Opinion
B301225
03-19-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ERIC ALLEN, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA016472) APPEAL from a judgment of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
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PROCEDURAL BACKGROUND
This case has a lengthy procedural history. We summarize only those proceedings relevant to the instant appeal.
On April 16, 1992 a jury convicted defendant Michael Allen of (1) the first degree murder of Juan Nunez during the commission of a robbery and in the course of which defendant personally used a firearm, (2) robbery in the course of which he personally used a firearm, and (3) willful, deliberate, and premeditated attempted murder in the course of which he personally used a firearm. The trial court sentenced defendant to life in state prison without the possibility of parole on the first degree murder count and with the possibility of parole on the attempted murder count. Defendant received a nine-year sentence on the robbery count and related enhancement. Defendant appealed his judgment of conviction, which we affirmed in 1993 in People v. Allen, No. B067989.)
On March 26, 2019, defendant filed a petition for resentencing pursuant to Penal Code section 1170.95. The trial court appointed counsel to represent defendant on the petition and heard the petition on June 28, 2019.
All statutory references are to the Penal Code.
During that hearing, the trial court found defendant ineligible for resentencing under section 1170.95 because "under the facts that are contained in the remitt[it]ur as determined by the Court of Appeal[], he was personally armed, and he personally shot a firearm in the course of the carjacking, so this was not a matter of an indirect aider or abettor under a natural and foreseeable consequence theory to a felony that resulted in murder under the felony murder rule."
In response, defendant's counsel observed from his reading of our prior opinion that defendant "ran up on the victim's vehicle; he himself personally fired three shots at the victim, Juan Nunez, and those three shots killed Mr. Nunez." Our prior opinion indicates defendant admitted to shooting Nunez. Defense counsel also observed "[t]here's no argument that [defendant] didn't act with malice. And under the felony murder rule, which would be the carjacking, he's the actual killer." On August 14, 2019, the trial court denied the petition basically on the same grounds discussed during the hearing on the petition. Defendant filed a timely notice of appeal.
Appointed appellate counsel filed an appellate brief requesting this court review the record for any error as required by People v. Wende (1979) 25 Cal.3d 436. This court permitted defendant the opportunity to file a supplemental brief. Defendant filed a supplemental brief on February 13, 2020 and a "Motion for Judicial Notice of Evidence on Appeal." Briefly summarized, defendant argues that the documents attached to his motion for judicial notice demonstrated he did not have the requisite mens rea for a murder or robbery conviction and therefore, the trial court should have resentenced him under section 1170.95. He further argues that the trial court's failure to do so deprived him of the equal protection of the laws.
Defendant asked us to take judicial notice of two declarations and brief excerpts from transcripts of unidentified hearings, one of which referring to a deadlocked jury. He asserts that these documents demonstrate he did not have the "mens rea, malice or criminal intent for robbery or murder." We deny defendant's motion because for the reasons discussed in this opinion, defendant was ineligible for relief under section 1170.95.
FACTUAL BACKGROUND
The record does not contain the charging document or a transcript of the trial. We thus rely on the summary of facts in our 1993 opinion.
In a letter dated May 3, 2016 from the Office of the Public Defender to defendant, counsel represented that according to the "Appellate court," there is no transcript of the "entire" trial because "the case was destroyed." He also represented that the Public Defender's office had at least some transcripts from the trial proceedings.
On March 17, 1990, at approximately 9:00 p.m., brothers Juan and Jorge Nunez, traveling in Juan Nunez's car, stopped for a red light at the intersection of San Pedro Street and Gage Avenue when defendant and L. Green (Green) ran towards their car with guns drawn. Defendant approached the driver's side of the car and fired three shots at Juan Nunez from a semiautomatic handgun. As Juan Nunez fell to the side, his foot slipped from the brake pedal, and the car began to roll forward. Defendant reached into the car, grabbed the gearshift lever and put the car in park. Defendant ordered the brothers out of the car. As Jorge Nunez pulled Juan Nunez out of the car, defendant fired two more shots. Green ran toward the men, pointing a gun at them. Green and defendant then got into the car and drove away. Juan Nunez suffered three gunshot wounds, two to the left side of his chest and one to the left portion of his back, resulting in Juan Nunez's death.
Apparently, Green was prosecuted in a separate trial and filed his own section 1170.95 petition. In ruling on defendant's petition, the trial court observed that Green "wasn't the actual shooter." Green's petition is not before us in the instant appeal.
DISCUSSION
Section 1170.95 permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition for vacation of the conviction and resentencing on any remaining counts if all the conditions enumerated in section 1170.95, subdivision (a) apply. Among those conditions are that the charging document "allowed the prosecution to procced under a theory of felony murder or murder under the natural and probable consequences doctrine" (section 1170.95, subd. (a)(1)), and the petitioner "could not be convicted of first or second degree murder because of changes to Section 188 and 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(3).) The referenced changes do not provide resentencing relief if the petitioner was the "actual killer." (§ 189, subd. (e)(1).)
These changes were enacted by Senate Bill 1437 (2017-2018 Reg. Sess.) chapter 1015, sections 1-4. In People v. Martinez (2019), 31 Cal.App.5th 719, Division 5 of our court held that Senate Bill 1437 "creates a special mechanism that allows those persons to file a petition in the sentencing court seeking vacatur of their conviction and resentencing. In doing so, section 1170.95 does not distinguish between persons whose sentences are final and those whose sentences are not." (Id. at p. 727.)
Here, the jury's finding that defendant personally used a firearm in commission of first degree murder precludes the possibility that he was convicted on a felony murder or natural and probable consequences theory. This conclusion renders him ineligible for resentencing relief under section 1170.95.
Defendant cites no authority for the premise of his equal protection challenge to section 1170.95, to wit, that the Legislature had no rational basis for not affording the actual shooter the same ameliorative relief available to those convicted of murder based on a natural and probable consequences or felony murder theory. Failing to provide any such authority, his challenge is waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
We have reviewed the record and find no arguable issue. Appointed counsel has fully complied with her responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 126; People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The judgment is affirmed.
BENDIX, J.
We concur:
CHANEY, Acting P. J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.