I don't understand why Justice Vartabedian didn't initially publish this opinion, and was glad he changed his mind. It's not only the right result, but is also helpful to trial courts.
This is one of a number of cases in which the trial court erroneously uses implied malice instructions (e.g., CALJIC 8.10 & 8.11) in an attempted murder case. CALJIC 8.66 currently articulates the right rule: that to prove attempted murder, the defendant has to harbor the specific intent to kill another person. But courts nonetheless often either read CALJIC 8.10 instead -- or read it alongside CALJIC 8.66 (as the court did here) -- which instructs the jury that they can convict based upon implied malice instead; namely, the commission of an act (e.g., shooting a gun) that is inherently dangerous to human life, even if no specific intent to kill exists.
This is error; however, the courts usually find it harmless. This time, it wasn't, particularly given the facts of the charged offense, the prosecutor's arguments during closing (which included a focus on implied malice), and the jury's repeatedly articulated confusion about the intent instructions. So Justice Vartabedian rightly reverses the conviction. (Not, parenthetically, that this matters at all to the defendant, who's sentence -- 128 years -- doesn't change in the slightest even after the reversal of this count!) And properly publishes as well.
P.S. - Here's a random portion of the facts, which hardly inspire confidence: "[Officer] Guffney landed on top of defendant and stayed on top of him, calling out for the others to shoot defendant because Guffney was losing his grip on defendant's gun. . . . [Officer] Rea approached defendant and placed his gun against defendant's temple. He pulled the trigger but the gun failed to fire. He then kicked defendant a couple of times. Eventually, Rea shot defendant in the spine and defendant collapsed." Yikes.
