January 18, 2021 By Paul Wallin

If you were convicted under the Provocative Act Murder Rule you may not get relief under SB1437

On November 19, 2020, the California Court of Appeals affirmed (i.e. upheld) a prisoner’s murder conviction.

The appellant in this case, prisoner Derrick Swanson, was involved in a robbery of a gas station in Long Beach, California in the 1990’s. After robbing the gas station attendant and firing a shot at the attendant and his wife, the gas station employee returned fire and fired two shots at the fleeing robbers, killing Swanson’s accomplice. In addition to the robbery and other charges, Swanson was found guilty of first-degree provocative murder for the death of his accomplice. The issue on appeal was whether Swanson was eligible for relief under Senate Bill No. 1437, codified in part under Penal Code Section 1170.95. The court found he was ineligible for relief as a matter of law because he was not convicted under the felony murder rule, but rather under the provocative murder doctrine.

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Under Penal Code Section 187, to be convicted of murder a person must act with malice aforethought. The provocative murder doctrine is the situation where the defendant provokes the victim and the victim then kills the provoker’s accomplice, making the defendant guilty of murder. Critics of this rule argued it was unfair to charge someone with murder if they didn’t actually kill or want the other person to die. So the rule evolved. Now, to find implied malice in a provocative act murder (i.e. again, where the defendant provokes the victim and the victim kills the accomplice), the provoker must have knowledge of some danger and exhibit a “conscious disregard for life.” 

Here, the court found that Swanson’s provocative acts of not only assaulting the gas station attendant and his wife but also unnecessarily firing a gun at them constituted reasonable grounds for the victims to believe the defendant would come back to shoot and kill them even though they fled. In conclusion, the court reasoned Swanson’s provocative acts led to the killing of his accomplice and therefore he was liable for murder. Swanson’s appeal failed because he was properly convicted of a provocative act murder and not under the felony murder rule.

Contact the Criminal Defense Attorneys at Wallin & Klarich Today

If you know someone who is eligible to seek resentencing or early release from prison under the new felony murder rule, please give us a call. At Wallin & Klarich, our skilled criminal defense attorneys have more than 40 years of experience successfully helping clients obtain post-conviction relief. Bookmark our website for the latest law changes that might help you or loved one win your case and feel free contact our firm if you believe you are eligible for post-conviction relief.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance, and Victorville, there is an experienced and skilled Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (714) 587-4279 for a free, no-obligation phone consultation. We will be there when you call.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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