Barry T. LaBarbera, Judge Superior Court County of San Luis Obispo (Super. Ct. No. F435613)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
Jesse Michael Baker-Riley appeals from the judgment entered after his conviction by a jury of first degree murder (Pen. Code, §§ 187, subd. (a), 189),*fn1 first degree residential burglary (§§ 459, 460, subd. (a)), and two counts of first degree residential robbery. (§§ 211, 212.5, subd. (a).) The jury found true firearm enhancements within the meaning of sections 12022.53, subdivision (b), and 12022.5, subdivision (a). Appellant was sentenced to prison for 35 years to life.
The murder conviction was based on the provocative act murder doctrine. Appellant contends that the trial court erroneously instructed the jury on how to determine the degree of murder. Appellant also contends that the evidence is insufficient to support the murder conviction because his provocative acts did not go beyond what was necessary to commit the underlying crime of robbery. We affirm.
Peter Davis was at home with a friend, Dylan Baumann, when he heard a knock on the front door. Davis opened the door. Appellant and his cohort, the murder victim, Kelsea Alvarez, stood in the open doorway. Appellant pulled out a gun from under his shirt, "put it in [Davis's] face," and said, "You're fucked." The gun was approximately one foot away from Davis. Appellant and Alvarez entered the residence. Appellant demanded cash and marijuana.
Baumann said that he was leaving. Appellant replied: "No, I'm a fucking thug, I'm not fucking around. . . . I'll fucking make you paralyzed for the rest of your fucking life. I'll shoot your fucking kneecaps." When appellant said this, the barrel of his gun was "very close" to Baumann's knees. Appellant waved the gun "around" and pointed it at Baumann's head. At this point, the gun was less than three or four feet away from Baumann.
When appellant and Alvarez entered the residence, Davis and Baumann were eating. Appellant "proceeded to grab [Baumann's] food and eat it." "[H]e was laughing and pointing his gun at [Baumann's] head and eating [Baumann's] food." He asked Baumann if he had ever seen the movie, "Pulp Fiction." Baumann said he had not seen the movie. Appellant again started to laugh.
Appellant pointed his gun at Davis, ate some of Davis's food, and ordered him to open a fortune cookie. Appellant said, "Open that fucking cookie, . . . read that shit, . . . read it aloud." Davis opened the cookie and read the fortune. It said: "If opportunity comes, take it!" Appellant laughed and said he would take an opportunity.
Appellant pointed his gun at Davis and Baumann and ordered them to empty their pockets. They did as they were told. Appellant said, "I'll fucking kill. I'll fucking shoot you right now." Appellant was repeatedly "clicking his weapon, clicking the safety on and off." Baumann thought, "I can't believe I'm going to die and I haven't lived the life I want to fulfill."
Appellant then "said, 'Oh,' and he got all happy because he saw some cannabis drying on a string." The cannabis was in a back room. Appellant pointed his gun at Davis and ordered him to go into the room and sit on a bed. Davis sat on the bed and begged appellant not to kill him. Appellant did not respond to Davis's plea. Davis thought he was going to die.
Appellant turned around, and Davis grabbed his own handgun, which was "tucked in between the bed and the mattress." Davis stood up and fired four or five times at appellant. He missed appellant but one of the bullets penetrated the lungs of appellant's accomplice, Alvarez. He died from the wound. ...