Filed 6/14/22 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.

EARL ALLEN,

Defendant and Appellant.

 D078721

 (Super. Ct. No. SCN187510)

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

Brad A. Weinreb, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Attorney General, Melissa Mandel, Assistant Attorney General, Alan Amann 

and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent. 

In 2005, Earl Allen pleaded guilty to one count of second degree murder 

and was sentenced to 15 years to life in prison. The charge arose after he and 

three others engaged in a series of shootings that left one man dead. As the 
2

factual basis for his plea, Allen admitted he “was present, had knowledge of 

and aided and abetted the taking of the life of [the victim.]”

In 2019, Allen filed a petition for resentencing under Senate Bill 

No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which amended 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 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.” (Stats. 2018, ch. 1015, § 1 subd. (f).) The law 

also provided a mechanism for resentencing of individuals whose convictions 

would not meet the new standard (Pen. Code, § 1170.951). 

The trial court issued an order to show cause on Allen’s petition for 

resentencing and conducted an evidentiary hearing. Thereafter, the court 

denied Allen’s petition, finding the relief afforded by the new law was not 

available to Allen because the record of conviction, including Allen’s plea and 

the evidence presented at his preliminary hearing, showed Allen’s intent to 

kill as a direct aider and abettor of the murder committed by him or one of 

his companions. 

Allen now challenges the trial court’s order, asserting the court erred in 

denying his petition because it improperly considered the plea admission and

because the court’s findings are not supported by substantial evidence. We 

conclude the plea was properly considered by the trial court and that Allen 

has failed to show prejudicial error because substantial evidence supports the 

court’s determination. Accordingly, we affirm the trial court’s order denying 

Allen’s petition.

1 Subsequent undesignated statutory references are to the Penal Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

Late on the night of July 24, 2004, and continuing into the early hours 

of the next day, Allen attended a party in Vista with friends Christopher 

Gooden, Ricky Cowart, and Kevin McCray. At some point in the evening, 

Cowart suggested they leave the party to go “smoke some esses,” a term they

used for Hispanic gang members. The group drove to an area near Santa Fe 

and Orange Avenue in Vista. According to Allen, McCray and Cowart got out 

of the car while Allen and Gooden waited in the backseat. A short time later, 

Allen heard four or five gunshots, and then saw McCray and Cowart running 

back to the car. A Hispanic man was later found dead in the same area with 

multiple gunshot wounds. The group then returned to the party in Vista. 

Allen and his three friends then left the party again and went to an 

area in Oceanside known for Hispanic gang activity. They stopped near a 

home on Lemon Street. Cowart got out of the car and fired several shots from 

a handgun into the home. A woman living there woke up to the sound of 

glass breaking and later found one of her windows had three bullet holes. 

The group left Lemon Street and, as Allen explained in his interview with 

police, drove around for “10 or 15 minutes looking for more esses to shoot.” 

Then, near a taco shop by Mission and San Diego Street, Cowart fired 

the gun at a Hispanic man. After this shooting, the group continued driving 

around the area, looking for other gang members, who they knew frequented 

the area, to shoot. When they did not find anyone, they stopped at the corner 

of Calle Montecito and Calle Las Positas and took turns shooting at a stop 

sign. 

After reports of gunfire from various witnesses in Oceanside, the police 

were dispatched to the shootings. An Oceanside police officer called to the 

stop sign shooting spotted the group’s vehicle—a small SUV with a white top 
4

and red bottom—which matched the description reported by several 

witnesses. The officer pulled over the vehicle, and Cowart jumped out of the 

car from the front passenger seat and ran. McCray, in the driver’s seat, and 

Gooden and Allen, in the backseat, initially told police they were carjacked by 

the fleeing Cowart. Police discovered two guns in the car, a shotgun propped 

against the front passenger seat and a .38 caliber handgun stuck in the 

crevice of the backseat between the headrest and the seat. 

The men were arrested and interviewed by police. Allen told police he 

was at the party in Vista when Cowart said they should leave to “go smoke 

some esses.” He admitted he was with the group when Cowart shot at the 

house on Lemon Street and at the man near the taco shop, that they drove 

around looking for gang members to shoot, and that he and the others had all 

taken turns shooting the stop sign. 

After this initial interview, police learned the vehicle spotted at the 

shooting in Vista resulting in the death of the victim matched the Geo 

Tracker the group was pulled over in. Police interviewed Allen a second time. 

He again admitted to being with Cowart, Gooden, and McCray at the party, 

and to being with the group when Cowart shot at the house and the man near 

the taco shop, and when they all shot at the street sign. 

When the interviewing officer asked about the shooting in Vista, Allen 

initially denied he was with the group when the murder occurred. However,

he eventually admitted he was there, and told the officer he and Gooden 

stayed in the car while McCray and Cowart got out and shot the victim. 

Allen heard five shots before McCray and Cowart returned to the car and the 

group drove back to the party where they had been before. Allen also told the 

officer he had seen the victim prior to the shooting. Allen said he did not 

mention the shooting in his initial interview because he did not want to 
5

snitch and that it had been McCray’s idea to tell the police they had been 

carjacked by Cowart. 

In his interview with police, Gooden initially said that Cowart and 

Allen had been the shooters, McCray had stayed in the car, and that he was 

the lookout. Gooden then changed his story and said he and Allen had stayed 

in the car. 

A criminalist and firearms expert compared the bullets recovered from 

the murder victim’s body and the house on Lemon Street with a round from 

the handgun found in the backseat of the SUV. The expert determined the 

bullets were fired from the recovered handgun. Fingerprint evidence also 

linked Cowart to the shotgun found in the car, and Gooden and Allen to the 

handgun. Finally, surveillance video from a convenience store in Oceanside 

around the time of the shootings showed Allen, Cowart, McCray, and Gooden 

in the Geo Tracker. 

1. Initial Prosecution and Guilty Plea

The San Diego District Attorney filed a felony complaint on information 

against Allen and Gooden, charging them both with murder (§ 187, subd. (a), 

count 1), shooting at an inhabited dwelling (§ 246, count 2), discharging a 

firearm in a grossly negligent manner (§ 246.3, count 3), possessing a 

concealed firearm in a vehicle (§ 12025, subd. (a)(1), count 4), carrying a 

loaded firearm in public (§ 12031, subd. (a)(1), count 5), possession of 

marijuana for sale (Health & Saf. Code, § 11359, count 6), and attempted 

robbery (§§ 664, 211, count 7).2 

2 Count 7 related to another incident that occurred several months before 

the murder and is not relevant to the present appeal. Cowart and McCray 

were charged separately.
6

Several months after the charges were filed, Allen entered a plea 

agreement for second-degree murder on count 1. In his change of plea form, 

as the factual basis for the plea, Allen admitted that he “was present, had 

knowledge of and aided and abetted the taking of the life of” the victim.3 

After Allen entered the guilty plea, on the prosecution’s motion, the court 

dismissed the remaining charges against him. Thereafter, the court 

sentenced Allen to an indeterminate term of 15 years to life in prison. 

2. Resentencing Petition

In February 2019, Allen filed a petition under section 1170.95 seeking 

relief under the new law. In response, the District Attorney moved to dismiss 

the petition, arguing Senate Bill 1437 was unconstitutional. The District 

Attorney also filed a motion to deny the petition on the grounds it did not 

establish a prima facie case for relief because the facts stipulated as the basis 

for the plea established Allen was a direct aider and abettor of the murder. 

The court appointed counsel to represent Allen and scheduled briefing on the 

motions. 

Allen’s appointed counsel filed a response to the District Attorney’s 

motion to dismiss the petition. The court then stayed the proceedings 

pending this court’s decision on the constitutionality of the new law. In 

People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, this court 

3 “Before accepting a guilty or no contest plea pursuant to a plea 

agreement in a felony case, the trial court is required to determine that a 

factual basis for the plea exists. (§ 1192.5; People v. Holmes (2004) 32 Cal.4th 

432, 440–442.) ‘The purpose of the requirement is to protect against the 

situation where the defendant, although he realizes what he has done, is not 

sufficiently skilled in law to recognize that his acts do not constitute the 

offense with which he is charged. [Citation.] Inquiry into the factual basis 

for the plea ensures that the defendant actually committed a crime at least as 

serious as the one to which he is willing to plead.’ ” (People v. French (2008) 

43 Cal.4th 36, 50–51 (French).)
7

rejected the District Attorney’s assertion the law was unconstitutional. After 

Gooden became final on February 19, 2020, the District Attorney renewed the 

motion to deny Allen’s petition for resentencing on the grounds that Allen 

had failed to make a prima facie showing he was entitled to relief under 

Senate Bill 1437. 

Allen responded to the motion, requesting an order to show cause why 

relief should not be granted. Both parties submitted the charging 

information, the preliminary hearing transcript, Allen’s guilty plea form, and 

the minute order from Allen’s sentencing hearing. The court found that Allen 

had made a prima facie showing that he was entitled to relief and issued an 

order to show cause. After the People filed a return to the order to show 

cause, the court conducted a hearing on the petition, and also reviewed the 

moving papers and the evidence submitted by the parties. 

The following week, the trial court issued its order denying Allen’s 

petition. The court first found that the evidence submitted by the parties was 

admissible under the standards articulated in People v. Williams (2020) 57 

Cal.App.5th 652 and applied the burden of proof set forth in People v. 

Rodriguez (2020) 58 Cal.App.5th 227, opinion vacated and cause remanded 

for further consideration in light of Senate Bill No. 775 (Stats. 2021, ch. 551) 

(Senate Bill 775), (2021) 287 Cal.Rptr.3d 721, 500 P.3d 993 [which required

the court to “sit as an independent trier of fact and determine whether the 
8

People” prove the petitioner guilty of murder under the new law “beyond a 

reasonable doubt”] (Rodriguez).4

The trial court then found the People had met their burden to show 

that Allen, “as a principle[,] aided and abetted the commission of the 

murder.” The court pointed to both Allen’s statement in his change of plea 

form and the evidence adduced at the preliminary hearing, which included 

police testimony that Allen and the other participants admitted their “plan to 

hunt down” Hispanic gang members and that Allen admitted they “discussed 

that their intended act was to kill ‘esses’ or Hispanic” gang members. The 

court concluded this evidence showed Allen shared the murderous intent of 

the actual killer and that he was, therefore, not entitled to relief under 

Senate Bill 1437. Allen timely appealed the court’s order. 

4 After the trial court issued its order in this case, the California 

Supreme Court granted review of People v. Rodriguez and subsequently 

transferred the case back to the Second Appellate District “with directions to 

vacate its decision and reconsider the cause in light of Senate Bill No. 775[.]” 

(Rodriguez, supra, 287 Cal.Rptr.3d 721.) On October 5, 2021, the Governor 

signed Senate Bill 775, which became effective on January 1, 2022 and 

expanded the scope of section 1170.95 from petitioners “convicted of felony 

murder or murder under the natural and probable consequences doctrine” to 

petitioners convicted under any “other theory under which malice is imputed 

to a person based solely on that person’s participation in a crime.” (§ 1170.95, 

subd. (a) as amended by Stats. 2021, ch. 551, § 2.) The changes also made 

clear that “[a] finding that there is substantial evidence to support a 

conviction for murder, attempted murder, or manslaughter is insufficient to 

prove, beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.” (Id. subd. (d)(3).) Senate Bill 775 also clarified that the rules 

of evidence govern the admission of evidence at the evidentiary hearing and 

made explicit that the court may consider the procedural history of the case 

recited by any prior appellate opinion. (Ibid.) 
9

DISCUSSION

I

Legal Principles

To protect the “bedrock principle of the law and of equity that a person 

should be punished for his or her actions according to his or her own level of 

individual culpability” (Stats. 2018, ch. 1015, § 1, subd. (d)), the Legislature 

enacted Senate Bill 1437 to narrow the scope of liability under the felony 

murder rule [and under the natural and probable consequences doctrine], and 

to provide a mechanism by which individuals convicted under the old 

standard could petition for resentencing if they could not be convicted under 

the new, narrower standard. (People v. Gentile (2020) 10 Cal.5th 830, 842; 

People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) 

Senate Bill 1437 effectuated it’s legislative goal by amending 

section 188, which defines malice, and section 189, which defines the degrees 

of murder. (Stats. 2018, ch. 1015, § 3.) As amended, section 188 states: 

“Except as stated in subdivision (e) of Section 189, in order to be convicted of 

murder, a principal in a crime shall act with malice aforethought. Malice 

shall not be imputed to a person based solely on his or her participation in a 

crime.” (§ 188, subd. (a)(3).) Amended section 189, subdivision (e) states: “A 

participant in the perpetration or attempted perpetration of a felony listed in 

subdivision (a) in which a death occurs is liable for murder only if one of the 

following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person 

was not the actual killer, but, with the intent to kill, aided, abetted, 

counseled, commanded, induced, solicited, requested, or assisted the actual 

killer in the commission of murder in the first degree. [¶] [or] (3) The person 

was a major participant in the underlying felony and acted with reckless 
10

indifference to human life, as described in subdivision (d) of Section 190.2.” 

(§ 189, subd. (e).)

The bill also enacted section 1170.95, which created the “procedure for 

convicted murderers who could not be convicted under the law as amended to 

retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 957.) Under 

section 1170.95, if the petitioner makes a prima facie showing of entitlement 

to relief, the court must issue an order to show cause and hold an evidentiary 

hearing at which the prosecution bears the burden of proving beyond a 

reasonable doubt that the petitioner could still be convicted under the newly 

narrowed standards. (§ 1170.95, subds. (c), (d)(1)–(3); see Lewis, at p. 960; 

People v. Ramirez (2021) 71 Cal.App.5th 970, 984 (Ramirez).) “If the 

prosecution fails to sustain its burden of proof, the prior conviction ... shall be 

vacated and the petitioner shall be resentenced on the remaining charges.” 

(§ 1170.95, subd. (d)(3); see People v. Lamoureux (2019) 42 Cal.App.5th 241, 

249.)

At the time of the hearing below, the statute stated that the 

“prosecutor and the petitioner may rely on the record of conviction” or may 

“offer new or additional evidence to meet their respective burdens.” (Former 

§ 1170.95, subd. (d)(3), added by Stats. 2018, ch. 1015 (Sen. Bill 1437), § 4, 

eff. Jan. 1, 2019.) As noted, section 1170.95, subdivision (d)(3) was 

subsequently amended by Senate Bill 775. The provision now states: “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. However, hearsay evidence that was admitted in a 
11

preliminary hearing pursuant to subdivision (b) of Section 872 shall be 

excluded from the hearing as hearsay, unless the evidence is admissible 

pursuant to another exception to the hearsay rule. The prosecutor and the 

petitioner may also offer new or additional evidence to meet their respective 

burdens.”

Contrary to Allen’s assertion that this court should exercise its 

independent judgment on his petition, we review the trial court’s 

determination at the section 1170.95 evidentiary hearing for substantial 

evidence. (People v. Garrison (2021) 73 Cal.App.5th 735, 747; accord, 

Ramirez, supra, 71 Cal.App.5th at p. 985.) Under this standard, “ ‘we review 

the entire record in the light most favorable to the judgment to determine 

whether it contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt.’ [Citation]. We 

determine ‘whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a 

reviewing court ‘presumes in support of the judgment the existence of every 

fact the trier could reasonably deduce from the evidence.’ ” (People v. 

Edwards (2013) 57 Cal.4th 658, 715.) “ ‘Substantial evidence includes 

circumstantial evidence and any reasonable inferences drawn from that 

evidence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 57.)

II

Analysis

Allen makes several related arguments to challenge the trial court’s 

denial of his petition. He asserts the court erred to the extent it relied solely 

on his admission in the plea form because his statement did not conclusively 
12

establish direct aiding and abetting liability, rather than liability based on 

the natural and probable consequences doctrine. He argues his statement in 

the plea, that he “was present, had knowledge of and aided and abetted the 

taking of the life of [the victim],” could also mean that he intended to aid and 

abet a target offense, such as assault with a firearm, “but a murder was a 

natural and probable consequence of the target offense ....” Allen also argues 

that “to the extent the court relied on the plea language and failed to 

adequately consider evidence adduced at the preliminary hearing, it erred.” 

Finally, Allen asserts that insufficient evidence supported the trial court’s 

finding that he was a direct aider and abettor of the murder, or that he acted 

with implied malice. 

Allen’s argument that his plea admission does not establish liability as 

a direct aider and abettor of the murder is not well-taken. “ ‘Liability for 

intentional, target offenses is known as “direct” aider and abettor liability; 

liability for unintentional, nontarget offenses is known as the “ ‘ “natural and 

probable consequences’ doctrine.” ’ ” [Citation.] ‘Senate Bill 1437 does not 

eliminate direct aiding and abetting liability for murder because a direct 

aider and abettor to murder must possess malice aforethought.’ ” (People v. 

Medrano (2021) 68 Cal.App.5th 177, 183 (Medrano).)

Prior to Senate Bill 1437, “under the natural and probable 

consequences doctrine, an aider and abettor [could be found] guilty not only 

of the intended crime[, i.e. target offense], but also ‘for any other offense that 

was a “natural and probable consequence” of the crime aided and abetted.’ ” 

(People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) In contrast, a direct 

aider and abettor “acts ‘with knowledge of the criminal purpose of the 

perpetrator and with an intent or purpose either of committing, or of 

encouraging or facilitating commission of, the offense.’ ” (People v. Chiu
13

(2014) 59 Cal.4th 155, 161.) In other words, “when guilt does not depend on 

the natural and probable consequences doctrine ... the aider and abettor 

must know and share the murderous intent of the actual perpetrator.” 

(McCoy, at p. 1118.)

Here, Allen was charged with and admitted to aiding and abetting 

murder, not aiding and abetting a lesser crime that resulted in murder. The 

admission contained in the change of plea form, that Allen “had knowledge of 

and aided and abetted the taking of [the victim’s] life” and which Allen 

confirmed at the plea hearing, does not implicate the natural and probable 

consequences theory of aiding and abetting liability because no other target 

offense was at stake. Rather, the only reasonable interpretation of this 

language establishes that the factual basis for the plea was Allen’s direct 

aiding and abetting of murder. Thus, there was no opportunity in this case to 

convict Allen of “ ‘murder on a natural and probable consequences theory.’ ”5 

(Medrano, supra, 68 Cal.App.5th at p. 183.) 

5 Relying on French, supra, 43 Cal.4th 36, Allen argues that his 

admission in the change of plea form did not constitute a binding admission 

for purposes of his resentencing petition. We agree with the Attorney 

General that French has no bearing here. In French, the defendant 

challenged the use of the factual basis for his no contest plea for purposes of 

finding an aggravating circumstance to impose an upper term at sentencing. 

(Id. at pp. 48‒49.) However, the factual basis agreed to by the defendant’s 

counsel did not admit the aggravating circumstances found at sentencing. 

Rather, counsel stated only, “ ‘I believe the People have witnesses lined up for 

this trial that will support what the D.A. read in terms of the factual basis

....’ ” (Id. at p. 42.) In French, the record did “not contain any suggestion 

that either party understood that defendant, by pleading no contest, thereby 

admitted any factual issue relevant to imposition of sentence.” (Id. at p. 49.) 

Here, in contrast, Allen did personally admit the truth of the factual basis for 

his guilty plea, resulting in a binding admission.
14

We also reject Allen’s argument that the court erred to the extent it 

relied only on the plea form admission. First, the operative version of 

section 1170.95, subdivision (d)(3) provided that the trial court may consider 

“the record of conviction” in the case.6 There is no dispute that the change of 

plea form containing Allen’s admission of guilt was part of the record of 

conviction and was admitted as evidence at Allen’s plea hearing. 

Accordingly, the admission was properly before the trial court at the 

6 As noted, the current version of the law, as amended by Senate Bill 

775, makes clear that the record of conviction includes “evidence previously 

admitted at any prior hearing ....” (§ 1170.95, subd. (d)(3).) We requested 

supplemental briefing on the impact of Senate Bill 775 on this case. In 

response, Allen’s supplemental brief asserts that the changes made by the 

bill apply retroactively and that remand is required under the new law 

because the trial court failed to consider whether the preliminary hearing 

testimony should have been excluded as hearsay. The Attorney General 

argues the changes to the statute are not retroactive, but even if they are, the 

court properly considered the statements that Allen made to law enforcement 

officers, and which were admitted at the preliminary hearing, because they 

constituted admissions of a party. We decline to address the retroactivity of 

Senate Bill 775 because we agree with the Attorney General that the hearsay 

statements by Allen to law enforcement were subject to the hearsay 

exceptions for admissions by a party and declarations against penal interest, 

and thus properly considered by the trial court in its denial of Allen’s petition 

for resentencing under either version of the law. (Evid. Code, §§ 1220, 1230; 

see People v. Gonzalez (2021) 12 Cal.5th 367, 409.)
15

evidentiary hearing on Allen’s petition, and the court did not err in the 

manner Allen argues.7

Finally, we conclude substantial evidence supported the trial court’s 

decision to deny Allen’s petition. As discussed, guilt as a direct aider and 

abettor requires: (1) knowledge of the direct perpetrator’s intent to commit 

the crime; (2) intent to assist in committing the crime; and (3) conduct that in 

fact assists in committing the crime. (People v. Perez (2005) 35 Cal.4th 1219, 

1225; McCoy, supra, 25 Cal.4th at p. 1117.) The defendant must not only 

know the direct perpetrator’s intent, he must share that intent. (Id. at 

p. 1118.) The intent required for murder can be express or implied malice. 

Express malice is shown when the assailant intends to kill or knows to a 

substantial certainty that death will occur. (§ 188, subd. (a)(1); People v. 

Smith (2005) 37 Cal.4th 733, 739.) Implied malice requires knowledge that 

conduct endangers the life of another and a conscious disregard for life. 

(People v. Chun (2009) 45 Cal.4th 1172, 1181; People v. Palomar (2020) 44 

Cal.App.5th 969, 976.)

Here, the preliminary hearing testimony of the investigating police 

officers about their interviews with Allen, and Allen’s plea admission 

provided substantial evidence that Allen acted as an accomplice to the 

murder with his own intent to kill. As the trial court stated, the evidence 

showed that Allen—by his own admission to the investigating police—

7 Allen suggests that the trial court’s statement that “assuming it were 

necessary” to consider evidence outside the plea admission implies the court 

concluded the preliminary hearing transcript “was not pertinent to its 

decision ....” This is not an accurate characterization of the order, in which 

the court makes clear that it reviewed the transcript and found that the 

evidence set forth therein also supported its finding that Allen was a direct 

aider and abettor of the murder, and shared the actual shooter’s intent to kill 

the victim. 
16

planned to hunt down Hispanic gang members in Vista and Oceanside

together with the three other perpetrators. Allen told police that the group 

had left the party they were at to “smoke some esses.” They were armed with 

two guns, and Allen admitted he was present for the string of shootings

perpetrated over the night, including target practice in a residential 

neighborhood, shooting into an occupied house, and shooting at two men, 

resulting in the killing of one. Although evidence showed that Allen stayed 

in the car with Gooden when the victim was killed, Allen’s admission to direct 

aiding and abetting of the killing and the admissible circumstantial evidence 

contained in the preliminary hearing transcript supported the trial court’s 

finding that Allen acted with intent to kill. 

This case bears some factual similarities to Ramirez, supra, 71 

Cal.App.5th 970, on which Allen relies. Ramirez, however, does not support 

reversal here. Critically, the youthful defendant in Ramirez was tried to a 

jury verdict of guilt on a theory of felony murder. The defendant participated 

in a carjacking that resulted in the death of the victim. (Id. at p. 975.) As a 

result, the resentencing court was required to find beyond a reasonable doubt 

that the defendant, as an aider and abettor of a separate felony, was a major 

participant in that felony and acted with reckless indifference to human life. 

(Id. at p. 985.) The inquiry here is different because Allen pleaded guilty to 

directly aiding and abetting second degree murder, not as an aider and 

abettor to a different felony (or, as discussed, a different target offense under 

the natural and probable consequences doctrine). For this reason, the 

analysis set forth in Ramirez does not apply. Rather, Allen’s admission to 

directly aiding and abetting a murder, in concert with the admissible 

evidence contained in the preliminary hearing transcript, supports the trial 

court’s finding that Allen shared his cohorts’ intent to kill. Accordingly, the 
17

trial court did not err in finding Allen is not entitled to the relief afforded by 

Senate Bill 1437.

DISPOSITION

The order is affirmed.

McCONNELL, P. J.

WE CONCUR:

O’ROURKE, J.

DATO, J.