People v. Allen CA2/8 ( 2023 )

Filed 3/21/23 P. v. Allen CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B324094
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA084884
v.
RODZINSKI ALLEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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We review this appeal pursuant to People v. Delgadillo
(2022) 14 Cal.5th 216. We affirm.
PROCEDURAL BACKGROUND
On November 21, 2007, a jury convicted appellant
Rodzinski Allen of second degree murder in violation of Penal
Code section 187, subdivision (a).1 The jury found true the
allegation that appellant personally and intentionally discharged
a firearm, which proximately caused great bodily injury and
death. (§ 12022.53, subd. (d).) In a bifurcated court trial, the
trial court found appellant suffered a prior strike conviction
(§§ 1170.12, subds. (a)–(d) & 667, subd. (b)–(i)); a serious felony
(§ 667, subd. (a)(1)), and a prior prison term (§ 667.5, subd. (b)).
On December 14, 2007, the trial court sentenced appellant
to a term of 61 years to life in state prison. This aggregate
sentence included 15 years to life for the murder (doubled to 30
years for the strike), plus 25 years to life for the firearm
enhancement, plus five years for the serious felony enhancement
plus one year for the prior prison term.
On July 25, 2022, appellant filed a motion to vacate
sentence under California’s Racial Justice Act. (§§ 745 & 1473.7.)
The trial court denied the motion, finding appellant had not
made a prima facie showing under the Act. Appellant filed a
timely notice of appeal.
We appointed counsel to represent appellant on appeal. On
February 2, 2023, counsel filed a brief under People v. Serrano
(2012) 211 Cal.App.4th 496. The brief raised no issues. Counsel
advised us she had told appellant he may file a supplemental
1 Undesignated statutory references are to the Penal Code.
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brief within 30 days and she had sent him the transcripts of the
case as well as a copy of the Serrano brief.
On February 2, 2023, this court sent appellant a notice that
a brief raising no issues had been filed on his behalf. This court
advised appellant he had 30 days within which to submit a
supplemental brief or letter stating any ground for an appeal he
wishes this court to consider. Appellant was advised that if no
supplemental brief was timely filed, his appeal may be dismissed
as abandoned.
On February 17, 2023, appellant filed a supplemental brief,
which we discuss below.
FACUAL BACKGROUND
The facts are taken from the Probation Officer’s Report.
On February 18, 2006, appellant killed Warren Larkin after an
argument over money and drugs. Appellant and Larkin had
argued. Appellant left, returned an hour later, and shot Larkin
multiple times in the upper torso.
DISCUSSION
In his supplemental brief, appellant invokes and seeks
relief under the Racial Justice Act, codified in sections 745 and
1473.7, subdivision (a). (Stats. 2020, ch. 317, § 1.) However, by
its terms, the Racial Justice Act applies only to “all cases in
which judgment is not final.” (§ 745, subd. (j)(1).) A judgment
becomes final where the judgment of conviction was rendered, the
availability of appeal is exhausted, and the time to file a petition
for certiorari has elapsed. (People v. Padilla (2022) 13 Cal.5th
152, 162; In re Spencer (1965) 63 Cal.2d 400, 405.)
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Appellant’s 2007 judgment was affirmed by this court on
January 29, 2010. (People v. Allen (Jan. 29, 2010, B205164) [non
pub. opn.].) The California Supreme Court denied appellant’s
petition for review on April 14, 2010. The time to file a petition
for certiorari expired 90 days later on or about July 15, 2010.
Appellant’s judgment is final and he is not eligible for relief
under the Racial Justice Act.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
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