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, 2d Crim. No. B324207
(Super. Ct. No. BA381310)
Plaintiff and Respondent, (Los Angeles County)
v.
CHARLES JOSEPH ALLEN,
Defendant and Appellant.
Charles Joseph Allen appeals from the denial of his petition
for resentencing pursuant to Penal Code 1 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.
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.)
2
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
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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.
4
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
5
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 conviction 4 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.)
6
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
7
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
8
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
9
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.
10
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.
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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, 2d Crim. No. B324207
(Super. Ct. No. BA381310)
Plaintiff and Respondent, (Los Angeles County)
v. ORDER MODIFYING
OPINION AND CERTIFYING
CHARLES JOSEPH ALLEN, OPINION FOR PUBLICATION
[NO CHANGE IN
Defendant and Appellant. 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
being, they are ineligible for Penal Code 5 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.
14