People v. Avila CA5

INTRODUCTION

Petitioner Jaime John Avila III petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his convictions for murder (§ 187, subd. (a)) and attempted murder (§§ 187, subd. (a), 664). The trial court denied the petition at the prima facie stage after determining the attempted murder conviction was “not part of the petition” and, as to the murder conviction, petitioner was the actual killer. On appeal, petitioner argues the trial court erred in failing to provide a sufficient statement of reasons supporting denial of the petition, and determining the attempted murder conviction was not included in the petition. To the extent the latter issue is forfeited, he claims ineffective assistance of counsel. Additionally, petitioner contends he set forth a prima facie claim for resentencing on his attempted murder conviction because the record establishes it may have been based on the “kill zone” theory, which petitioner describes as an invalid, imputed malice theory of attempted murder. Finally, petitioner contends the trial court miscalculated his custody credits at his initial sentencing hearing by one day, an…