Filed 8/23/23 P. v. Allan CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

TRISTAN DARNELL ALLAN,

Defendant and Appellant.

 D080414

 (Super. Ct. No. FSB048987)

APPEAL from an order of the Superior Court of San Bernardino, 

Brian S. McCarville, Judge. Affirmed.

Ahrony Appeals Law Group and Orly Ahrony for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Steve 

Oetting, Michael Dolida and Felicity Senoski, Deputy Attorneys General for 

Plaintiff and Respondent.
2

I

INTRODUCTION

In 2005, Tristan Darnell Allan robbed a liquor store in Highland, 

California, with his brother, Christopher Turelle White, and his girlfriend’s 

brother, Darwin Richardson. During the robbery, White shot and killed the 

store owner, Steve Hall, and a store clerk, Brian Gregorio. 

After a trial, a jury found Allan guilty of two counts of first degree 

felony murder (Pen. Code, § 187, subd. (a))1 and two counts of second degree 

robbery (§ 211). The jury found a principal was armed with a firearm during 

the commission of the crimes (§ 12022, subd. (a)(1)), and it returned true 

multiple-murder and robbery-murder special circumstance findings (§ 190.2, 

subd. (a)(3), (17)(A)). Allan was sentenced to five years four months in 

prison, followed by two consecutive sentences of life without the possibility of 

parole. On appeal, our court affirmed Allan’s felony murder convictions. 

(People v. White (Sept. 16, 2011, Nos. D059000, D059032 [nonpub. opn.].)

In 2020, Allan filed a petition for resentencing under section 1172.6, 

arguing his felony murder convictions must be vacated because he could not 

presently be convicted of murder due to changes to our state’s murder laws 

implemented by Senate Bill No. 1437 (2017–2018 Reg. Sess.).2 After an 

evidentiary hearing, the trial court denied the petition and found the People 

had proved, beyond a reasonable doubt, that Allan was guilty of the felony 

1 Further undesignated statutory references are to the Penal Code.

2 At the time Allan filed his petition for resentencing, former section 

1170.95 codified the procedures governing such petitions. Assembly Bill 

No. 200 (2021–2022 Reg. Sess.) renumbered former section 1170.95 as 

section 1172.6. (Stats. 2022, ch. 58, § 10.) For purposes of this opinion, we 

will refer to this statutory provision as section 1172.6.
3

murders under the amended murder laws. It found Allan was guilty because 

he was a major participant in the robberies during which the killings

occurred and he acted with reckless indifference to human life. 

Allan appeals the denial of his petition for resentencing. He argues: 

(1) substantial evidence did not support the court’s finding that he was guilty 

of the felony murders under the state’s amended murder laws; (2) the court 

erroneously denied resentencing based, in whole or part, on its memory from 

the initial murder trial and our appellate opinion affirming his felony murder 

convictions; and (3) the court improperly precluded him from introducing 

relevant and admissible evidence at the evidentiary hearing. We reject these 

arguments and affirm the order denying the petition for resentencing.

II

BACKGROUND

A. Trial Evidence3

On March 16, 2005, at about 9:00 p.m., two black males, later identified 

as Allan and White, entered a liquor store called Cee Vee Liquor in Highland. 

The men wore coverings over their faces. White was armed with a firearm 

and held the store owner, Hall, and the store clerk, Gregorio, at gunpoint. 

Allan was unarmed and he stood near the store entrance, stole cash and 

lottery tickets, and fled from the store to a getaway car driven by a third 

accomplice, Richardson. Less than a minute later, White shot and killed Hall 

3 We granted Allan’s unopposed request for judicial notice of the clerk’s 

transcripts, the reporter’s transcripts, and the prior appellate opinion from 

People v. White, D059000, D059032. Our factual summary is taken from the

clerk’s and reporter’s transcripts. “Because this appeal requires us to apply 

the substantial evidence standard of review, we state the facts in the light 

most favorable to the prosecution as the party that prevailed in the superior 

court.” (People v. Montanez (2023) 91 Cal.App.5th 245, fn. 7 (Montanez).)
4

and Gregorio, who had offered no resistance to the robberies. White fled the 

store and the three perpetrators drove away in the getaway car. 

1. Prosecution Case

a. Surveillance Footage

Cee Vee Liquor had a video surveillance system that captured the 

robberies and the shooting of Gregorio. At trial, the parties stipulated the 

armed perpetrator of the robberies depicted on the surveillance footage was 

White and the unarmed perpetrator of the robberies was Allan. 

b. Eyewitness Testimony

On the night of the robberies, a neighbor who lived near Cee Vee 

Liquor was seated on his front porch. At about dusk, he saw a white car 

driving back and forth in front of his house, four or five times, and he grew 

suspicious. At one point, the white car parked 50 to 75 feet away from the 

driveway to the Cee Vee Liquor parking lot. At another point, the car drove 

into the parking lot, but then exited it three to five minutes later. The car 

reentered the parking lot and, ten or fifteen minutes later, exited it while 

driving at an excessive speed. Soon after, the neighbor heard law 

enforcement sirens responding to the shootings.

Vanessa P. was working at the deli counter of Cee Vee Liquor when the 

robberies took place. She was cleaning a cutting board in the store’s back 

washroom when the robberies began, but she later saw White approach the 

deli counter with a gun pulled out. According to Vanessa, White had a blue 

bandana covering his face and a hoodie pulled over his head. White pointed 

the gun at her and demanded that she come from the washroom up to the 

front. She complied and exited the washroom with her hands up. After 

Vanessa exited the washroom, she saw White go behind the store’s video 

rental counter where Hall was situated. White shouted, “Where is the safe? 

I know you have a safe. Is it in the back?” According to Vanessa, Hall 
5

replied, “No. I don’t have anything. There is no safe.” A few seconds later, 

White shot Hall in the face. White then ran to the front of the store, shot 

Gregorio in the back of the head, and fled the store. 

A customer and her friend’s teenage son drove into the Cee Vee Liquor 

parking lot while, unbeknownst to them, the robberies were ongoing. As the 

customer pulled in, she noticed a white car in the parking lot. The customer 

entered the store with her friend’s son, saw Hall and Gregorio holding their 

hands in the air, and saw two men wearing bandanas. One man (White) was 

running around the store. The second man (Allan) left the store carrying an 

armful of lottery tickets. The customer put her hands up, moved into an aisle 

with her friend’s son, and the two of them overheard the first man 

demanding money and the store safe. The customer heard gunfire and ran

for safety with her friend’s son into a back room. 

A second customer pulled his truck into the parking lot and parked in 

front of Cee Vee Liquor as the robberies were ongoing. As he drove into the 

parking lot, he noticed a white car 100 to 150 feet away, which slowly pulled 

up behind him as he entered the parking lot. The witness started to exit his 

truck, but heard “two pops” from the store that “sounded like gunshots.” 

Soon after, a black man exited the store. He wore a bandana across his face 

and held a gun in his hand. According to the witness, someone shouted

something from the white car, though he did not know what it was. The 

witness dove back into his truck and did not see where the man with the gun 

went.

c. Post-Robbery Evidence

Surveillance footage obtained from a convenience store in Corona, 

California, captured Allan and Richardson cashing in some of the stolen 

lottery tickets about two hours after the Cee Vee Liquor robberies. 
6

d. Custodial Interview of Allan

About a month after the robberies, law enforcement apprehended Allan

in Arizona. Detectives Dennis Florence and Scott Shultz of the San 

Bernardino Sheriff’s Department went to Arizona and, after providing Allan 

an advisement under Miranda v. Arizona (1966) 384 U.S. 436, conducted a 

custodial interrogation of Allan that was recorded and played for the jury. 

During the interrogation, Allan identified himself and White as the 

perpetrators of the robberies from photos taken from the store’s surveillance 

footage. According to Allan, he and Richardson went together to Cee Vee 

Liquor the night of the robberies to buy food and a cigar, respectively. 

Richardson then came up with the plan to rob the store because he thought it

would “be a good idea” and the store would be an “easy” target. About fifteen 

to thirty minutes after they initially went into Cee Vee Liquor, they picked 

up White from “around the corner” in their white rental Toyota Corolla. They 

drove around, talked about the robbery, returned to the store’s parking lot, 

and committed to robbing the store together. Allan knew White had a gun, 

but claimed he thought it was “a little fake gun,” like a “chrome cap gun.” 

Allan stated he put a bandana on and followed White into the store 

while Richardson remained in the getaway car. Allan stood near the door, 

demanded money from the store employees, and collected money and lottery 

tickets from them. He lost track of White during the robbery, at which point

he ran outside and jumped into the backseat of the getaway car. According to 

Allan, Richardson drove away, but he drove the car up onto a bump or curb, 

so Allan swapped seats with him. Allan drove the car back around to Cee 

Vee Liquor, picked up White, and drove to Richardson’s home in Corona, 

where they checked their stolen scratcher lottery tickets to see if they had 

won any money. Later that night, Allan and Richardson cashed in their 
7

winning lottery tickets at a convenience store. Allan denied hearing any 

gunshots and denied knowing anyone had died during the robberies. 

2. Defense Case

Allan testified in his own defense. He testified he went to Cee Vee 

Liquor with Richardson about twenty minutes before the robberies to buy 

food. He testified they picked up White after their stop and formed a plan to 

rob the store. According to Allan, their plan called for Allan to enter the store

while wearing a bandana, intimidate the store occupants, and demand 

money; for White to enter the store and steal merchandise; and for 

Richardson to drive the getaway car. He testified White offered him a 

realistic-looking fake gun to use during the robberies, but he declined it. 

Allan testified he exited the car to eat some food and White proceeded 

into the store. He told the jury that he quickly grabbed a white shirt from 

the car, turned it into a face covering, and followed White into the store. He 

stated that he heard White demand money from the store employees and that 

he demanded money from Gregorio. Allan testified Hall and Gregorio 

complied with their demands and put money and lottery tickets into bags, 

which he grabbed. 

Allan testified he saw White go behind the deli counter, he called out 

for White twice, and then he ran out of the store. Allan said he saw a 

customer and her son as he exited the store and then jumped in the getaway 

car, which Richardson drove away. According to Allan, Richardson drove to a 

friend’s house six or eight houses away, where they waited for a few minutes. 

Allan and Richardson swapped spots in the getaway car, returned to the 

store, and picked up White as he ran out of the parking lot. Afterwards, they 

went to Richardson’s home to scratch their stolen lottery tickets. 
8

B. Senate Bill No. 1437

“Under the felony-murder doctrine as it existed at the time of [Allan’s]

trial, ‘when the defendant or an accomplice kill[ed] someone during the 

commission, or attempted commission, of an inherently dangerous felony,’ the 

defendant could be found guilty of the crime of murder, without any showing 

of ‘an intent to kill, or even implied malice, but merely an intent to commit 

the underlying felony.’ [Citation.] Murders occurring during certain violent 

or serious felonies were of the first degree, while all others were of the second 

degree.” (People v. Strong (2022) 13 Cal.5th 698, 704 (Strong).)

After Allan’s judgment became final, the Legislature approved Senate 

Bill No. 1437, which went into effect January 1, 2019. Senate Bill No. 1437 

“significantly limited the scope of the felony-murder rule to effectuate the 

Legislature’s declared intent ‘to ensure that murder liability is not imposed 

on a person who is 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.’ ” (Strong, supra, 13 Cal.5th at pp. 707–708 

[quoting Stats. 2018, ch. 1015, § 1, subd. (f)].) “Penal Code section 189, as 

amended, now limits liability under a felony-murder theory principally to 

‘actual killer[s]’ [citation] and those who, ‘with the intent to kill,’ aid or abet 

‘the actual killer in the commission of murder in the first degree’ [citation]. 

Defendants who were neither actual killers nor acted with the intent to kill 

can be held liable for murder only if they were ‘major participant[s] in the 

underlying felony and acted with reckless indifference to human life, as 

described in subdivision (d) of [Penal Code] Section 190.2’—that is, the 

statute defining the felony-murder special circumstance.” (Id. at p. 708.)

Senate Bill No. 1437 also created a procedure, now codified in 

section 1172.6, which allows persons convicted of felony murder under the 

former murder laws to petition for retroactive relief under the amended 
9

murder laws. (Stats. 2018, ch. 1015, § 4.) A petitioner initiates the process 

by filing a declaration averring he or she is eligible for relief because: (1) a 

charging document was filed against the petitioner allowing the prosecution 

to proceed under a felony murder theory; (2) the petitioner was convicted of 

murder after a trial or accepted a plea offer at which the petitioner could 

have been convicted of murder; and (3) the petitioner could not presently be 

convicted of murder because of the changes to the state’s murder laws that 

were implemented by Senate Bill No. 1437. (§ 1172.6, subds. (a)(1)–(3), 

(b)(1).) If the petitioner states a prima facie case for relief, the court must 

issue an order to show cause and, in most cases, schedule an evidentiary 

hearing to determine whether to vacate the murder conviction, recall the 

sentence, and resentence the petitioner on any remaining counts. (Id., 

subds. (c), (d)(1).)4

At the evidentiary hearing, the prosecution bears the burden of 

proving, beyond a reasonable doubt, that the petitioner is guilty of murder 

under the amended murder laws. (§ 1172.6, subd. (d)(3).) “The admission of 

evidence in the hearing shall be governed by the Evidence Code, except that 

the court may consider evidence previously admitted at any prior hearing or 

trial that is admissible under current law, including witness testimony, 

stipulated evidence, and matters judicially noticed. The court may also 

consider the procedural history of the case recited in any prior appellate 

opinion.” (Ibid.) The parties may also offer new evidence or evidence in 

addition to that which was considered at the murder trial. (Ibid.) “If the 

prosecution fails to sustain its burden of proof, the prior conviction, and any 

4 In 2021, the Legislature approved Senate Bill No. 775 (2021–2022 Reg. 

Sess.), which amended section 1172.6 to allow persons convicted of attempted 

murder or manslaughter to seek resentencing as well. (Stats. 2021, ch. 551, 

§ 2.)
10

allegations and enhancements attached to the conviction, shall be vacated 

and the petitioner shall be resentenced on the remaining charges.” (Ibid.)

C. The Resentencing Proceeding

On August 10, 2020, Allan petitioned for resentencing under 

section 1172.6. The trial court scheduled a hearing to determine whether he 

stated a prima facie case for relief, but due to an apparent scheduling 

miscommunication, neither party attended the hearing. Nonetheless, the 

court proceeded with the hearing and found Allan failed to state a prima facie 

case for relief. Allan moved for reconsideration of the summary denial order, 

which the court granted. Thereafter, the court accepted a stipulation from 

the parties attesting that Allan stated a prima facie case for relief. The court 

issued an order to show cause and set the matter for an evidentiary hearing. 

At the evidentiary hearing, the prosecution rested its case exclusively

on the record of conviction from Allan’s murder trial. By contrast, Allan 

relied on the record of conviction and also sought to admit new evidence. 

In particular, Allan requested that the trial court consider recorded 

statements White made to Detectives Florence and Shultz during a custodial 

interview conducted prior to trial. White told the following story during his 

interview. On the night of the robberies, Richardson and Allan picked White

up from a friend’s house and called him outside to their vehicle, where 

Richardson proposed they rob Cee Vee Liquor because it would be a “perfect 

lick” and a “clean get away.” Richardson stated it was a “cool deal” and “no 

matter what happens you gonna get away, you can kill everybody in the store 

and you will still get away clean ain’t nothing gonna ever happen.” 

Richardson, Allan, and White drove to Cee Vee Liquor and parked in 

front of the store. Richardson sat in the driver seat, Allan sat in the front 

passenger seat, and White sat in the backseat. The three defendants started 

getting cold feet about the robbery, which caused Richardson to say, “Man, I 
11

got this gun for nothin’ .... Man nah we goin’ to do this.” They started circling

around the parking lot, driving “back and forth, back and forth,” while

Richardson told White and Allan what they should do during the robbery. At 

some point, they reparked the vehicle at the store and Richardson offered a 

gun to Allan, but Allan did not take the gun because he was “goin’ straight” 

and he was not “going there.” Richardson “pointed [White’s] way” and White 

took the gun and a face covering. While Richardson discussed the planned

robberies, he stated, “[T]ell them to put they hands up .... [T]ell them to give 

you the money .... [T]hey get in your way shoot ‘em .... [T]hey get in your way 

shoot ‘em ... it’s one of the smallest guns made so no matter where you shoot 

him at it won’t kill him but aim for the head or the heart ....” 

White entered the liquor store and Allan followed him inside. White 

went to the back of the store, jumped onto the counter, demanded money and 

lottery tickets from the store occupants, and jumped down from the counter. 

He looked around and did not see his brother, so he froze up and panicked. 

He then shot both Gregorio and Hall because Richardson had told him, “if 

they get in your way shoot ‘em ....” White ran out of the store and jumped 

into the getaway car, which Allan was now driving. Richardson, who was 

seated in the backseat, demanded the gun back from White. White gave the 

gun to Richardson and the three perpetrators fled the crime scene. 

In addition to relying on White’s custodial statements to Detectives

Florence and Shultz, Allan sought to admit evidence from three new 

witnesses. First, he sought to elicit testimony from Dr. Marshall 

Hennington, a jury and trial consultant. He made an offer of proof 

Dr. Hennington would testify that Allan’s jury was “conflicted” about whether 

to find him guilty of felony murder, given that it deliberated for a relatively 

lengthy period of time (four days) and sent notes to the court requesting 
12

clarification on the meaning of certain jury instructions. The prosecution 

objected to Dr. Hennington’s testimony as irrelevant and speculative. The 

court sustained the relevance objection and precluded Dr. Hennington from

testifying. 

Second, Allan sought to elicit testimony from Gregory Frost, a private 

investigator who interviewed White from prison before the hearing. 

According to Allan, White told Frost that Allan, White, and Richardson were 

all seated in a vehicle outside the liquor store before the robberies. Allan 

purportedly stepped out of the vehicle to make a phone call, and—while Allan

was outside the car—Richardson asked White whether he needed a gun for 

the robberies. White allegedly replied, “No, don’t trip.” White also told Frost 

that White had a reputation for possessing fake guns and he tried to give 

Allan a fake gun before the robberies, but Allan refused the offer. Finally, 

White told Frost that Allan was not in the liquor store when the shootings 

took place and he did not know White had shot anyone. The prosecution 

objected to the testimony on hearsay grounds. The court opined that the 

testimony potentially might fall within the hearsay exception for declarations 

against interest, allowed Frost to testify, and reserved a ruling on the 

prosecution’s hearsay objection until after it received Frost’s testimony. 

Third, Allan sought admission of a forensic mental health assessment 

prepared by Dr. Michael Perrotti, a clinical and forensic neuropsychologist

who interviewed Allan. In his assessment, Dr. Perrotti opined that Allan 

perpetrated the robberies when he was financially insecure and suffering 

from a serious health condition. He also stated Allan was timid, which made 

him “vulnerable” to complying with the demands of dominant people. The 

prosecution objected to the assessment as irrelevant. The court opined it did 

not “see the relevance” of the assessment, but deferred a ruling on the 
13

objection. The court stated Allan could “make reference to portions of his 

report” during the hearing. It also stated it would “listen to [the parties’] 

arguments and references,” and thereafter “determine whether or not [it] 

believe[d] [the report] to be helpful or reasonable for the [c]ourt to consider.” 

After the court made its evidentiary rulings, Allan’s counsel discussed 

the trial evidence at length and argued why, in the defense’s view, it showed 

Allan was not a major participant in the robberies who acted with reckless 

indifference for human life. While discussing the evidence of his mental 

state, Allan’s counsel referenced Dr. Perrotti’s evaluation and his analysis of 

the “stressors” Allan was allegedly experiencing at the time he perpetrated 

the robberies. The court did not exclude the evaluation or preclude Allan

from referencing it.

Thereafter, Allan called investigator Frost to the witness stand. Allan’s 

counsel tried to ask Frost a series of questions about the statements White 

purportedly made to him during their interview, including whether White 

said: (1) he had a conversation with Richardson about a gun before the 

robberies; (2) he tried to give Allan a fake gun; and (3) there was “a plan to 

hurt anyone” during the robberies. The court sustained hearsay objections to 

each of these questions. In doing so, the court rejected Allan’s claim the 

statements were declarations against White’s interest and, therefore, 

admissible under a hearsay exception. The court reasoned that the 

statements were not against White’s penal interest because he had already 

been convicted of the murders of Hall and Gregorio, his appeal from those

convictions was final, and he had not filed a petition for resentencing of the

murder convictions under section 1172.6. 

After the hearing, the court issued a written order denying Allan’s

petition for resentencing. In its order, the court found Allan was ineligible for 
14

relief because the prosecution proved, beyond a reasonable doubt, that he was 

a major participant in the robberies during which Hall and Gregorio were 

killed, and he acted with reckless disregard for human life. 

III

DISCUSSION

A. Substantial Evidence Supported the Court’s Finding That Allan Was 

Guilty of Felony Murder Under the State’s Amended Murder Laws

Allan’s primary argument on appeal is that the evidence adduced at the 

evidentiary hearing was insufficient to support the trial court’s determination

that he was guilty of the felony murders of Hall and Gregorio. Allan 

challenges the sufficiency of the evidence underpinning the court’s finding 

that he was a major participant in the robberies during which Hall and 

Gregorio were killed, as well as the court’s finding that he acted with reckless 

indifference to human life. As we will explain, we conclude the evidence was 

sufficient to sustain both of these findings.

1. Standard of Review

In assessing the sufficiency of the evidence to support the court’s 

findings, we apply the substantial evidence standard of review. (Montanez, 

supra, 91 Cal.App.5th at p. 270.) Under that deferential standard of review, 

“ ‘we must examine the record independently for “ ‘substantial evidence—that 

is, evidence which is reasonable, credible, and of solid value’ ” that would 

support a finding beyond a reasonable doubt.’ [Citation.] We must ‘review 

the whole record to determine whether any rational trier of fact could have 

found the essential elements of the crime ... beyond a reasonable doubt. 

[Citation.] ... [Citation.] In applying this test, we review the evidence in the 

light most favorable to the prosecution and presume in support of the 

judgment the existence of every fact the [trier of fact] could reasonably have 

deduced from the evidence. [Citation.] “Conflicts and even testimony [that] 
15

is subject to justifiable suspicion do not justify the reversal of a judgment, for 

it is the exclusive province of the trial judge or jury to determine the 

credibility of a witness and the truth or falsity of the facts upon which a 

determination depends.” ’ ” (Id. at p. 270.) “ ‘ “A reversal for insufficient 

evidence ‘is unwarranted unless it appears “that upon no hypothesis 

whatever is there sufficient substantial evidence to support” ’ ” ’ the 

factfinder’s decision.” (Id. at p. 271.)

2. Substantial Evidence Supported the Court’s Finding That Allan was 

a Major Participant in the Robberies

Allan argues substantial evidence did not support the court’s finding 

that the prosecution proved, beyond a reasonable doubt, that he was a major 

participant in the robberies during which Hall and Gregorio were killed. 

In People v. Banks (2015) 61 Cal.4th 788 (Banks), our Supreme Court 

identified a non-exhaustive list of factors relevant to whether a defendant is a 

major participant in a crime. The factors in a major participant analysis 

include: the role the defendant had in planning the criminal enterprise that 

led to one or more deaths; the role the defendant had in supplying or using 

lethal weapons; the awareness the defendant had of particular dangers posed 

by the nature of the crime, weapons used, or past experience or conduct of the 

other participants; whether the defendant was present at the scene of the 

killing, in a position to facilitate or prevent the actual murder, or played a 

particular role in the death; and the defendant’s conduct after lethal force 

was used. (Id. at pp. 799–803.) “No one of these considerations is necessary, 

nor is any one of them necessarily sufficient. All may be weighed in 

determining the ultimate question, whether the defendant’s participation ‘in 

criminal activities known to carry a grave risk of death’ [citation] was 

sufficiently significant to be considered ‘major[.]’ ” (Id. at p. 803.)
16

We turn now to the evidence relevant to each Banks factor and review 

it in the light most favorable to the prosecution, as the prevailing party.

• Allan’s Planning Role: There was extensive evidence Allan 

played a material role in planning the robberies that culminated in the

killings of Hall and Gregorio. In both his trial testimony and his custodial 

statements to Detectives Florence and Shultz, Allan admitted that all three 

perpetrators—himself, White, and Richardson—formulated the robbery plan, 

which envisioned Allan and White entering the store wearing bandanas, 

Allan intimidating the store occupants and stealing their money, and 

Richardson acting as the getaway driver. Similarly, in his custodial 

statements to Detectives Florence and Shultz, White stated that Allan was 

an active participant in the robbery planning process and he even solicited 

White’s help in perpetrating the robberies.

In addition to the inculpatory testimony and statements of Allan and 

White, there was also circumstantial evidence that the three perpetrators 

deliberated their plan beforehand, including evidence they drove their car 

back and forth near the store multiple times, and entered, exited, and reentered the parking lot, prior to the robberies. Further, surveillance footage 

depicted Allan in Cee Vee Liquor about twenty minutes before the robberies. 

Given the close temporal proximity between Allan’s visit to the store and the 

subsequent robberies, a rational trier of fact could find he was casing the 

store during his initial visit in anticipation of the robberies. The substantial

evidence of thoughtful and considered planning weighs heavily in favor of a 

finding that Allan was a major participant in the robberies.

• Allan’s Use or Supply of Lethal Weapons: Although White used a 

lethal firearm during the robberies, there was no evidence Allan used a lethal 

weapon or supplied White with a firearm. Thus, this factor does not support 
17

a major participant finding. However, “no one Banks factor is necessarily 

dispositive [citation], and the evaluation of a felony-murder aider and 

abettor’s culpability requires a ‘fact-intensive, individualized inquiry[.]’ ” 

(Montanez, supra, 91 Cal.App.5th at p. 271.) Therefore, the evidence relating 

to the second Banks factor does not preclude a finding that Allan was a major 

participant in the robberies. (Ibid. [affirming denial of resentencing petition 

despite absence of inculpatory evidence relating to second Banks factor].)

• Allan’s Knowledge of the Dangers Posed: Regarding the third 

Banks factor, there was no evidence Allan was aware of any particular 

dangers posed by his accomplices to the robberies, White and Richardson. On 

the other hand, there was evidence Allan was aware of the particular dangers 

associated with the robberies he and his accomplices were about to 

perpetrate. Allan admitted that, during the planning stage of the robberies, 

White produced a gun and offered it to him to use during the robberies. 

Although Allan purportedly declined the offer, a reasonable fact finder could 

conclude that he was aware, or should have been aware, that White would 

carry, and potentially use, the gun he had just offered to Allan. Further, 

while Allan claimed to believe the gun offered to him was a “fake gun,” or a 

“cap gun,” the trial court was not required to believe Allan’s self-serving 

testimony, and it reasonably could have discredited that portion of his 

testimony accordingly. (In re Lopez (2023) 14 Cal.5th 562, 591 [“It is well 

settled that [a fact finder] has wide latitude to believe or disbelieve witnesses, 

or even specific portions of their testimony, as it sees fit.”].) 

During White’s interview with Detectives Florence and Shultz—an 

interview the defense itself asked the court to consider at the evidentiary 

hearing—White also made inculpatory statements showing Allan was aware 

the robberies might turn extremely dangerous and even deadly. According to 
18

White, all three perpetrators discussed the robberies in their vehicle before 

White and Allan entered the liquor store. During those discussions, 

Richardson stated, “you can kill everybody in the store and you will still get 

away clean ain’t nothing gonna ever happen.” Then, while Allan was still 

present in the vehicle, Richardson gave White a firearm and instructed him 

to shoot anyone who got in his way and “aim for the head or the heart ....” 

These incriminating admissions establish that violence was not merely an 

unplanned consequence of the armed robberies Allan and his cohorts were

about to perpetrate. Rather, it was an outcome the perpetrators anticipated 

and even planned for if complications were to arise during the robberies. 

• Allan’s Presence at the Crime Scene: It was undisputed that 

Allan was present inside Cee Vee Liquor—actively participating in the 

robberies by intimidating the store occupants, demanding their money, and 

collecting money and lottery tickets from them—until mere moments before 

White shot and killed Hall and Gregorio. Moreover, according to Allan 

himself, the store’s surveillance footage showed that White drew his firearm 

while Allan was still in the store. Rather than attempting to diffuse the 

situation, trying to persuade White to holster his firearm or hand it over to 

him, or otherwise acting as a moderating force, Allan fled and left the store 

occupants alone with an armed and increasingly rattled White. Allan’s 

presence “at the crime scene for the ‘ “entire sequence of criminal activity” ’

leading up” to the shootings supports a finding that he “had the ability and 

opportunity to help reduce the foreseeable risk [White] would use lethal force 

against the victims, and yet [Allan] did nothing.” (Montanez, supra, 91

Cal.App.5th at p. 279 [rejecting petitioner’s claim that he could not have done 

anything to mitigate the possibility of violence because he fled the immediate 

crime scene shortly before his accomplice fired a fatal gunshot]; see also In re 
19

Harper (2022) 76 Cal.App.5th 450, 462 (Harper) [petitioner was major 

participant in robbery because, “despite being at the scene of the robbery and 

close enough to hear the gunshot, ‘he made no attempt to help the victim’ ”].)

• Allan’s Conduct After the Use of Lethal Force: The final Banks

factor requires us to consider Allan’s conduct after lethal force was used. 

(Banks, supra, 61 Cal.4th at p. 803.) This factor slightly weighs in favor of a 

finding of major participation as well. According to Allan, he drove himself 

and his accomplices away from the crime scene in the getaway car after the 

robberies. Rather than trying to assist the victims or call medical attention 

for them, he and his companions fled and, thereafter, focused their attention 

on whether they had stolen winning scratcher lottery tickets. (See People v. 

Williams (2020) 57 Cal.App.5th 652, 664 [petitioner was ineligible for 

resentencing, in part, because he “admitted that after the shooting he and his 

accomplices fled the scene, from which the superior court could reasonably 

infer he did not call for assistance or attempt to render aid to the victim”].)

In his trial testimony and his custodial interviews, Allan denied 

knowing White had shot anyone at the time they fled—a denial he reiterates 

on appeal. However, there was circumstantial evidence from which a 

rational trier of fact could find, at the least, that he was aware White had 

shot his firearm and potentially harmed the store’s occupants. According to 

one witness, the getaway car was close enough to be visible when he pulled 

his pickup truck into the store parking lot, mid-robbery. He testified he 

heard “two pops” from the store that “sounded like gunshots,” White rushed 

out of the store holding a firearm, and the getaway car “came pulling up 

behind [him].” From this evidence, a trier of fact could reasonably find that

the occupants of the getaway car heard the gunshots—just like the witness 

did—and inferred that White had fired the gun he held in his hand.
20

Viewing all of this evidence in the light most favorable to the 

prosecution, and presuming in support of the denial order the existence of 

every fact the court could reasonably have deduced from the evidence, we 

conclude substantial evidence supported the finding that Allan was a major 

participant in the robberies during which Hall and Gregorio were killed.

3. Substantial Evidence Supported the Court’s Finding that Allan 

Acted with Reckless Indifference to Human Life

Allan also challenges the sufficiency of the evidence supporting the 

trial court’s finding that the prosecution proved, beyond a reasonable doubt, 

that he harbored the requisite mental state to be convicted of the felony 

murders of Hall and Gregorio. The court found Allan harbored the necessary 

mental state because he acted with reckless indifference to human life. 

In People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme Court 

elucidated the meaning of the mental state of reckless indifference to human 

life. According to Clark, the reckless indifference standard “encompasses a 

willingness to kill (or to assist another in killing) to achieve a distinct aim, 

even if the defendant does not specifically desire that death as the outcome of 

his actions.” (Id. at p. 617.) Clark identified the following non-exclusive 

considerations, many of which overlap with the Banks factors, as relevant to 

whether a defendant acts with reckless indifference to human life: the 

defendant’s knowledge that weapons would be used and/or his personal use of 

weapons; the defendant’s physical presence at the scene and his opportunity 

to restrain the killer or aid the victim; the duration of the felony; the 

defendant’s knowledge of his accomplice’s propensity to kill; and the 

defendant’s efforts to minimize the risk of violence in the commission of the 

felony. (Id. at pp. 618–623.) “Again, no single factor is necessary, nor is any 

one necessarily sufficient.” (Harper, supra, 76 Cal.App.5th at p. 460.)
21

• Allan’s Knowledge About Weapons: As noted in our discussion of 

the Banks factors, there was no evidence Allan used a weapon during the 

robberies. However, there was evidence from which a rational factfinder

could conclude Allan was aware, or should have been aware, that White 

would use the firearm that had been offered to Allan prior to the robberies. 

As noted, White admitted in his interview with Detectives Florence and 

Shultz that the three perpetrators discussed the robberies beforehand, had 

misgivings about the robberies, and debated whether to proceed with them. 

According to White, those discussions took place while all three perpetrators 

were in their vehicle, including when they were parked in front of the liquor 

store and circling the parking lot. During those discussions, Richardson

bragged they could “kill everybody in the store” and still get away with their 

crimes. He also admonished White, in Allan’s presence, to shoot anyone who 

got in their way and to “aim for the head or the heart ....” These statements 

constitute compelling evidence that Allan and his associates harbored a 

“willingness to kill (or to assist another in killing)” in furtherance of their 

plan to rob the liquor store. (Clark, supra, 63 Cal.4th at p. 617.)

• Allan’s Presence at the Crime Scene: “ ‘[T]he defendant’s 

presence allows him to observe his cohorts so that it is fair to conclude that 

he shared in their actions and mental state. ... [Moreover,] the defendant’s 

presence gives him an opportunity to act as a restraining influence on 

murderous cohorts. If the defendant fails to act as a restraining influence, 

then the defendant is arguably more at fault for the resulting murders.’ ” 

(Clark, supra, 63 Cal.4th at p. 619.) Allan’s presence inside Cee Vee Liquors

during the robberies weighs in favor of the finding of reckless indifference to 

human life. Although Allan fled the store immediately before the shootings, 

his failure to act as a moderating force before his flight, and his inaction 
22

when White pulled out a firearm, evinced a reckless disregard for human life. 

(Montanez, supra, 91 Cal.App.5th at p. 279 [petitioner’s presence during 

crimes displayed reckless indifference, even though he fled the murder scene 

moments before the fatal shooting].)

• Duration of the Felony: There is no evidence the robberies were 

protracted, such that there was a greater window of violence. However, the 

relatively brief duration of the crimes does not preclude a finding of reckless 

indifference, given the multi-factored nature of the reckless indifference 

inquiry. (People v. Mitchell (2022) 81 Cal.App.5th 575, 594 (Mitchell).) 

Further, while the duration of the robberies was not especially lengthy, 

a reasonable fact finder could certainly conclude the timing of the robberies 

substantially contributed to an increased risk of violence for the store 

employees and customers. Allan and his compatriots perpetrated the 

robberies at issue while Cee Vee Liquor was open for business, when multiple 

store employees were still on-site and customers could—and in fact did—

enter the store unknowingly as the robberies were ongoing.5 “[T]he plan to 

commit the robbery of the [store] during normal business hours when 

customers would likely be present, posed obvious and extreme risks of lethal 

violence.” (People v. Owens (2022) 78 Cal.App.5th 1015, 1024.)

• Allan’s Knowledge of his Accomplice’s Propensity to Kill: As 

discussed in the Banks analysis, there was no evidence Allan was aware of 

White’s propensity to kill or use violence force.

• Allan’s Efforts to Minimize the Risk of Violence: The final Clark 

factor slightly weighs in favor of the trial court’s reckless indifference finding. 

As we have discussed, there was no evidence Allan took efforts to minimize 

the risk of violence, even after he was offered a gun to use during the

5 At trial, Vanessa testified Cee Vee Liquor closed at 10:00 p.m.
23

robberies, Richardson instructed White to shoot any witnesses who got in the 

way, and White pulled out a gun during the robberies. On the contrary, 

Allan proceeded with the armed robberies despite the likelihood that lethal 

force would be used and, after White drew his firearm, he fled the crime 

scene and left the defenseless store occupants to fend for themselves.

• Allan’s Youth: Since Clark, courts have identified “an additional 

factor that may be relevant to the reckless indifference analysis—the 

defendant’s youth. ‘It is well recognized that “[c]hildren ‘generally are less 

mature and responsible than adults’ ” and “ ‘often lack the experience, 

perspective, and judgment to recognize and avoid choices that could be 

detrimental to them’ ....” [Citation.] As a result, “[t]he law has historically 

reflected the same assumption that children characteristically lack the 

capacity to exercise mature judgment and possess only an incomplete ability 

to understand the world around them.” ’ ” (People v. Keel (2022) 84 

Cal.App.5th 546, 558, quoting In re Moore (2021) 68 Cal.App.5th 434, 453; see 

People v. Ramirez (2021) 71 Cal.App.5th 970, 990–991 (Ramirez); Harper, 

supra, 76 Cal.App.5th at p. 466, fn. 8.) On appeal, Allan claims the trial

court “blatantly ignored” the fact he was 19 years old when he committed the

robberies at issue. 

We discern no error. The trial court did not expressly discuss Allan’s 

age in its order denying the petition for resentencing. However, “a court’s 

‘failure to “discuss” a particular standard does not imply it applied an 

incorrect standard. Error on appeal must be affirmatively shown by the 

record, and “[w]e presume the trial court knew and properly applied the law 

absent evidence to the contrary.” ’ ” (People v. Johnson & Johnson (2022) 77 

Cal.App.5th 295, 322; see People v. Jones (2022) 86 Cal.App.5th 1076, 1092 

[“In the usual case, the fact that a court did not specifically mention certain 
24

evidence does not mean that the court ‘ignored’ that evidence.”].) Allan has 

not directed us to anything in the appellate record indicating the court 

ignored or failed to consider Allan’s age when rendering its decision. 

Further, while Allan’s youth might be relevant to his mental state, it is 

not decisive of whether he acted with reckless indifference to human life. 

(Harper, supra, 76 Cal.App.5th at p. 470; see Mitchell, supra, 81 Cal.App.5th 

at p. 595 [“The fact of youth cannot overwhelm all other factors.”].) Here, the 

trial court properly found Allan acted with reckless indifference to human life

in light of all of the pertinent evidence, including the evidence that Allan 

knew White was armed with a firearm, he knew Richardson directed White 

to shoot obstructionist witnesses, he was present at the crime scene when

White had his gun drawn, he participated in the robberies during normal 

store hours with both employees and customers present, and he took little or 

no effort to minimize the risk of violence.

Viewing all of this evidence in the light most favorable to the 

prosecution, we conclude the evidence was sufficient to support the trial 

court’s finding that the prosecution proved, beyond a reasonable doubt, that 

Allan acted with reckless indifference to human life.

B. The Trial Court Properly Relied on the Record of Conviction to 

Adjudicate Allan’s Petition for Resentencing

In addition to challenging the sufficiency of the evidence to support the 

order denying the petition for resentencing, Allan argues the trial court 

violated his due process rights by relying on two improper sources to justify 

its denial order—(1) the trial court’s independent memory from the murder 

trial; and (2) the recitation of facts from our prior appellate opinion affirming 

Allan’s felony murder convictions, White, supra, D059000, D059032. The 

appellate record refutes Allan’s unsupported arguments.
25

1. The Trial Court Did Not Rely on its Independent Memory

At a hearing on a resentencing petition, “the court may consider 

evidence previously admitted at any prior hearing or trial that is admissible 

under current law, including witness testimony, stipulated evidence, and 

matters judicially noticed. The court may also consider the procedural 

history of the case recited in any prior appellate opinion.” (§ 1172.6, 

subd. (d)(1)(3).) Further, the parties may “offer new or additional evidence,” 

which the court may consider when rendering its decision. (Ibid.) However, 

section 1172.6 does not allow a court to rely on its own recollection of the 

evidence from the petitioner’s murder trial when it decides a petition for 

resentencing. (See People v. Tarkington (2020) 49 Cal.App.5th 892, 910, 

fn. 15 [“Memory is fallible, and obviously does not suffice” when a court 

conducts a prima facie review of a petition for resentencing], abrogated on 

another ground in People v. Lewis (2021) 11 Cal.5th 952.)

Allan notes that, at points during the prima facie review hearing and 

the evidentiary hearing, the court referenced its memory of his murder trial, 

which the court oversaw. Based on these references, Allan speculates the 

court must have relied on its recollection of the trial to deny his resentencing

petition, rather than basing its decision on the record of conviction and new

evidence. The problem with Allan’s argument is that the court expressly and 

repeatedly stated it was not relying on its memory of the trial.

For instance, near the end of the evidentiary hearing, Allan argued, 

“[A] judge cannot use their memory to go off of ... and they should use the 

actual record, which is the trial transcript, reporter’s transcripts, clerk’s 

transcripts, Court of Appeal opinion ....” In response, the court stated it was 

not basing its decision on its own memory. It said, “Unfortunately, I can’t try 

cases and then be, 20 years ago or whatever it is, and then not remember 

when it’s thrown in my face. So it’s not that I am using my memory to 
26

determine exactly what the facts are. As you properly beat the facts back into 

my head from each side, and since there are multiple defendants in this case 

and I’ve had to listen to it, kind of more than one case, it reminds me of the 

testimony. ... So that’s the only thing I say. ... I remember when somebody 

starts talking to me about it, the facts of the case, and that’s all I meant to 

say.” (Italics added.)

In the subsequent order denying the petition for resentencing, the court 

addressed the issue again, stating, “During argument by counsel and based 

upon the court’s review of the case, I reflected on my personal memory of the 

case, that had been refreshed due to the argument and briefing by counsel. 

Even though that did occur and I informed counsel that this jogged my 

memory of the facts, I am specifically excluding personal memory of the facts 

of the case and my determination is based solely upon the record of conviction

as well as the briefing and argument by counsel.” (Italics added.)

Absent evidence to the contrary, we presume the court did what it said 

it did, and based its decision on the record of conviction and the new evidence

offered by the parties—not its memory of the murder trial. (People v. Lucero

(2000) 23 Cal.4th 692, 736 [“it is reasonable to assume the court followed its 

own instruction”]; People v. Cain (1995) 10 Cal.4th 1, 81 [assuming court 

based its order solely on evidence from trial because it stated it “ ‘base[d] [its] 

ruling entirely upon the evidence that was presented in the trial’ ”].)

2. The Trial Court Did Not Rely on Facts from the Appellate Opinion

As noted, a court conducting an evidentiary hearing on a resentencing 

petition under section 1172.6 may “consider the procedural history of the case 

recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3).) However, 

“the factual summary in an appellate opinion is not evidence that may be 

considered at an evidentiary hearing to determine a petitioner’s eligibility for 

resentencing.” (People v. Flores (2022) 76 Cal.App.5th 974, 988.)
27

In its order denying Allan’s petition for resentencing, the trial court 

stated it “reviewed the unpublished opinion affirming [Allan’s] conviction 

together with the entire record of conviction ....” Based on this statement, 

Allan hypothesizes that the court impermissibly relied on the factual 

recitation from our prior appellate opinion when it denied resentencing. 

We reject this unsubstantiated argument. The trial court did not state 

that it relied on the factual recitation from our prior opinion to render its own 

factual findings; rather, it stated it “reviewed” our prior opinion. This could 

simply mean the court reviewed and relied on the procedural history section 

from our prior opinion; or, alternatively, it reviewed our entire prior decision, 

but relied only on the procedural history section from our opinion, or on no 

part of the opinion at all. In either event, such a review would not violate the 

resentencing statute or Allan’s due process rights. (§ 1172.6, subd. (d)(3).) 

Further, as just noted, the court expressly stated its decision was “based 

solely upon the record of conviction” and counsel’s briefing and arguments. 

Because Allan has not directed us to anything in the record suggesting 

the trial court relied on the factual recitation from our prior appellate 

opinion, we reject Allan’s argument that the court relied on an impermissible 

source when rendering its decision on his petition for resentencing. (People v.

Clements (2022) 75 Cal.App.5th 276, 292–293 [“Clements has not identified 

any portion of our prior opinion that the trial judge relied upon, so she’s 

provided no basis for overturning the trial judge’s ruling on the ground that it 

reached its ultimate conclusion that she was not entitled to relief based on 

information in our prior opinion rather than information in the trial 

transcripts the parties submitted for the trial court’s decisions.”].)

C. The Trial Court’s Evidentiary Rulings Were Proper

Finally, Allan challenges several evidentiary rulings the trial court 

made at the hearing on his petition for resentencing. In particular, he argues 
28

the court erred in sustaining the prosecution’s relevance objection to 

Dr. Hennington’s testimony, sustaining the prosecution’s hearsay objection to 

portions of investigator Frost’s testimony, and limiting his use of 

Dr. Perrotti’s forensic mental health assessment. We disagree with Allan 

and conclude the trial court’s evidentiary rulings were proper.

1. Legal Standards

At a hearing on a petition for resentencing, the parties may introduce 

new evidence or evidence in addition to that which was admitted at the 

petitioner’s trial, but the admissibility of such evidence is governed by the 

relevance and admissibility rules set forth in the Evidence Code. (§ 1172.6, 

subd. (d)(3); see Mitchell, supra, 81 Cal.App.5th at p. 586 [section 1172.6 

“specifies the Evidence Code governs the admissibility of evidence”].)

Under the Evidence Code, “No evidence is admissible except relevant 

evidence.” (Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence, 

including evidence relevant to the credibility of a witness or hearsay 

declarant, having any tendency in reason to prove or disprove any disputed 

fact that is of consequence to the determination of the action.” (Id., § 210.) 

“Except as otherwise provided by statute, all relevant evidence is admissible.” 

(Id., § 351.) “We review a trial court’s ruling on the admissibility of evidence 

for abuse of discretion.” (People v. Ng (2022) 13 Cal.5th 448, 540 (Ng).)

2. Dr. Hennington

At the evidentiary hearing, Allan made an offer of proof 

Dr. Hennington would testify the jury from his trial was “conflicted” about 

whether to convict him of felony murder. Dr. Hennington based this opinion 

on factors including the duration of the jury’s deliberations and the jury’s

request for clarification about the meaning of certain jury instructions. The 

prosecution objected to the proposed testimony on relevance grounds and the 
29

trial court sustained the objection. The trial court did not abuse its discretion 

by concluding that Dr. Hennington’s proposed testimony was irrelevant.

At an evidentiary hearing on a petition for resentencing, the 

prosecution bears the burden of proving, “beyond a reasonable doubt, that the 

petitioner is guilty of murder or attempted murder under California law,” as 

amended by Senate Bill No. 1437. (§ 1172.6, subd. (d)(3).) The trial court 

“acts as an independent fact finder and determines whether the People have 

met their burden in proving the defendant guilty of murder under the revised 

felony-murder law.” (People v. Saibu (2022) 81 Cal.App.5th 709, 737; 

Ramirez, supra, 71 Cal.App.5th at p. 984 [“ ‘it is the [trial] court’s 

responsibility to act as independent fact finder and determine whether the 

evidence establishes a petitioner would be guilty of murder under amended 

sections 188 and 189 and is thus ineligible for resentencing’ ”].) Thus, as 

relevant to this case, the trial court was required to decide, based on the 

evidence adduced at the hearing, whether Allan was a major participant in 

the underlying robberies who acted with reckless indifference to human life.

Because the trial court sits as an independent fact finder at an 

evidentiary hearing under section 1172.6, there was no relevance to 

Dr. Hennington’s proposed testimony that the jury from Allan’s trial was 

conflicted about his guilt. Even if we accept as true that the testimony would 

have established that the fact finder from Allan’s trial—the jury—was 

conflicted about whether to convict him of felony murder, such testimony

would have had no tendency to prove or disprove any disputed fact to be 

decided by the independent fact finder at the evidentiary hearing—the court. 

In particular, it sheds no light on whether Allan was a major participant in 

the robberies who acted with reckless disregard for human life, nor on any 

other fact in dispute at the evidentiary hearing. Because Dr. Hennington’s 
30

testimony had no tendency to prove or disprove any disputed fact, the trial 

court acted well within its discretion when it excluded the testimony.

3. Investigator Frost

During the evidentiary hearing, the court sustained multiple hearsay 

objections to the testimony of investigator Frost as he sought to relay out-ofcourt statements made to him by White. According to Frost, White told him

that he and Richardson had a conversation about guns while Allan was not 

present and, furthermore, he tried to give Allan a fake gun to use during the 

robberies, which Allan refused. In sustaining the hearsay objections, the 

court ruled Frost’s testimony was hearsay that did not fall within the hearsay 

exception for statements against interest. Once more, we conclude the court’s 

evidentiary rulings were proper.

Hearsay is “evidence of a statement that was made other than by a 

witness while testifying at the hearing and that is offered to prove the truth 

of the matter stated.” (Evid. Code, § 1200, subd. (a).) Under the Evidence 

Code, hearsay is inadmissible unless it falls within an exception. (Id., 

subd. (b); see People v. Romero (2022) 80 Cal.App.5th 145, 152 [“Hearsay 

evidence ... is inadmissible at the [section 1172.6] evidentiary hearing, unless 

made admissible by [an] exception to the hearsay rule.”].)

One relevant exception to the hearsay rule is when a declarant makes a 

declaration against interest. (Evid. Code, § 1230.) “The rationale for the 

exception ‘is that “a person’s interest against being criminally implicated 

gives reasonable assurance of the veracity of his statement made against that 

interest,” thereby mitigating the dangers usually associated with the 

admission of out-of-court statements.’ [Citation.] To satisfy the exception, 

the proponent ‘ “must show ‘that the declarant is unavailable, that the 

declaration was against the declarant’s penal [or other] interest, and that the 
31

declaration was sufficiently reliable to warrant admission despite its hearsay 

character.’ ” ’ ” (People v. Chhoun (2021) 11 Cal.5th 1, 47 (Chhoun).)

Here, the trial court did not abuse its discretion in finding the out-ofcourt statements made by the declarant, White, were not statements against 

his penal interest. The court rationally found that White’s statements about 

his alleged pre-robbery conversation with Richardson regarding the use of a 

gun, and about his alleged offer to give Allan a fake gun, did not bear 

sufficient indicia of trustworthiness. As the court noted, White had already 

been convicted of the murders of Hall and Gregorio and his convictions were 

already affirmed on appeal, meaning his statements could not be used 

against him at a criminal trial or during a retrial. Further, White did not 

have a pending petition for resentencing under section 1172.6, which feasibly 

could be imperiled by his admissions. Additionally, White had a strong 

incentive to take accountability for the crimes, given that his statements 

could exculpate his brother, Allan.

On appeal, Allan argues that White’s statements were declarations 

against penal interest because White will have a parole opportunity “in a few 

years,” and his statements could “negatively affect [his] chances of parole.” 

We view the matter differently. To the extent White’s statements show he 

has taken responsibility for his actions, those statements could be neutral or 

even beneficial to him at his parole hearing. Indeed, the parole board could 

view White’s seeming accountability as a positive development weighing in 

favor of a parole grant. Regardless, the court could reasonably conclude the 

potential parole consequences of White’s statements “were too speculative or 

remote to impinge on penal interest for purposes of Evidence Code 

section 1230.” (Chhoun, supra, 11 Cal.5th at p. 48.)
32

4. Dr. Perrotti’s Assessment

Finally, Allan asserts the court erred in excluding from evidence the 

forensic mental health assessment prepared by Dr. Perrotti. Contrary to 

Allan’s claim, the court did not exclude Dr. Perrotti’s assessment.

After the prosecution interposed a relevance objection to Dr. Perrotti’s 

assessment, the court preliminarily ruled that Allan could “make reference to 

portions of his report” during the hearing and, indeed, he did just that. The 

court also stated it would “listen to [the parties’] arguments and references” 

to the assessment and “determine whether or not [it] believe[d] [the report] to 

be helpful or reasonable for the [c]ourt to consider.” After listening to the 

parties’ arguments and Allan’s references to the assessment, the court did not

exclude the assessment or address—let alone sustain—the prosecution’s 

relevance objection. Thus, the trial court never made the evidentiary ruling 

Allan purports to challenge on appeal.

IV

DISPOSITION

The order denying the petition for resentencing is affirmed.

McCONNELL, P. J.

WE CONCUR:

BUCHANAN, J.

CASTILLO, J.