Opinion
A158476
02-28-2020
THE PEOPLE, Plaintiff and Respondent, v. PATRICK CHARLES ALLEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 153030)
Defendant Patrick Charles Allen appeals an order denying his petition for resentencing pursuant to Penal Code section 1170.95. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of his right to personally file a supplemental brief, but he has not done so.
All undesignated statutory references are to the Penal Code. --------
Defendant was convicted of first degree murder, and the jury found true an allegation that he personally used a firearm. The facts are recited in this division's unpublished opinion in defendant's appeal of his conviction, of which we take judicial notice. (Evid. Code, §§ 452, subd. (d), 459; People v. Allen (Jan. 14, 2011, A125439 [nonpub. opn.].) Briefly, defendant testified he believed, incorrectly, that the murder victim, Robert Atkins Jr., had sexually assaulted defendant's sister. Defendant brought a gun to the home where his sister and Atkins were present, asked Atkins to step outside to talk with him, and shot Atkins multiple times, killing him. He admitted the killing but took the position at trial that, due to his intoxication and his belief his sister had been sexually assaulted, he was guilty only of voluntary manslaughter. The jury rejected this defense and convicted him of first degree murder. This division affirmed the judgment, and our Supreme Court denied review on April 13, 2011.
Following the enactment of Senate Bill No. 1437 (Stats. 2018, ch. 1015 (2017-2018 Reg. Sess.) (SB 1437)), defendant filed a petition for resentencing pursuant to section 1170.95. He alleged he had been charged with and convicted of murder pursuant to the felony murder rule or the natural and probable cause doctrine, and that he could not now be convicted of murder under sections 188 and 189 as amended by SB 1437.
SB 1437 changed the felony murder rule and the natural and probable causes doctrine " 'to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant of the underlying felony who acted with reckless indifference to human life.' " (People v. Cornelius (2020) 44 Cal.App.5th 54, 57.) Among the changes effected by the law, section 188 was amended to require that the principal have acted with express or implied malice to be convicted of murder, except as stated in section 189, subdivision (e), and that malice should not be imputed "based solely on his or her participation in a crime"; and subdivision (e) of section 189 was added to provide that, to be convicted of felony murder based on the perpetration of enumerated felonies, a defendant must either be "the actual killer," an aider or abettor in the murder, or a major participant in the underlying felony who acted with reckless indifference to human life. (SB 1437, supra, § 2, 3.) SB 1437 also added section 1170.95, which allows resentencing of a person who was convicted of felony murder or murder under a natural and probable cause doctrine, and who " 'could not be convicted of first or second degree murder' " under of the changes made by SB 1437. (Cornelius, at pp. 57-58; § 1170.95, subd. (a)(3); SB 1437, supra, § 4.)
The trial court denied the petition for resentencing, finding defendant was not entitled to relief under section 1170.95 because he was the actual killer, and because he was not convicted of murder under a theory of felony murder or natural and probable consequences.
There are no meritorious issues to be argued.
DISPOSITION
The August 16, 2019 order is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.