SB 1437 Motion: Juror Findings Doom Resentencing

After a member of his gang was shot, Charles Joseph Allen drove three of his fellow gang members into the rival gang’s territory, looking for people to shoot.  This took place in Los Angeles.

When they arrived, Allen and his accomplices saw two men they believed to be rival gang members.  Allen’s accomplices got out of the car, walked down the street and shot the men, killing one.  Neither of the men who were shot were gang members.

The Los Angeles County District Attorney’s Office charged Mr. Allen with murder of the one man and attempted murder of the other man, alleging that he was liable as either an aider and abettor or as a coconspirator.  As to the former theory of liability, the trial court judge instructed jurors that “[a] person is guilty of a crime whether [they] committed it personally or aided and abetted the perpetrator.”  CALCRIM No. 400.

The judge also instructed jurors that a direct aider and abettor must share the perpetrator’s intent: “Someone aids and abets a crime if [they] know of the perpetrator’s unlawful purpose and [they] specifically intend to do and in fact aid, facilitate, promote, encourage or instigate the perpetrator’s commission of that crime.” CALCRIM No. 401.

As to the conspiracy theory of liability, the judge instructed 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 Mr. 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. 

The trial court judge did not instruct jurors on felony murder (CALCRIM Nos. 540A – 540C) or the natural and probable consequences theory (CALCRIM No. 403). 

Jurors later convicted Mr. Allen of first degree murder of the first victim and the attempted willful, deliberate and premeditated murder of the second victim.  The convictions were affirmed on appeal to the California Court of Appeal for the Second District in Los Angeles.

In 2021, Mr. Allen petitioned for resentencing under Penal Code § 1172.6, the new felony murder rule, as codified after Senate Bill 1437 became law in 2018.

The People opposed the petition because the jury was not instructed on felony murder or the natural and probable consequences doctrine or any other theory of culpability that imputed malice to Mr. Allen.  He was thus ineligible, they argued, for 1172.6 relief as a matter of law.

The trial court judge, Eleanor J. Hunter, denied the petition.

Mr. Allen then appealed this ruling to the Second Appellate District Court.  The Second District reviewed the basics of resentencing under the new felony murder rule, explaining that resentencing must take place 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 the attempted murder under a 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 Penal Code §§188 and 189. 

The Second District found that the trial court was correct in finding Mr. Allen was ineligible for Section 1172.6 relief because the judge in the original trial had instructed jurors on direct aiding and abetting and conspiracy.  If the jury adopted the aiding and abetting theory, jurors would have had to conclude that Mr. Allen had the intent to kill.  The same would be true if jurors convicted him of murder and attempted murder on a conspiracy theory, as it is a specific intent crime.  Therefore, he still would be guilty of murder and attempted murder after SB 1437 became law.

Moreover, since jurors necessarily had to find Mr. Allen had the intent to kill, there was no possibility that jurors found him guilty on an implied malice theory. 

The Second District therefore affirmed the convictions.  We offer this summary as somewhat of a cautionary tale because Mr. Allen certainly was not the shooter in the crimes, but the jury was instructed on him having the intent to kill.