeals a postjudgment
order denying his petition to vacate his 1991 first degree murder
conviction and 25-year-to-life state prison sentence. (Pen. Code,
§ 1170.95, subd. (d)(3).)1 At the hearing the prosecution proved
beyond a reasonable doubt, that petitioner was ineligible for
resentencing. (§ 1170.95, subd. (d)(3).) The trial court denied the
petition factually finding that petitioner was a major participant
in a home invasion robbery who acted with reckless indifference
to human life. (§189, subd. (e)(3).) We affirm.
In 1991, a jury convicted petitioner of, inter alia,
provocative act murder after his accomplice was shot and killed
by a victim during a home invasion robbery. Petitioner concedes
in his opening brief: “The [trial] court did not instruct on felony-
murder.”2 We affirmed the judgment of conviction in 1993 with
sentence modifications. (People v. Antonelli (Sept. 28, 1993,
B059426) [nonpub. opn.].)
S.B. 1437, now permits defendants convicted of
murder pursuant to the felony murder rule or natural and
probable consequences doctrine to petition for resentencing based
on changes to Penal Code sections 188 and 189. Section 188,
subdivision (a)(3) was amended to provide that malice, the
quintessential element for murder, “shall not be imputed to a
person based solely on his or her participation in a crime.” (See

1 All further statutory references are to the Penal Code.

2 A provocative act murder case necessarily involves at
least three people: the perpetrator of the underlying offense, an
accomplice, and a victim of their crime. (People v. Gonzalez
(2012) 54 Cal.4th 643, 654 (Gonzalez).)

2
People v. Munoz (2019) 39 Cal.App.5th 738, 749 [S.B. 1437
“‘redefined “malice” in section 188’”].)
In People v. Lee (2020) 49 Cal.App.5th 254 (Lee),
review granted July 15, 2020, S262459, our colleagues in Division
One held that provocative act murder survives S.B. 1437. Here,
petitioner and two armed accomplices committed a home invasion
robbery, during which a victim fought back and killed one
accomplice. We agree with the rule and rationale of Lee. And,
based thereon, we affirm.
But, there is a separate and distinct reason why we
affirm. Even if petitioner had been convicted of felony murder
and/or the natural and probable consequences theory, and even if
provocative act murder is a “subset” of these two theories,
appellant would still not prevail. As we shall explain, it took no
leap in logic for the trial court to find that petitioner was a major
participant in the robbery and acted with reckless indifference to
human life.
Factual and Procedural History
After issuing an order to show cause (§ 1170.95,
subds. (c) & (d)) the superior court conducted an evidentiary
hearing. The following evidence was introduced:
On January 1, 1991, Phil Shine called Leslie Phipps
in the early morning hours and asked Phipps to come to a New
Year’s eve party at Melody Hatcher’s and Paul Blair’s house in
Ojai. Shine asked her to bring marijuana. Phipps declined but
told her roommate, petitioner, about the party. Petitioner called
Shine 20 minutes later, asked for directions, and said he would
bring marijuana.
Petitioner and Frank Stoddard hatched a plan to rob
everyone at the party. Phipps overheard Stoddard say something

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about two guns and splitting something three ways. Stoddard
told appellant they would “‘pick up Ronnie [Brown] and go on up
there.’” Brown told his roommate, Shane Allen, he was going
with Stoddard and petitioner to “‘hit a party in Ojai.’” Petitioner
and Stoddard picked up Ron Brown. Stoddard and Brown armed
themselves with a .30-06 semiautomatic rifle and a .22
semiautomatic pistol.
Petitioner knocked on the front door and looked to his
right outside the doorway as Melody Hatcher opened the door.
Wearing ski masks, Stoddard and Brown burst into the house
brandishing the rifle and pistol. Petitioner cleared the doorway,
threw Hatcher down on a couch and got down next to her. Party
guests Billie Joe Gregory, August Howard and John Schommer
were sitting at the dining room table. Scott Blair was in the
bedroom.
Shouting “‘police, everybody down,’” Stoddard and
Brown herded everyone into the living room and demanded
money, drugs, and jewelry. Stoddard ordered John Schommer to
turn over his valuables. Schommer had nothing. Stoddard yelled
“‘then you’re just going to die’” and repeatedly kicked Schommer
in the head.
Fearing for his life, Gregory turned over his wallet
with five dollars in it. Stoddard hit Gregory in the head with the
rifle, knocking him unconscious. Angry about the paucity of the
take, Stoddard yelled “‘if this is all the money you guys could
come up with, we’ll just go over here [and] blow this fucking
bitch’s [Hatcher’s] brains out.’” Stoddard dragged Hatcher by the
hair into the kitchen.
August Howard tried to rescue Hatcher but was shot
in the eye by Stoddard. Shrine thought they were all going to die

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and grabbed for Stoddard’s pistol. A melee ensued. It was
petitioner and his armed cohorts versus six or more angry
partygoers.
Brown hit Shine with the rifle as Stoddard stood
close by with the pistol. Shine fought back and grabbed the rifle
and pistol barrels, as Brown bit down on Scott Blair’s thumb.
Gregory jumped into the fray, grabbed the rifle, and
clubbed Brown with it until Brown released Blair’s thumb.
Brown and Schommer fought one another until Brown held a
buck knife to Schommer’s neck. Fearing that Schommer would
be killed, Gregory fired two shots, killing Brown. Someone called
911. The gun shots were so loud they could be heard on the 911
dispatcher tape.
The fighting continued. Shrine and Stoddard
struggled to get control of the .22 pistol. Gregory shot a round at
Stoddard, ran out of bullets, and beat Stoddard with the rifle
stock until it broke. Stoddard let go of the pistol and ran. A
white Ford Escort was outside the house with the engine
running. As Gregory ran toward it, petitioner drove away and
left Stoddard behind.
The Subset Theory
Petitioner claims that a provocative act murder is a
subset of the felony murder doctrine and, like the felony murder
doctrine, was “eliminated” by S.B. 1437. The argument is based
on the theory that petitioner cannot be convicted of felony-
murder because he harbored no malice to kill his accomplice,
Brown. That is the holding of People v. Washington (1965) 62
Cal.2d 777 (Washington) which predates S.B. 1437 and focuses on
a well-known exception to the felony-murder rule. Malice will not
be imputed to the robber if the killing is committed by the victim

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rather than the robber or his accomplice. (Id. at p 781.) “The
provocative act doctrine is not so limited. 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. [Citations.]” (Gonzalez, supra, 54 Cal.4th at p. 655.)
“‘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.]” (Ibid.)
Petitioner argues that S.B. 1437 eliminates the
provocative act murder doctrine. But S.B. 1437 does not use the
phrase “provocative act murder.” We held to the contrary in
Johnson/Baker-Riley, and pointed out that we do not add
language and/or unarticulated theories to a statue. S.B. 1437
says it was enacted to “amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1, subd. (f), italics added; see People v. Martinez (2019) 31
Cal.App.5th 719, 723.) S.B. 1437 does this by amending section
188 to provide that, except as stated in section 189, subdivision
(e) all principals to murder must act with express or implied
malice to be convicted of murder. (Stats. 2018, ch. 1015, § 2.)
“Malice shall not be imputed to a person based solely on his or
her participation in a crime.” (§ 188, subd. (a)(3).) As amended,
section 189, subdivision (e)(3) provides that if the defendant is
not the actual killer or a direct aider and abettor, the defendant

6
must be a major participant in the underlying felony and act with
reckless indifference to human life to be liable for murder. (Stats.
2018, ch. 1015, § 3.)
The S.B. 1437 Allows a Murder Conviction Where
the Defendant is a Major Participant and Acts With
Reckless Indifference to Human Life
Petitioner does not argue that he was convicted of
murder based on the reasonable and probable consequences
doctrine theory. But he does argue that he is automatically
entitled to S.B. 1437 resentencing. That is not determinative.
Regardless of what murder theory was used to convict before the
enactment of S.B. 1437, a defendant is not eligible for
resentencing if he or she was a major participant in the
underlying dangerous felony and acted with reckless indifference
to human life. (§§ 189, subd. (e)(3), 1170.95, subd. (d)(2).) This
equates to malice, and more specifically implied malice. “Malice
is implied when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and
malignant heart.” (§ 188, subd. (a)(2); see CALCRIM No. 522
[“provocation does not apply to a prosecution under a theory of
felony murder”].)
Petitioner claims that a provocative act murder is a
combination of felony murder and natural and probable
consequence murder. A similar argument was rejected in Lee,
supra, 49 Cal.App.5th at page 266. Provocative act murder is not
a subset of either felony murder or natural and probable
consequences murder because a provocative act murder requires
proof of malice. (Ibid.) The provocative act murder requires that
“the defendant personally harbor[] the mental state of malice,
and either the defendant or an accomplice intentionally commit[]

7
a provocative act that proximately caused an unlawful killing.
[Citations.]” (Gonzalez, supra, 54 Cal.4th at p. 655.)
Petitioner was tried and convicted for provocative act
murder based on the 1991 version of CALJIC No. 8.12 which
instructed on implied malice and told the jury that the
provocative act can be committed by defendant or a surviving
accomplice. He argues that S.B. 1437 changes the law of
provocative act murder liability and now requires that the
robber-defendant commit the provocative act by brandishing a
firearm, as was the case in Lee, supra, 49 Cal.App.5th 254.
A major participant to a home invasion robbery
doesn’t have to wield a firearm or even be at the crime scene. We
so held in People v. Johnson (2013) 221 Cal.App.4th 623, 627:
“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.”
(Ibid.)
In affirming petitioner’s conviction in 1993, we
stated: “The jury determined that [petitioner] planned an armed
robbery. [He was the “mastermind.”] He knew that his
accomplices were carrying weapons to the robbery site, that
multiple persons would be victimized, that the guns would
naturally and probably would be used to assault the victims. The
jury could also [draw the rational inference] that victim
resistance to these aggravated assaults would be likely,
especially where, as here, the victims outnumbered the robbers.”
All of this makes petitioner a major participant who
acted with reckless indifference to human life. (See, e.g., In re
Bennett (2018) 26 Cal.App.5th 1002, 1018 [major participant is

8
one of the more important members of the group].) Petitioner
conceived and planned the home invasion robbery, drove his
comrades with firearms to the house, facilitated the entry, and
threw the party host, Hatcher, on the couch before she was
dragged into the kitchen and threatened with her life. It set in
motion a horrific home invasion. Stoddard and Brown beat the
victims with a rifle, knocked Gregory unconscious, shot Howard
in the eye, and nearly bit off Blair’s thumb. It was highly likely
that the victims would fight back and someone would be killed.
The jury was instructed there was no murder liability
if Brown’s “provocative conduct alone” got him killed. (See
Washington, supra, 62 Cal.2d at p. 781; Gonzalez, supra, 54
Cal.4th at p. 654.) But there was a second accomplice, Stoddard,
and he was also a major participant. We observe if not for
petitioner, there would be no home invasion robbery, and no
death.
Banks and Clark
Taking his cue from a line of death penalty cases,
petitioner claims that the prosecution failed to prove that he
acted with reckless indifference to human life for purposes of S.B.
1437. Being a major participant in a dangerous felony and acting
with reckless indifference to human life often overlap. (People v.
Clark (2016) 63 Cal.4th 522, 614-615 (Clark).) In People v.
Banks (2015) 61 Cal.4th 788, our Supreme court set forth a non-
exclusive list of factors in determining whether the defendant
was a major participant: defendant’s role in planning the
criminal enterprise; his role in supplying or using lethal weapons;
his awareness of the dangers posed by the crime; his presence at
the scene; his actions or inactions in the death; and what
defendant did after lethal force was used. (Id. at p. 803.) “No one

9
of these considerations is necessary, nor is any one of them
necessarily sufficient. All may be weighed in determining the
ultimate question, whether the defendant’s participation ‘in
criminal activities known to carry a grave risk of death’ [citation]
was sufficiently significant to be considered ‘major’ [citations].”
(Ibid.; see also In re Scoggins (2020) 9 Cal.5th 667, 677.)
In Clark, supra, 63 Cal.4th 522, our Supreme Court
described the reckless indifference to human life factors:
defendant’s knowledge that weapons would be used; how the
weapons were used; the number of weapons used; defendant’s
proximity to the crime, his opportunity to stop the killing or aid
the victims; the duration of the crime; defendant’s knowledge of
the killer’s (accomplice’s) propensity to kill; and defendant’s
efforts to minimize the possibility of violence during the crime.
(Id. at pp. 616-623; see In re Taylor (2019) 34 Cal.App.5th 543,
546 [Banks and Clark “clarified” what it means for an aiding and
abetting defendant to be a major participant who acts with
reckless indifference to human life].)3 Reckless indifference
“encompasses a willingness to kill (or to assist another in killing)
to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of his actions.”
(Clark, supra, at p. 617.)
The evidence and the extant case law was considered
by the trial judge at the S.B. 1437 hearing. The trial court sits as
a trier of fact at a S.B. 1437 evidentiary hearing. It factually

3The Banks and Clark factors are derived from the United
States Supreme Court’s death penalty opinions in Tison v.
Arizona (1987) 481 U.S. 137 and Enmund v. Florida (1982) 458
U.S. 782. (See In re Taylor, supra, 34 Cal.App.5th at pp. 551-
554.)

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found that petitioner was a major participant and acted with a
reckless indifference to human life. This factual finding is
subject to review by the well-settled substantial evidence rule.
(See, e.g., People v. Morales (2020) 10 Cal.5th 76, 88.)
Substantial evidence supports the trial court’s ruling.
Conclusion
The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN J.
I concur:

GILBERT, P. J.

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TANGEMAN, J., Concurring:
The majority hold that “the provocative act murder
theory survives Senate Bill No. 1437 . . . and no evidentiary
hearing [is] required.” (Maj. opn. ante, at. p. 1.) They accordingly
affirm the trial court’s order denying Senate Bill No. 1437 (S.B.
1437) relief to appellant. Because I question that underlying
premise but agree with the result reached here, I concur.
An important issue presented by this case is whether
provocative act murder liability attaches after passage of S.B.
1437 where, as here, the defendant did not commit the
provocative act. Appellant contends it does not. This precise
question has not been resolved. (See People v. Lee (2020) 49
Cal.App.5th 254, review granted July 15, 2020, S262459 (Lee)
[S.B. 1437 not applicable to provocative act murder conviction of
defendant who committed the provocative act]; cf. CALJIC No.
8.12 and CALCRIM No. 561.)
The jury here was instructed that appellant is guilty
of murder if “a perpetrator of the crime” “intentionally committed
a provocative act” “with knowledge of the danger to and with
conscious disregard for human life.” (Former CALJIC No. 8.12.)
Thus, appellant could have been convicted based solely on the
actions, and the implied malice, of his accomplice, Stoddard. The
question thus arises whether appellant could now be convicted of
murder under the amended statutes pursuant to the provocative
act theory if he was (1) not the killer, (2) had no intent to kill, and
(3) was not a major participant who acted with reckless
indifference to human life.
Section 1 of S.B. 1437 provides in subdivision (f): “It
is necessary to amend the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder, to

1
ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not
a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1.)
S.B. 1437 does not mention provocative act murder, but Penal
Code section 1881 was amended to broadly provide that except as
stated in section 189, subdivision (e), all principals to murder
must act with express or implied malice to be convicted of
murder. (Stats. 2018, ch. 1015, § 2.) And under current law,
“[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.” (§ 188, subd. (a)(3).) Moreover,
section 189, subdivision (e)(3) now provides that if the defendant
was not (like appellant) the actual killer or one who acted with
intent to kill, then the defendant must have been a major
participant in the underlying felony who acted with reckless
indifference to human life to incur murder liability. These
statutory amendments are incongruent with the rule that murder
liability continues for actors who are neither present at, nor
participating in, a melee in which an accomplice is unexpectedly
killed by a robbery victim.
We need not answer that question because the
evidence clearly meets the applicable standard even if S.B. 1437
applies, as appellant contends. The facts of this case are similar
to those in People v. Bascomb (2020) 55 Cal.App.5th 1077
(Bascomb), which involved two codefendants who planned and
executed a midday home invasion robbery of a drug dealer. After
barging into the dealer’s home with guns, they forced a victim to
the ground and brandished their weapons “to threaten the
residents and keep them pinned down throughout the duration of

1 Further statutory references are to the Penal Code.

2
the robbery.” (Id. at p. 1089.) The appellant’s accomplice
accosted the murder victim in the adjoining bedroom and killed
him. They then fled without rendering aid. On these facts, the
court concluded that “this sort of conduct easily meets our state’s
standard for what constitutes being a major participant who
acted with reckless indifference to human life.” (Ibid.)
In reaching this conclusion, the Bascomb court
contrasted “‘garden-variety’” robberies such as those involving
convenience stores or persons on the street, where “‘resistance, if
any, would be slight, and armed resistance likely nonexistent,’”
and “‘the planned, armed robbery of a known drug dealer at his
residence.’” (Bascomb, supra, 55 Cal.App.5th at pp. 1087, 1090.)
As in Bascomb, we are confronted here with the latter, not the
former. The same result follows here.
Appellant cites as mitigating factors that he was
unarmed and fled the scene at some unknown time, so he could
not have restrained his accomplices or rendered aid after his
departure. But he planned the home invasion for the early
morning hours when multiple victims were known to be present
and likely intoxicated, he knew his two accomplices were armed,
and he assisted the robbery by pinning one victim to the ground
while his cohorts threatened and pistol-whipped the other
victims. This conduct is nearly identical to that in Bascomb and
is sufficient to establish reckless indifference to human life.
Accordingly, I join in affirming the postjudgment
order.
NOT TO BE PUBLISHED.

TANGEMAN, J.

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 Gilbert A. Romero, Judge

Superior Court County of Ventura

______________________________

Todd W. Howeth, Public Defender, William M. Quest,
Snr. Deputy Public Defender, under appointment by the Court of
Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee, Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.