Opinion
G062368
12-19-2023
THE PEOPLE, Plaintiff and Respondent, v. IAN WESTLEIGH ALLEN, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 06WF2607 Andre Manssourian, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
We appointed counsel to represent Ian Westleigh Allen on appeal from the trial court's denial of his petition for resentencing benefits based on Penal Code section 1172.6. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on his behalf.
Effective June 30, 2022, the Legislature renumbered former Penal Code section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For clarity, we refer to the statute as section 1172.6. All further statutory references are to the Penal Code.
The procedures set forth in People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, do not apply to this case. (People v. Delgadillo (2022) 14 Cal.5th 216, 226, 231.) Therefore, when appointed appellate counsel finds no viable issues, counsel should file a brief informing the court that counsel found no arguable issues and including a concise narration of facts. (Id. at p. 231.) The reviewing court should send the brief to the defendant with notice the defendant may file a supplemental brief or letter within 30 days, and if the defendant does not, the court may dismiss the appeal. (Id. at pp. 231-232.) While no review of the record is compelled, the court retains discretion to independently review the record in any appeal based on section 1172.6. (Ibid.)
Counsel requested this court exercise its discretion to conduct an independent review, which we have. Counsel identified one issue he considered to assist the court in conducting a discretionary independent review of the record: "Whether the trial court erred in summarily denying the petition to vacate Allen's murder conviction without first issuing an order to show cause and allowing for an evidentiary hearing."
We gave Allen 30 days to file a brief or letter on his own behalf. Allen did not do so. We exercise our discretion to independently review the record and find no arguable issue on appeal. We affirm the postjudgment order.
FACTS
As relevant to this appeal, Rachel Mullenix and Allen were tried separately for the stabbing death of Barbara Mullenix. The jury convicted Allen of first degree murder (§ 187, subd. (a)); People v. Allen (July 26, 2010, G041253) [nonpub. opn.]), and the trial court sentenced him to 25 years to life. We affirmed the judgment. (Ibid.)
In 2022, Allen filed a petition for resentencing pursuant to section 1172.6. The trial court appointed counsel and both sides submitted briefing. At a subsequent hearing, the court denied Allen's petition. In a written statement of decision, the trial court explained it had reviewed the briefing and record, including the deliberation instructions given to the jury at trial. The court concluded Allen did not make a prima facie showing of eligibility for resentencing because the record was clear the jury found he had acted with intent to kill and therefore "would still be guilty of [m]urder" even after the recent changes to sections 188 and 189. Allen timely appealed.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) (Stats. 2018, ch. 1015) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder and to limit the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) The statutes were amended "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, [and] was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); Lewis, supra, 11 Cal.5th at p. 959.) SB 1437 also added section 1172.6, which, as originally enacted, set forth a procedure whereby a "person convicted of felony murder or murder under a natural and probable consequences theory" could petition for resentencing relief. (Stats. 2018, ch. 1015, § 4.)
Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), effective January 1, 2022, amended section 1172.6, subdivision (a), to explicitly expand the category of individuals entitled to petition for resentencing. (Stats. 2021, ch. 551, § 1, subd. (a).) A section 1172.6 petition must make "'a prima facie showing' for relief. [Citation.]" (Lewis, supra, 11 Cal.5th at p. 960.) In Lewis, our Supreme Court held, "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.)
Here, the trial court correctly concluded Allen is ineligible for resentencing as a matter of law. The record established conclusively (People v. Strong (2022) 13 Cal.5th 698, 708) that he was not convicted under the natural and probable consequences theory nor the felony-murder rule, and Allen does not contend otherwise. Although we note one of the jury instructions contained the phrase "natural and probable consequence," we discern no reasonable likelihood that the jury had been misled when it explicitly found Allen guilty of first degree murder. That is, the phrase was used in a part of a deliberation instruction dealing with the actus reus element of murder liability-i.e., on causation of death-and not the mens rea element of intentionality. (See People v. Carney (2023) 14 Cal.5th 1130, 1137, 1145 [actus reus concept of natural and probable consequences for murder liability not affected by SB 1437].)
We also note the jury was instructed on an "uncharged conspiracy to commit murder" (capitalization omitted) and nothing in the instruction suggested the jury could convict Allen of first degree murder without finding he acted with specific intent. (See People v. Whitson (2022) 79 Cal.App.5th 22, 31-32, quoting People v. Swain (1996) 12 Cal.4th 593, 602 ["'[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'"].).
Given the undisputed record, we discern no error in the trial court's ruling that Allen did not demonstrate a prima facie showing of entitlement to resentencing relief based on section 1172.6. (§ 1172.6, subd. (c) [setting of evidentiary hearing for petition depends on "prima facie showing" of eligibility].) In sum, we have independently reviewed the record, considered the possible issue raised by counsel, and found no arguable issue on appeal.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: BEDSWORTH, J., MOORE, J.