People v. Allison

Filed 10/2/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B300575

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA022581)
v.

ANTWAN ALLISON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Eric P. Harmon, Judge. Affirmed.
____________________________

Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and William H. Shin, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
 This case presents the same question we addressed
recently in People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan):
whether a defendant convicted of murder with a felony-murder
special circumstance (Pen. Code,1 § 190.2, subd. (a)(17)) is eligible
for resentencing under section 1170.95. Just as in Galvan,
we answer that question in the negative, and accordingly, we
affirm the trial court’s denial of the defendant’s petition for
resentencing. We publish this opinion in order to respond to
our colleagues in Division 5 of this court, who in People v. York
(2020) 54 Cal.App.5th 250 (York) disagreed with our analysis in
Galvan.2
In 1997, a jury convicted defendant and appellant Antwan
Allison of murder on the basis of his participation in a home
invasion robbery in which either Allison or a cohort shot and
killed two victims. The jury, however, was deadlocked on the
prosecution’s allegation of felony-murder special circumstances
(§ 190.2, subd. (a)(17)), which required the jury to find either
that Allison was the actual killer, that he acted with the intent
to kill, or that he was a major participant in the robbery who
acted with reckless indifference to human life. To avoid a retrial
of that issue and a possible sentence of life in prison without the
possibility of parole, as part of a plea bargain, Allison admitted

1 Subsequent statutory references are to the Penal Code.
2The opinion in York followed two other opinions by
Division 5 applying similar reasoning on the same issue:
People v. Torres (2020) 46 Cal.App.5th 1168, review granted
June 24, 2020, S262011 (Torres), and People v. Smith (2020) 49
Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith).
Although we respond to York in this opinion, we disagree with
the reasoning in Torres and Smith as well.

2
the truth of the felony-murder special circumstances, and the
court found there was a factual basis for the admission and
accepted the plea.
In 2019, relying on recently enacted section 1170.95,
Allison petitioned the trial court to vacate his murder conviction
and resentence him. The court denied the petition because,
based on the special circumstance finding, Allison could still be
convicted of murder and therefore was ineligible for resentencing
under section 1170.95.
Allison, however, contends that his 1997 special
circumstance admission can no longer support a felony-murder
conviction in light of our Supreme Court’s decisions in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark), which clarified the meaning
of “major participant” and “reckless indifference to human
life.” We disagree and affirm the trial court’s order because
section 1170.95 is not a vehicle for such a challenge.
(See Galvan, supra, 52 Cal.App.5th at pp. 1141-1142.)

FACTS AND PROCEEDINGS BELOW
The following account of the facts underlying Allison’s
conviction is taken from our opinion in his original appeal.
(People v. Allison (Jan. 31, 2000, B121801) [nonpub. opn.].)
Allison’s codefendant, Ricky Smith, was an acquaintance
of 15-year-old Jonathan Landau (Jonathan)3 and had visited
the Landau residence several times. Smith and Allison agreed
to a plan by which Smith would meet with Jonathan at the
Landau home. After Jonathan’s parents went to bed, Smith

3
For clarity, we use the first names for the Landau family
members, intending no disrespect.

3
would leave the front door unlocked, and Allison would enter and
rob the residents. Smith would pretend to be a victim. Allison
told police that the plan was Smith’s idea, and that Smith
provided Allison with a ski mask, gloves, and a gun.
The two defendants put their plan into action on the
evening of January 2, 1996. Allison entered the house through
the unlocked front door, gathered Jonathan and Jonathan’s
parents (Richard and Donna Landau) together in the hallway,
struck Richard on the forehead with his gun, and ordered
the Landaus to lie down on the floor. Allison ordered Smith
to restrain the Landaus with tape. Smith placed tape over all
three Landaus’ eyes, and bound their hands.
The defendants also placed plastic bags over the Landaus’
heads. Richard and Donna complained that it was difficult
to breathe, at which point one of the defendants fired several
gunshots, killing Richard and Donna and wounding Jonathan
in the leg. Jonathan, whose eyes were covered by tape, could not
see who fired the shots. Jonathan pretended to be dead and
remained still until he was sure the defendants had left, at which
point he called the police. The defendants stole jewelry, credit
cards, checks, and Donna’s checkbook.
Allison’s first trial resulted in a hung jury. At the
second trial, the jury convicted him of two counts of first degree
murder (§§ 187, subd. (a), 189), one count of assault with a
firearm (§ 245, subd. (a)(2)), one count of burglary (§ 459), and
one count of robbery (§ 211). The jury could not reach a verdict
as to whether felony-murder special circumstances applied to
the murder counts. (See § 190.2, subd. (a)(17).) Rather than
proceed to a third trial on the special circumstances, Allison
agreed to a plea bargain, according to which he admitted the

4
special circumstances.4 In exchange, the prosecution agreed
to request that the trial court exercise its discretion not to
impose a sentence of life without parole. The court imposed
two consecutive terms of 25 years to life for the murders, plus
an additional four-year consecutive sentence for assault with
a firearm. The court stayed its sentence on the robbery and
burglary counts pursuant to section 654.
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which,
among other changes, amended section 188 to eliminate
felony-murder liability in cases in which the defendant
was not a major participant in the underlying felony or did
not act with reckless indifference to human life. (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247–248.) The
Legislature also enacted section 1170.95, which establishes a
procedure for vacating murder convictions for defendants who
could no longer be convicted of murder under the new law and
resentencing such defendants. (Stats. 2018, ch. 1015, § 4,
pp. 6675–6677.)
On January 21, 2019, Allison filed a petition for
resentencing under section 1170.95 in which he declared that
he had been convicted of murder under the felony-murder rule
or the natural and probable consequences doctrine and that he
could not now be convicted of murder because of the changes

4 Allison admitted four felony-murder special
circumstances: one for robbery and one for burglary of each of
the two murder victims. (See § 190.2, subd. (a)(17)(A) & (G).)
Because all the special circumstances were based on the same
conduct, they all required that Allison was a major participant
in the home invasion and that he acted with reckless indifference
to human life.

5
made to sections 188 and 189. Upon receipt of the petition,
the trial court appointed counsel to represent Allison.
The district attorney filed an opposition challenging
the constitutionality of Senate Bill No. 1437, and a separate
opposition arguing that Allison was ineligible for resentencing
because he was a major participant in the underlying crimes and
acted with reckless indifference to human life and therefore met
the new criteria for felony murder. Allison’s counsel filed a reply
brief arguing that Senate Bill No. 1437 was constitutional and
that Allison had established a prima facie case for relief.
The trial court held a hearing, then issued a written order
denying the petition on the ground that Allison had failed to
make a prima facie case. The court reasoned that, by admitting
the special circumstances, Allison had admitted that at minimum
he was a major participant in the underlying felony and acted
with reckless indifference to human life. The court concluded
that the enactment of Senate Bill No. 1437 therefore did not
allow Allison’s conviction to be vacated.
Allison appealed, and we appointed counsel to represent
him. Counsel filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), raising no issues and asking this court to
review the record independently.5 In cases like this one, where
the defendant has no constitutional right to representation by
counsel, we are not obligated to follow the procedures set out
by Wende to review the record independently and determine
whether any arguable issues exist. (People v. Cole (2020)

5 After counsel filed the Wende brief, we received a letter
from Allison in which he stated that he realized that the change
in the law did not apply to him, and requested that we dismiss
the appeal. That request is denied.

6
52 Cal.App.5th 1023, 1034.) Nevertheless, we have the discretion
to review the record in the interests of justice. (See People v.
Flores (2020) 54 Cal.App.5th 266, 273–274.) In this case, we
exercised that discretion and requested that the parties brief
the following issue: Whether the trial court properly relied
on Allison’s admission of felony-murder special circumstances
(§ 190.2, subd. (a)(17)) as the sole basis for finding that he had
not made a prima facie showing that he was entitled to relief.

DISCUSSION
A. Background on Section 1170.95
Section 1170.95 allows a defendant serving a sentence for
felony murder who could not be convicted of murder because of
the amendments to sections 188 and 189 contained in Senate
Bill No. 1437 to petition for resentencing. The statute requires
a defendant to submit a petition affirming that he or she:
(1) was charged with murder in a manner “that allowed the
prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine”
(§ 1170.95, subd. (a)(1)); (2) was “convicted of ” or pleaded guilty
to “first degree or second degree murder” (§ 1170.95, subd. (a)(2));
and (3) “could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made” in Senate Bill
No. 1437 (§ 1170.95, subd. (a)(3)). As described above, those
changes eliminated the natural and probable consequences
doctrine as a basis for murder liability, and added a requirement
for felony murder that a defendant must have been at least a
major participant in the underlying felony who acted with
reckless indifference to human life.

7
 Upon receipt of a facially sufficient petition, the trial
court reviews the matter to determine whether the petitioner
has made a prima facie showing that he or she “falls within the
provisions” of the statute. (§ 1170.95, subd. (c).) If the petitioner
meets this requirement, the court shall appoint counsel for the
defendant upon request and allow for briefing. (Ibid.) “If the
petitioner makes a prima facie showing that he or she is entitled
to relief,” the court issues an order to show cause and holds a
hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subds. (c) & (d)(1).) In this case, the trial court
denied the petition at the second stage of prima facie review
under section 1170.95, subdivision (c), after appointing counsel
to represent Allison.

B. A Defendant with a Felony-murder Special
Circumstance Finding Is Ineligible for
Resentencing Under Section 1170.95
To be eligible for resentencing under section 1170.95,
Allison must 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” in Senate Bill No. 1437. (§ 1170.95,
subd. (a)(3), italics added.) Under the newly amended version
of section 189, a defendant can be convicted of felony murder
only if he: was the actual killer; acted with the intent to kill
in aiding, abetting, counseling, commanding, inducing, soliciting,
requesting, or assisting in first degree murder; or “was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d)
of Section 190.2.” (§ 189, subd. (e)(3).) These are identical to
the requirements of a felony-murder special circumstance now
and in 1997 when Allison made his admission. (See § 190.2,

8
subds. (b)–(d); Prop. 196, as approved by voters, Gen. Elec.
(Mar. 26, 1996) [amending § 190.2].) Thus, the special-
circumstance admission shows as a matter of law that Allison
could still be convicted of felony murder even under the newly
amended version of section 189, and prevents Allison from
making a prima facie case that he is eligible for resentencing.
Allison attempts to avoid this conclusion by attacking
the validity of the felony-murder special circumstances. He
notes that after his conviction of felony murder, the Supreme
Court decided Banks and Clark, clarifying the interpretation
of the concepts of major participation and reckless indifference
to human life. In Banks, the Court evaluated existing
United States Supreme Court jurisprudence on the issue and
set out a series of considerations relevant to determining whether
a particular defendant was a major participant in the underlying
felony. (See Banks, supra, 61 Cal.4th at p. 803.) The Court did
the same in Clark with respect to whether the defendant acted
with reckless indifference to human life. (See Clark, supra,
63 Cal.4th at pp. 618–623.) Because no court has examined
whether there was a factual basis to conclude that Allison
was a major participant who acted with reckless indifference
to human life according to the standards enunciated in Banks
and Clark, Allison argues that the special circumstance
admission does not show as a matter of law that he is ineligible
for resentencing under section 1170.95. The court in York
agreed with this argument and held that a defendant with a
felony-murder special circumstance could be eligible for
relief under section 1170.95. (York, supra, 54 Cal.App.5th at
pp. 257–258.)

9
 We disagree, just as we did in Galvan.6 Allison’s argument
exaggerates the effect of Banks and Clark. Those opinions did
not change the law, but “merely clarified the ‘major participant’
and ‘reckless indifference to human life’ principles that existed
when defendant’s conviction became final.” (In re Miller (2017)
14 Cal.App.5th 960, 978.) The phrases “major participant”
and “reckless indifference to human life” do not have specialized
definitions, but are interpreted as they are used in common
parlance. (See Banks, supra, 61 Cal.4th at pp. 800–801; People v.
Price (2017) 8 Cal.App.5th 409, 450–451.) Jury instructions
regarding the mental state required for a felony-murder
special circumstance are not defective if they do not include the
Banks and Clark factors. (Id. at p. 451.) Indeed, the pattern
jury instruction regarding major participation and reckless
indifference remains the same as it was before Banks and Clark.

6 In Galvan and other cases involving section 1170.95
challenges, the special circumstance findings were made by
juries. In this case, however, Allison admitted the truth of the
special circumstances in a plea bargain. Nevertheless, our
reasoning in Galvan applies equally to this case. In general,
“ ‘ “[a] guilty plea amounts to an admission of every element
of the crime and is the equivalent of a conviction.” ’ ” (People v.
Mazumder (2019) 34 Cal.App.5th 732, 741.) By the same logic,
the admission of an enhancement is equivalent to and has the
same effect as a jury finding on the enhancement. (See People v.
Shirley (1993) 18 Cal.App.4th 40, 46–47.) Section 1170.95
applies equally to defendants who were “convicted of first degree
or second degree murder following a trial or accepted a plea offer
in lieu of a trial.” (§ 1170.95, subd. (a)(2).) Thus, our analysis in
Galvan regarding the availability of relief under section 1170.95
applies equally to Allison as to a defendant where the jury made
the special circumstance finding.

10
(See CALCRIM No. 703; People v. Gomez (2020) 52 Cal.App.5th
1, 14, fn. 6 [setting forth CALCRIM No. 703 prior to Banks and
Clark].) The instruction currently includes optional language
suggested by the Banks and Clark decisions, but even so, the
inclusion of the optional language does not materially change the
instruction.7 The bench notes to the instruction state that Banks

7 The optional language in CALCRIM No. 703 is as follows:
“[When you decide whether the defendant acted with reckless
indifference to human life, consider all the evidence. No one
of the following factors is necessary, nor is any one of them
necessarily enough, to determine whether the defendant acted
with reckless indifference to human life. Among the factors you
may consider are:
[• Did the [defendant know that [a] lethal weapon[s]
would be]* present during the ?]
[• Did the defendant know that [a] lethal weapon[s]
would be present during the ?]
[• Did the defendant know that [a] lethal weapon[s]
(was/were) likely to be used?]
[• Did the defendant know that [a] lethal weapon[s]
(was/were) used?]
[• Did the defendant know the number of weapons
involved?]
[• Was the defendant near the person(s) killed when
the killing occurred?]
[• Did the defendant have an opportunity to stop the
killing or to help the victim(s)?]
[• How long did the crime last?]
[• Was the defendant aware of anything that would
make a coparticipant likely to kill?]
[• Did the defendant try to minimize the possibility of
violence?]

11
“stopped short of holding that the court has a sua sponte duty to
instruct on those factors,” and Clark “did not hold that the court
has a sua sponte duty to instruct on those factors.” (Bench Notes
to CALCRIM No. 703 (2020 ed.) p. 452; see People v. Gomez
(2020) 52 Cal.App.5th 1, 14, fn. 6.)
Moreover, Allison had the same incentive at his original
trial to attempt to minimize his involvement in the robbery

[• ]]
[When you decide whether the defendant was a major
participant, consider all the evidence. No one of these following
factors is necessary, nor is any one of them necessarily enough,
to determine whether the defendant was a major participant.
Among the factors you may consider are:
[• What was the defendant’s role in planning the crime
that led to the death[s]?]
[• What was the defendant’s role in supplying or using
lethal weapons?]
[• What did the defendant know about dangers posed by
the crime, any weapons used, or past experience or conduct of
the other participant[s]?]
[• Was the defendant in a position to facilitate or to
prevent the death?]
[• Did the defendant’s action or inaction play a role in
the death?]
[• What did the defendant do after lethal force was used?]
[• ]]”
_____________________
* We note that the language within the internal brackets
in the first factor—“defendant know that [a] lethal weapon[s]
would be”—is not included in the 2020 edition of CALCRIM
and the omission appears to be a clerical error. The language
included here appears in Westlaw’s online version of the
instruction.

12
and his culpability for the killings as he would have had if his
trial had taken place after Banks and Clark. In short, there
is no reason to believe that Allison’s admission of the special
circumstance after his original trial was any different in
meaning or effect than it would have been if he had made it
today. If defendants like Allison were able to petition for relief
under section 1170.95, it would create a disparity by giving
defendants with pre-Banks and Clark special-circumstance
findings an opportunity to retry their cases, even as more
recently convicted defendants are denied this opportunity.8
(See Galvan, supra, 52 Cal.App.5th at pp. 1142-1143.)
The York court also stated that our opinion in Galvan
was flawed for ignoring section 1170.95, subdivision (d)(2),
which requires the trial court to grant relief “[i]f there was a
prior finding by a court or jury that the petitioner did not act
with reckless indifference to human life or was not a major
participant in the felony.” (§ 1170.95, subd. (d)(2).) Because
there is no equivalent subdivision requiring the denial of relief
where a court or jury previously found that the petitioner did
act with reckless indifference to human life and was a major
participant in the underlying felony, the court in York
reasoned that we should infer that the Legislature meant to
allow a defendant in that situation to pursue relief under
section 1170.95. (York, supra, 54 Cal.App.5th at p. 260.)

8 Although our holding in this case, like Galvan, is not
contingent on the availability of habeas corpus relief, we note
that a defendant whose special circumstance determination
predated Banks and Clark may challenge the sufficiency of the
evidence of the finding by means of a habeas corpus petition.
(See In re Scoggins (2020) 9 Cal.5th 667, 673–674.)

13
 We disagree. The Legislature could not and did not need
to spell out every ground for denying a petition. For example,
the Legislature did not specify that a defendant “who was found
to have personally and intentionally discharged a firearm causing
great bodily injury or death in a single victim homicide within
the meaning of section 12022.53, subdivision (d)” is ineligible for
relief, but a court would be correct to summarily deny a petition
in such a case because the defendant could not make a prima
facie claim that he was entitled to relief. (People v. Verdugo
(2020) 44 Cal.App.5th 320, 330 (Verdugo), review granted
Mar. 18, 2020, S260493.) The same is true with numerous other
prior findings, such as “administration of poison” or “street gang”
special circumstances, which require that the defendant killed
the victim. (See § 190.2, subd. (a)(19) & (22).) If these kinds of
findings did not bar defendants from relief under section 1170.95,
it would be unclear how any prior factual findings could preclude
relief under section 1170.95. For these reasons we conclude that
the Legislature’s silence regarding defendants with pre-Banks
and Clark special circumstances does not imply that such
defendants are eligible for resentencing under section 1170.95.
Allison’s argument fails for another reason. To be eligible
for resentencing under section 1170.95, a defendant must show
that he “could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made” in Senate Bill
No. 1437. (§ 1170.95, subd. (a)(3), italics added.) But Senate
Bill No. 1437 alone does nothing to help defendants like Allison.
Under the new law, to convict a defendant of felony murder,
the prosecution must prove that the defendant at a minimum
was a major participant in a felony and acted with reckless
indifference to human life. But that is precisely what Allison

14
admitted as part of his plea bargain. He now claims that his
special circumstance is no longer valid because of Banks and
Clark, not “because of ” anything in Senate Bill No. 1437.
(§ 1170.95, subd. (a)(3); see Galvan, supra, 52 Cal.App.5th at
p. 1142.)
The court in York disagreed with our analysis, explaining
that “[w]hat permits a defendant convicted of felony-murder to
challenge his or her murder conviction based on the contention
that he or she was not a major participant in the underlying
felony who acted with reckless indifference to human life,
are the changes Senate Bill [No.] 1437 made to sections 188
and 189, and in particular the addition of section 189,
subdivision (e)(3), not the rulings in Banks and Clark.” (York,
supra, 54 Cal.App.5th at p. 261.) At the same time, however,
the York opinion included a footnote declining to express an
opinion as to whether a prior finding that was not affected by
an intervening change in the law (such as Banks and Clark)
should be treated as preclusive in evaluating a section 1170.95
petition. (York, supra, at p. 258, fn. 5.)
We are not persuaded by York because, notwithstanding
York’s cautious footnote, the consequence of York’s analysis
is that no prior jury findings would ever preclude relief under
section 1170.95. No matter how conclusively the prior findings
establish the defendant’s liability for murder under amended
sections 188 and 189, the defendant would always be able to
make the same argument endorsed in York: What permits
the defendant to challenge his murder conviction based on
the contention that the prior findings were wrong are the
changes made to sections 188 and 189, and that is all that
subdivision (a)(3) of section 1170.95 requires. Thus, even if

15
the jury found that the defendant was the actual killer or acted
with intent to kill or otherwise acted with malice, relief under
section 1170.95 might still be available—none of those findings
was required for murder liability before Senate Bill No. 1437
(because a defendant who lacked malice and was not the actual
killer could still have been convicted on a felony murder or
natural and probable consequences theory). As a result, the
petitioner could contend, under York, that he or she was not the
actual killer or did not act with malice and therefore could not be
convicted of murder because of the changes Senate Bill No. 1437
made to sections 188 and 189. Thus, every convicted murderer
who could make a prima facie showing (whatever that might be)
that the prior findings were factually incorrect would be entitled
to a bench trial de novo on those findings.
We do not believe it is reasonable to interpret
section 1170.95 as allowing for such challenges, namely,
challenges based on attacks on prior factual findings. Nothing
in the language of section 1170.95 suggests it was intended
to provide redress for allegedly erroneous prior fact-finding.
In particular, subdivision (a)(3) of section 1170.95 says nothing
about erroneous prior findings or the possibility of proving
contrary facts if given a second chance. Rather, it requires
that the petitioner could not be convicted of murder because
of the changes to sections 188 and 189, not because a prior
fact finder got the facts wrong. The purpose of section 1170.95 is
to give defendants the benefit of amended sections 188 and 189
with respect to issues not previously determined, not to provide
a do-over on factual disputes that have already been resolved.
For these reasons, we disagree with York and believe that
Verdugo, supra, 44 Cal.App.5th 320, review granted March 18,

16
2020, S260493, correctly describes the role of prior factual
findings in the analysis of a petition under section 1170.95.
According to Verdugo, relief under section 1170.95 is barred if
a prior finding shows the petitioner “was convicted on a ground
that remains valid notwithstanding Senate Bill No. 1437’s
amendments to sections 188 and 189.” (Verdugo, supra, 44
Cal.App.5th at p. 330.) Verdugo’s interpretation is faithful to
the language of subdivision (a)(3) of section 1170.95: If the prior
finding shows the petitioner meets the requirements for murder
liability under amended sections 188 and 189, then it is not true
that the petitioner could not be convicted of murder because of the
changes to sections 188 and 189, and the petition must be denied.

DISPOSITION
The trial court’s order is affirmed.
CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.
We concur:

CHANEY, J.

SINANIAN, J.*

*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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