People v. Gaxiola CA5

DISCUSSION 3

The trial court denied defendant’s section 1172.6 petition at the prima facie stage, concluding that defendant was ineligible for relief because the jury found him guilty of attempted first degree murder with willfulness, premeditation, and deliberation. Defendant contends the court’s conclusion was error because the jury was instructed on two theories of attempted murder—express malice attempted murder and natural and probable consequences attempted murder as an aider and abettor. Under either theory, the jury could have found defendant guilty of attempted first degree murder and concluded the attempted murder was committed with willfulness, premeditation, and deliberation. The People agree, as do we.

I. Additional Background

As noted, the trial court instructed the jury on two theories of attempted murder, express malice and natural and probable consequences murder:

3 Because defendant’s argument on appeal raises purely legal issues, we omit any summary of the facts.

3. “Murder is the unlawful killing of a human being with malice aforethought. [¶] In order to prove such crime, each of the following elements must be proved: [¶] One, a direct but ineffectual…