People v. Allen CA2/3

Filed 8/22/22 P. v. Allen CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION THREE

THE PEOPLE, B316834

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA040368
v.

ALTON CHARLES ALLEN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, John L. Lonergan, Judge. Affirmed.
John Steinberg, 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, Acting
Assistant Attorney General, Daniel Chang and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

In 1997, a jury convicted Alton Charles Allen of the first
degree murder of Emery Hughes. The jury also found true the
allegations that Allen personally used a deadly and dangerous
weapon (a knife) and committed the murder during a burglary.
This court affirmed Allen’s conviction on direct appeal in 1999.
(People v. Allen (1999) 72 Cal.App.4th 1093 (Allen I).)1
In 2021, Allen filed a petition for resentencing under Penal
Code2 section 1170.95,3 arguing he could not now be convicted of
first or second degree murder under sections 188 and 189 as
those statutes were amended by Senate Bill No. 1437 (S.B. 1437).
The trial court appointed counsel for Allen, found he met his
prima facie burden, issued an order to show cause, and set the
matter for an evidentiary hearing. Following the hearing, the
court found that, as the actual killer, Allen is ineligible for relief
and denied his petition.
Allen appeals, arguing the court erred in relying on the
factual recitation contained in Allen I in making its ruling on his
resentencing petition. Specifically, Allen notes that after the
court denied his petition, the California Legislature enacted

1 Allen’s statement of facts in his opening brief is derived from Allen I,
and that opinion is included in the record on appeal. Our summary of
the facts and procedural history are taken from Allen I and the record
in this appeal.
2 All undesignated statutory references are to the Penal Code.
3Effective June 30, 2022, Penal Code section 1170.95 was renumbered
section 1172.6, with no change to the text (Stats. 2022, ch. 58, § 10).
For convenience, we refer to the former statute number throughout
this opinion.

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Senate Bill No. 775 (S.B. 775) (Stats. 2021, ch. 551, § 2), which
amended section 1170.95 in a number of ways. As relevant here,
S.B. 775 clarified that “[t]he 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.” (§ 1170.95, subd. (d)(3).)
Allen contends the amended statute applies in this case, and that
the court erred in relying exclusively on the factual summary in
our prior opinion.
We conclude Allen has failed to establish that the court
relied on the factual recitation in our prior opinion. In any event,
Allen’s conclusory assertion that he was prejudiced by the
purported error is undeveloped and inadequate to support a
reversal of the order. Accordingly, we affirm.

BACKGROUND

1. The Underlying Crimes
Hughes and Phyllis H. (Phyllis) were asleep in Hughes’s
house one evening in October 1994. A rumbling in the bed woke
Phyllis and she immediately saw a masked intruder in the
bedroom. The intruder was struggling with Hughes and stabbing
him with a knife. Phyllis begged him to stop and told the intruder
Hughes had no money. But the intruder persisted, attacking
Hughes with the knife, then beating and kicking him repeatedly.
After ransacking the bedroom, the intruder took a dollar and
change from Hughes’s pocket. He then raped Phyllis before
fleeing from Hughes’s home. Hughes was stabbed seven times

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and died later that night. (Allen I, supra, 72 Cal.App.4th at
pp. 1095–1096.)
The subsequent investigation by law enforcement showed
that a window in the laundry room at the rear of the house was
open and the screen had been cut recently. Allen’s fingerprints
were found on the top of the washing machine below the window.
Based on the fingerprint match, an arrest warrant was issued
and Allen was arrested. He denied knowing Hughes and said he
had never been on the street where Hughes lived. (Allen I, supra,
72 Cal.App.4th at p. 1096.)
2. The Charges and Jury Trial
The People filed an information on June 29, 1995, charging
Allen with four felony counts. The first count, as to Hughes,
charged Allen with murder (§ 187, subd. (a)), and alleged he
committed the murder during a burglary (§ 190.2, subd. (a)(17))
and personally used a knife during the commission of the offense
(§ 12022, subd. (b)). The remaining counts, as to Phyllis, alleged
forcible oral copulation (count 2, former § 288a, subd. (c)), forcible
rape (count 3, § 261, subd. (a)(2)), and assault with a deadly
weapon causing great bodily injury (count 4, § 254, subd. (a)(1)).
The People also alleged Allen personally used a knife during the
commission of the offenses in counts 2 and 3 (§ 12022.3,
subd. (a)).
A 13-day jury trial took place in mid-1997. In addition to
presenting witnesses that discussed the evidence summarized
above, the People presented several expert witnesses who
testified to the results of DNA testing performed on a semen
sample recovered from Phyllis’s clothing. One expert concluded
the semen could not have been produced by Hughes. That expert,
and others, testified to the likelihood that the semen was

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produced by Allen. (Allen I, supra, 72 Cal.App.4th at pp. 1096–
1097.) Allen, who testified in his defense, denied that he was the
intruder and said he had been home with his father when the
incident occurred. He admitted, however, that he had been at
Hughes’s house on prior occasions to deliver drugs to Phyllis and
on one occasion had exchanged drugs for sex with her. (Id. at
pp. 1097–1098.) Allen explained that he initially denied knowing
Hughes because he knew Hughes by a nickname (“Red”) and
denied ever visiting Hughes’s house because he did not want to
get involved with a murder investigation. (Id. at p. 1098.)
The jury convicted Allen on two counts. On count 1, the
jury found Allen guilty of first degree murder and found true the
allegations that he murdered Hughes during a burglary and used
a knife during the commission of the offense. On count 3, the jury
found Allen guilty of forcible rape but found the allegation
regarding the use of a knife not true. The jury acquitted Allen on
count 4, the assault charge. The court declared a mistrial as to
count 2, as the jury was unable to reach a verdict after extended
deliberation.
The court sentenced Allen to serve a life sentence without
the possibility of parole on count 1 and seven years on count 3.
3. Resentencing Proceedings
In April 2021, Allen, representing himself, filed a petition
for resentencing under section 1170.95 alleging he was eligible
for relief because he was prosecuted and convicted under the
felony murder rule and was not the actual killer. The court
appointed counsel for Allen.
In July 2021, the People filed an opposition to the petition.
They argued Allen failed to make a prima facie showing that he
is eligible for resentencing because he was the actual killer who

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stabbed the victim to death. The People’s summary of the
evidence in their opposition was derived from our opinion in
Allen I. They noted, however, that in reviewing the petition, the
court may consider the entire record of conviction including the
facts underlying the conviction. In his reply, Allen, now
represented by counsel, argued that he made the necessary prima
facie showing and urged the court to issue an order to show cause
and conduct an evidentiary hearing under subdivision (d) of
section 1170.95. The court subsequently found Allen met his
prima facie burden, issued an order to show cause, and set the
matter for an evidentiary hearing.
The hearing took place on November 16, 2021. After
counsel argued, the court denied the petition stating that Allen
was not entitled to relief under section 1170.95 as a matter of
law. The court summarized its ruling as follows: “The petitioner
was the actual killer. The petitioner broke into the victim’s house,
beat and stabbed victim [Hughes] several times which resulted in
his death. He then raped victim Phyllis. He stole a dollar and
some change. And the petitioner’s fingerprints were found at the
crime scene and his DNA matched a semen stain found on the
victim’s pants.” Further, “[t]he jury found the murder to be in the
1st degree and found the personal use of a weapon (knife) by the
petitioner to be true.”
4. Order Denying the Petition; Appeal
The court entered a minute order denying the petition on
November 16, 2021, and directed the clerk to send a copy to the
parties. Allen appeals.

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 DISCUSSION

Allen argues the court erred because it relied exclusively on
the factual summary included in Allen I in deciding his petition.
We conclude Allen has failed to demonstrate that the court relied
on anything in Allen I and, in any event, has not demonstrated
prejudice.
1. Changes to the Law of Murder and Section 1170.95
S.B. 1437, which took effect on January 1, 2019, “addresses
certain aspects of California law regarding felony murder and the
natural and probable consequences doctrine by amending Penal
Code sections 188 and 189, as well as by adding [former] Penal
Code section 1170.95, which provides a procedure by which those
convicted of murder can seek retroactive relief if the changes in
law would affect their previously sustained convictions.”
(People v. Martinez (2019) 31 Cal.App.5th 719, 722.) The
legislation changed the law of murder to ensure a “person’s
culpability for murder [is] premised upon that person’s own
actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1,
subd. (g).) Under the amended statute, a person may be convicted
of murder only if: (1) he was the actual killer; or (2) with the
intent to kill, he aided and abetted the actual killer’s commission
of murder; or (3) he acted as a “major participant” in a felony
listed in section 189 and acted with “reckless indifference to
human life.” (§ 189, subd. (e), as amended by Stats. 2018,
ch. 1015, § 3; § 188, subd. (a)(3), as amended by Stats. 2018,
ch. 1015, § 2.) S.B. 1437 also abolished second degree felony
murder. (Stats. 2018, ch. 1015, § 2, amending § 188, subd. (e)(3).)
Thus, the felony murder doctrine now applies only to those

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felonies listed in section 189, subdivision (a), and to accomplices
who meet the requirements in section 189, subdivision (e).
In addition to changing the law of murder prospectively,
S.B. 1437 gave people who had been convicted of murder under
one of the now-invalid theories the opportunity to petition for
resentencing under section 1170.95. (Stats. 2018, ch. 1015, § 4.)
In relevant part, section 1170.95 provides: “A person convicted of
felony murder … may file a petition with the court that sentenced
the petitioner to have the petitioner’s murder … conviction
vacated and to be resentenced on any remaining counts” if (1) the
complaint or information filed against them “allowed the
prosecution to proceed under a theory of felony murder”; (2) the
petitioner was convicted of murder “following a trial or accepted a
plea offer in lieu of a trial at which the petitioner could have been
convicted” of murder; and (3) the “petitioner could not presently
be convicted” of murder “because of changes to Section 188 or
189.” (§ 1170.95, subd. (a).)
If the petitioner files a facially sufficient petition, the court
must appoint counsel. (§ 1170.95, subd. (b)(3).) After allowing the
parties to file briefs, the court must hold a hearing to “determine
whether the petitioner has made a … prima facie showing that
[he] is entitled to relief.” (Id. at subd. (c).) If the petitioner makes
such a showing, the court must “issue an order to show cause”
and “hold a hearing to determine whether to vacate the
murder … conviction and to recall the sentence.” (Id. at
subds. (c) & (d)(1).)
2. Evidence Considered at the Evidentiary Hearing
At the time the court denied Allen’s resentencing petition,
section 1170.95 did not expressly state what evidence was
admissible and what materials a court may consider when

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entertaining a resentencing petition at the evidentiary hearing.
(Former § 1170.95, subd. (d), added by Stats. 2018, ch. 1015, § 4.)
Our courts generally agreed, however, that the record of
conviction—including a prior opinion by the court of appeal—
could be considered. (See People v. Williams (2020) 57
Cal.App.5th 652, 660–663 [holding the trial court could consider
the factual summary in an appellate opinion at a hearing under
section 1170.95, subdivision (d)(3), because the factual summary
was admissible as reliable hearsay].)
The Legislature amended section 1170.95 to read, as it does
now, “At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019. 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 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.”
(Former section 1170.95, as amended by Stats. 2021, ch. 551, § 2,
effective Jan. 1, 2022.) As the Court of Appeal explained in
People v. Clements (2022) 75 Cal.App.5th 276, 292, with this

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amendment, the “Legislature limited use of prior appellate
opinions [in hearings under section 1170.95, subdivision (d)],
allowing trial judges to ‘consider the procedural history of the
case recited,’ ” and “the Legislature has decided trial judges
should not rely on the factual summaries contained in prior
appellate decisions when a section 1170.95 petition reaches the
stage of a full-fledged evidentiary hearing.”
Our appellate courts have held that the new amendments
to section 1170.95 apply retroactively to appeals from the denial
of petitions, such as the present one, that were not yet final as of
January 1, 2022. (E.g., People v. Basler (2022) 80 Cal.App.5th 46,
56; People v. Porter (2022) 73 Cal.App.5th 644, 652; People v.
Montes (2021) 71 Cal.App.5th 1001, 1006–1007; and see People v.
Vieira (2005) 35 Cal.4th 264, 305 [noting that “a defendant
generally is entitled to benefit from amendments that become
effective while his case is on appeal”].)
3. Allen has failed to establish either error by the trial
court or prejudice from the alleged error.
Allen asserts the court improperly relied on our prior
opinion in Allen I and seeks a reversal on that basis. Allen
focuses on the portion of section 1170.95, subdivision (d)(3),
which now states, “The court may also consider the procedural
history of the case recited in any prior appellate opinion.” And he
claims the court erred because it “relied only on the factual
summary of the crime in the prior opinion of this Court,

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reproduced in the People’s response to the petition.” 4 (Italics
added.)
To support his claim that the trial court relied solely on the
factual summary in Allen I, Allen asserts that “[a]t the
subdivision (d)(3) hearing, the superior court stated only that it
had reviewed the petition for resentencing and the People’s
response. The denial of the petition was thus based solely upon
the court’s review of the factual summary contained in this
Court’s prior opinion. Pursuant to [S.B. 775], the prior opinion
was admissible only for the procedural history.”
We disagree with Allen’s characterization of the court’s
remarks. The court did state, for the record, that it had reviewed
Allen’s resentencing petition and the People’s opposition. The
court gave no indication, however, that it limited its review to
those materials. Indeed, the court never explicitly mentioned
Allen I, or that it was relying on the facts set forth in that
opinion, when it explained its ruling denying Allen’s resentencing
opinion. Furthermore, during the argument on the resentencing
petition, counsel cited evidence not included in the factual
summary in Allen I. Allen’s counsel, for example, noted that
Phyllis had been unable to identify Allen as her assailant—an
issue not mentioned in our prior opinion. (See Allen I, supra, 72
Cal.App.4th at pp. 1095–1098.) We also note that during the
hearing, the prosecutor referred the court to the trial evidence:
“The evidence in this case was overwhelming at the time of trial
and is still overwhelming based on the record of conviction that

4The People did not actually “reproduce” the factual summary from
Allen I in their opposition brief. But, as the People noted, the factual
summary was derived from Allen I.

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Allen is the actual killer[.]” Thus, while some of the facts the
court discussed in its ruling were also set forth in Allen I, that is
hardly surprising. The facts in Allen I came from the same
source: the record from Allen’s murder trial.
In short, Allen has failed to carry his burden to establish
that the court erred. (People v. Giordano (2007) 42 Cal.4th 644,
666 [“On appeal, we presume that a judgment or order of the trial
court is correct, ‘ “[a]ll intendments and presumptions are
indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.” ’ ”].)
In any event, even if the court did err, Allen has failed to
establish any prejudice resulting from that error. Allen
acknowledges that in order to obtain a reversal on the basis of a
violation of a state evidentiary rule, he would need to
demonstrate that there is a reasonable probability that the
outcome would have been different had the violation not
occurred. (Cal. Const., art. VI, § 13 [“No judgment shall be set
aside, or new trial granted, in any cause, on the ground of
misdirection of the jury, or of the improper admission or rejection
of evidence, or for any error as to any matter of pleading, or for
any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted
in a miscarriage of justice.”]; People v. Anzalone (2013) 56 Cal.4th
545, 553 [“ ‘Typically, a defendant who has established error
under state law must demonstrate there is a reasonable
probability that in the absence of the error he or she would have
obtained a more favorable result.’ ”]; People v. Watson (1956) 46
Cal.2d 818, 836.) His analysis on that point, however, consists of
one sentence and is wholly inadequate to establish prejudice.

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Given that we lack a complete record from the trial, we could not
assess the issue even if we were inclined to do so.

DISPOSITION

The order denying the resentencing petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

ADAMS, 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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