The Court of Appeal reversed the denial of appellant’s Penal Code section 1172.6 petition to vacate his attempted murder conviction because substantial evidence did not support the trial court’s ruling.
The trial court focused on whether appellant had acted with reckless indifference to human life and was a major participant in the underlying felony. This was improper because appellant was not convicted of felony murder and California does not recognize the crime of “attempted felony murder.” The proper question was whether appellant held a specific intent to kill and committed a direct but ineffectual act toward accomplishing the intended killing. More specifically, as an aider and abettor, appellant must have aided and encouraged an attempted murder knowing of the direct perpetrator’s intent to kill and intending to facilitate the killing.
No evidence demonstrated that appellant intended to kill. An older gang member planned the robbery and fired a shotgun at the victim. Appellant did not plan the crime, he was unarmed, he did not provide the shotgun to the shooter, he did not interact with the victim, and nothing shows appellant intended for the shooter to fire at the victim. Neither appellant’s presence at the crime scene nor his knowledge that the shooter was armed established appellant’s own intent to kill; malice may not be imputed to appellant based solely on his participation in the crime. The fact that the shooting occurred during a four-day crime spree did not in and of itself suggest he held an intent to kill.
The Court of Appeal granted appellant’s petition and vacated his conviction for attempted murder. It further held that because the judgment would no longer be final, he would be entitled to the retroactive benefits of both Proposition 57 and Senate Bill No. 1391.