Modification: People v. Allison

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTWAN ALLISON,

Defendant and Appellant.

No. B300575

(Los Angeles County

Super. Ct. No. PA022581)

California Courts of Appeal

Second Appellate District

Division One

Filed October 22, 2020

ORDER MODIFYING

OPINION (NO CHANGE

IN JUDGMENT)

THE COURT:

The opinion in the above-entitled matter filed on October 2, 2020, is modified as follows:

1. On page 3, footnote 3 is added to the end of the following paragraph: "The following account of the facts underlying Allison's conviction is taken from our opinion in his original appeal. (People v. Allison (Jan. 31, 2000, B121801) [nonpub. opn.].)"

The language in that newly inserted footnote 3 is as follows:

3 On August 5, 2020, respondent filed a request for judicial notice of the appellate record and unpublished opinion in case No. B121801. The request is granted. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

2. On pages 11-12, the language in footnote 7 is entirely deleted and replaced with the following language:

The optional language in CALCRIM No. 703 is as follows:

"[When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life. Among the factors you may consider are:

"[• Did the defendant know that [a] lethal weapon[s] would be present during the __________________<insert underlying felony>?]

"[• Did the defendant know that [a] lethal weapon[s] (was/were) likely to be used?]

"[• Did the defendant know that [a] lethal weapon[s] (was/were) used?]

"[• Did the defendant know the number of weapons involved?]

"[• Was the defendant near the person(s) killed when the killing occurred?]

"[• Did the defendant have an opportunity to stop the killing or to help the victim(s)?]

"[• How long did the crime last?]

"[• Was the defendant aware of anything that would make a coparticipant likely to kill?]

"[• Did the defendant try to minimize the possibility of violence?]

"[• __________________<insert any other relevant factors>]]

"[When you decide whether the defendant was a major participant, consider all the evidence. No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are:

"[• What was the defendant's role in planning the crime that led to the death[s]?]

"[• What was the defendant's role in supplying or using lethal weapons?]

"[• What did the defendant know about dangers posed by the crime, any weapons used, or past experience or conduct of the other participant[s]?]

"[• Was the defendant in a position to facilitate or to prevent the death?]

"[• Did the defendant's action or inaction play a role in the death?]

"[• What did the defendant do after lethal force was used?]

"[• __________________<insert any other relevant factors.>]]"

3. On page 14, the first paragraph is entirely deleted and replaced with the following paragraph:

We disagree. The Legislature could not and did not need to spell out every ground for denying a petition. For example, the Legislature did not specify that a defendant with a special circumstance finding for the administration of poison (§ 190.2, subd. (a)(19)) or for killing while the defendant was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)) is ineligible for relief. But both of those special circumstances require that the defendant intentionally killed the victim (see § 190.2, subd. (a)(19) & (22)), and a court would be correct to summarily deny a petition in such a case because the defendant could not make a prima facie claim that he was entitled to relief. If these kinds of findings did not bar defendants from relief under section 1170.95, it would be unclear how any prior factual findings could preclude relief under section 1170.95. For these reasons, we conclude that the Legislature's silence regarding defendants with pre-Banks and Clark special circumstances does not imply that such defendants are eligible for resentencing under section 1170.95.

4. At the bottom of page 16 through the top of page 17, the citation "Verdugo, supra, 44 Cal.App.5th 320, review granted March 18, 2020, S260493," is revised to be "People v. Verdugo (2020) 44 Cal.App.5th 320, review granted March 18, 2020, S260493," as a result of the modification to page 11.

5. Due to the newly inserted footnote 3 on page 3 of the opinion, all subsequent footnotes throughout the opinion are renumbered.

These modifications do not constitute a change in the judgment.

ROTHSCHILD, P. J.

CHANEY, J.

SINANIAN, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.