People v. Allen CA1/3 ( 2021 )

Filed 8/26/21 P. v. Allen CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A159380
v.
MARCELLOUS LEWIS ALLEN, (Contra Costa County
Defendant and Appellant. Super. Ct. No. 05-080493-0)
This is an appeal from a trial court order denying defendant Marcellous
Lewis Allen’s petition for resentencing pursuant to Penal Code section
1170.95,1 a provision that allows a person convicted of murder under now
invalidated theories of accomplice liability to seek resentencing (hereinafter,
petition). (See Senate Bill No. 1437 (2017–2018 Reg. Sess.) (SB 1437).)
Defendant contends, and the People concede, the trial court applied the
wrong standard of proof when denying his petition without issuing an order
to show cause or affording him a hearing on the pertinent issue of whether he
could have been convicted of murder under sections 188 and 189 as modified
by SB 1437. We agree and reverse, remanding to the trial court for further
proceedings consistent with the opinion reached herein.
1 Unless otherwise stated all statutory citations are to the Penal Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
We rely on the record of defendant’s conviction, including our prior
nonpublished decision affirming his conviction (People v. Allen (July 30, 2012,
A128830)), to review the order denying his petition. (See People v. Lewis
(2021) 11 Cal.5th 952, 972 [“parties can, and should, use the record of
conviction to aid the trial court in reliably assessing whether a petitioner has
made a prima facie case for relief under [section 1170.95,] subdivision (c)”].)
In the name of judicial efficiency, we focus only on those facts relevant to this
appeal and refer the reader to our prior decision for a more complete
recitation of the factual and procedural background of this case.
On March 4, 2010, defendant, a minor at least age 16, and two
codefendants, Dion Lee Williams and Christian Latimore, were charged by
amended information with one count of murder (§ 187, subd. (a)) and one
count of robbery (§§ 211, 212.5, subd. (c)). In addition, defendant alone was
charged with one count of possessing an assault weapon (§ 12280, subd. (b)).
As to the murder and robbery counts, it was alleged defendant personally
used and discharged a weapon, under former section 12022.53, subdivisions
(b), (c), and (d).
On April 1, 2010, the jury found defendant guilty of the three counts
but found not true the allegation that he personally used and discharged a
weapon during the commission of the murder and robbery. (People v. Allen,
supra, A128830, at p. 5.) Defendant received a 25 years to life sentence for
murder, a concurrent three-year term for robbery, and a concurrent two-year
term for possession of an assault weapon. This judgment was affirmed on
appeal. (People v. Allen, supra, A128830, at p. 19.)
On January 8, 2019, defendant filed his petition for resentencing
pursuant to section 1170.95, and on March 5, 2019, the court appointed
2
counsel to represent him. The People opposed the petition, arguing
(inter alia) that defendant was the actual killer and therefore ineligible for
relief.
On October 4, 2019, the trial court issued its order summarily denying
defendant’s petition without a hearing. Relevant here, the court found “based
on evidence of reasonable and credible value, a reasonable trier of fact could
reach a guilty verdict on a charge of first degree murder in the commission of
a robbery under the new law on the basis that [defendant] was a major
participant in the felony and acted with reckless indifference to human life.”
On October 22, 2019, defendant timely appealed.
DISCUSSION
Defendant contends on appeal the trial court misapplied section
1170.95, subdivision (c) when denying his resentencing petition without
issuing an order to show cause or holding an evidentiary hearing. The People
agree, acknowledging the trial court erroneously reviewed the record for
substantial evidence rather than simply determining whether he made a
prima facie case.
The parties are correct. To make a prima facie showing, a petitioner, in
his or her petition, must attest under penalty of perjury that he or she is
eligible for relief under section 1170.95, based on three prerequisites: (1) “[a]
complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine”; (2) “[t]he petitioner
was convicted of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder”; and (3) “[t]he petitioner
3
could not be convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
Section 1170.95, subdivision (c) provides: “The court shall review the
petition and determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent the petitioner.
The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the
prosecutor response is served. These deadlines shall be extended for good
cause. If the petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause.” (Italics added.)
“Once the trial court issues the order to show cause under section
1170.95(c), it must then conduct a hearing pursuant to the procedures and
burden of proof set out in section 1170.95, subd. (d) unless the parties waive
the hearing or the petitioner’s entitlement to relief is established as a matter
of law by the record. (§ 1170.95, subd. (d)(2).) Notably, following the
issuance of an order to show cause, the burden of proof will shift to the
prosecution to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d)(3).)” (People v. Drayton
(2020) 47 Cal.App.5th 965, 981 (Drayton).)
The California Supreme Court recently interpreted section 1170.95,
subdivision (c) to require the petitioner to first make “a single prima facie
showing.” If made, the trial court must issue an order to show cause, appoint
counsel if requested, and allow the parties to submit briefing on whether the
petitioner is entitled to statutory relief. (People v. Lewis, supra, 11 Cal.5th at
p. 962; see People v. Cooper (2020) 54 Cal.App.5th 106, 114 [“if the defendant
is entitled to relief, the court recalls the sentence, vacates the murder
4
conviction and any accompanying enhancements, and resentences the
defendant. (§ 1170.95, subd. (d).)”].) The court explained that “the first
sentence provides the rule: the court reviews the petition to determine ‘if the
petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section.’ (§ 1170.95, subd. (c).) The last sentence describes
what the court shall do if a petitioner makes a prima facie showing, namely,
issue an order to show cause.” (People v. Lewis, supra, at p. 962.)
Relevant here, the court also held: “While the trial court may look at
the record of conviction after the appointment of counsel to determine
whether a petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited. Like the analogous
prima facie inquiry in habeas corpus proceedings, ‘ “the court takes
petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her
factual allegations were proved. If so, the court must issue an order to show
cause.” ’ (Drayton, supra, 47 Cal.App.5th at p. 978, quoting Cal. Rules of
Court, rule 4.551(c)(1).) ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an evidentiary
hearing.’ (Drayton, at p. 978, fn. omitted, citing In re Serrano (1995) 10
Cal.4th 447, 456 [41 Cal.Rptr.2d 695, 895 P.2d 936].) ‘However, if the record,
including the court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ (Drayton, at p. 979, quoting
Serrano, at p. 456.)” (People v. Lewis, supra, 11 Cal.5th at p. 972.)
In this case, the trial court correctly found that defendant made a
prima facie showing that (1) the prosecution proceeded at trial under a
murder theory based on felony murder and (2) he was convicted of first
5
degree murder. (§ 1170.95, subd. (a)(1)–(2).) The trial court erred, however,
in finding that defendant failed to make a prima facie showing that “[he]
could not be convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).)
As the People concede, defendant’s petition contains assertions that if
accepted as true prove he could not be convicted of first or second degree
murder as the law stands today. (See § 1170, subd. (c).)
Briefly, the record2 reflects that on the day of the murder, defendant,
codefendants Latimore and Williams, and Raymond Richards were driving
around in a borrowed car with the stated intention of robbing someone. After
targeting the victim (Chang), Williams stayed in the car as the designated
getaway driver. Defendant, Latimore and Richards exited and surrounded
Chang, who was rinsing out a bucket on the sidewalk. Defendant, displaying
an assault pistol, demanded that Chang hand over his belongings. Chang
put his hands up, and Latimore and Richards rifled through his pockets.
However, when Richards tried to remove Chang’s wallet, Chang resisted.
Defendant responded by hitting Chang on the head with the pistol, causing it
to discharge. As Latimore retreated to the car, he heard two more gunshots.
Once defendant returned to the car, Latimore angrily accused defendant of
almost shooting him during the robbery. Defendant responded that the gun
discharged accidentally and that Chang “ ‘made me shoot him.’ ”3 (People v.
Allen, supra, A128830, at p. 4.)
Williams and Latimore testified at trial for the prosecution in
2
exchange for a plea deal. (People v. Allen, supra, A128830, at p. 3.)
3A firearms test conducted during the police investigation established
that defendant’s gun fired the bullet and two casings found at the murder
scene. (People v. Allen, supra, A128830, at p. 3.)
6
At trial, consistent with this evidence, the jury was instructed on two
theories of first degree murder—deliberate and premeditated murder
(CALJIC No. 8.20) and first degree felony murder (CALJIC No. 8.21). (People
v. Allen, supra, A128830, at p. 14, fn. 9.) As to the latter, the jury was
instructed, “ ‘The unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs during the commission or
attempted commission of the crime of Robbery is murder of the first degree
when the perpetrator had the specific intent to commit that crime.”4 (People
v. Allen, supra, A128830, at p. 14, fn. 9, italics added.) The jury was also
instructed that defendant could be found guilty as a principal in the
commission of murder either as a direct perpetrator of the murder or as an
aider and abettor (CALJIC Nos. 3.00, 3.01). (People v. Allen, supra, A128830,
at p. 15 & fns. 10–11.) During deliberations, the jury asked the following
question of the trial court: “ ‘Is it possible to find [defendant] guilty of
robbery and not guilty of first degree murder? Specifically, if we believe Allen
was not holding the gun, but was present at the robbery, is he guilty of
1st degree murder?’ ” (People v. Allen, supra, A128830, at p. 14.) The court
responded: “ ‘If you find beyond a reasonable doubt that Mr. Allen
participated in the robbery as a perpetrator or as an aider and abettor as
defined in CALJIC Instructions number 3.00 and 3.01, then you should
4 The first degree felony murder instruction given by the trial court was
as follows: “ ‘The unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs during the commission or
attempted commission of the crime of Robbery is murder of the first degree
when the perpetrator had the specific intent to commit that crime. [¶] The
specific intent to commit Robbery and the commission or attempted
commission of that crime must be proved beyond a reasonable doubt. [¶] In
law, a killing occurs during the commission or attempted commission of a
felony, so long as the fatal blow is struck during its course, even if death does
not then result.’ ” (People v. Allen, supra, A128830, at p. 14, fn. 9.)
7
decide whether the felony murder rule would apply as described in CALJIC
Instruction number 8.21. If you have a reasonable doubt whether Mr. Allen
is a perpetrator or aided and abetted the robbery, then he would not be liable
under the felony murder rule. Please review these instructions in connection
with CALJIC 2.90 and all of the other instructions I have given you.’ ”
(People v. Allen, supra, A128830, at p. 15, fns. omitted.)
As this record reflects, based on the evidence and instructions, the jury
could have found defendant guilty of murder as an aider and abettor to a
felony murder with robbery as the predicate crime notwithstanding the fact
that he did not harbor the intent to kill or act with reckless indifference to
human life.5 Under SB 1437, this murder theory is no longer valid. (See
§ 189, subd. (e) [requiring the defendant to be the actual killer, an aider and
abettor to the murder who acted with intent to kill, or a major participant in
the underlying felony who acted with reckless indifference to human life].)
In its order summarily denying defendant’s petition, the trial court
found that “a reasonable trier of fact could reach a guilty verdict on a charge
of first degree murder in the commission of a robbery under the new law on
the basis that Allen was a major participant in the felony and acted with
reckless indifference to human life,” and that he “acted with ‘reckless
disregard for human life’ in that he ‘knowingly engaging [sic] in [a] criminal
activit[y] known to carry a grave risk of death.’ ” The court relied on the
same evidence, described ante, that defendant approached Chang, demanded
that he hand over his possessions while displaying an assault weapon, and,
when Chang resisted, hit him in the head with the weapon, causing it to
discharge. In doing so, the trial court improperly weighed disputed evidence
5As stated, the jury found not true the allegation that defendant
personally discharged a firearm.
8
in the form of his accomplices’ testimony relating to defendant’s state of mind
and degree of participation in the robbery. This was erroneous. So long as
defendant’s proffered evidence could support a finding that he was not a
major participant and lacked the requisite mens rea, the court should have
issued an order to show cause and scheduled an evidentiary hearing, without
weighing the evidence. (People v. Lewis, supra, 11 Cal.5th at pp. 971–972.)
Defendant’s proffered evidence does indeed support such finding, as a
reasonable trier of fact could have found that he acted without the requisite
mens rea when his gun accidentally discharged.6
Accordingly, because the trial court erred by denying defendant’s
petition without issuing an order to show cause or holding an evidentiary
hearing to adjudicate whether he is entitled to relief (§ 1170.95, subds. (c),
(d)), we reverse and remand the matter for further proceedings.
DISPOSITION
The trial court order denying defendant’s petition for resentencing
under section 1170.95 is reversed. The matter is remanded with instructions
to the trial court to issue an order to show cause and to hold an evidentiary
hearing to adjudicate whether defendant is entitled to section 1170.95 relief.
6We make no prediction as to whether defendant will prevail in his
request for resentencing after an evidentiary hearing.
9
_________________________
Jackson, J.
WE CONCUR:
_________________________
Petrou, Acting P. J.
_________________________
Chou, J.*
A159380/People v. Marcellous Lewis Allen
Judge of the Superior Court of San Mateo County, assigned by the
*
Chief Justice pursuant to article VI, section 6 of the California Constitution.
10