People v. Allen CA3

Filed 2/28/23 P. v. Allen CA3 Opinion on transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C093465

Plaintiff and Respondent, (Super. Ct. No. 05F03498)

v. OPINION ON TRANSFER

ANDRE MARCUS ALLEN,

Defendant and Appellant.

This case returns to us on transfer with directions from our Supreme Court. A jury found defendant Andre Marcus Allen guilty of first degree murder and second degree robbery in 2006. The jury also found true an attempted robbery-murder special circumstance for the murder. Defendant recently petitioned the trial court for resentencing under what is now Penal Code section 1172.61 based on changes made to the felony-murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The trial court denied defendant’s petition, finding the record established

1 Undesignated statutory references are to the Penal Code.

1

defendant was ineligible for resentencing because the jury found true the special circumstance for the murder. On appeal, defendant argues the trial court erred in relying on the special circumstance finding to disqualify him for relief. We disagreed in our original opinion filed March 17, 2022, and we affirmed the order. Defendant petitioned our Supreme Court for review; that court has now directed us to reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698. Having done so, we accept the People’s concession that the trial court’s order denying the petition must be reversed and the matter remanded for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND A jury found defendant guilty of first degree murder (§ 187, subd. (a)) and second degree robbery (§ 211). As to the murder count, the jury found true the special circumstance allegation that the murder was committed during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)). The jury found not true the allegation that defendant had intentionally and personally used a firearm in the commission of each offense (§ 12022.53, subd. (d)). The trial court sentenced defendant to life without the possibility of parole for first degree murder and stayed his sentence on the robbery conviction pursuant to section 654. Following a direct appeal, this court struck an inapplicable parole revocation restitution fine but otherwise affirmed the judgment in July 2008. (People v. Coleman (July 24, 2008, C053684) [nonpub. opn.].) In our opinion on direct appeal, we summarized the incident resulting in these convictions as follows: “On December 12, 2004, Dwayne Harvey was shot and killed while sitting in his parked car at Fourth Avenue Park in Sacramento. He was shot nine times by two different weapons⸺a .40-caliber semiautomatic handgun and a .38-caliber revolver. Shell casings or bullets from each weapon were recovered from Harvey’s body and his car.