What is the test for a "provocative act" murder?

[7][8][9][10] To constitute a provocative act, the defendant "must commit an act that provokes a third party to fire a fatal shot." ( People v. Briscoe, supra, 92 Cal.App.4th at p. 582, 112 Cal.Rptr.2d 401.) "In cases in which the underlying crime does not involve an intent to kill ... the mere participation in the underlying criminal offense is not sufficient to invoke the doctrine of provocative act murder."

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( Id. at pp. 582-583, 112 Cal.Rptr.2d 401.) In addition, the conduct must demonstrate malice, which is properly implied when "the defendant commits an act with a high probability that it will result in death and does so with a base antisocial motive or a wanton disregard for human life." ( Id. at p. 583, 112 Cal.Rptr.2d 401.) "Unless the defendant's conduct is sufficiently provocative of a lethal response, it cannot support the finding of implied malice necessary for a verdict of guilt on a murder charge. [Citations.] Thus, a central inquiry in determining a defendant's criminal liability for a killing committed by a resisting victim is whether the defendant's conduct was sufficiently provocative of lethal resistance to support a finding of implied malice. [Citations.]" ( Id. at p. 583, 112 Cal.Rptr.2d 401.)

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[11][12] "The prosecutor must also establish that the defendant's conduct proximately caused the killing. Courts use traditional notions of concurrent and proximate cause in order to determine whether the killing was the result of the defendant's conduct. [Citations.] To be considered the proximate cause of the victim's death, the defendant's act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. [Citations.] A defendant's provocative acts must actually provoke a victim response resulting in an accomplice's death. [Citation.]" ( People v. Briscoe, supra, 92 Cal.App.4th at pp. 583-584, 112 Cal.Rptr.2d 401, fn. omitted.)

[13][14][15][16] "The timing of events is critical. By necessity, the provocative act must occur before a victim may make a lethal response. [Citation.] There may be more than one act constituting the proximate cause of the killing. [Citations.] If the defendant commits several acts but only one of them actually provoked a lethal response, only that act may constitute the provocative act on which culpability for provocative act murder can be based. [Citations.] When the chain of causation is somewhat attenuated, the jury decides whether murder liability attaches or not. [Citations.]" ( People v. Briscoe, supra, 92 Cal.App.4th at p. 584, 112 Cal.Rptr.2d 401; see also People v. Roberts, supra, 2 Cal.4th at p. 320, fn. 11, 6 Cal.Rptr.2d 276, 826 P.2d 274 ["[T]here is no bright line demarcating a legally sufficient proximate cause from one that is too remote," and thus "[o]rdinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus."] )