People v. Trice CA4/1

California Court of Appeal · D078232 · 2021-03-17 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCD138014
Trial judge: Jay Bloom
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Patricia D. Benke (author), Joan K. Irion, William S. Dato

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:12Z · confidence high

The trial court summarily denied defendant's petition for resentencing under Penal Code section 1170.95, ruling that the record established he was a direct participant in the murder. The Court of Appeal affirmed the denial, finding no arguable issues on independent review under Wende and Anders.

Ruling reviewed	Standard	The court	The model
Summary denial of petition for resentencing under Penal Code section 1170.95 “The record shows Petitioner physically aided and abetted and was a direct participant in the murder.”	de novo	correct	agree with court The appellate court correctly applied the standard that a trial court may summarily deny a section 1170.95 petition if the record of conviction establishes, as a matter of law, that the petitioner is ineligible for relief. Here, the jury's findings of special circumstance allegations for carjacking, kidnapping, and robbery necessarily implied that the defendant was a direct participant who acted with intent to kill or reckless indifference, rendering him ineligible under the statute. The court's reliance on People v. Gomez supports this conclusion.

Authorities

relied: People v. Gomez (2020) 52 Cal.App.5th 1 — A trial court may properly deny a section 1170.95 petition without an evidentiary hearing if the record of conviction establishes, as a matter of law, that the defendant was ineligible for relief because they were a direct participant or major participant acting with reckless indifference.
relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate counsel must conduct an independent review of the record to identify any arguable issues when no meritorious issues are apparent.
relied: Anders v. California (1967) 386 U.S. 738 — Appellate counsel may file a brief stating there are no meritorious issues, provided they inform the defendant and request independent review by the court.

The appellate opinion: sound — The opinion is sound because it correctly applies the legal standard for summary denial of section 1170.95 petitions, relying on the specific jury findings in the record of conviction to establish ineligibility as a matter of law. The court properly conducted the required independent review under Wende and Anders and found no other arguable issues.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The San Diego Superior Court summarily denied Allen Trice's Penal Code section 1170.95 petition to vacate his 2001 special-circumstance felony-murder conviction, ruling that the record showed he physically aided and abetted and was a direct participant in the murder. On appeal, appointed counsel filed a Wende/Anders brief, the Court of Appeal independently reviewed the record, relied on People v. Gomez to hold that the jury's carjacking, kidnapping, and robbery special-circumstance findings rendered Trice ineligible for relief as a matter of law, and affirmed.

Ruling reviewed	Standard	The court	The model
Summary denial of section 1170.95 resentencing petition at the prima facie stage on the ground that the record of conviction (special circumstance findings and direct participation) established ineligibility as a matter of law “As the trial court here correctly noted, direct participants in a murder are not eligible as a matter of law for relief under section 1170.95.”	unclear	correct	unsure The appellate court treated the 2001 special-circumstance findings under section 190.2, subdivision (a)(17) as conclusively establishing that the jury found intent to kill or major participation with reckless indifference, following Gomez. But Trice's conviction predates People v. Banks (2015) and People v. Clark (2016), which materially clarified the major-participant and reckless-indifference standards, and at the time of this opinion published Court of Appeal decisions (e.g., People v. Torres (2020) 46 Cal.App.5th 1168; People v. Smith (2020) 49 Cal.App.5th 85; People v. York (2020) 54 Cal.App.5th 250) held that pre-Banks/Clark findings do not bar a prima facie showing; the opinion did not acknowledge this split or Banks/Clark. The trial court's stated rationale ('physically aided and abetted and was a direct participant') also reads as factfinding from the prior appellate opinion's narrative rather than a determination that the record refutes the petition as a matter of law, since the facts show codefendant Williams fired the fatal shot and the jury was not required to find Trice the actual killer. The result was defensible under one line of then-existing authority (Gomez, Galvan, Allison), so I cannot point to a settled error of law as of March 2021, but the reasoning was later disapproved by People v. Strong (2022) 13 Cal.5th 698, and the opinion's failure to engage the contrary authority leaves me unable to agree.

Authorities

relied: People v. Gomez (2020) 52 Cal.App.5th 1 — A trial court may deny a section 1170.95 petition without an evidentiary hearing where robbery and kidnapping special-circumstance findings establish, as a matter of law, that the jury found the defendant acted with intent to kill or was a major participant acting with reckless indifference to human life.
relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal independently reviews the entire record to determine whether any arguable issue exists.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request permission to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
missed: People v. Banks (2015) 61 Cal.4th 788 — Clarified the 'major participant' requirement for the felony-murder special circumstance for a non-killer, requiring more than mere participation in the underlying felony; relevant to whether a 2001 special-circumstance finding establishes ineligibility under current section 189, subdivision (e)(3).
missed: People v. Clark (2016) 63 Cal.4th 522 — Clarified the 'reckless indifference to human life' element of the felony-murder special circumstance for a non-killer, identifying factors such as knowledge of weapons, presence at the killing, and opportunity to restrain the killer or aid the victim; relevant to whether a pre-2016 finding bars a prima facie showing under section 1170.95.

The appellate opinion: sound with gaps — The opinion correctly describes the section 1170.95 framework and reaches a result that was supported by the Gomez line of authority existing in March 2021, and it properly conducted independent review under Wende without needing to resolve whether Wende applies to post-judgment appeals. It is incomplete, however, because it did not acknowledge the then-existing published split over whether pre-Banks/Clark special-circumstance findings preclude a prima facie showing, did not address Banks and Clark themselves, and did not examine whether the trial court's 'direct participant' rationale reflected impermissible factfinding at the prima facie stage; the Gomez approach was later rejected by the Supreme Court in People v. Strong.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 3/17/21 P. v. Trice 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, D078232

Plaintiff and Respondent, v. (Super. Ct. No. SCD138014)

ALLEN TRICE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Jay Bloom, Judge. Affirmed.

David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. In 2001, defendant Allen Trice was convicted inter alia of first degree special circumstance murder. On February 21, 2019, he filed a petition for resentencing pursuant to Penal Code1 section 1170.95. On October 8, 2020, the trial court summarily denied the petition and Trice appealed. Unable to identify any arguable issues, appellate counsel has sought independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Affirmed. FACTUAL AND PROCEDURAL BACKGROUND The following facts are taken from this court’s unpublished opinion in defendant’s direct appeal, People v. Allen Trice (Nov. 7, 2001, D035246 [nonpub. opn.] (Trice I)), in which we affirmed the judgment other than to correct an error in the abstract of judgment. On May 8, 1998, Abdinur Dahir was working as a taxicab driver in San Diego. He planned to attend his mosque with his sons for Friday prayer. Shortly after he called his wife to inform her that he was going to pick up their sons, defendant Allen Trice and codefendant Keith Williams2 entered Dahir’s cab. (Trice I, supra, D035246, at p. 1.) Williams sat in the front seat and defendant sat in the back seat. While traveling on the freeway, an altercation ensued between Dahir and Williams, leading Williams to shoot Dahir in the chest while defendant pulled at Dahir from behind, causing the cab to swerve on the freeway as testified to by other motorists. Defendant 1 All further statutory references are to the Penal Code.

2 Williams is not a party to this appeal. 2 and Williams left Dahir’s body on the side of the freeway, and drove away in his cab. (Id. at p. 2.) The medical examiner determined Dahir had been shot in the chest at close range, and had also sustained injuries to his forehead and neck, including a broken hyoid bone, consistent with strangulation. The medical examiner concluded Dahir’s death was caused either by the gunshot wound alone, or in combination with strangulation. (Trice I, supra, D035246, at p. 2.) As relevant here, the jury found defendant guilty of murder (§ 187, subd. (a)); and found true special circumstance allegations that Trice committed the murder during the commission of a carjacking, kidnapping, and robbery (§ 190.2, subd. (a)(17)). The jury further found true allegations that Trice was armed with a firearm in the commission of the carjacking and robbery. (§ 12022, subd. (a)(1).) (Trice I, supra, D035246, at p. 1.) The court sentenced defendant to prison for a term of life without the possibility of parole for the special circumstances murder, plus one year for the firearm enhancement. (Ibid.) The court stayed pursuant to section 654, subdivision (a) the sentences for the carjacking and robbery convictions and the accompanying firearm enhancements. (Ibid.) On February 21, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. He alleged he had been convicted of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and could not now be convicted of murder because of changes made to the law by Senate Bill No. 1437. The court in its October 8, 2020 order summarily denied defendant’s petition, ruling, “The record shows Petitioner physically aided and abetted and was a direct participant in the murder.”

3 As noted, appellate counsel has filed a brief based upon Wende and Anders. Counsel has summarized the facts and proceedings and includes citations to the record. He urges there are no contentions which, if found meritorious, would result in reversal or modification of defendant’s judgment. Counsel represents he has informed defendant of his right to file a supplemental brief on his own behalf and has provided defendant with a copy of the record on appeal. This court has also informed defendant of his right to file a supplemental brief. Defendant did not file a brief. Counsel requests that pursuant to Wende and Anders, this court independently review the entire record to determine if there are any issues which, if resolved in favor of defendant, would result in modification or reversal of defendant’s judgment. To assist us in this review, counsel has, pursuant to Anders, pointed us to the following possible issues: whether the trial court prejudicially erred in summarily denying defendant’s petition for resentencing; and whether the procedural protections of Wende and Anders extend to his section 1170.95 petition. Finally, in the interest of justice counsel asks this court to conduct an independent review of the record. DISCUSSION “In 2018, ‘the Governor signed Senate Bill No. 1437 . . . in order to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill [No.] 1437 also added . . . section 1170.95, which created a [petition] procedure whereby a person whose felony murder conviction was final, but who could not have been convicted under the amended statutes, 4 could petition to have the conviction vacated.’ [Citation.]” (People v. Gomez (2020) 52 Cal.App.5th 1, 11–12 (Gomez).) Under section 1170.95, subdivision (c) a trial court presented with a facially valid petition must determine if the petition sets forth a prima facie case for relief. If it does, the court must then hold a hearing at which the prosecutor bears the burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. If the prosecutor fails to meet this burden, the court must vacate the murder conviction and resentence the defendant on any remaining counts. (§1170.95, subds. (c) & (d).) As the trial court here correctly noted, direct participants in a murder are not eligible as a matter of law for relief under section 1170.95. (See Gomez, supra, 52 Cal.App.5th 1, 14–15 [concluding the trial court properly denied the defendant’s section 1170.95 petition to vacate her 2009 murder conviction without holding an evidentiary hearing because the record of conviction established, as a matter of law, that the defendant was ineligible for relief under this statute because in “finding the robbery and kidnapping special circumstance allegations true, the jury necessarily found that [the defendant] either participated in the alleged robbery and kidnapping with the intent to kill [the victim], or that she was a major participant in those crimes who acted with reckless indifference to [the victim’s] life,” citing § 1170.95, subd. (a)(3)].) We have fully and independently examined the record and conclude that there are no other issues which, if resolved favorably to defendant, would result in reversal or modification of his judgment; and that defendant has been represented by competent counsel in this appeal.

5 DISPOSITION The order of the trial court denying defendant’s section 1170.95 petition for resentencing is affirmed.

BENKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12