People v. Allen CA1/5

Filed 3/25/22 P. v. Allen CA1/5 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A158267 v. DONISHA ALLEN, (Alameda County Super. Ct. No. 171681A) Defendant and Appellant.

Appellant Donisha Allen filed a petition for resentencing under Penal Code 1170.95,1 which was denied on the grounds that she was not entitled to relief because she was convicted of attempted murder rather than murder. The Legislature subsequently clarified that persons convicted of attempted murder are entitled to seek resentencing under the statute. We reverse the trial court’s order finding that appellant had failed to make a prima facie case for relief under section 1170.95 and remand the matter to the trial court for an evidentiary hearing. I. BACKGROUND

1 Further statutory references are to the Penal Code unless otherwise noted.

1

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, appellate 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. 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.” Section 1170.95 provides that a defendant entitled to relief under its provisions may file a petition and, if a prima facie case for relief