People v. Allen CA4/1

Filed 10/27/23 P. v. Allen CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081588

Plaintiff and Respondent,

v. (Super. Ct. No. SCD216913)

MICHAEL ANTHONY ALLEN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Reversed and remanded. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Michael Allen appeals after the trial court summarily denied his petition under Penal Code section 1172.6 (formerly section

1170.95) without an evidentiary hearing. We accept the Attorney General’s concession of error and reverse. FACTUAL AND PROCEDURAL BACKGROUND

The People charged Allen with murder (Pen. Code,1 § 187, subd. (a)), attempted murder (§§ 664 & 187, subd. (a)), conspiracy to commit murder (§ 182, subd.(a)(1)), shooting at an occupied structure (§ 246), and the unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)). In 2010, he pled guilty to voluntary manslaughter (§ 192, subd. (a)) and evading

an officer with reckless driving (Veh. Code, § 2800.2).2 Twelve years later, in March 2022, Allen filed a petition under section

1172.63 requesting that his voluntary manslaughter and reckless evasion convictions be vacated and he be resentenced. His supporting declaration consisted of a preprinted form where he checked boxes that stated: (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable causes doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial at which he could have been