People v. Allen CA2/7

Filed 6/21/21 P. v. Allen CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B306227

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA125580)
v.

KELVIN ALLEN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Norm Shapiro, Judge. Reversed and
remanded with directions.
Allen G. Weinberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Senior Assistant Attorney General, Charles S.
Lee and Theresa A. Patterson, Deputy Attorneys General, for
Plaintiff and Respondent.
__________________
Kelvin Allen, convicted in 1997 of first degree murder with
a special-circumstance finding the murder had been committed
during a robbery, appeals the superior court’s order denying his
petition for resentencing under Penal Code section 1170.951
without appointing counsel or conducting an evidentiary hearing.
Because the jury’s felony-murder special-circumstance finding,
made nearly two decades before the Supreme Court’s decisions in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), does not establish Allen’s
ineligibility for resentencing as a matter of law and the superior
court engaged in factfinding not permitted before an order to
show cause issues, we reverse and remand with directions to
appoint counsel for Allen, issue an order to show cause and
conduct further proceedings in accordance with section 1170.95,
subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
1. Allen’s Felony-murder Conviction
Our opinion affirming Allen’s judgment of conviction
describes the evidence presented at trial and the jury’s verdict.
(People v. Allen (Jan. 21, 1998, B109471) [nonpub. opn.].)
On Tuesday evening, September 5, 1995, Juan Discaneno
and several friends were in his apartment playing cards and
drinking beer. Alex Rivera had ridden to the apartment on his
new, expensive mountain bike. When Rivera arrived, Arturo
Lopez, who lived downstairs in the same building, was already

1 Statutory references are to this code.

2
there. About 8:00 p.m. Lopez asked Rivera if he could borrow his
bike to go for more beer at a liquor store a few blocks away.
Rivera said yes.
About the same time Angel Munoz returned home from
work, parked in his driveway and saw Lopez, whom he knew
from the neighborhood, coming toward him on a bike. He also
saw a group of five men and one woman walking behind Lopez.
Lopez, Munoz and one of Munoz’s neighbors all went
together to the liquor store. When they entered, only the store
owner was present. Lopez brought Rivera’s bike inside the store
with him. The three men went to the beer cooler.
Allen, who was known to the store owner, and a second
young man entered the store. As Allen moved around the store
without selecting anything to buy, the owner became concerned.
A third young man entered the store, and Allen and his
companion left.
Munoz purchased a case of beer, put it on his shoulder and
began to follow first Lopez and then his neighbor out of the store.
As Munoz reached the door, he saw a man hit Lopez in the face.
Other men, who appeared to Munoz to be the same men who had
been inside the store, were also waiting outside.2
Once outside the store, Munoz saw the man who had struck
Lopez try to hit him again. Lopez was on the ground, not moving.
When Lopez’s assailant appeared to remove something from his
waistband, Munoz ran home to get a machete. As Munoz left, he
saw all five men near Lopez. When Munoz returned with his

2 The young man who had remained in the store pushed
Munoz from behind before Munoz was able to walk outside,
causing the case of beer to fall and break apart. When the store
owner saw that interaction, he called the 911 emergency number.

3
weapon, the men who had attacked Lopez were gone. Lopez was
on his back, motionless, choking on his own blood. Munoz
remained with him until the police arrived. Munoz was unable to
identify any of Lopez’s assailants.
Jessica Herron and Shelli Frazier witnessed the incident
from their car, which was in a left turn lane facing the liquor
store’s entrance. Herron saw a man pull Lopez off the bike
immediately outside the store and then saw five or more men
kick and beat Lopez while he was on the ground. She was unable
to identify any of them.
For her part, while waiting to turn left, Frazier saw the
individual on a bike hit or pushed to the ground. Then a group of
men “kicked and stomped” the victim. Some of the men fled, but
three remained and continued to attack the victim before they
also fled. Two weeks after the incident Frazier positively
identified Allen from a photographic display as one of the last
three men who had assaulted Lopez. She was unable to identify
him at trial.3
Patricia Lopez was also in her car near the liquor store
when the assault occurred. She saw four men push a man off a
bike and kick him after he fell. One of the men (not Allen)
slammed the victim’s head into the sidewalk. Ms. Lopez then
saw one of the men take the bike and flee. The other assailants
also left the area. Ms. Lopez identified Allen as one of the
attackers in a photographic display two weeks after the crime.

3 Several months after identifying Allen in the photographic
display, Frazier failed to identify Allen in a live lineup. At trial,
when asked if Allen was one of the men who had kicked and
stomped Lopez, Frazier testified, “I am not sure if that’s him.”

4
She again identified him at trial, testifying she was “very sure”
he was one of the perpetrators.4
Lopez died five days after the attack. The doctor who
performed the autopsy testified Lopez died from blunt trauma to
the head, explaining Lopez had injuries to his head, chest, back,
arms and legs, including three skull bone fractures that had
caused bleeding to the brain. There were more than 40 other
blunt force injuries to Lopez’s body.
The jury found Allen guilty of first degree murder (§ 187,
subd. (a)) and robbery (§ 211), with true findings the murder had
been committed during the commission of a robbery (§ 190.2,
subd. (a)(17)) and Allen had personally inflicted great bodily
injury on the victim (§ 12022.7, subd. (a)). The court sentenced
Allen, who was 17 years old at the time of the robbery murder, to
an indeterminate state prison term of 25 years to life.
We affirmed the judgment on appeal, rejecting Allen’s
arguments there was insufficient evidence of his identity as one
of the perpetrators, the court had erred in refusing to give the
CALJIC instruction concerning the sufficiency of circumstantial
evidence and the court had erred in refusing to include Allen’s
proposed modification of the CALJIC instruction on eyewitness
identification. (People v. Allen, supra, B109471.)
2. Allen’s Petition for Resentencing
On March 2, 2020 Allen, representing himself, filed a
petition for resentencing under section 1170.95 and requested the

4 Five months after the photographic identification,
Ms. Lopez failed to identify Allen at a live lineup, identifying
another individual instead. She testified that, when she got
home after the lineup, she realized she had made a mistake. She
identified Allen at his preliminary hearing, as well as at trial.

5
court appoint counsel to represent him in the resentencing
proceedings. Allen checked several boxes on the printed form
petition establishing his eligibility for resentencing relief,
including the boxes stating he had been convicted under a felony-
murder theory and could not now be convicted of first or second
degree murder because of changes made to sections 188 and 189
by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019.
The superior court summarily denied the petition the day it
was filed.5 The court explained its ruling on the record,
“Petitioner was convicted in 1997 of first degree murder. I have
reviewed all the materials, and it is evident to me that this
petitioner was not just a mere bystander but had a very active
role in the killing. In fact, petitioner was the person who inflicted
the great bodily injury during the robbery in which there was
more than one participant. This petitioner acted with malice and
with complete disregard for human life. Therefore, based on the
petitioner’s request for review, I have completed my review and
find that I must deny this request.” In its written ruling the
court stated, “A review of the court of appeal opinion filed
January 1998 indicated petitioner was a major participant and
acted with conscious disregard/indifference to human life in a
group beating over the course of a robbery in which death
occurred. Based on the above, the request of the petitioner is
summarily denied.”

5 Allen’s petition was heard by Judge Norm Shapiro, who
had presided at Allen’s trial and sentencing hearing. (See
§ 1170.95, subd. (b)(1) [the petition should be heard by the judge
who originally sentenced the petitioner, if available].)

6
 Allen filed a timely notice of appeal.6
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 838-839
(Gentile)) and significantly limited the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Rodriguez (2020) 58 Cal.App.5th 227, 236
(Rodriguez), review granted Mar. 10, 2021, S266652; People v.
Bascomb (2020) 55 Cal.App.5th 1077, 1080.) Senate Bill 1437
also authorized, through new section 1170.95, an individual
convicted of felony murder or murder under a natural and
probable consequences theory to petition the sentencing court to
vacate the conviction and be resentenced on any remaining
counts if he or she could not have been convicted of murder
because of Senate Bill 1437’s changes to the definition of the
crime. (See Gentile, at p. 859.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process for the court to determine whether to issue an order to
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner

6 At the request of the Allen’s appointed appellate counsel,
we augmented the record on appeal by incorporating the record
from People v. Allen, supra, B109471.

7
resentenced on any remaining counts.7 The superior court
properly proceeds under subdivision (c) in two steps, “one made
before any briefing to determine whether the petitioner has made
a prima facie showing he or she falls within section 1170.95—
that is, that the petitioner may be eligible for relief—and a
second after briefing by both sides to determine whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 328
(Verdugo), review granted Mar. 18, 2020, S260493; accord, People
v. DeHuff (2021) 63 Cal.App.5th 428, 436; People v. York (2020)
54 Cal.App.5th 250, 262, review granted Nov. 18, 2020, S264954;
People v. Soto (2020) 51 Cal.App.5th 1043, 1054, review granted
Sept. 23, 2020, S263939; People v. Drayton (2020) 47 Cal.App.5th
965, 975; but see People v. Cooper (2020) 54 Cal.App.5th 106, 118,
review granted Nov. 10, 2020, S264684 [section 1170.95,
subdivision (c), contemplates only one prima facie review before
an order to show cause issues].)
Once the section 1170.95, subdivision (c), prima facie
showings have been made, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing

7 Section 1170.95, subdivision (c), provides, “The court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response . . . and the petitioner may file and
serve a reply . . . . If the petitioner makes a prima facie showing
that he or she is entitled to relief, the court shall issue an order to
show cause.”

8
the prosecution has the burden of proving beyond a reasonable
doubt that the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3); Rodriguez, supra, 58 Cal.App.5th at
p. 230, review granted; People v. Lopez (2020) 56 Cal.App.5th
936, 949, review granted Feb. 10, 2021, S265974; but see People
v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13,
2021, S265309.) The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton, supra, 47 Cal.App.5th at p. 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. The Jury’s Felony-murder Special-circumstance Finding
Does Not Preclude Relief as a Matter of Law
Section 189, subdivision (e), added to the Penal Code by
Senate Bill 1437, permits a felony-murder conviction only when
specified facts relating to the defendant’s individual culpability
have been proved: The defendant was the actual killer (§ 189,
subd. (e)(1)); although not the actual killer, the defendant, with
the intent to kill, assisted in the commission of the murder
(§ 189, subd. (e)(2)); or the defendant was a major participant in
an underlying felony listed in section 189, subdivision (a), and
acted with reckless indifference to human life, “as described in
subdivision (d) of Section 190.2,” the felony-murder special-
circumstance provision (§ 189, subd. (e)(3)).
Nearly two decades after Allen’s trial and conviction the
Supreme Court in Banks, supra, 61 Cal.4th 788 identified several
factors a court should consider in determining whether a
defendant was a “major participant” under section 190.2,

9
subdivision (d): “What role did the defendant have in planning
the criminal enterprise that led to one or more deaths? What role
did the defendant have in supplying or using lethal weapons?
What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?” (Banks, at p. 803,
fn. omitted.)
The Banks Court explained that, to determine whether the
defendant acted with reckless indifference, courts must “look to
whether a defendant has ‘“knowingly engag[ed] in criminal
activities known to carry a grave risk of death.”’” (Banks, supra,
61 Cal.4th at p. 801.) As further refined in Clark, supra,
63 Cal.4th at page 617, “reckless indifference” “encompasses both
subjective and objective elements. The subjective element is the
defendant’s conscious disregard of risks known to him or her. . . .
[R]ecklessness is also determined by an objective standard,
namely what ‘a law-abiding person would observe in the actor’s
situation.’”
Notwithstanding the detailed amplification of the
requirements for finding a felony-murder special-circumstance
allegation true in Banks and Clark, the Attorney General
contends the jury’s special circumstance finding in this case,
unless first set aside in a habeas corpus proceeding, precludes
Allen’s resentencing under section 1170.95 as a matter of law.
We rejected this argument in People v. Harris (2021)
60 Cal.App.5th 939, 954-958, review granted April 28, 2021,

10
S267802. (Accord, People v. Secrease (2021) 63 Cal.App.5th 231,
254-255 [a prior jury felony-murder special-circumstance finding
cannot defeat a prima facie case for entitlement to relief under
section 1170.95, subdivision (c), absent a judicial determination
the evidence was sufficient to support it under Banks and Clark];
People v. York, supra, 54 Cal.App.5th at p. 262, review granted
[“a pre-Banks and Clark special circumstance finding—
necessarily made on the basis of our former, and significantly
different, understanding of what the terms ‘major participant’ in
the underlying felony and ‘reckless indifference’ to human life
meant—does not preclude relief under section 1170.95 as a
matter of law”]; People v. Law (2020) 48 Cal.App.5th 811, 825,
review granted July 8, 2020, S262490 [“the trial court erred by
concluding the special circumstance finding, on its own, rendered
Law ineligible for relief—that is, the court erred by failing to
determine whether Law qualified as a major participant who
acted with reckless indifference to human life under Banks and
Clark”]; People v. Torres (2020) 46 Cal.App.5th 1168, 1180,
review granted June 24, 2020, S262011 [because no court has
affirmed the special-circumstance findings at issue post-Banks
and Clark, “[t]here is therefore a possibility that Torres was
punished for conduct that is not prohibited by section 190.2 as
currently understood”]; but see People v. Nunez (2020)
57 Cal.App.5th 78, 93, review granted Jan. 13, 2021, S265918
[disagreeing with York, Law and Torres].)8

8 Whether a felony-murder special-circumstance finding
made before Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522 precludes a defendant from making a prima facie
showing of eligibility for relief under section 1170.95 is pending

11
 3. The Superior Court Improperly Engaged in Factfinding
Before Issuing an Order To Show Cause
In Verdugo, supra, 44 Cal.App.5th 320, review granted, we
held, after determining the section 1170.95 petition is facially
sufficient and prior to appointing counsel, the superior court may,
pursuant to section 1170.95, subdivision (c), examine the readily
available portions of the record of conviction to determine
whether the petitioner made a prima facie showing that he or she
now could not be convicted of first or second degree murder and
thus is eligible for relief under section 1170.95. (Verdugo, at
pp. 329-330, 332.) At this stage, the court may summarily deny
the petition only if the petitioner’s ineligibility for resentencing is
established as a matter of law. (Id. at pp. 330, 332-333; accord,
People v. Smith (2020) 49 Cal.App.5th 85, 92, review granted
July 22, 2020, S262835 [“[i]f it is clear from the record of
conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition”]; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18,
2020, S260410 [record must show defendant is “indisputably
ineligible for relief”].)
What the court may not do without issuing an order to
show cause and conducting an evidentiary hearing pursuant to
section 1170.95, subdivision (d), is weigh the evidence and engage
in factfinding. (See, e.g., People v. Duchine (2021) 60 Cal.App.5th
798, 815 [“the time for weighing and balancing and making
findings on the ultimate issues arises at the evidentiary hearing
stage rather than the prima facie stage, at least where the record
is not dispositive on the factual issues”]; People v. Drayton, supra,

before the Supreme Court in People v. Strong, review granted
March 10, 2021, S266606.

12
47 Cal.App.5th at p. 968 [“[T]he trial court should accept the
assertions in the petition as true unless facts in the record
conclusively refute them as a matter of law. . . . In assessing the
petitioner’s prima facie showing, the trial court should not weigh
evidence or make credibility determinations”].) Yet that is
precisely what the superior court did here, denying Allen’s
petition because “it is evident to me that this petitioner was not
just a mere bystander but had a very active role in the killing”
and had “acted with malice.” The court erred in summarily
denying Allen’s petition based on its evaluation of the facts
recited in the record of conviction. (See People v. Harris, supra,
60 Cal.App.5th at p. 958, review granted.)
4. The Superior Court’s Error Was Not Harmless
As an alternative to his argument regarding the preclusive
effect of a pre-Banks/Clark felony-murder special-circumstance
finding, the Attorney General contends any error the superior
court made by engaging in prohibited factfinding was harmless
because review of the record of conviction, including our opinion
on Allen’s direct appeal, demonstrates Allen is ineligible for relief
as a matter of law. (See People v. Law, supra, 48 Cal.App.5th at
p. 825, review granted [the superior court’s error in concluding
the special-circumstance finding, on its own, rendered petitioner
ineligible for relief was harmless because the record
demonstrates he qualified as a major participant who had acted
with reckless indifference to human life under Banks and Clark];
but see People v. Smith, supra, 49 Cal.App.5th at p. 95 [“By
ruling prior to the appointment of counsel, the trial court
deprived Smith of the opportunity to develop, with the aid of
counsel, a factual record beyond the record of conviction. Only
after giving a petitioner the opportunity to file a reply, in which

13
he may develop a factual record beyond the record of conviction,
is a trial court in a position to evaluate whether there has been a
prima facie showing of entitlement to relief”].)9
We agree an erroneous ruling by the superior court is
harmless if the record of conviction indisputably establishes the
petitioner’s ineligibility for relief as a matter of law. But the
record here falls far short of meeting that standard.
As discussed, our opinion affirming Allen’s convictions
concerned the sufficiency of the eyewitnesses’ identification of
him as one of the participants in the robbery and group assault of
Lopez, not the elements of the felony-murder special-
circumstance finding. Nonetheless, nothing in our opinion
indicated Allen planned the robbery. Neither Allen nor any of
the other assailants was armed. Although Allen may have been
one of the individuals who pushed Lopez off the bike, the only
testimony on the point was that someone other than Allen had
slammed Lopez’s head into the sidewalk. To be sure, Allen was
an active participant in the beating, and the jury found he had
inflicted great bodily injury on Lopez during the robbery. But the

9 The Attorney General acknowledges the superior court
denied Allen’s petition based on its own review of the record and
did not consider the jury’s felony-murder special-circumstance
finding, let alone evaluate that finding under the criteria
established in Banks and Clark. Nonetheless, he argues the
order can be affirmed if the ruling was correct on any lawful
basis. (See People v. Smithey (1999) 20 Cal.4th 936, 972 [“‘“‘[A]
ruling or decision, itself correct in law, will not be disturbed on
appeal merely because given for a wrong reason. If right upon
any theory of the law applicable to the case, it must be sustained
regardless of the considerations which may have moved the trial
court to its conclusion’”’”].)

14
Attorney General has cited nothing in the record that suggests
Lopez’s death was anything but the product of the foreseeable
risk of death inherent in any violent felony—a risk the Supreme
Court in Banks held was insufficient to establish reckless
indifference to human life. (Banks, supra, 61 Cal.4th at p. 808
[“[a]wareness of no more than the foreseeable risk of death
inherent in any armed crime is insufficient; only knowingly
creating a ‘grave risk of death’ satisfies the constitutional
minimum”].)
When fully evaluated at a hearing held for that purpose,
the evidence of Allen’s participation in the beating and robbery of
Lopez may prove beyond a reasonable doubt that he acted as a
major participant in the crimes with reckless indifference to
human life within the meaning of Banks, supra, 61 Cal.4th 788
and Clark, supra, 63 Cal.4th 522. It is insufficient, however, to
show he is ineligible for relief as a matter of law. (Cf. In re
Scoggins (2020) 9 Cal.5th 667, 682 [“the evidence in this case
‘does not suggest an elevated risk to human life beyond those
risks inherent in an unarmed beating and robbery’”].)
Indeed, even the Attorney General, after summarizing the
facts as stated in our opinion affirming Allen’s conviction and
reviewing the Banks/Clark factors, was prepared to say only that
“the evidence strongly supported an inference that appellant was
a major participant in the robbery who acted with reckless
indifference to life”—not that the evidence established the
requisite elements as a matter of law. The Attorney General’s
unwillingness to be more emphatic about the state of the record
mirrors the reservations about Allen’s role in the robbery murder
expressed by the trial court at sentencing: “[M]y reservation is,
who struck the fatal blow and who actually took the bike and who

15
was the instigator? Where the defendant fits in all that, no
question he’s involved and responsible, because he helped set it in
motion. And whether the victim was kicked or his head hit on
the ground, again, defendant helped to set that chain of
circumstances in motion.”
On this record we cannot conclude the superior court’s
improper factfinding before appointing counsel and holding an
evidentiary hearing was harmless.
5. The Remedy: Remand for an Evidentiary Hearing
Because the petition and the readily available portions of
the record of conviction before the superior court did not
indisputably establish Allen’s ineligibility for resentencing, the
court should have appointed counsel to represent him, directed
the People to file a response to the petition, permitted Allen’s
appointed counsel to file a reply and then determined whether
Allen had made a prima facie showing he is entitled to relief, as
specified in section 1170.95, subdivision (c). (See Verdugo, supra,
44 Cal.App.5th at p. 326, review granted.) However, the
augmented record on appeal now includes the record from Allen’s
direct appeal, and there has been full briefing by both parties on
the issue whether Allen is ineligible for relief as a matter of law.
Accordingly, unnecessary delay and a waste of resources would be
the only products of a remand that did not direct the court to
issue an order to show cause and follow the procedure detailed in
section 1170.95, subdivision (d). We decline to require such a
needless formality.

16
 DISPOSITION
The order summarily denying Allen’s section 1170.95
petition is reversed. On remand the superior court is to appoint
counsel for Allen, issue an order to show cause and conduct
further proceedings in accordance with section 1170.95,
subdivision (d).

PERLUSS, P. J.
We concur:

SEGAL, J.

FEUER, J.

17