P. v. Allen

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Filed 3/25/20 P. v. Allen CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
DONISHA ALLEN,
Defendant and
Appellant.
A158267
(Alameda County
Super. Ct. No. 171681A)
Appellant Donisha Allen pled guilty to attempted murder
in 2014 and was sentenced to a stipulated prison term of ten
years. (Pen. Code, §§ 187, subd. (a)/664.)1 While she was serving
this term, the Legislature enacted Senate Bill 1437 (Stats. 2018,
ch. 1015), which made certain changes to murder liability for
aiders and abettors and provided a procedure under section
1170.95 for obtaining recall and resentencing for “[a] person
convicted of felony murder or murder under a natural and
probable consequences theory.” Appellant filed a petition
pursuant to newly-enacted section 1170.95, but the trial court
1 Further statutory references are to the Penal Code.

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summarily denied relief on the ground that appellant was
ineligible because she was convicted of attempted murder rather
than murder. We affirm.
I. BACKGROUND
On August 25, 2012, appellant fought with her neighbor
Demetria Spears over some bad marijuana. Later that evening,
while in a group helping a friend to move out of her apartment,
the two women fought again. Appellant’s husband Larry Alford
became involved in the altercation and was beaten by some male
friends of Spears. He went back to his apartment and returned
with a rifle or shotgun, which he then fired three times. He
killed Spears and blinded a man named Dubose in the left eye.
Before the shots were fired, appellant either said, “ ‘Let it go!’ ” or
“ ‘Light it off,’ ” or “ ‘Let the motherfucker go.’ ” When
interviewed later by the police, appellant admitted saying
something like “ ‘get em’ ” or “ ‘fuck ’em up,’ ” but she didn’t mean
for her husband to kill anyone.
Appellant was charged with one count of murder and one
count of attempted murder, along with allegations she was
vicariously armed with a firearm. (§§ 187, subd. (a), 187, subd.
(a)/664, 12022, subd. (a)(1).) In 2014, she pled guilty to one count
of attempted murder, admitted an arming allegation and received
a sentence of ten years. Alford pled guilty to second degree
murder and attempted murder and received a sentence of 24
years in prison.
In 2019, appellant filed a pro. per. petition asking to be
resentenced under section 1170.95. Counsel was appointed and

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the matter was set for a hearing along with several other
petitions by defendants who had been convicted of a crime other
than murder. The court summarily denied each petition, finding
no prima facie case had been made because section 1170.95
allowed relief to be granted only to a defendant convicted of
murder.2
II. DISCUSSION
Appellant contends the trial court erred in denying her
petition under section 1170.95 without a hearing on the merits.
She argues the petitioning procedure under section 1170.95
applies to convictions of attempted murder, at least when the
defendant was initially charged with murder, and that equal
protection principles require that we extend section 1170.95 to
attempted murder convictions. We disagree.
Effective January 1, 2019, the Legislature enacted Senate
Bill No. 1437 for the express purpose of “amend[ing] 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 is 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).) “Reform [was] needed
2 The rulings on the petitions filed in those other cases are
pending in separate appeals before various divisions of this
Court. (People v. Camacho, A158268 (Division 1); People v.
Cortez, A158264 (Division 3); People v. Housley, A158286
(Division 5); People v. Martinez, A158265 (Division 3); People v.
Phan, A158287 (Division 1).)

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in California to limit convictions and subsequent sentencing so
that the law of California fairly addresse[d] the culpability of the
individual and assist[ed] in the reduction of prison overcrowding,
which partially result[ed] from lengthy sentences that [were] not
commensurate with the culpability of the individual.” (Id., subd.
(e).)
To effectuate these goals, Senate Bill 1437 amended section
188 to provide, “Except as stated in subdivision (e) of Section 189,
in order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.” (Stats.
2018, ch. 1015, § 2, subd (a)(3).) It amended section 189,
subdivision (e) to provide that a defendant could be convicted of
first degree murder under a statutory felony murder theory “only
if one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a
major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.”
Senate Bill 1437 also added section 1170.95, subdivision (a)
of which provides, “A person convicted of felony murder or murder
under the natural and probable consequences theory may file a
petition with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on

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any remaining counts when all of the following conditions apply:
[¶] (1) A complaint, information, or indictment was filed against
the petitioner that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was
convicted of first degree or second degree murder following a trial
or accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder.
[¶] (3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (Italics added.)
Appellant’s liability for the crimes with which she was
charged appears to be exclusively based on aiding and abetting
under the natural and probable consequences doctrine. She
argues she meets the criteria of section 1170.95, subdivision
(a)(1)-(3) and is therefore entitled to be resentenced under section
1170.95.
A number of cases have held that the petitioning procedure
of section 1170.95 applies only to convictions of first- or second-
degree murder and does not apply to convictions of attempted
murder or voluntary manslaughter. (See People v. Turner (2020)
45 Cal.App.5th 428, pp. 3-6; People v. Cervantes (2020) 44
Cal.App.5th 884, 886-887 , review filed Jan. 31 and Mar. 30, 2020
(Cervantes); People v. Flores (2020) 44 Cal.App.5th 985; People v.
Larios (2019) 42 Cal.App.5th 956, 970, review granted Feb. 26,
2020 (S259983); People v. Medrano (2019) 42 Cal.App.5th 1001,
1017, review granted Mar. 11, 2020; People v. Munoz (2019) 39

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Cal.App.5th 738, 751, 753756, review granted Nov. 26, 2019
(S258234) (Munoz); People v. Lopez (2019) 38 Cal.App.5th 1087,
1104-1107, review granted Nov. 13, 2019 (S258175) (Lopez).) The
issue is pending before the Supreme Court in Lopez, which will
ultimately decide the issue, and in the meantime we have been
directed to no case in which the court has extended section
1170.95 to defendants convicted of crimes other than murder. We
find the authorities cited above to be persuasive on this point and
we likewise hold that in light of its plain language and the
statutory intent, section 1170.95 did not apply to appellant. (See
Munoz at pp. 755-760.)
Appellant urges a contrary result based upon the language
of section 1170.95, subdivision (a)(2). That subdivision requires a
demonstration that “[t]he petitioner was convicted of first degree
or second degree murder following a trial or accepted a plea offer
in lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder.” (Italics added.) Appellant
argues that because she “accepted a plea offer in lieu of a trial at
which the petitioner could be convicted for first degree or second
degree murder,” she met the criteria of section 1170.95,
subdivision (a). This ignores that the statute explicitly states
that a “person convicted of felony murder or murder under the
natural and probable consequences theory” may file a petition.
“The plain language of the statute is explicit; its scope is limited
to murder convictions.” (Cervantes, supra, 44 Cal.App.5th at p.
887.)

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Appellant argues it would violate the equal protection
clauses of the state and federal constitutions to limit section
1170.95 to those convicted of murder because persons convicted of
attempted murder are similarly situated with respect to the
legitimate purpose of the law. (U.S. Const., 14th Amend.; Cal.
Const., art. 1, § 7, subd. (a).) We reject this claim for the reasons
stated in Lopez, supra, 38 Cal.App.5th at pages 1109-1110.
“Murder and attempted murder are separate crimes. [Citations.]
And murder is punished more severely than attempted murder.
(Compare § 190, subd. (a) [penalty for first and second degree
murder] with § 664 [penalty for attempted murder and attempted
willful, deliberate and premeditated murder].) These different
penal consequences necessarily mean, for purposes of sentencing
reform, an individual charged with, or convicted of, murder under
the natural and probable consequences doctrine is not similarly
situated to an individual confronting a charge of attempted
murder (or, possibly, only aggravated assault) under the doctrine.
[Citation.] The Legislature is permitted to treat these two groups
of criminals differently.” (See also Cervantes, supra, 44
Cal.App.5th at pp. 888-889; Munoz, supra, 39 CalApp.5th at p.
763.)
III. DISPOSITION
The judgment is affirmed.

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NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.
(A158267)

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