THE PEOPLE, Plaintiff and Respondent, v. CHARLES JOSEPH ALLEN, Defendant and Appellant.
2d Crim. No. B324207
IN THE
Filed 10/26/23
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Super. Ct. No. BA381310) (Los Angeles County)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 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.)
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 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 (
In October 2021, Allen petitioned for resentencing pursuant to
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
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
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
A petitioner is ineligible for
The trial court here correctly concluded that Allen was ineligible for
The same is true if jurors convicted him of murder and attempted murder on a conspiracy theory. “[C]onspiracy is a specific intent crime
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 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
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
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 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
Whitson, supra, 79 Cal.App.5th 22, also does not assist Allen. In that case, prosecutors argued the defendant was ineligible for
DISPOSITION
The trial court’s order denying Allen’s petition for resentencing pursuant to
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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.