ALVIN TAYLOR, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest, 3 Cal. 3d 578

Opinion BURKE, J. Petitioner and his codefendant Daniels were charged by information with the murder of John H. Smith, robbery, assault with a deadly weapon against Linda West, and assault with a deadly weapon against Jack West. The superior court denied petitioner’s motion to set aside the information as to the murder count (Pen. Code, § 995), and we issued an alternative writ of prohibition. At the preliminary hearing, the following facts were adduced regarding the murder count: On the evening of January 12, 1969, two men attempted to rob Jax Liquor Store which was operated by Mrs.

Linda Lee West and her husband Jack. Mrs. West testified that James Daniels entered the store first and asked Mr. West, who was behind the counter, for a package of cigarettes. While Mr. West was getting the cigarettes, John Smith entered the store and approached the counter. Mrs. West, who was on a ladder at the time the two men entered the store, then heard her husband say something about money. Turning her attention to the counter, she heard Daniels repeatedly saying, “Put the money in the bag,” and observed her husband complying with the order. While Mr.

West was putting the money from the register in the bag, Daniels repeatedly referred to the fact that he and Smith were armed. According to Mrs. West, Daniels “chattered insanely” during this time, telling Mr. West “Put the money in the bag. Put the money in the bag. Put the money in the bag. Don’t move or I’ll blow your head off. He’s got a gun. He’s got a gun. Don’t move or we’ll have an execution right here. Get down on the floor. I said on your stomach, on your stomach.” Throughout this period, Smith’s gun was pointed at Mr. West. Mrs.

West testified that Smith looked “intent” and “apprehensive” as if “waiting for something big to happen.” She indicated that Smith’s apparent apprehension and nervousness was manifested by the way he was staring at Mr. West. While Daniels was forcing Mr. West to the floor, Mrs. West drew a pistol from under her clothing and fired at Smith, who was standing closest to her. Smith was struck on the right side of the chest. Mrs. West fired four more shots in rapid succession, and observed “sparks” coming from Smith’s gun, which was pointed in her direction.

A bullet hole was subsequently discovered in the wall behind the place Mrs. West had been standing, approximately eight or nine feet above the floor. During this period, Mr. West had seized a pistol and fired two shots at Smith. Mrs. West’s last shot was fired at Daniels as he was going out of the door. He “lurched violently and almost went down, [but] picked himself up and kept going.” Smith died as the result of multiple gunshot wounds. The evidence at the preliminary examination indicated that petitioner was waiting outside the liquor store in a getaway car.

He was apprehended later and connected with the crime through bills in his possession and through the automobile which was seen by a witness leaving the scene of the robbery. Under Penal Code

section 995, an information must be set aside if the defendant has been committed without “reasonable or probable cause.” Of course, the probable cause test is not identical with the test which controls a jury in a murder case. The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime.

But a magistrate conducting a preliminary examination must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and -conscientiously entertain a strong suspicion of the guilt of the accused. (Rideout v. Superior Court, 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197]; Jackson v. Superior Court, 62 Cal.2d 521, 525-526 [42 Cal.Rptr. 838, 399 P.2d 374]; Roads v. Superior Court, 275 Cal.App.2d 593, 597 [80 Cal.Rptr. 169]; People v. Stansbury, 263 Cal.

App.2d 499, 502 [69 Cal.Rptr. 827].) In other words, “Evidence that will justify a prosecution need not be sufficient to support a conviction. . . . An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]” {Rideout v. Superior Court, supra, at p. 474.) The information herein charged petitioner with the crime of murder. “ ‘Murder is the unlawful killing of a human being, with malice aforethought.’ (Pen.

Code, § 187.) Except when the common-law-felony-murder doctrine is applicable, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill.” (People v.

Washington, 62 Cal.2d 777, 780 [44 Cal.Rptr. 442, 402 P.2d 130].) Petitioner correctly contends that he cannot be convicted under the felony-murder doctrine, since “When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery.” (People v. Washington, supra, at p. 781.) However, apart from the felony-murder doctrine, petitioner could be found guilty of murder on a theory of vicarious liability. As stated in People v.

Gilbert, 63 Cal.2d 690, 704-705 [47 Cal. Rptr. 909, 408 P.2d 365] (revd. on other grounds, 388 U.S. 263 [18 L.Ed. 2d 1178, 87 S.Ct. 1951]), “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.

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. [Par.] Thus, the victim’s self-defensive killing or the police officer’s killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice. [Citations.]” (See People v.

Washington, supra, 62 Cal.2d 777, 781-782.) Therefore, if petitioner were an accomplice to the robbery, he would be vicariously responsible for any killing attributable to the intentional acts of his associates committed with conscious disregard for life, and likely to result in death. We must determine whether the committing magistrate had any rational ground for believing that Smith’s death was attributable to intentional acts of Smith and Daniels meeting those criteria.

Petitioner relies upon the following language in Washington, wherein defendant’s accomplice merely pointed a gun at the robbery victim who, without further provocation, shot and killed him: “In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates.

To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber’s conduct happened to induce.” (62 Cal.2d at p. 781; italics added.) As indicated by the italicized words in the foregoing quotation, the 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.

If the trier of fact concludes that under the particular circumstances of the instant case Smith’s death proximately resulted from acts of petitioner’s accomplices done with conscious disregard for human life, the natural consequences of which were dangerous to life, then petitioner may be convicted of first degree murder. For example, we pointed out in Washington that “Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, ‘the defendant, for a base, antisocial motive and with wanton disregard for human life, does

an act that involves a high degree of probability that it will result in death’ [citation], and it is unnecessary to imply malice by invoking the felony-murder doctrine.” (62 Cal.2d at p. 782; see People v. Gilbert, supra, 63 Cal.2d at pp. 704-705.) Petitioner contends that since neither Daniels nor Smith fired the first shot, they did not “initiate” the gun battle which led to Smith’s death. However, depending upon the circumstances, a gun battle can be initiated by acts of provocation falling short of firing the first shot. Thus, in People v.

Reed, 270 Cal.App.2d 37 [75 Cal.Rptr. 430] (hg. den.), defendant resisted the officers’ commands to “put up your hands,” and pointed his gun toward the officers and toward the kidnap-robbery victim. The officers commenced firing, wounding defendant and killing the victim. Although defendant did not fire a single shot, his murder conviction was upheld on the theory that his “aggressive actions” were sufficient evidence of implied malice, and that “[u]nder these circumstances it may be said that defendant initiated the gunplay . . . .” (270 Cal.App.2d at pp. 45-46.) Similarly, in Brooks v.

Superior Court, 239 Cal.App.2d 538 [48 Cal.Rptr. 762] (hg. den.), petitioner had directed “opprobrious language” to the arresting officer and had grasped the officer’s shotgun. The officer, being startled and thinking that petitioner was trying to disarm him, yanked backwards and fired the gun, mortally wounding a fellow officer.

In upholding an indictment for murder, the court concluded that under the circumstances, the petitioner’s act of reaching for and grasping the officer’s shotgun was “fraught with grave and inherent danger to human life,” and therefore sufficient to raise an inference of malice. (239 Cal.App.2d at p. 540.) In the instant case, the evidence at the prehminary hearing set forth above discloses acts of provocation on the part of Daniels and Smith from which the trier of facts could infer malice, including Daniels’ coercive conduct toward Mr.

West and his repeated threats of “execution,” and Smith’s intent and nervous apprehension as he held Mr. West at gunpoint. The foregoing conduct was sufficiently provocative of lethal resistance to lead a man of ordinary caution and prudence to conclude that Daniels and Smith “initiated” the gun battle, or that such conduct was done with conscious disregard for human life and with natural consequences dangerous to life. Accordingly, we conclude that the evidence supported the magistrate’s finding that reasonable and probable cause existed to charge petitioner with first degree murder.

The alternative writ heretofore issued is discharged and the peremptory writ is denied. Wright, C. J., McComb, J., and Sullivan, J., concurred. “Under the rules defining principals and criminal conspiracies, the defendant may be guilty of murder for a killing attributable to the act of his accomplice. To be so guilty, however, the accomplice must cause the death of another human being by

an act committed in furtherance of the common design. [Citations.]” (People v. Gilbert, supra, 63 Cal.2d 690, 705.) Petitioner does not dispute that the conduct of his confederates set forth above was in furtherance of the robbery. See proposed instruction in People v. Phillips, 64 Cal.2d 574, 586-587 [51 Cal. Rptr. 225, 414 P.2d 353], When murder has been established pursuant to the foregoing principles, Penal Code

section 189 may be invoked to determine its degree. (People v. Gilbert, supra, 63 Cal.2d at p. 705.) Petitioner contends that we should ignore evidence regarding Smith’s conduct, on the theory that Smith could not have been held responsible for his own death. We rejected a similar contention in Washington, stating that “A distinction based on the person killed, however, would make the defendant’s criminal liability turn upon the markmanship of victims and policemen. A rule of law cannot reasonably be based on such a fortuitous circumstance.

The basic issue therefore is whether a robber can be convicted of murder for the killing of any person by another who is resisting the robbery.” (62 Cal.2d at p. 780, italics added.) Therefore, the trier of fact may find that Smith set into motion, through the intentional commission of acts constituting implied malice and in furtherance of the robbery, a gun battle resulting in his own death. Since petitioner may be held vicariously responsible for any killing legally attributable to his accomplices, he may be charged with Smith’s death. The cases of People v. Ferlin, 203 Cal. 587, 597 [265 P. 230], Woodruff v.

Superior Court, 237 Cal.App.2d 749, 750-751 [47 Cal.Rptr. 291], and People v. Jennings, 243 Cal.App.2d 324, 328-329 [52 Cal.Rptr. 329], are not apposite for they simply held that an accomplice cannot be charged with murder when his confederate accidentally kills himself while committing a felony. The courts in those cases were not faced with a situation involving the intentional commission of acts provoking lethal resistance by victims or police officers.