People v. Allen

• Docket Number: 2d Crim. B324207
• Decision Date: 26 October 2023
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CHARLES JOSEPH ALLEN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. CHARLES JOSEPH ALLEN, Defendant and Appellant.

2d Crim. No. B324207

California Court of Appeals, Second District, Sixth Division

October 26, 2023

NOT TO BE PUBLISHED

Superior Court County of Los Angeles No. BA381310 Eleanor J Hunter, Judge

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

BALTODANO, J.

Charles Joseph Allen appeals from the denial of his petition for resentencing pursuant to Penal Code^[1] section 1172.6. He contends the trial court erroneously denied his petition at the prima facie stage because the record of conviction shows that jurors were instructed on now-invalid theories of murder and attempted murder at trial. We affirm.

FACTUAL AND PROCEDURAL HISTORY

After a member of his gang was shot, Allen drove three of his fellow gang members into their rival gang's territory, looking for people to shoot.^[2] (People v. Allen (Nov. 28, 2017, B270724) [nonpub. opn.] (Allen).^[3]) When they arrived, Allen and his accomplices saw two men they believed to be rival gang members, Darnell Jackson and Jeremy Owens. (Ibid.) Allen's accomplices got out of the car, walked down the street, and shot the men, killing Jackson. (Id. at pp. *1-2.) Neither Jackson nor Owens was a gang member. (Id. at p. *1.)

Prosecutors charged Allen with the murder of Jackson and the attempted murder of Owens, alleging he was liable as either an aider and abettor or a coconspirator. As to the former theory of liability, the trial court instructed jurors that "[a] person is guilty of a crime whether [they] committed it personally or aided and abetted the perpetrator." (See CALCRIM No. 400.) The court also told jurors that a direct aider and abettor must share the perpetrator's intent: "Someone aids and abets a crime if [they] know[] of the perpetrator's unlawful purpose and [they] specifically intend[] to and do[] in fact aid, facilitate, promote, encourage[,] or instigate the perpetrator's commission of that crime." (See CALCRIM No. 401.) As to the latter theory of liability, the trial court instructed jurors pursuant to CALCRIM NO. 416: "To prove that [Allen] was a member of a conspiracy in this case, [prosecutors] must prove that:

"1. [Allen] intended to agree and did agree with one or more of [his alleged coconspirators] to commit murder;

"2. At the time of the agreement, [Allen] and one or more of the other alleged members of the conspiracy intended that one or more of them would commit murder; [and]

"3. [Allen or one of his alleged coconspirators] or all of them committed at least one . . . overt act[] to accomplish murder[.]"

The instruction also told jurors that prosecutors "must prove that the members of the alleged conspiracy had an agreement and intent to commit murder."

CALCRIM No. 417 then told jurors that, if Allen was a member of a conspiracy, he was responsible for any crimes he conspired to commit, no matter which of his coconspirators committed the crime:

"A member of a conspiracy is . . . criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan.

"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes....

[¶] . . . [¶]

"To prove that [Allen] is guilty of [attempted murder as a coconspirator], [prosecutors] must prove that:

"1. [Allen] conspired to commit . . . murder;

"2. A member of the conspiracy committed attempted murder to further the conspiracy;

"AND

"3. Attempted [m]urder was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit."

The trial court did not instruct jurors on felony murder (CALCRIM Nos. 540A-540C) or the natural and probable consequences theory (CALCRIM No. 403). Jurors later convicted Allen of the first degree murder of Jackson (§§ 187, subd. (a), 189, subd. (a)) and the attempted willful, deliberate, and premeditated murder of Owens (§§ 664/187, subd. (a)). We affirmed the judgment on appeal. (Allen, supra, 2017 WL 5711791 at p. *6.)

In October 2021, Allen petitioned for resentencing pursuant to section 1172.6. The trial court appointed counsel and set the matter for a prima facie hearing.

The prosecutor opposed Allen's petition because the jury was not instructed on felony murder, natural and probable consequences, or any other theory of culpability that imputed malice to Allen. He was thus ineligible for section 1172.6 relief as a matter of law.

At the prima facie hearing, the trial court agreed that jurors had not been instructed on either felony murder or the natural and probable consequences doctrine. Nor were "they . . . instructed that any kind of malice [could] be imputed to [Allen]." It thus found him ineligible for section 1172.6 resentencing and denied his petition.

DISCUSSION

In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) to "amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who [was] not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch 1015, § 1, subd. (f).) To accomplish these goals, Senate Bill 1437 redefined "malice" in section 188, and narrowed the classes of persons liable for felony murder under section 189. (Stats. 2018, ch. 1015, §§ 2-3.) It also added what is now section 1172.6 to the Penal Code, which permitted those convicted of felony murder or murder under a natural and probable consequences theory to petition to have their murder convictions vacated and to be resentenced on any remaining counts. (Stats. 2018, ch. 1015, § 4; see also Stats. 2022, ch. 58, § 10 [renumbering former section 1170.95 as section 1172.6 without substantive change].) This relief was subsequently extended to persons convicted of manslaughter and attempted murder. (See Stats. 2021, ch. 551, § 2.)

A person may now petition for resentencing if: (1) the information allowed prosecutors to "proceed under a theory of felony murder, murder under the natural and probable consequences doctrine[,] or [any] other theory under which malice is imputed to a person based solely on [their] participation in a crime, or attempted murder under the natural and probable consequences doctrine"; (2) the person was convicted of murder, manslaughter, or attempted murder; and (3) the person could not now be convicted of murder or attempted murder under the current versions of sections 188 and 189. (§ 1172.6, subd. (a).) If a person files a facially valid petition, the trial court must appoint counsel, if requested, and set the matter for a prima facie hearing. (Id., subds. (b)(3) &(c).) At that hearing the court may rely on the record of conviction^[4] and deny a petition if the petitioner is ineligible for section 1172.6 relief as a matter of law. (Lewis, supra, 11 Cal.5th at pp. 970-972.)

A petitioner is ineligible for section 1172.6 relief as a matter of law if, for example, the jury instructions show that jurors were not instructed on any theory of liability affected by Senate Bill 1437's changes to sections 188 and 189. (People v. Daniel (2020) 57 Cal.App.5th 666, 677.) A petitioner is also ineligible for relief if the record of conviction shows that their conviction was based on a theory of liability that remains valid under Senate Bill 1437. (People v. Medrano (2021) 68 Cal.App.5th 177, 182-183.) We review de novo a trial court's prima facie determination that a petitioner is ineligible for section 1172.6 relief as a matter of law. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251 (Williams).)

The trial court here correctly concluded that Allen was ineligible for section 1172.6 relief as a matter of law. The court instructed jurors on two theories of liability at trial: direct aiding and abetting, and conspiracy. If the jury adopted the former theory, Allen was ineligible for section 1172.6 relief because jurors would have had to conclude that he harbored the intent to kill. (Williams, supra, 86 Cal.App.5th at p. 1252.)

The same is true if jurors convicted him of murder and attempted murder on a conspiracy theory. "[C]onspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, here murder, the object of the conspiracy." (People v. Swain (1996) 12 Cal.4th 593, 602.) The trial court instructed jurors on these principles: It told jurors that, to convict Allen of Jackson's murder as a coconspirator, prosecutors had to show that he "intended to agree and did agree with one or more of [his alleged coconspirators] to commit murder" and that "[a]t the time of [that] agreement, [he] and one or more of the other alleged members of the conspiracy intended that one or more of them would" do so. (Italics added.) The court also told jurors that convicting Allen on a conspiracy theory required prosecutors to show that he "had an agreement and intent to commit murder." (Italics added.)

To convict Allen of the attempted murder of Owens as a coconspirator, the trial court told jurors that they had to conclude that Allen conspired to commit murder. That, in turn,...