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Name: People v. Allen (2023) 97 Cal.App.5th 389
Case #: B324207
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/26/2023
Subsequent History: Modified and ordered published 11/20/2023

Trial court correctly found defendant ineligible for Penal Code section 1172.6 relief as a matter of law, where the jury was instructed on both direct aiding and abetting and conspiracy. After a member of his gang was shot, defendant Allen and fellow gang members drove around rival gang territory looking for people to shoot. They shot two men (mistakenly believing they were rival gang members), killing one. Prosecutors charged Allen with murder and attempted murder, alleging he was liable either as an aider and abettor or a coconspirator, and the trial court instructed on both theories of liability. There were no felony murder or NPC instructions. Allen was convicted of first degree murder and attempted, willful, deliberate, and premeditated murder. In 2021, he filed a section 1172.6 petition for resentencing. Relying on the jury instructions, the trial court denied relief at the prima facie stage. Allen appealed. Held: Affirmed. The only two theories of liability at trial were direct aiding and abetting, and conspiracy. If the jury adopted the direct aiding and abetting theory, defendant was ineligible for section 1172.6 relief because the jurors would have had to conclude that he harbored the intent to kill. The same is true if the jurors convicted him of murder and attempted murder on a conspiracy theory, as the jurors were told this would require an agreement and intent to commit murder, which in turn requires an intent to kill. That Allen and his coconspirators did not conspire to kill these particular victims is not relevant. The intent to kill need not be directed at a specific person. Unlike in In re Brigham (2016) 3 Cal.App.5th 318, nothing in the jury instructions in Allen’s case permitted the jury to conclude that the murder was a natural and probable consequence of the plan to kill the attempted murder victim or any other intended victim. Although the instructions did permit the jurors to find that the attempted murder was the natural and probable consequence of another crime Allen conspired to commit, the crime was murder, which required a finding of 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.