1

Filed 8/26/21 P. v. Allen CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCELLOUS LEWIS ALLEN,

Defendant and Appellant.

 A159380

 (Contra Costa County

 Super. Ct. No. 05-080493-0)

This is an appeal from a trial court order denying defendant Marcellous 

Lewis Allen’s petition for resentencing pursuant to Penal Code section 

1170.95,1 a provision that allows a person convicted of murder under now

invalidated theories of accomplice liability to seek resentencing (hereinafter, 

petition). (See Senate Bill No. 1437 (2017–2018 Reg. Sess.) (SB 1437).)

Defendant contends, and the People concede, the trial court applied the 

wrong standard of proof when denying his petition without issuing an order 

to show cause or affording him a hearing on the pertinent issue of whether he 

could have been convicted of murder under sections 188 and 189 as modified 

by SB 1437. We agree and reverse, remanding to the trial court for further 

proceedings consistent with the opinion reached herein.

1 Unless otherwise stated all statutory citations are to the Penal Code.
2

FACTUAL AND PROCEDURAL BACKGROUND

We rely on the record of defendant’s conviction, including our prior 

nonpublished decision affirming his conviction (People v. Allen (July 30, 2012, 

A128830)), to review the order denying his petition. (See People v. Lewis

(2021) 11 Cal.5th 952, 972 [“parties can, and should, use the record of 

conviction to aid the trial court in reliably assessing whether a petitioner has 

made a prima facie case for relief under [section 1170.95,] subdivision (c)”].) 

In the name of judicial efficiency, we focus only on those facts relevant to this 

appeal and refer the reader to our prior decision for a more complete 

recitation of the factual and procedural background of this case.

On March 4, 2010, defendant, a minor at least age 16, and two 

codefendants, Dion Lee Williams and Christian Latimore, were charged by 

amended information with one count of murder (§ 187, subd. (a)) and one 

count of robbery (§§ 211, 212.5, subd. (c)). In addition, defendant alone was 

charged with one count of possessing an assault weapon (§ 12280, subd. (b)). 

As to the murder and robbery counts, it was alleged defendant personally 

used and discharged a weapon, under former section 12022.53, subdivisions 

(b), (c), and (d).

On April 1, 2010, the jury found defendant guilty of the three counts 

but found not true the allegation that he personally used and discharged a 

weapon during the commission of the murder and robbery. (People v. Allen, 

supra, A128830, at p. 5.) Defendant received a 25 years to life sentence for 

murder, a concurrent three-year term for robbery, and a concurrent two-year 

term for possession of an assault weapon. This judgment was affirmed on 

appeal. (People v. Allen, supra, A128830, at p. 19.)

On January 8, 2019, defendant filed his petition for resentencing 

pursuant to section 1170.95, and on March 5, 2019, the court appointed 
3

counsel to represent him. The People opposed the petition, arguing 

(inter alia) that defendant was the actual killer and therefore ineligible for 

relief.

On October 4, 2019, the trial court issued its order summarily denying 

defendant’s petition without a hearing. Relevant here, the court found “based 

on evidence of reasonable and credible value, a reasonable trier of fact could 

reach a guilty verdict on a charge of first degree murder in the commission of 

a robbery under the new law on the basis that [defendant] was a major 

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

On October 22, 2019, defendant timely appealed.

DISCUSSION

Defendant contends on appeal the trial court misapplied section 

1170.95, subdivision (c) when denying his resentencing petition without 

issuing an order to show cause or holding an evidentiary hearing. The People 

agree, acknowledging the trial court erroneously reviewed the record for 

substantial evidence rather than simply determining whether he made a 

prima facie case.

The parties are correct. To make a prima facie showing, a petitioner, in 

his or her petition, must attest under penalty of perjury that he or she is 

eligible for relief under section 1170.95, based on three prerequisites: (1) “[a] 

complaint, information, or indictment was filed against the petitioner that 

allowed the prosecution to proceed under a theory of felony murder or murder 

under the natural and probable consequences doctrine”; (2) “[t]he petitioner

was convicted of first degree or second degree murder following a trial or 

accepted a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder”; and (3) “[t]he petitioner 
4

could not be convicted of first or second degree murder because of changes to

Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)

Section 1170.95, subdivision (c) provides: “The court shall review the 

petition and determine if the petitioner has made a prima facie showing that

the petitioner falls within the provisions of this section. If the petitioner has 

requested counsel, the court shall appoint counsel to represent the petitioner.

The prosecutor shall file and serve a response within 60 days of service of the 

petition and the petitioner may file and serve a reply within 30 days after the 

prosecutor response is served. These deadlines shall be extended for good 

cause. If the petitioner makes a prima facie showing that he or she is entitled

to relief, the court shall issue an order to show cause.” (Italics added.)

“Once the trial court issues the order to show cause under section 

1170.95(c), it must then conduct a hearing pursuant to the procedures and

burden of proof set out in section 1170.95, subd. (d) unless the parties waive 

the hearing or the petitioner’s entitlement to relief is established as a matter 

of law by the record. (§ 1170.95, subd. (d)(2).) Notably, following the 

issuance of an order to show cause, the burden of proof will shift to the 

prosecution to prove, beyond a reasonable doubt, that the petitioner is 

ineligible for resentencing. (§ 1170.95, subd. (d)(3).)” (People v. Drayton 

(2020) 47 Cal.App.5th 965, 981 (Drayton).)

The California Supreme Court recently interpreted section 1170.95, 

subdivision (c) to require the petitioner to first make “a single prima facie 

showing.” If made, the trial court must issue an order to show cause, appoint 

counsel if requested, and allow the parties to submit briefing on whether the 

petitioner is entitled to statutory relief. (People v. Lewis, supra, 11 Cal.5th at 

p. 962; see People v. Cooper (2020) 54 Cal.App.5th 106, 114 [“if the defendant 

is entitled to relief, the court recalls the sentence, vacates the murder 
5

conviction and any accompanying enhancements, and resentences the 

defendant. (§ 1170.95, subd. (d).)”].) The court explained that “the first 

sentence provides the rule: the court reviews the petition to determine ‘if the 

petitioner has made a prima facie showing that the petitioner falls within the 

provisions of this section.’ (§ 1170.95, subd. (c).) The last sentence describes 

what the court shall do if a petitioner makes a prima facie showing, namely, 

issue an order to show cause.” (People v. Lewis, supra, at p. 962.)

Relevant here, the court also held: “While the trial court may look at 

the record of conviction after the appointment of counsel to determine 

whether a petitioner has made a prima facie case for section 1170.95 relief, 

the prima facie inquiry under subdivision (c) is limited. Like the analogous 

prima facie inquiry in habeas corpus proceedings, ‘ “the court takes 

petitioner’s factual allegations as true and makes a preliminary assessment 

regarding whether the petitioner would be entitled to relief if his or her 

factual allegations were proved. If so, the court must issue an order to show 

cause.” ’ (Drayton, supra, 47 Cal.App.5th at p. 978, quoting Cal. Rules of 

Court, rule 4.551(c)(1).) ‘[A] court should not reject the petitioner’s factual 

allegations on credibility grounds without first conducting an evidentiary 

hearing.’ (Drayton, at p. 978, fn. omitted, citing In re Serrano (1995) 10 

Cal.4th 447, 456 [41 Cal.Rptr.2d 695, 895 P.2d 936].) ‘However, if the record, 

including the court’s own documents, “contain[s] facts refuting the allegations 

made in the petition,” then “the court is justified in making a credibility 

determination adverse to the petitioner.” ’ (Drayton, at p. 979, quoting 

Serrano, at p. 456.)” (People v. Lewis, supra, 11 Cal.5th at p. 972.)

In this case, the trial court correctly found that defendant made a 

prima facie showing that (1) the prosecution proceeded at trial under a 

murder theory based on felony murder and (2) he was convicted of first 
6

degree murder. (§ 1170.95, subd. (a)(1)–(2).) The trial court erred, however, 

in finding that defendant failed to make a prima facie showing that “[he] 

could not be convicted of first or second degree murder because of changes to

Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).)

As the People concede, defendant’s petition contains assertions that if

accepted as true prove he could not be convicted of first or second degree 

murder as the law stands today. (See § 1170, subd. (c).)

Briefly, the record2 reflects that on the day of the murder, defendant,

codefendants Latimore and Williams, and Raymond Richards were driving 

around in a borrowed car with the stated intention of robbing someone. After 

targeting the victim (Chang), Williams stayed in the car as the designated 

getaway driver. Defendant, Latimore and Richards exited and surrounded 

Chang, who was rinsing out a bucket on the sidewalk. Defendant, displaying 

an assault pistol, demanded that Chang hand over his belongings. Chang 

put his hands up, and Latimore and Richards rifled through his pockets. 

However, when Richards tried to remove Chang’s wallet, Chang resisted. 

Defendant responded by hitting Chang on the head with the pistol, causing it 

to discharge. As Latimore retreated to the car, he heard two more gunshots. 

Once defendant returned to the car, Latimore angrily accused defendant of 

almost shooting him during the robbery. Defendant responded that the gun

discharged accidentally and that Chang “ ‘made me shoot him.’ ”

3 (People v. 

Allen, supra, A128830, at p. 4.)

2 Williams and Latimore testified at trial for the prosecution in 

exchange for a plea deal. (People v. Allen, supra, A128830, at p. 3.)

3 A firearms test conducted during the police investigation established 

that defendant’s gun fired the bullet and two casings found at the murder 

scene. (People v. Allen, supra, A128830, at p. 3.)
7

At trial, consistent with this evidence, the jury was instructed on two 

theories of first degree murder—deliberate and premeditated murder 

(CALJIC No. 8.20) and first degree felony murder (CALJIC No. 8.21). (People 

v. Allen, supra, A128830, at p. 14, fn. 9.) As to the latter, the jury was 

instructed, “ ‘The unlawful killing of a human being, whether intentional, 

unintentional or accidental, which occurs during the commission or 

attempted commission of the crime of Robbery is murder of the first degree 

when the perpetrator had the specific intent to commit that crime.”

4 (People 

v. Allen, supra, A128830, at p. 14, fn. 9, italics added.) The jury was also 

instructed that defendant could be found guilty as a principal in the 

commission of murder either as a direct perpetrator of the murder or as an 

aider and abettor (CALJIC Nos. 3.00, 3.01). (People v. Allen, supra, A128830, 

at p. 15 & fns. 10–11.) During deliberations, the jury asked the following

question of the trial court: “ ‘Is it possible to find [defendant] guilty of 

robbery and not guilty of first degree murder? Specifically, if we believe Allen 

was not holding the gun, but was present at the robbery, is he guilty of 

1st degree murder?’ ” (People v. Allen, supra, A128830, at p. 14.) The court

responded: “ ‘If you find beyond a reasonable doubt that Mr. Allen 

participated in the robbery as a perpetrator or as an aider and abettor as 

defined in CALJIC Instructions number 3.00 and 3.01, then you should 

4 The first degree felony murder instruction given by the trial court was 

as follows: “ ‘The unlawful killing of a human being, whether intentional, 

unintentional or accidental, which occurs during the commission or 

attempted commission of the crime of Robbery is murder of the first degree 

when the perpetrator had the specific intent to commit that crime. [¶] The 

specific intent to commit Robbery and the commission or attempted 

commission of that crime must be proved beyond a reasonable doubt. [¶] In 

law, a killing occurs during the commission or attempted commission of a 

felony, so long as the fatal blow is struck during its course, even if death does 

not then result.’ ” (People v. Allen, supra, A128830, at p. 14, fn. 9.)
8

decide whether the felony murder rule would apply as described in CALJIC 

Instruction number 8.21. If you have a reasonable doubt whether Mr. Allen 

is a perpetrator or aided and abetted the robbery, then he would not be liable 

under the felony murder rule. Please review these instructions in connection 

with CALJIC 2.90 and all of the other instructions I have given you.’ ” 

(People v. Allen, supra, A128830, at p. 15, fns. omitted.)

As this record reflects, based on the evidence and instructions, the jury

could have found defendant guilty of murder as an aider and abettor to a

felony murder with robbery as the predicate crime notwithstanding the fact

that he did not harbor the intent to kill or act with reckless indifference to

human life.

5 Under SB 1437, this murder theory is no longer valid. (See

§ 189, subd. (e) [requiring the defendant to be the actual killer, an aider and

abettor to the murder who acted with intent to kill, or a major participant in

the underlying felony who acted with reckless indifference to human life].)

In its order summarily denying defendant’s petition, the trial court

found that “a reasonable trier of fact could reach a guilty verdict on a charge

of first degree murder in the commission of a robbery under the new law on

the basis that Allen was a major participant in the felony and acted with

reckless indifference to human life,” and that he “acted with ‘reckless

disregard for human life’ in that he ‘knowingly engaging [sic] in [a] criminal

activit[y] known to carry a grave risk of death.’ ” The court relied on the

same evidence, described ante, that defendant approached Chang, demanded

that he hand over his possessions while displaying an assault weapon, and,

when Chang resisted, hit him in the head with the weapon, causing it to

discharge. In doing so, the trial court improperly weighed disputed evidence 

5 As stated, the jury found not true the allegation that defendant

personally discharged a firearm.
9

in the form of his accomplices’ testimony relating to defendant’s state of mind 

and degree of participation in the robbery. This was erroneous. So long as 

defendant’s proffered evidence could support a finding that he was not a 

major participant and lacked the requisite mens rea, the court should have 

issued an order to show cause and scheduled an evidentiary hearing, without 

weighing the evidence. (People v. Lewis, supra, 11 Cal.5th at pp. 971–972.) 

Defendant’s proffered evidence does indeed support such finding, as a 

reasonable trier of fact could have found that he acted without the requisite 

mens rea when his gun accidentally discharged.

6

Accordingly, because the trial court erred by denying defendant’s 

petition without issuing an order to show cause or holding an evidentiary 

hearing to adjudicate whether he is entitled to relief (§ 1170.95, subds. (c), 

(d)), we reverse and remand the matter for further proceedings.

DISPOSITION

The trial court order denying defendant’s petition for resentencing 

under section 1170.95 is reversed. The matter is remanded with instructions 

to the trial court to issue an order to show cause and to hold an evidentiary 

hearing to adjudicate whether defendant is entitled to section 1170.95 relief.

6 We make no prediction as to whether defendant will prevail in his 

request for resentencing after an evidentiary hearing.
10

_________________________

Jackson, J.

WE CONCUR:

_________________________

Petrou, Acting P. J.

_________________________

Chou, J.*

A159380/People v. Marcellous Lewis Allen

* Judge of the Superior Court of San Mateo County, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California Constitution.