People v. Juarez CA2/5

DISCUSSION

In 2018, our Legislature amended the definition of “murder” to preclude a jury from “imput[ing]” the “malice” element “based solely on [a defendant’s] participation in a crime.”

3 (§ 188, subd. (a)(3).) The purpose of this amendment was to ensure that “[a] person’s culpability for murder [is] premised upon that person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1(g).) As amended, liability for murder is generally limited to those who (1) are the actual killer, (2) aided or abetted the actual killer in the murder, or (3) were a major participant in the underlying felony that resulted in the killing, but only if they also acted with reckless indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e).) Section 1172.6 is the procedural vehicle by which those convicted can seek to vacate convictions that do not satisfy the definition of “murder” as amended. Defendant first argues that the jury was improperly instructed on transferred intent even though that doctrine does not apply to attempted murder. Defendant appears to be raising the same argument he raised on direct appeal, that “the trial court erred in failing to restrict the use of the…