Error and/or relief
It was error to deny the petition for recall of sentence for attempted murder under section 1172.6 because there was insufficient evidence of intent to kill. We reverse the order denying the petition and remand the matter with directions for the trial court to grant the resentencing petition, vacate the attempted murder conviction, and resentence on the remaining charges.
First Holding:
The Legislature enacted SB 1437 (2017–2018 Reg. Sess.) to eliminate the natural and probable consequences doctrine and to limit application of the felony murder rule. Except in cases of felony murder, a principal must act with malice aforethought to be convicted of murder, and malice shall not be imputed to a person based solely on his or her participation in a crime. A defendant convicted of murder or attempted murder under a now-invalid theory may petition the sentencing court to have his or her conviction vacated and to be resentenced on any remaining counts under section 1172.6.
Authority:
PEN 188(a)(3)
People v. Curiel (2023) 15 Cal.5th 433, 448–449
People v. Strong (2022) 13 Cal.5th 698, 708
Second Holding:
At the evidentiary hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under a currently valid theory. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.
Authority:
PEN 1172.6(d)(3)
Third Holding:
We review the trial court’s factual findings following a section 1172.6(d) hearing for substantial evidence. We review the entire record in the light most favorable to the court’s order to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt.
Authority:
People v. Clements (2022) 75 Cal.App.5th 276, 298
People v. Manibusan (2013) 58 Cal.4th 40, 87
Fourth Holding:
To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. A defendant cannot be convicted of attempting to kill someone if the defendant is not aware that person is present. Because direct evidence of a defendant’s intent is rare, intent to kill may be inferred from the defendant’s acts and the circumstances of the crime.
Authority:
People v. Canizales (2019) 7 Cal.5th 591, 602
People v. Mumin (2023) 15 Cal.5th 176, 191
People v. Ibarra (2024) 106 Cal.App.5th 1070, 1079
People v. Smith (2005) 37 Cal.4th 733, 741
Fifth Holding:
A defendant may be convicted of attempted murder as a direct aider and abettor. To be convicted under such a theory, the defendant must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.
Authority:
People v. Nguyen (2015) 61 Cal.4th 1015, 1054
Sixth Holding:
Without any evidence that someone inside the co-defendant’s car targeted or otherwise shot at another person when they fired the underlying shots, we can only speculate as to whether the defendant acted with the intent to kill. Speculation is not substantial evidence.
Authority:
People v. Waidla (2000) 22 Cal.4th 690, 735
Seventh Holding:
The trial court also improperly relied on its own experience as a former gang prosecutor when it denied the petition, noting that it had prosecuted several cases against members of a gang in the 1990’s in explaining why it found that the defendant acted with the intent to kill. The court’s personal experience is not evidence.
Authority:
Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 286
Eighth Holding:
When admitting a sentencing enhancement, the defendant admits only the facts necessary to establish the enhancement’s elements.
Authority:
People v. Estrada (2024) 101 Cal.App.5th 328, 338