People v. Kness CA2/6

Filed 3/1/23 P. v. Kness CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B317045
(Super. Ct. No. F000278122)
Plaintiff and Respondent, (San Luis Obispo County)

v.

ALLEN REED KNESS,

Defendant and Appellant.

Allen Reed Kness appeals an order denying his petition for
resentencing pursuant to Penal Code1 section 1172.6 (former
section 1170.952). Kness contends, and the Attorney General
concedes, the trial court improperly applied a sufficiency of the
evidence standard of proof at his evidentiary hearing under
section 1172.6, subdivision (d)(3). We accept the concession and

1 Further unspecified statutory references are to the Penal
Code.

Effective June 30, 2022, section 1170.95 was renumbered
2

1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
conclude the error is not harmless. It is unknown whether the
jury convicted Kness of second degree murder liability on a
natural and probable consequences theory, which Senate Bill No.
1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) eliminated. We
reverse so that the trial court can sit as the fact finder and
determine beyond a reasonable doubt whether Kness is guilty of
murder under sections 188 and 189.
FACTS AND PROCEDURAL HISTORY
Murder and investigation3
In 1998, 45-year old Richard Wall lived with Blaine
Richardson, who was 22 years old and stronger than Wall. Wall
was physically weak because he suffered from emphysema and
liver disease. Wall and Richardson argued frequently.
Kness did not know Wall but was good friends with
Richardson. Kness and Richardson spent the day together
drinking. Richardson told Kness that Wall was an “asshole” and
that he was going to “take [Wall] out.” Kness said he would “back
[Richardson] up.” The two of them walked back to Wall’s
apartment, where Wall was drinking beer and watching
television.
Richardson and Kness continued to drink at the apartment.
Kness told Wall, “Don’t fuck with this guy or I’ll kill you.” At
some point in the evening, Richardson began arguing with Wall
and stabbed him several times in the bedroom.
After Wall was killed, Kness placed salad tongs on Wall’s
back and urinated on him. Kness and Richardson took money

3 The facts come from the unpublished opinion we issued in
2001. (People v. Kness (May 7, 2001, B139989 [nonpub. opn.]
(Kness I).)

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from Wall’s wallet, bought more beer, and returned to the
apartment where they drank and watched a video before passing
out. Richardson and Kness left the apartment the next morning.
Wall’s body was discovered by a neighbor and manager of
the apartment complex. He had been stabbed six times with two
different knives and had blunt force injuries on his scalp and
torso. The fatal injury was a stab wound to Wall’s neck. Police
discovered two knives in the kitchen that could have produced
Wall’s injuries. One of the knives had a bent blade and appeared
to have been washed. Kness’s fingerprints were found on a
drinking glass in the kitchen, but not on the knives; Richardson’s
fingerprints were found throughout the apartment.
Kness was arrested the next day, and Richardson turned
himself in. Richardson initially told the police that Kness had
killed Wall. A police officer placed Kness and Richardson
together in a patrol car and recorded their conversation.
Richardson said he turned himself in for questioning because he
“figured [the police] would stick [Kness] with everything.” Kness
responded, “If you remember right, I was the one that was trying
to get you out of it. Like before we passed out, I was trying to
dump the body.”
Kness also said that “pathologists” already examined the
apartment and the police already knew “what went down.” He
also said the police already had their fingerprints in the
apartment and “they pretty much know . . . how it happened or
what happened.” Richardson replied, “There’s only two missing
elements. I asked for the knife, you got em and I killed him. I
swear to God, that’s exactly what happened, and you were just
standing there, remember? That’s exactly what happened.”
Kness responded, “Hm.” Richardson continued, “And I said get

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me a different one Allen, you got me a different one. Then you
like kicked him, put tongs on him, did weird things, you peed on
him [and] then you told me to pee on him.” Kness said “it’s pretty
much cut and dried . . . you know, we’re going to prison [¶] . . .
[¶] [c]ause now, that you told them that I did bring you the knife,
I’m accessory to murder.”
Richardson pleaded guilty to second degree murder and
admitted he personally used a knife. At Kness’s trial, Richardson
testified that Kness had been in the living room when Richardson
stabbed Wall in the bedroom. Richardson acknowledged Kness
had done strange things after the killing, such as urinating on
the body, but testified that Kness did not bring him the knives
and did not otherwise participate in the murder.
Trial proceedings and prior appeals
The trial court instructed the jury that Kness could be
convicted of murder on two theories: first, as a direct aider and
abettor, and second, under the natural and probable
consequences doctrine with the target crimes of (1) brandishing a
deadly weapon, (2) simple assault, or (3) assault with a deadly
weapon. The prosecution argued both theories of murder. Kness
denied any involvement in killing Wall, including providing
Richardson with knives. The jury was instructed: “One who aids
and abets [another] in the commission of a crime, is not only
guilty of that [that crime], but is also guilty of any other crime
committed by a principal which is a natural and probable
consequence of the crime originally aided and abetted.”
The jury found Kness not guilty of first degree murder. It
convicted Kness of second degree murder (§§ 187, subd. (a), 189,
subd. (b)), but did not specify whether the conviction was based
on direct aiding and abetting or the natural and probable

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consequences doctrine. It also did not find true the allegation
that Kness personally used a deadly weapon. (§ 12022, subd. (b).)
Kness was sentenced to 15 years to life in state prison. In Kness
I, we affirmed the judgment in an unpublished decision. (Kness I,
supra, B139989.)
Following the enactment of Senate Bill 1437, Kness filed a
resentencing petition alleging he was prosecuted for and
convicted of murder under a theory of felony murder or murder
under the natural and probable consequences doctrine and could
not now be convicted of murder. The trial court denied the
petition on constitutional grounds. In Kness II, we reversed and
remanded the matter to the trial court to conduct further
proceedings consistent with section 1172.6. (People v. Kness
(August 24, 2020, B299645) [nonpub. opn.] (Kness II).)
Section 1172.6 proceedings
On remand, the trial court found Kness established a prima
facie showing of eligibility for relief and set a hearing.4 At the
hearing, the court denied the petition, stating “there is
substantial evidence that supports a murder conviction based on
direct aiding and abetting.” (Emphasis added.) In so ruling, the
court indicated it reviewed the parties’ briefs, “the entire case
file, the instructions that were given at trial, the verdicts that
were reached” and “the transcripts of this case consisting of well
over 500 pages.”
The court applied the following standard: “In this hearing,
the prosecution must show that a reasonable jury could find the
defendant guilty of murder with the requisite mental state for
murder. This is essentially identical to the standard of

4 It is unclear whether the hearing was a “second prima
facie” hearing or an order to show cause hearing.

5
substantial evidence, in which reviewing courts ask whether, on
the entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. That’s based on People vs.
Ochoa, 1993, 6 Cal.4th 1199; People vs. Duke, 2020, 55
Cal.App.5th 113. [¶] A review of the record shows that a
reasonable jury could still convict Mr. Kness of murder as a direct
aider and abettor to murder or by conduct that endangers the life
of another and by acting with conscious disregard for that life.”
The court summarized the supporting evidence that “could”
support Kness’s second degree murder conviction, including an
“agreement” between Kness and Richardson when Richardson
expressed his desire to “ ‘take out’ the victim” and Kness
responding that he would “ ‘have his back’ . . . ‘on this.’ ” The
court also mentioned evidence of Kness providing one or more
knives during the assault on Wall, including incriminating
statements made during the recorded conversation. The court
further noted Kness’s conduct after the murder, including
urinating on Wall, placing tongs on him, and taking money from
his wallet. The court found Kness “could be convicted as a direct
aider and abettor based on the evidence presented.”
The trial court concluded “there is substantial evidence
that supports a murder conviction based on direct aiding and
abetting. . . . Therefore, the defendant has not made a showing, a
prima facie showing, and the People have shown beyond a
reasonable doubt that the defendant is a person who could
presently be convicted of murder as a result of the changes to
Section 188.”
DISCUSSION
Kness contends the trial court erred in denying his
resentencing petition because the trial court (1) relied upon our

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statements in a prior opinion; (2) applied a sufficiency of the
evidence standard of proof at his evidentiary hearing, thus failing
to prove his ineligibility for relief beyond a reasonable doubt, and
(3) deprived him of his state and federal due process rights. For
reasons we explain below, we reverse and remand the matter to
the trial court for an evidentiary hearing.
Senate Bills 1437 and 775
Senate Bill 1437 amended section 188 to provide that
“[e]xcept as stated in subdivision (e) of Section 189, in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (Stats. 2018, ch.
1015, § 2.) Our Supreme Court has concluded that “Senate Bill
1437 eliminates natural and probable consequences liability for
murder regardless of degree.” (People v. Gentile (2020) 10 Cal.5th
830, 847-848 (Gentile).)
Additionally, Senate Bill 1437 enacted section 1170.95 (now
§ 1172.6), which provides a procedure for those convicted of
murder under the natural and probable consequences doctrine to
petition to vacate the conviction. (Stats. 2018, ch. 1015, § 4;
Gentile, supra, 10 Cal.5th at p. 843; § 1172.6).) Upon receipt of a
petition under section 1172.6, the trial court must appoint
counsel, allow briefing, and then determine if the petitioner has
made a prima facie showing that “[t]he petitioner could not
presently be convicted of murder or attempted murder” under the
amendments to sections 188 and 189 enacted under Senate Bill
1437. (§ 1172.6, subds. (a)(3), (b), (c).)
When, as here, the petitioner has carried the burden of
making the requisite prima facie showing they fall within the
provisions of section 1172.6, the court shall issue an order to

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show cause and hold an evidentiary hearing to determine
whether to vacate the murder conviction and resentence the
petitioner on any remaining counts. (§ 1172.6, subds. (c), (d)(1).)
Effective January 1, 2022, the Legislature enacted Senate
Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2)
(Senate Bill 775), which amended section 1170.95, subdivision
(d)(3), to provide: “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 ineligible for resentencing. In addition to clarifying
the standard of proof a trial court must apply at the evidentiary
hearing, subdivision (d)(3) specifies the type of evidence the trial
court may consider. “The prosecutor and the petitioner may also
offer new or additional evidence to meet their respective burdens.
A finding that there is substantial evidence to support a conviction
for murder, attempted murder, or manslaughter is insufficient to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.” (§§ 1170.95, subd. (d)(3), 1172.6, subd. (d)(3),
emphasis added.)
Consideration of prior appellate opinion on direct review
Kness argues the trial court erred when it relied upon
statements in our prior appellate opinion to conclude the jury
“could” have found him guilty as a direct aider and abettor. We
disagree with Kness’s characterization. As the trial court noted,
any consideration of the prior appellate opinion was “somewhat
irrelevant” because it read the transcripts in the case and the
parties’ arguments. It did not “see anything in the Court of
Appeal opinion that is inconsistent with what [it] reviewed in the
transcripts of the case itself.”

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 A trial judge may “consider the procedural history of the
case recited in any prior appellate opinion.” (§ 1172.6, subd.
(d)(3).) Subdivision (d)(3) arguably limits consideration of an
appellate court opinion to procedural history and not factual
summaries. At least one court has held that a judge should not
rely upon the factual summaries contained in the prior appellate
opinion “when a section [1172.6] petition reaches the stage of a
full-fledged evidentiary hearing.” (People v. Clements (2022) 75
Cal.App.5th 276, 292 (Clements).)
Here, the trial court did not rely upon the factual
summaries in our prior opinion or give it conclusive effect.
Rather, the court reviewed the parties’ briefs, “the entire case
file, the instructions that were given at trial, the verdicts that
were reached” and “the transcripts of this case consisting of well
over 500 pages” to reach its conclusion. (See Clements, supra, 75
Cal.App.5th at p. 293 [no error where trial court admitted the
prior appellate opinion, but did not rely upon it and the trial
transcripts supported the factual history set forth in the prior
opinion].) Therefore, Kness has not demonstrated the court
committed reversible error in referencing our prior opinion.
To the extent Kness argues the trial court was bound by a
statement in a prior ruling stating he was convicted on a natural
and probable consequences theory, we disagree. After Kness filed
his initial resentencing petition in 2018, the trial court issued a
ruling denying the petition on constitutional grounds (Kness II).
In the recitation of the “Procedural Background,” the trial court
stated that Kness was convicted by a jury “pursuant to a natural
and probable consequences . . . theory.” However, this one
statement is not “law of the case,” as Kness argues. It is
unknown if the jury convicted Kness under the natural and

9
probable consequences doctrine or direct aiding and abetting, and
the trial court did not adjudicate the merits. Therefore, the trial
court’s one statement in its prior ruling has no preclusive effect.
(People v. Barragan (2004) 32 Cal.4th 236, 252-253 [conclusive
adjudication on issues actually litigated are given preclusive
effect].)
Standard of proof
Kness argues the trial court improperly applied a
sufficiency of the evidence standard of proof at the section 1172.6,
subdivision (d)(3) evidentiary hearing. The Attorney General
concedes as much but argues the error was harmless. We agree
the trial court applied the incorrect standard of proof and
conclude the error was not harmless.
At the time the parties submitted their briefs to the trial
court, there was a split of authority on whether the trial court
should apply a substantial evidence standard of proof, or if the
trial court must adjudicate the petition as an independent fact
finder, at an evidentiary hearing. The prosecution and the trial
court relied upon People v. Duke (Sept. 28, 2020, B300430) opn.
vacated, cause remanded, and ordered nonpub. Nov. 23, 2021,
S265309, sub. opn. People v. Duke (Mar. 25, 2022, B300430
[nonpub. opn.]) (Duke), to apply the substantial evidence
standard of proof. Our Supreme Court resolved the split of
authority when it vacated and depublished Duke, and the
Legislature amended section 1170.95 to clarify that the trial
court, acting as an independent fact finder, must determine
beyond a reasonable doubt whether a defendant is guilty of
murder under a valid theory of murder. (People v. Garrison
(2021) 73 Cal.App.5th 735, 745 (Garrison); Stats. 2021, ch. 551,
§ 2.)

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 The Legislature also amended the statute to permit both
parties to submit new or additional evidence at the section
1172.6, subdivision (d)(3) hearing. (Stats. 2021, ch. 551, § 2.)
Whether Kness committed murder under a still-valid
theory, such as directly aiding and abetting murder, is a factual
question that must be resolved by the trial court. (Clements,
supra, 75 Cal.App.5th at p. 294.) And while section 1172.6
“requires the trial judge to sit as a fact finder, not as a
quasi-appellate court” (Clements, at p. 295), the trial court here
did not make this required factual finding beyond a reasonable
doubt. “The substantial evidence test asks only ‘whether
substantial evidence supports the conclusion of the trier of fact,
not whether the evidence proves essential facts beyond a
reasonable doubt, or by clear and convincing evidence.’
[Citation.].” (Id. at p. 294.) “By contrast, a fact finder tasked
with holding the People to the beyond a reasonable doubt
standard, ‘must impartially compare and consider all the
evidence that was received throughout the entire trial, and
determine whether that ‘proof . . . leaves you with an abiding
conviction that the charge is true.’ [Citations.]” (Id. at pp. 294-
295.)
Here, the trial court relied on Duke and improperly applied
a sufficiency of the evidence standard “in which reviewing courts
ask whether, on the entire record, a rational trier of fact could
find the defendant guilty beyond a reasonable doubt.” The court
denied the petition because “there is substantial evidence that
supports a murder conviction based on direct aiding and
abetting.” Rather than “ ‘impartially compare and consider all
the evidence,’ ” “evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt

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standard” as required under section 1172.6, subdivision (d)(3)
(Clements, supra, 75 Cal.App.5th at pp. 295, 298), the court
reviewed the evidence favorable to the prosecution to find it
substantial to support a still-valid theory of murder.
But only after “the trial court sits as a trier of fact” (People
v. Schell (2022) 84 Cal.App.5th 437, 442) and makes an
independent finding of facts beyond a reasonable doubt, can we
meaningfully conduct review of whether there is substantial
evidence to support the trial court’s factual findings. (Clements,
supra, 75 Cal.App.5th at pp. 295, 298 [“interpreting the statute
as directing trial judges to sit as quasi-appellate courts would
effectively read the standard of proof out of the provision”].) The
court’s erroneous application of a substantial evidence standard
at the evidentiary hearing is not harmless under either People v.
Watson (1956) 46 Cal.2d 818, 836 or Chapman v. California
(1967) 386 U.S. 18, 24. (See Garrison, supra, 73 Cal.App.5th at p.
747 [assessing harmless error under Watson and Chapman
standards].) The error is not harmless because the prosecution
argued multiple theories of murder including a natural and
probable consequences theory, and it is unknown if the jury
convicted Kness based on the natural and probable consequences
doctrine or direct aiding and abetting.
This case is unlike Garrison, supra, 73 Cal.App.5th at pp.
745-746, in which the trial court’s erroneous application of the
substantial evidence standard of proof at a section 1170.95,
subdivision (d)(3) hearing was harmless. There, the defendant
was convicted of murder and he admitted he personally used a
firearm in the commission of the murder. (Garrison, at p. 745.)
The evidence established that only one person was the shooter
and that the “only use of the handgun was to shoot [the victim].”

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Because the defendant admitted that he personally used a
firearm, the “only conclusion consistent with [his] admission” is
that he was the “actual killer.” (Id. at p. 747.) He was therefore
“ineligible for relief as a matter of law.” (Id. at p. 745.)
But here, the evidence established Richardson was the
actual killer, and the prosecution argued Kness could be
convicted of murder as either a direct aider and abettor or under
the natural and probable consequences doctrine. The jury could
have convicted Kness under either theory and it is unknown
which theory it selected. Thus, we reverse the order denying
relief and remand to allow a new evidentiary hearing pursuant to
section 1172.6, subdivision (d)(3).5
DISPOSITION
The order denying the petition for resentencing is reversed.
The matter is remanded to the trial court for a new evidentiary
hearing applying the correct standard of proof as set forth in this
opinion. We express no opinion as to the ultimate resolution of
the petition.
NOT TO BE PUBLISHED.

BALTODANO, J.

I concur:

GILBERT, P. J.

5Because we conclude application of the incorrect standard
of proof was not harmless error, we do not address Kness’s other
contentions.

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YEGAN, J., Dissenting:
I agree that there was “Schell” error and that such error
may or may not be “harmless” within meaning of the California
Constitution. (People v. Schell (2022) 84 Cal.App.5th 437, 442.)
But the error here is harmless. At the very least, appellant was a
direct aider and abettor who was a “major participant” who acted
with “reckless indifference” to human life. This is the only
conclusion that can reasonably be drawn. And it could be worse:
even though the jury found that appellant did not personally use
a knife, since two knives were used to murder the decedent, a
reasonable inference is that appellant personally used one of
them in the attack.
Appellant threatened to kill the decedent the night he was
murdered, he participated in the robbery, he took the victim’s
money after he died, he supplied the knives used to kill the
victim, he picked on a “particularly vulnerable” victim with
health problems, he urinated on the victim after the murder, and
he celebrated thereafter by drinking beer while watching a video.
An appellate court, “to some extent” may weigh the evidence in
conducting a harmless error analysis. (9 Witkin, Cal. Procedure
(Mar. 2022 supp.) Appeals, § 439, p. 475.) The further hearing
will not aid this appellant. The facts and circumstances dictate
affirmance. It is not reasonably probable that appellant will
obtain a more favorable result upon reversal.
NOT TO BE PUBLISHED.

YEGAN, J.

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 Dodie A. Harman, Judge

Superior Court County of San Luis Obispo

______________________________

Emry J. Allen, 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 Nikhil Cooper, Deputy Attorneys
General, for Plaintiff and Respondent.