P. v. Allen CA2/8 filed 7/16/26

Filed 7/16/26 P. v. Allen CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff andRespondent,

v.

TIMOTHY LEE ALLEN,

Defendants and Appellants.

B336512

(Los Angeles County
Super. Ct. No.BA387364-03)

APPEAL from an order of the Superior Court of Los Angeles County,Eleanor J. Hunter, Judge.Affirmed.
Darden Law Group and Christopher Allen Darden for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General,Jason Tran,Melanie Dorian and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Timothy Lee Allen filed two petitions for resentencing under Penal Code section 1172.6. The trial court denied the first petition. Allen filed anappeal which we dismissed as abandoned. The trial court denied the second petition on the ground that it was repetitive of the first petition. Allen now appeals the denial of his second petition. We affirm. In doing so, we grant the People’s unopposed requests for judicial notice filed June 20, 2025, and August 19, 2025.
In 2016, a jury convicted appellant Timothy Allen of, among other things, first degree murder with gang and firearm enhancements. On October 26, 2016, Allen was sentenced to a total of 80 years to life, which included a mandatory 25 years to life sentence for the firearm enhancement under section 12022.53, subdivision(e)(1). Allen appealed the judgment of conviction and we affirmed and remanded the matter to the trial court to consider whether to exercise its newly conferred discretion to strike the firearm enhancement. (People v. Allen(B278755, Mar. 5, 2018) [nonpub.opn.].)
On April 20, 2022, Allen filed a petition for resentencing pursuant to section 1172.6 (then codified as section 1170.95). He checked the box that averred he had been convicted of murder under either the felony murder rule, the natural and probable consequence doctrine, or any other theory under which malice was imputed to him based upon his participation in the crime. The trial court appointed counsel on his behalf.
The People filed a response to the petition, arguing that Allen had been convicted of first degree murder as the actual shooter and was therefore ineligible for relief. The People argued the jury was not instructed on the natural and probable consequences theory of liability or any other theory of imputed liability. The only theory of liability given to the jury was direct aiding and abetting because both Allen and another defendant were alleged to have fired their guns simultaneously at the victim so the cause of death could not be ascribed to a specific shooter. Attached to the People’s response was a copy of the jury instructions given to the jury at the trial. The attachment showed the jury was instructed that a person may be guilty of a crime in two ways—first, if they directly committed the crime; second, if they aided and abetted a perpetrator who directly committed the crime. The jury was then instructed on express and implied malice and on the elements of aiding and abetting. The jurywas also instructed that “An act causes death if the death is the direct, natural and probable consequence of the act and the death would not have happened without the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence."
On September 30, 2022, the trial court found Allen “legally ineligible for relief” and denied the petition for resentencing. In denying the petition, the trial court found: “[t]he court is primarily resting on the jury instructions that were given and then also what the verdict was in this case. There was no felony murder instruction given, nor was there any natural probable consequence instruction given, and, as such, the defendant—and also the defendant was found guilty of first degree murder plus personal use of the firearm. So taking those in conjunction, the court is going to find that Mr. Allen is legally ineligible to seek relief under [section] 1172.6, and so I will deny his petition.”
Allen filed a notice of appeal on September 30, 2022 (case No. B325703). He stated the subject of the appeal was the “[d]enial of motion for resentencing under Pen Code sec 1172.6.” On March13, 2023, Allen’s counsel filed a no-issue brief pursuant to People v. Delgadillo (2023) 14 Cal.5th 216. Allen was given the opportunity to file a supplemental brief presenting issues he believed we should consider. Allen did not file a supplemental brief and on May17, 2023, we dismissed his appeal as abandoned.
On October 13, 2023, Allen apparently filed a second petition for resentencing.A second petition with a filing date of October 13, 2023 is not in the record before us. The court issued a minute order dated November 13, 2023, stating: “Defendant Allen previously filed a petition pursuant to Penal Code section 1172.6. The Court appointed counsel for the defendant and set the prima facie hearing for September 30, 2022. At the hearing, the Court read and considered the People’s Reply to the Petition and defense counsel’s Response to the Reply and heard further argument from counsel. The Court found the defendant was legally ineligible for relief and his petitionwas denied. [¶] On or about October 13, 2023, defendant filed a second petition pursuant to Penal Code section 1172.6. This is a duplicate of his original petition. Petition is denied.” Allen timely appealed.
DISCUSSION
Our record on appeal does not include a petition for resentencing filed October 13, 2023. Apparently Allen is content to proceed on the assumption that the second petition was indeed a duplicate of the initial petition which the trial court had denied. He has not asked us to augment the record with a copy of a file-stamped second petition. Nor has he even acknowledged there may be a problem here. Instead he plows into his contention that the trial court committed error in denying the initial, not second, petition.
We decline to adjudicate an appeal based on an incomplete record. Nor do we proceed based on a party’s representations unsupported by the record. It is appellant’s burden to “demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5Cal.5th 594, 609; Cal. Rules of Court, rule 8.320(b)(13)(A).)Failure to provide an adequate record on an issue requires that the issue be resolved against appellant. (Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296; see People v. Torres (1979) 96 Cal.App.3d 14, 22.) Appellant has neither shouldered his burden nor complied with this court’s rules.
DISPOSITION
The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY, J.

VIRAMONTES, J.