Filed 9/27/23 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE THE PEOPLE, B323940 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA079332) v. KENNY INKWON LEE, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed in part, reversed in part, and remanded with instructions. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________ Kenny Inkwon Lee appeals from the denial of his resentencing petition under Penal Code1 former section 1170.95, since renumbered as section 1172.6. This is Lee’s second petition; we affirmed the denial of his first one because he was convicted of murder under the provocative act doctrine, whereas the version of former section 1170.95 in effect at the time extended relief only to those convicted of murder under a felony murder or natural and probable consequences theory. Subsequently, the Legislature amended former section 1170.95, expanding it to provide relief to defendants convicted under any theory in which malice was imputed to them based solely on their participation in a crime. The Legislature also amended the statute to encompass defendants convicted of attempted murder and manslaughter. Lee filed his second petition under the amended statute, seeking resentencing for his murder and attempted murder convictions. He contended, inter alia, that the jury instructions at his trial permitted him to be convicted solely on the malicious provocative acts of his confederates in the underlying robbery, without any findings as to Lee’s mental state. The resentencing court denied his petition without an evidentiary hearing, finding Lee was ineligible for relief as a matter of law. Although recent case law, including our opinion addressing Lee’s first petition, has held that a conviction for provocative act murder requires proof that the defendant personally harbored the mental state of malice, our review of the history of the provocative act doctrine reveals this was not the case when Lee was convicted in 1994. Under the then-applicable Supreme Court 1 Unspecified statutory citations are to the Penal Code. 2 authority, a defendant could be convicted for a killing by a third party provoked by an accomplice’s actions with malice aforethought, regardless of the defendant’s personal mental state. Lee’s jury was so instructed. We therefore conclude Lee may have been convicted under a theory of imputed malice, and thus, he is not barred as a matter of law from relief under section 1172.6. We reject Lee’s contention, however, that he is entitled to relief for his attempted murder conviction, which did not implicate the provocative act doctrine nor any theory of imputed malice. Accordingly, we affirm in part, reverse in part, and remand for the resentencing court to issue an order to show cause regarding Lee’s murder conviction. BACKGROUND 1. …
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