Filed 7/16/26 P. v. Allen CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B336512
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA387364-03)
v.
TIMOTHY LEE ALLEN,
Defendants and Appellants.
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 Code1 section 1172.6. The trial court denied the first
petition. Allen filed an appeal 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.
1 Undesignated statutory references are to the Penal Code.
2
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 jury was 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
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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 March 13, 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 May 17, 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 petition was 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.
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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)
5 Cal.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.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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