People v. Cuica CA4/3

DISCUSSION

To be eligible for resentencing for the crime of attempted murder, the defendant must have been convicted under the natural and probable consequences doctrine or some other theory under which malice was imputed to him based solely on his participation in a crime. (§ 1172.6, subd. (a).) However, appellant’s jury was not instructed on any such theory. Rather, it was told it could only convict him of attempted murder if he personally intended to kill and he personally took a direct but ineffectual step toward achieving that objective. (CALCRIM No. 600.) By finding appellant guilty of that offense, and finding he discharged a firearm during its commission, the jury convicted appellant based on his own actions and his own malice. It doesn’t matter that he was aiming for someone other than who he actually hit. (See People v. Lopez (2024) 99 Cal.App.5th 1242 [transferred intent is not a theory of imputed liability for purposes of resentencing under section 1172.6].) Therefore, he is ineligible for resentencing as a matter of law, and the trial court rightly denied his petition at the prima facie stage of the proceedings. (See People v. Lewis (2021) 11 Cal.5th 952, 971 [denial…