Filed 10/26/23; Certified for Publication & Modified 11/20/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

CHARLES JOSEPH ALLEN,

 Defendant and Appellant.

2d Crim. No. B324207

(Super. Ct. No. BA381310)

(Los Angeles County)

Charles Joseph Allen appeals from the denial of his petition 

for resentencing pursuant to Penal Code1 section 1172.6. He 

contends the trial court erroneously denied his petition at the 

prima facie stage because the record of conviction shows that 

jurors were instructed on now-invalid theories of murder and 

attempted murder at trial. We affirm.

FACTUAL AND PROCEDURAL HISTORY

After a member of his gang was shot, Allen drove three of 

his fellow gang members into their rival gang’s territory, looking 

1 Unlabeled statutory references are to the Penal Code.
2

for people to shoot.2 (People v. Allen (Nov. 28, 2017, B270724) 

[nonpub. opn.] [2017 WL 5711791 at p. *1] (Allen).3) When they 

arrived, Allen and his accomplices saw two men they believed to 

be rival gang members, Darnell Jackson and Jeremy Owens. 

(Ibid.) Allen’s accomplices got out of the car, walked down the 

street, and shot the men, killing Jackson. (Id. at pp. *1-2.) 

Neither Jackson nor Owens was a gang member. (Id. at p. *1.) 

Prosecutors charged Allen with the murder of Jackson and 

the attempted murder of Owens, alleging he was liable as either 

an aider and abettor or a coconspirator. As to the former theory 

of liability, the trial court instructed jurors that “[a] person is 

guilty of a crime whether [they] committed it personally or aided 

and abetted the perpetrator.” (See CALCRIM No. 400.) The 

court also told jurors that a direct aider and abettor must share 

the perpetrator’s intent: “Someone aids and abets a crime if 

[they] know[] of the perpetrator’s unlawful purpose and [they]

specifically intend[] to and do[] in fact aid, facilitate, promote, 

2 We provide this factual and procedural history to shed 

light on prosecutors’ theory of the case at trial and the factual 

questions the jury had to decide. By providing this background, 

we do not suggest that the trial court was permitted to weigh 

disputed evidence when considering whether to grant Allen’s 

section 1172.6 petition. (See People v. Lewis (2021) 11 Cal.5th 

952, 971 (Lewis) [petition may be denied at prima facie stage only 

when clearly meritless as a matter of law].) 

3 Because it is unnecessary to the resolution of this appeal, 

we deny the Attorney General’s request to take judicial notice of 

the record in Allen’s prior appeal. (People v. Brewer (2015) 235

Cal.App.4th 122, 143.)
3

encourage[,] or instigate the perpetrator’s commission of that 

crime.” (See CALCRIM No. 401.) 

As to the latter theory of liability, the trial court instructed 

jurors pursuant to CALCRIM NO. 416:

“To prove that [Allen] was a member of a conspiracy 

in this case, [prosecutors] must prove that: 

“1. [Allen] intended to agree and did agree with one 

or more of [his alleged coconspirators] to commit 

murder; 

“2. At the time of the agreement, [Allen] and one or 

more of the other alleged members of the conspiracy 

intended that one or more of them would commit 

murder; [and]

“3. [Allen or one of his alleged coconspirators] or all 

of them committed at least one . . . overt act[] to 

accomplish murder[.]”

The instruction also told jurors that prosecutors “must prove that 

the members of the alleged conspiracy had an agreement and 

intent to commit murder.”

CALCRIM No. 417 then told jurors that, if Allen was a 

member of a conspiracy, he was responsible for any crimes he

conspired to commit, no matter which of his coconspirators

committed the crime:

“A member of a conspiracy is . . . criminally 

responsible for any act of any member of the 

conspiracy if that act is done to further the 

conspiracy and that act is a natural and probable 

consequence of the common plan or design of the 
4

conspiracy. This rule applies even if the act was not 

intended as part of the original plan. 

“A natural and probable consequence is one that a 

reasonable person would know is likely to happen if 

nothing unusual intervenes. . . .

[¶] . . . [¶]

“To prove that [Allen] is guilty of [attempted murder 

as a coconspirator], [prosecutors] must prove that: 

“1. [Allen] conspired to commit . . . murder; 

“2. A member of the conspiracy committed attempted 

murder to further the conspiracy; 

“AND 

“3. Attempted [m]urder was a natural and probable 

consequence of the common plan or design of the 

crime that the defendant conspired to commit.” 

The trial court did not instruct jurors on felony murder 

(CALCRIM Nos. 540A-540C) or the natural and probable 

consequences theory (CALCRIM No. 403). Jurors later convicted 

Allen of the first degree murder of Jackson (§§ 187, subd. (a), 189, 

subd. (a)) and the attempted willful, deliberate, and premeditated 

murder of Owens (§§ 664/187, subd. (a)). We affirmed the 

judgment on appeal. (Allen, supra, 2017 WL 5711791 at p. *6.)

In October 2021, Allen petitioned for resentencing pursuant 

to section 1172.6. The trial court appointed counsel and set the 

matter for a prima facie hearing. 
5

The prosecutor opposed Allen’s petition because the jury 

was not instructed on felony murder, natural and probable 

consequences, or any other theory of culpability that imputed 

malice to Allen. He was thus ineligible for section 1172.6 relief as 

a matter of law. 

At the prima facie hearing, the trial court agreed that 

jurors had not been instructed on either felony murder or the 

natural and probable consequences doctrine. Nor were “they . . .

instructed that any kind of malice [could] be imputed to [Allen].” 

It thus found him ineligible for section 1172.6 resentencing and 

denied his petition. 

DISCUSSION

In 2018, the Legislature enacted Senate Bill No. 1437 

(2017-2018 Reg. Sess.) (Senate Bill 1437) to “amend 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 [was] 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).) To accomplish these 

goals, Senate Bill 1437 redefined “malice” in section 188, and 

narrowed the classes of persons liable for felony murder under 

section 189. (Stats. 2018, ch. 1015, §§ 2-3.) It also added what is 

now section 1172.6 to the Penal Code, which permitted those 

convicted of felony murder or murder under a natural and 

probable consequences theory to petition to have their murder 

convictions vacated and to be resentenced on any remaining 

counts. (Stats. 2018, ch. 1015, § 4; see also Stats. 2022, ch. 58, 

§ 10 [renumbering former section 1170.95 as section 1172.6 

without substantive change].) This relief was subsequently 
6

extended to persons convicted of manslaughter and attempted 

murder. (See Stats. 2021, ch. 551, § 2.)

A person may now petition for resentencing if: (1) the 

information allowed prosecutors to “proceed under a theory of 

felony murder, murder under the natural and probable 

consequences doctrine[,] or [any] other theory under which malice 

is imputed to a person based solely on [their] participation in a 

crime, or attempted murder under the natural and probable 

consequences doctrine”; (2) the person was convicted of murder, 

manslaughter, or attempted murder; and (3) the person could not 

now be convicted of murder or attempted murder under the 

current versions of sections 188 and 189. (§ 1172.6, subd. (a).) If 

a person files a facially valid petition, the trial court must 

appoint counsel, if requested, and set the matter for a prima facie 

hearing. (Id., subds. (b)(3) & (c).) At that hearing the court may 

rely on the record of conviction4 and deny a petition if the 

petitioner is ineligible for section 1172.6 relief as a matter of law. 

(Lewis, supra, 11 Cal.5th at pp. 970-972.) 

A petitioner is ineligible for section 1172.6 relief as a 

matter of law if, for example, the jury instructions show that 

jurors were not instructed on any theory of liability affected by 

Senate Bill 1437’s changes to sections 188 and 189. (People v. 

Daniel (2020) 57 Cal.App.5th 666, 677.) A petitioner is also 

ineligible for relief if the record of conviction shows that their 

conviction was based on a theory of liability that remains valid 

under Senate Bill 1437. (People v. Medrano (2021) 68 

Cal.App.5th 177, 182-183.) We review de novo a trial court’s 

4 Prior appellate opinions and the jury instructions given at 

trial are part of the record of conviction. (People v. Lopez (2022) 

78 Cal.App.5th 1, 13.)
7

prima facie determination that a petitioner is ineligible for 

section 1172.6 relief as a matter of law. (People v. Williams 

(2022) 86 Cal.App.5th 1244, 1251 (Williams).) 

The trial court here correctly concluded that Allen was 

ineligible for section 1172.6 relief as a matter of law. The court 

instructed jurors on two theories of liability at trial: direct aiding 

and abetting, and conspiracy. If the jury adopted the former 

theory, Allen was ineligible for section 1172.6 relief because 

jurors would have had to conclude that he harbored the intent to 

kill. (Williams, supra, 86 Cal.App.5th at p. 1252.) 

The same is true if jurors convicted him of murder and 

attempted murder on a conspiracy theory. “[C]onspiracy is a 

specific intent crime requiring an intent to agree or conspire, and 

a further intent to commit the target crime, here murder, the

object of the conspiracy.” (People v. Swain (1996) 12 Cal.4th 593, 

602.) The trial court instructed jurors on these principles: It told 

jurors that, to convict Allen of Jackson’s murder as a 

coconspirator, prosecutors had to show that he “intended to agree 

and did agree with one or more of [his alleged coconspirators] to 

commit murder” and that “[a]t the time of [that] agreement, [he]

and one or more of the other alleged members of the conspiracy 

intended that one or more of them would” do so. (Italics added.) 

The court also told jurors that convicting Allen on a conspiracy 

theory required prosecutors to show that he “had an agreement 

and intent to commit murder.” (Italics added.) 

To convict Allen of the attempted murder of Owens as a 

coconspirator, the trial court told jurors that they had to conclude 

that Allen conspired to commit murder. That, in turn, required 

them to find that he harbored the intent to kill. (People v.

Whitson (2022) 79 Cal.App.5th 22, 31-32 (Whitson); see also 
8

People v. Beck & Cruz (2019) 8 Cal.5th 548, 642 [“conspiracy to 

commit murder may not be based on a theory of implied malice”].) 

“There is thus no possibility [Allen was] found guilty of murder 

[or attempted murder] on a natural and probable consequences 

theory,” as he contends. (Beck & Cruz, at p. 645.) Denial of his 

section 1172.6 petition was proper. (Whitson, at p. 32.)

Allen counters that the instructions did not require jurors 

to conclude that he and his alleged coconspirators ever discussed 

killing non-rival gang members or that killing Jackson and 

Owens was part of their plan. But “ ‘the intent to kill need not be 

directed at a specific person.’ ” (People v. Stone (2009) 46 Cal.4th 

131, 139 (Stone).) “ ‘The social harm of murder is the “killing of a 

human being by another human being.” ’ ” (Ibid.) “ ‘The 

requisite intent, therefore, is the intent to kill a, not a specific, 

human being.’ ” (Ibid.) Thus, under current California law, 

“conspiracy to commit murder may be based on an agreement to 

kill ‘ “a human being” ’ who is not specifically identified.” 

(Whitson, supra, 79 Cal.App.5th at p. 33, fn. 9.) That Allen and 

his coconspirators did not conspire to kill Jackson and Owens

specifically is not relevant.

In re Brigham (2016) 3 Cal.App.5th 318 (Brigham), on 

which Allen relies, is inapposite. The Brigham defendant was 

charged with aiding and abetting the murder of a man who may 

not have been his and his accomplices’ intended target. (Id. at p. 

324.) At trial, the court instructed the jury on the natural and 

probable consequences theory of first degree premeditated 

murder that was subsequently invalidated by the Supreme Court 

in People v. Chiu (2014) 59 Cal.4th 155, with both the target and 

non-target offenses being murder, and the doctrine of transferred 
9

intent. (Brigham, at p. 327.) It convicted the defendant of first 

degree murder. (Id. at p. 322.)

Our colleagues in the First District reversed, concluding 

that the trial court committed prejudicial instructional error 

because the natural and probable consequences doctrine gave the 

jury a faulty path to convict the defendant of first degree murder. 

(Brigham, supra, 3 Cal.App.5th at p. 327-328, 333.) The jury 

could have convicted the defendant as a direct aider and abettor 

on the still-valid theory of transferred intent by rejecting his

claim that he knew the victim was not the intended target and 

tried to stop the shooter—i.e., by finding that he aided in the 

murder of the wrong person. (Id. at pp. 327-328.) But the jury

also could have believed the defendant’s claim and convicted him

“if it believed that a reasonable person, knowing what [the 

defendant] knew about the situation and about [the shooter], 

would or should have known it was reasonably foreseeable that 

[the shooter] would commit a premeditated murder of a different 

victim.” (Id. at p. 328.) Under Chiu, that is not permitted. 

(Brigham, at p. 329.)

Unlike the situation in Brigham, nothing in the 

instructions given here permitted jurors to conclude that the 

murder of Jackson was a natural and probable consequence of a 

plan to kill Owens or any other intended victim. The instructions 

did permit jurors to find that the attempted murder of Owens

was the natural and probable consequence of another crime Allen 

conspired to commit, but that crime was murder. As set forth 

above, to find that Allen conspired to commit murder required

jurors to find that he harbored the intent to kill. And “a person 

who intends to kill can be guilty of attempted murder even if 

[they have] no specific target in mind.” (Stone, supra, 46 Cal.4th 
10

at p. 140.) “An indiscriminate would-be killer is just as culpable 

as one who targets a specific person.” (Ibid.)

It was also not reasonably likely that jurors imputed malice 

to Allen for the attempted murder of Owens. (Cf. People v. 

Estrada (2022) 77 Cal.App.5th 941, 947 [reasonable likelihood 

test applies when analyzing whether jury instructions render a 

petitioner eligible for relief at prima facie stage of section 1172.6

proceeding].) To do so, jurors would have had to: (1) find that 

Allen intended to kill someone, but no one in particular; (2) find 

that Allen’s coconspirators intended to kill Jackson and Owens, 

and Jackson and Owens in particular; and (3) impute the 

coconspirators’ intent to kill Jackson and Owens to Allen. Allen 

points to nothing in the evidence or jury instructions that would 

have suggested such a theory. It is not reasonably likely the jury 

adopted it. (Estrada, at pp. 948-949.)

Whitson, supra, 79 Cal.App.5th 22, also does not assist 

Allen. In that case, prosecutors argued the defendant was 

ineligible for section 1172.6 relief because jurors convicted him of 

conspiracy to commit murder. (Whitson, at p. 31.) During jury 

instructions, however, the trial court neglected to tell jurors that 

the conspiracy conviction required finding that the defendant had 

the intent to kill. (Id. at pp. 31-32.) Here, in contrast, CALCRIM 

No. 417 told jurors that, to convict Allen of attempted murder, 

they had to find that he conspired to commit murder. And 

CALCRIM No. 416 told jurors that finding Allen conspired to 

commit murder required finding that he had the intent to kill. 

Denial of his section 1172.6 petition was therefore proper.
11

DISPOSITION

The trial court’s order denying Allen’s petition for 

resentencing pursuant to Penal Code section 1172.6, entered 

August 12, 2022, is affirmed.

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Eleanor J. Hunter, Judge

Superior Court County of Los Angeles

______________________________

Danalynn Pritz, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and David A. Wildman, Deputy 

Attorneys General, for Plaintiff and Respondent.
Filed 11/20/23 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

CHARLES JOSEPH ALLEN,

 Defendant and Appellant.

2d Crim. No. B324207

(Super. Ct. No. BA381310)

(Los Angeles County)

ORDER MODIFYING 

OPINION AND CERTIFYING 

OPINION FOR PUBLICATION

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on October 26, 

2023, be modified as follows:

1. On page 1, the following paragraph is inserted as the 

first paragraph in the opinion: 

A person who conspires to commit murder harbors the 

intent to kill. But they need not harbor the intent to kill 

a specific victim. So long as they intend to kill a human 
14

being, they are ineligible for Penal Code5 section 1172.6 

resentencing as a matter of law.

2. On page 1, first sentence of the first paragraph, the 

words “Penal Code” and footnote 1 are deleted so that the 

sentence reads:

Charles Joseph Allen appeals from the denial of his 

petition for resentencing pursuant to section 1172.6.

The opinion in the above-entitled matter filed on October 

26, 2023, was not certified for publication in the Official Reports. 

For good cause, it now appears that the opinion should be 

published in the Official Reports and it is so ordered.

There is no change in judgment.

____________________________________________________________

GILBERT, P. J. YEGAN, J. BALTODANO, J. 

5 Unlabeled statutory references are to the Penal Code.