People v. Allen CA2/1

Filed 12/22/20 P. v. Allen CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B306405
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA016472)
v.
MICHAEL ERIC ALLEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed.
Michele A. Douglass, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
On June 21, 1990, the People filed an information charging
defendant Michael Eric Allen (Allen) with three counts: (1) the
murder of Juan Nunez, (2) the second degree robbery of
Juan Nunez, and (3) the willful, deliberate, and premeditated
attempted murder of Jorge Nunez.
Evidence presented at trial showed that on the evening of
March 17, 1990, brothers Juan and Jorge Nunez, who were
traveling in Juan Nunez’s car, stopped for a red light at the
intersection of San Pedro Street and Gage Avenue when Allen
and Lifalfa Green ran toward the car with their guns drawn.1
(People v. Allen (Mar. 19, 2020, B301225) [nonpub. opn.]
(Allen II); People v. Allen (Nov. 30, 1993, B067989) [nonpub. opn.]
(Allen I).) Allen approached the driver’s side of the car and fired
three shots at Juan Nunez from a semiautomatic handgun.
(Allen II, supra, B301225.) As Juan Nunez fell to the side, his
foot slipped from the brake pedal, and the car began to roll
forward. (Ibid.) Allen reached into the car, grabbed the gearshift
lever, put the car in park, and ordered the brothers out of the car.
(Ibid.) As Jorge Nunez pulled his brother out of the car, Allen
fired two more shots. (Ibid.)
Green ran toward the men and pointed his gun at them.
(Allen II, supra, B301225.) Green and Allen then got into the car
and drove away. (Ibid.) Juan Nunez suffered three gunshot
wounds, two to the left side of his chest and one to the left portion
of his back, resulting in his death. (Ibid.)
1 The remainder of this paragraph and the following
paragraph summarize evidence presented at trial. Additionally,
we, sua sponte, take judicial notice of the Allen I and Allen II
decisions discussed in this opinion. (Evid. Code, §§ 452, subd. (d),
459.)
2
On April 16, 1992, a jury convicted Allen of all three
charged counts, and found, with respect to the first count, that
Allen perpetrated first degree murder during the commission of a
robbery, and that Allen personally used a firearm in the course of
committing all three offenses. (See Allen II, supra, B301225.)
On June 5, 1992, the trial court sentenced Allen to life
imprisonment without the possibility of parole for the first degree
murder conviction; a sentence of nine years in state prison for the
second degree robbery conviction; and a prison term of life with
the possibility of parole for the attempted murder conviction; the
prison term for the attempted murder conviction was to run
concurrent with the sentences imposed on the other two counts.2
On November 30, 1993, we affirmed Allen’s judgment of
conviction. (Allen I, supra, B067989.)
On March 17, 2020, Allen filed a petition for writ of error
coram nobis, wherein he sought an order vacating or modifying
the judgment. Although the arguments presented in his petition
were not altogether clear, it is apparent that Allen was claiming
he did not have the intent required to commit the instant offenses
because on March 17, 1990, Allen was taking Prednisone,
which “affected [his] cognition, judgme[n]t, perception and
behavior . . . .”
On May 22, 2020, the trial court issued an order denying
Allen’s petition on the ground that his “successive claim[ ]
constitute[s] an abuse of the writ of habeas corpus.” (Citing,
inter alia, In re Martinez (2009) 46 Cal.4th 945, 956 (Martinez).)
The court observed that in a 2017 habeas petition, Allen had
2 The minute order for Allen’s sentencing hearing provides,
inter alia, “[t]he sentences in counts 1 [(first degree murder)] and
2 [(second degree robbery)] are to run consecutive.”
3
already raised the claim that his use of Prednisone adversely
affected his mental state. The court denied that prior petition
because it “was successive, the evidence itself was not newly
discovered, the proffered claim would not have changed the result
of the trial, and evidence of [Allen’s] guilt and specific intent was
overwhelming and in direct contradiction to his claims.” The
court further noted that Allen had also “raised this identical
claim twice before the Court of Appeal” in habeas petitions he
filed in 2006 and 2019, both of which were denied.
On June 11, 2020, Allen appealed the trial court’s
May 22, 2020 order denying his petition for writ of error coram
nobis.
On September 18, 2020, we appointed counsel for Allen for
the appeal now before us. On October 15, 2020, Allen’s appointed
counsel filed a brief that asked us to follow the procedures in
People v. Serrano (2012) 211 Cal.App.4th 496; counsel did not
identify any issues for us to review. On November 2, 2020, Allen
filed a supplemental brief.
The order before us involves a denial of postconviction
relief. We thus have no independent duty to review the record for
reasonably arguable issues. (People v. Cole (2020) 52 Cal.App.5th
1023, 1034, review granted Oct. 14, 2020, S264278 [“[W]e reject
the notion that the Constitution compels the adoption or
extension of [People v. Wende (1979) 25 Cal.3d 436] procedures
(or any subset of them) for appeals other than a criminal
defendant’s first appeal of right because, beyond that appeal,
there is no right to the effective assistance of counsel.”].)
Therefore, after appointed counsel has filed a Serrano brief, the
pro per defendant must bear the burden of rebutting the
presumption of correctness accorded to the trial court’s ruling.
4
(See Cole at pp. 1039–1040; see also People v. Giordano (2007)
42 Cal.4th 644, 666 [“On appeal, we presume that a judgment or
order of the trial court is correct, ‘ “[a]ll intendments and
presumptions are indulged to support it on matters as to which
the record is silent, and error must be affirmatively shown.” ’
[Citation.]”].)
“ ‘It has long been the rule that absent a change in the
applicable law or the facts, the court will not consider repeated
applications for habeas corpus presenting claims previously
rejected.’ ” (Martinez, supra, 46 Cal.4th at p. 956.) “ ‘Such rules
are necessary both to deter use of the writ to unjustifiably delay
implementation of the law, and to avoid the need to set aside
final judgments of conviction when retrial would be difficult or
impossible.’ ” (Ibid.)
“An[ ] exception to the general rule that ‘absent
justification for the failure to present all known claims in a
single, timely petition for writ of habeas corpus, successive and/or
untimely petitions will be summarily denied,’ is ‘petitions which
allege facts which, if proven, would establish that a fundamental
miscarriage of justice occurred as a result of the proceedings
leading to conviction and/or sentence.’ [Citation.] [¶] ‘[A]
“fundamental miscarriage of justice” will have occurred in any
proceeding in which it can be demonstrated . . . that error of
constitutional magnitude led to a trial that was so fundamentally
unfair that absent the error no reasonable judge or jury would
have convicted the petitioner . . . .’ ” (Martinez, supra, 46 Cal.4th
at p. 956, italics added.)
In his supplemental brief, Allen does not challenge the
trial court’s implicit conclusion that he may not avoid the
procedural bar on successive habeas petitions by simply restyling
5
his pleading as a petition for writ of error coram nobis. Rather,
Allen contends the trial court should have reached the merits of
his petition because (1) his claim is predicated on (a) a change in
the applicable law and (b) the emergence of new facts, and (2) the
fundamental miscarriage of justice exception to this procedural
bar applies to this case. We reject these arguments for the
reasons discussed below.
First, Allen seems to argue that Senate Bill No. 1437
constitutes a change in the law that allows him to sidestep the
bar on successive petitions.3 We disagree. Senate Bill No. 1437
“abolished the natural and probable consequences doctrine in
cases of murder, and limited the application of the felony murder
doctrine.” (See People v. Galvan (2020) 52 Cal.App.5th 1134,
1139, review granted Oct. 14, 2020, S264284.) This amendment
to the Penal Code has no bearing on whether Allen’s use of
Prednisone prevented him from having the mens rea necessary to
3 In his supplemental brief, Allen asks us to take judicial
notice of Senate Bill No. 1437. Although Allen did not “serve and
file a separate motion [for judicial notice] with a proposed order,”
(see Cal. Rules of Court, rule 8.252(a)(1); id., rule 8.366(a)
[“[R]ule[ ] 8.252[ ] govern[s] the hearing and decision in the Court
of Appeal of an appeal in a criminal case.”]), we, nonetheless,
take judicial notice of Senate Bill No. 1437 because we could have
considered that statute even without formally taking judicial
notice of it, and this amendment to the Penal Code is a proper
subject of judicial notice. (See Gionfriddo v. Major League
Baseball (2001) 94 Cal.App.4th 400, 410, fn. 7 [“ ‘A request for
judicial notice of published materials is unnecessary. Citation to
the materials is sufficient. [Citations.]’ [Citation.]”]; Evid. Code,
§§ 452, subd. (a), 459.)
6
perpetrate the instant offenses.4 Allen cannot avert the bar on
successive claims by simply identifying a new—but wholly
inapplicable—change in the law. (See Martinez, supra,46 Cal.4th at p. 956 [noting that the “procedural bar of
successiveness” prevents a defendant from “presenting claims
previously rejected” “absent a change in the applicable law,”
italics added].)
Second, Allen concedes that the supposed causal linkage
between “prednisone and violence” was discovered by the
scientific community in 1998. His claim for relief thus does not
rely on any new facts that he was unable to present in his prior
habeas petitions.
Lastly, Allen does not satisfy the fundamental miscarriage
of justice exception to the procedural bar on successive petitions.
Allen claims that an “error of constitutional magnitude led to a
trial that was so unfair that no reasonable judge or jury [citation]
would have convicted [Allen] of 1st or 2nd degree murder and
sentence[d him] to life without the possibility of parole . . . .” In
particular, we understand Allen to be arguing that had he been
able to introduce scientific evidence concerning the adverse side
effects of Prednisone, the outcome of the trial may have been
different because the evidence of his guilt “was not
overwhelming.”
4 Indeed, in affirming the trial court’s denial of a separate
petition for resentencing Allen had filed pursuant to Penal Code
section 1170.95, we explained that “the jury’s finding that [Allen]
personally used a firearm in [the] commission of first degree
murder precludes the possibility that he was convicted on a
felony murder or natural and probable consequences theory.”
(See Allen II, supra, B301225.)
7
Allen does not identify any connection between (1) the
supposed nonexistence of such scientific evidence at the time of
his trial and (2) a violation of his constitutional rights, nor is it
apparent that any such connection exists. Thus, he has not
brought “himself within the miscarriage of justice exception
to successiveness . . . .” (See Martinez, supra, 46 Cal.4th at
pp. 949–950, 967 [denying a petition for writ of habeas corpus as
successive in part because the petitioner had not shown that this
exception was applicable]; see also People v. Stanley (1995)
10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal
argument with citation of authorities on the points made. If none
is furnished on a particular point, the court may treat it as
waived, and pass it without consideration. [Citations.]’
[Citations.]”].)
In sum, Allen has not demonstrated that the trial court
erred in ruling that his petition for writ of error coram nobis is
procedurally barred. Accordingly, we affirm the trial court’s
order denying his petition.
8
DISPOSITION
We affirm the trial court’s May 22, 2020 order denying
Allen’s petition for writ of error coram nobis.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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