Can a nonprovocateur defendant be charged with murder under the provocative act theory?

3 It is not required that the provocative act be independent of the felony when the underlying felony is attempted murder. The rule that the act must be other than that implicit in the crime applies only where the felony does not inherently involve an intent to kill. (People v. Gallegos (1997) 54 Cal.App.4th 453, 460, 63 Cal.Rptr.2d 382.)

4 At trial, defendant argued he could not be charged under the provocative act theory of murder because he did not engage in any provocative acts. Defendant has not raised this issue on appeal. Furthermore, Taylor v. Superior Court found that a nonprovocateur defendant could be charged with murder under the provocative act theory based on vicarious responsibility. (Taylor v. Superior Court, supra, 3 Cal.3d at p. 583, 91 Cal.Rptr. 275, 477 P.2d 131.)

** See footnote *, ante.