Filed 4/14/15 P. v. Allen CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

HILLERY D. ALLEN, 

 Defendant and Appellant. 

 D066401 

 (Super. Ct. Nos. SCD135889, 

SCD129108) 

 APPEAL from an order of the Superior Court of San Diego County, David J. 

Danielsen, Judge. Affirmed. 

 Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 No appearance for Plaintiff and Respondent. 

PROCEDURAL BACKGROUND 

 In August 1997, in Case No. SCD129108, Hillery Darnell Allen entered a 

negotiated guilty plea to battery with serious bodily injury (Pen. Code,1 § 243, subd. (d)) 

 

1 Further statutory references are to the Penal Code. 
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and admitted having suffered a prior serious felony conviction (§ 667, subd. (a)) based on 

a 1991 Illinois conviction of burglary of an inhabited dwelling. The court dismissed a 

strike (§ 667, subds. (b)-(i)) based on the same Illinois conviction and placed Allen on 

probation. The court later revoked probation. 

 In September 1998, in Case No. SCD135889, Allen was found guilty of robbery 

(§ 211) in a court trial. Allen admitted he had prior convictions in the Illinois case and in 

Case No. SCD129108 and, based on those convictions, the court found he had two 

serious felony priors and two strikes. In October, the court declined to dismiss the strikes 

and sentenced Allen to prison for 25 years to life for robbery, five years for each serious 

felony prior and a concurrent four-year middle term for battery with serious bodily injury 

(Case No. SCD129108). In November 1999, this court affirmed the judgment in Case 

No. SCD135889 (People v. Allen (Nov. 29, 1999, D032264) [nonpub. opn.].). We take 

judicial notice of the opinion in that appeal. 

 In January and December 2011, the trial court denied Allen's motions for 

modification of the restitution fines imposed as part of his sentence in both trial court 

cases. In June 2012, the court denied Allen's petition for writ of error coram nobis and 

motion for modification of sentence which again sought modification of the restitution 

fines in both cases. In February 2014, the court summarily denied Allen's petition for 

resentencing pursuant to section 1170.126 (Proposition 36). In June, Allen filed a 

renewed petition for resentencing pursuant to section 1170.126. In July, the court 

summarily denied the renewed petition. Allen appeals the July order. We affirm. 
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DISCUSSION 

 Appointed appellate counsel has filed a brief summarizing the facts and 

proceedings below. Counsel presents no argument for reversal, but asks this court to 

review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 

(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). 

 We granted Allen permission to file a brief on his own behalf. He has filed a 

supplemental brief in which he contends his Illinois conviction did not qualify as a strike 

and the California court violated his constitutional rights by denying him a hearing 

regarding dismissal of the strike. Allen seeks specific performance of the 1991 plea 

agreement underlying the Illinois prior conviction. He also challenges his robbery 

conviction, arguing there was no evidence of the required specific intent, so the 

conviction should have been reduced to one for theft. 

 In Case No. SCD135889, Allen admitted having suffered the Illinois conviction 

and the conviction in Case No. SCD129108 which formed the basis for the strikes. The 

trial court held a hearing on his request to dismiss one of his strikes and denied the 

request. (People v. Allen, supra, D032264, at pp. 10-11.) This court concluded the 

denial was not an abuse of discretion. (Id. at pp. 12-13). In Case No. SCD135889, the 

trial court declined to find Allen guilty of grand theft person as a lesser included offense 

of robbery, noting the force and fear element required for robbery was present. In 

People v. Allen, supra, this court rejected Allen's contention there was no evidence of 

force or fear and therefore the evidence was insufficient to convict him of robbery. 

(Id. at pp. 3-7.) Thus, in People v. Allen, supra, Allen had a full opportunity to challenge 
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his robbery conviction and the validity of his strikes and did in fact do so. He may not 

now challenge the orders and findings regarding the strikes or the sufficiency of the 

evidence to support the robbery conviction. (People v. Senior (1995) 33 Cal.App.4th 

531, 535-538.) Although Allen's argument regarding specific performance is not 

completely clear, it is clear that we do not have the authority to order specific 

performance of the 1991 Illinois plea agreement. 

 A review of the record pursuant to Wende and Anders has disclosed no reasonably 

arguable appellate issues. Allen has been competently represented by appellate counsel. 

DISPOSITION 

 The order is affirmed. 

HALLER, J. 

WE CONCUR: 

NARES, Acting P. J. 

MCINTYRE, J.