People v. Allen CA4/1

Filed 10/27/23 P. v. Allen CA4/1
                 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                 DIVISION ONE

                                         STATE OF CALIFORNIA



 THE PEOPLE,                                                          D081588

           Plaintiff and Respondent,

           v.                                                         (Super. Ct. No. SCD216913)

 MICHAEL ANTHONY ALLEN,

           Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County,
Jeffrey F. Fraser, Judge. Reversed and remanded.
         Arielle Bases, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
Mandel and Elana Miller, Deputy Attorneys General, for Plaintiff and
Respondent.
         Defendant Michael Allen appeals after the trial court summarily
denied his petition under Penal Code section 1172.6 (formerly section
1170.95) without an evidentiary hearing. We accept the Attorney General’s
concession of error and reverse.
              FACTUAL AND PROCEDURAL BACKGROUND

      The People charged Allen with murder (Pen. Code,1 § 187, subd. (a)),
attempted murder (§§ 664 & 187, subd. (a)), conspiracy to commit murder
(§ 182, subd.(a)(1)), shooting at an occupied structure (§ 246), and the
unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)). In
2010, he pled guilty to voluntary manslaughter (§ 192, subd. (a)) and evading

an officer with reckless driving (Veh. Code, § 2800.2).2
      Twelve years later, in March 2022, Allen filed a petition under section

1172.63 requesting that his voluntary manslaughter and reckless evasion
convictions be vacated and he be resentenced. His supporting declaration
consisted of a preprinted form where he checked boxes that stated: (1) a
complaint, information, or indictment was filed against him that allowed the
prosecution to proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s participation in a
crime, or attempted murder under the natural and probable causes doctrine;
(2) he was convicted of murder, attempted murder, or manslaughter following
a trial, or accepted a plea offer in lieu of a trial at which he could have been


1    Further section references are to the Penal Code unless noted
otherwise.

2     We note that the guilty plea form indicates Allen pled to “[Penal Code
section] 2800.2.” This is clearly a clerical error and is listed as “[Vehicle Code
section] 2800.2” elsewhere in the record.

3    Assembly Bill No. 200 (Stats. 2022, ch. 58, § 10) renumbered section
1170.95 to 1172.6, effective June 30, 2022.
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convicted of murder or attempted murder; and (3) he could not presently be
convicted of murder or attempted murder because of changes made to
sections 188 and 189, effective January 1, 2019. The People opposed Allen’s
petition. The trial court summarily denied the petition without issuing an
order to show cause.
                                  DISCUSSION
      When a trial court reviews a petition for resentencing under section
1172.6, it first determines if the petitioner has shown a prima facie case for
relief under the statute. (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).)
The court accepts the allegations as true and evaluates whether the
petitioner would be entitled to relief if he or she proves the allegations.
(Ibid.) The court may review the record of conviction, including to a limited
extent any prior appellate opinion, to determine if the petitioner’s allegations
are rebutted by the record. (Id. at p. 972.) But the court may not engage in
factfinding and weighing credibility at the prima facie stage of petition
review. (Id. at p. 971, citing People v. Drayton (2020) 47 Cal.App.5th 965,
979–980.)
      A court’s decision to deny a resentencing petition at the prima facie
stage “ ‘is appropriate only if the record of conviction demonstrates that “the
petitioner is ineligible for relief as a matter of law.” [Citations.] This is a
purely legal conclusion, which we review de novo.’ ” (People v. Ervin (2021)
72 Cal.App.5th 90, 101.)
      In this case, the trial court relied upon the charging document,
specifically count 5, to conclude that Allen was ineligible for resentencing as a
matter of law. It found that, because Allen was charged with conspiracy to
commit murder, he was facially ineligible for resentencing because his
conviction did not arise from either the natural and probable consequences


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doctrine or a felony murder theory. But Allen was not convicted of conspiracy
to commit murder. Rather, he pleaded guilty to voluntary manslaughter,
thereby avoiding convictions for both murder and conspiracy to commit
murder. And had he not accepted a plea deal, it would have been permissible
for the prosecutor to argue any theory of murder, including felony murder
and murder based on the natural and probable consequences doctrine
because “[t]he information . . . need not specify the theory of murder on which
the prosecution relies at trial.” (People v. Contreras (2013) 58 Cal.4th 123,
147.) The amended information, in fact, did not identify the theory of murder
the People would pursue at trial. On this record, it is unclear which theory or
theories of murder Allen avoided by accepting the plea offer.
      It is on this basis that Allen asserts the trial court erred by finding him
ineligible for relief at the prima facie stage under section 1172.6, subdivision
(c). The Attorney General agrees with Allen. The People concede that “there
was nothing in the record of conviction establishing that appellant was
ineligible for relief as a matter of law.” We accept the concession and remand
the matter for an evidentiary hearing under section 1172.6, subdivision (d).
We express no opinion on the outcome of that hearing.




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                                DISPOSITION
      We reverse the trial court’s order denying the petition. On remand, the
trial court is directed to issue an order to show cause pursuant to section
1172.6, subdivisions (b)(3) and (c), and to conduct an evidentiary hearing
pursuant to subdivision (d).


                                                            DATO, Acting P. J.

WE CONCUR:



DO, J.



KELETY, J.




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