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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MARCE LLOUS LEWIS ALLEN,

Defendant and Appellant. A159380

(Contra Costa County
Super. Ct. No. 0 5

- 080493

- 0)

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

Lewis Al len ’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 stand ard 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 unde r sections 188 and 189 as modified

by SB 1437. We agree and reverse

, remand ing 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 den ying his petition. ( See People v. Lewis

(2021) 11 Cal.5th 952, 972 [“ parti es 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 tho se 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

, w ere 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 j ury 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 appointed3

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

(inter alia) that defendant was the actual killer and therefore ineligi ble 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 gu ilty verdict on a charge of fir st 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 , acknowledgin g the trial court erroneously review ed 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

al lowed 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 petitioner4

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).)

S ection 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.” ( I talics added.)

“ Once the trial court i ssues 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 es tablished 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 interpret ed section 1170.95,

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

showing

. ” I f made

, the trial court must issue an order to show cause

, appoint

counsel if request ed , and allow the parties to submit briefing on whether t he

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 murder5

conviction and any accompanying enhancements, and resentences the

defendant. (§ 1170.95, subd. (d).)”]

. ) T h e 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 las t 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: “ W hile 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 proceed ings, ‘ “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

c ause.” ’ ( 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, quoti ng

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 first6

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) .)

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

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

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

Briefly

, the record 2 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 rob bing someone. After

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

getaway driver

. D efendant

, Latimore and Richards exited and surrounded

Chang, who was rinsing out a bucket on the sidewalk. D efendant, 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 t ried 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

A t 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 , A12 8830 , at p. 14

, fn. 9 .) As to the latter, the jury was

ins tructed , “ ‘ 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 inte nt to commit that crime

. ” 4 ( People

v. Allen, supra , A12 8830 , 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 , A12 8830

,

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 t he robbery, is he guilty of

1st degree murder? ’ ” ( People v

. Allen, supra , A12 8830 , 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

define d in CALJIC Instructions number 3.00 and 3.01, then you should

4 The first degree felony murder instruction given by the t rial 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 ha d 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 k illing occurs during the commission or attempted commiss ion 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 wh ether 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 rob bery, then he would not be liable

under the felony murder rule. Please re view these instructions in connection

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

( People v. Allen, supra , A12 8830 , at p. 15

, fns. omitted.)

As this record reflects, based on the evidence and instructions, t he 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 deny ing defendant’s petition, t he trial court

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

of fir st degree murder in the commission of a robbery under the new law o n

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 f

o r h u ma n life ’ in that he ‘ knowi ngly engaging [ sic ] in [a] criminal

activ i t[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, causin g it to

discharge. In doing so , t he 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, subd s . (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 tria l 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.