Filed 7/26/23 P. v. Finister CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B325841
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA104526)
v.
DASHAUN FINISTER,
Defendant and Appellant.
THE COURT:*
Defendant and appellant Deshaun Finister (defendant)
appeals from the denial of his petition for vacatur of his murder
conviction and for resentencing under Penal Code former section
1170.95, now section 1172.6.1 Defendant’s appointed counsel
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.) We will refer to the section by its new numbering
only.
found no arguable issues and filed a brief requesting that we
exercise our discretion to conduct an independent review of the
record, citing People v. Delgadillo (2022) 14 Cal.5th 216
(Delgadillo). Following the standard articulated Delgadillo, we
have conducted a limited review of the current appellate record.
(See Delgadillo, at pp. 230–232.) As we find a prima facie
showing of eligibility for relief under section 1172.6, we conclude
that the trial court erred in summarily denying defendant’s
petition. Accordingly, we reverse and remand with directions.
BACKGROUND
In 2009 defendant and a codefendant were each convicted
of one count of murder (§ 187, subd. (a)) and one count of
attempted murder (§§ 664 & 187, subd. (a)). As to the murder
conviction, the jury found true the allegation that the murder
was of the first degree, and defendant committed the murder
while engaged in the crimes of robbery and burglary within the
meaning of section 190.2, subdivision (a)(17). As to the
attempted murder conviction, the jury found true the allegation
that the attempted murder was premeditated, willful and
deliberate. As to both counts the jury found true the three
firearm allegations that a principal personally and intentionally
used a firearm, a principal personally and intentionally
discharged a firearm, and a principal personally and
intentionally discharged a firearm, causing great bodily injury
and death to the victim, within the meaning of section 12022.53,
subdivisions (b), (c), and (d). Also as to both counts the jury
found true the allegation that the crime was committed for the
All further unattributed code sections are to the Penal Code
unless otherwise stated.
2
benefit of a gang, within the meaning of section 186.22,
subdivision (b)(1)(A).
We affirmed defendant’s convictions on appeal after
modifying the sentence pronounced by the trial court. (People v.
Finister (Jan. 20, 2011, B218414) [nonpub. opn.].) As modified,
defendant was sentenced to a term of life without parole for
murder and special circumstance pursuant to section 190.2, and
to a life term with possibility of parole with a seven-year
minimum parole eligibility term on the attempted murder,
pursuant to section 3046, subdivision (a)(1).2
According to the factual summary in People v. Finister,
supra, B218414 at pages 110–112, two men later identified as
defendant and his codefendant burst into the home of Steven Harvey
where he was playing a video game with his friend Larry Fulton.3
Both defendant and codefendant were brandishing weapons and
demanded money. After being robbed at gunpoint, the victims
were kneeling with their hands behind their heads. The two
assailants argued about what to do with them. One suggested
bringing the two victims with them and the other shouted, “No.
Fuck that,” and fired two shots, one hit Fulton in the back of the
2 The trial court resentenced defendant as directed by the
appellate court. The court struck the gang enhancement and
retained the 25-year to life terms for the two unstayed firearm
enhancements alleged as to both counts pursuant to section
12022.53, subdivisions (d) and (e)(1). The indication of life
without the possibility of parole noted on the February 22, 2011
abstract of judgment dated for both counts appears to be in error.
3 We recite these facts solely for context and do not rely on
them for our analysis or disposition.
3
head and the other wounding Harvey in the leg. The assailants
then ran away.
Following defendant’s conviction, the Legislature passed
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437),
amending sections 188 (implied and express malice murder), 189
(felony murder), and murder under the natural and probable
consequences doctrine, “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).) The Legislature also
added what is now section 1172.6, which provides a procedure for
those convicted of murder or attempted murder to petition for
retroactive relief if they could not now be convicted under the
amended laws. (§ 1172.6, subd. (a); see People v. Lewis (2021) 11
Cal.5th 952, 957 (Lewis).)
On April 6, 2021, defendant filed a pro. per. petition for
writ of habeas corpus, signed under penalty of perjury,
requesting relief under section 1172.6. Both the prosecution and
the trial court treated the habeas petition as a section 1172.6
petition. As relevant here, a section 1172.6 petition must set
forth three conditions to be eligible for resentencing: (1) the
petitioner was charged with murder or attempted under a theory
of felony murder, (2) the petitioner was convicted of murder or
attempted murder, and (3) he could not presently be convicted of
murder because of changes to sections 188 and 189, effective
January 1, 2019. (See § 1172.6, subd. (a).) Where a petition
alleges the statutory conditions to eligibility, the trial court must
appoint counsel, entertain briefing by both parties, and then
“proceed[] to subdivision (c) to assess whether the petitioner has
4
made ‘a prima facie showing’ for relief. (§ [1172.6], subd. (c).)”
(Lewis, supra, 11 Cal.5th at p. 960; see id. at p. 962.) If the court
determines a prima facie showing has been made, it must issue
an order to show cause and then hold an evidentiary hearing
pursuant to section 1172.6, subdivision (d) to determine whether
to vacate the conviction and resentence the petitioner. (§ 1172.6,
subd. (c); Lewis, supra, at p. 960.) If the defendant makes a
prima facie showing of entitlement to relief, the court must issue
an order to show cause and hold an evidentiary hearing to
determine whether relief should be granted. (§ 1172.6, subds. (c)
& (d)(3).)
Attached to defendant’s petition was a memorandum of
points and authorities from which we can glean the required
allegations, although they are in the form of argument and not
made with the precision an attorney might provide. Defendant
essentially alleged he was charged with murder and attempted
murder by information which permitted the prosecution to
proceed on a theory of aiding and abetting a felony murder and
attempted murder without proof that he personally harbored the
required mental state. Defendant alleged he was convicted of
both crimes, and the jury found the felony-murder special
circumstance true pursuant to section 190.2, subdivision (a)(17),
although the instructions did not define the required mental
state under the legal standards clarified by the California
Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).4
4 In People v. Strong (2022) 13 Cal.5th 698, 710, the
California Supreme Court held that “[f]indings issued by a jury
5
Defendant attached copies of the jury instructions given at
his trial which included instructions regarding felony murder,
and aiding and abetting a robbery or burglary during which an
accomplice committed an act that caused the death of a victim,
even if the killing was unintentional. Defendant argued his
conviction would not meet present legal and constitutional
standards, in essence alleging he could not now be convicted
under the amended murder laws as an aider and abettor
pursuant the felony murder rule.
The trial court appointed counsel for defendant and
entertained briefing from both sides. The prosecution attached a
copy of our 2011 opinion in People v. Finister, supra, affirming
the judgment. The opposition brief included the facts recited in
the opinion and argued defendant was ineligible for relief under
section 1172.6 because the facts showed defendant was a major
participant in the underlying felonies who acted with reckless
indifference to human life.
In its order denying the petition, the trial court included
the facts in the appellate opinion relating to the robbery itself
and drew conclusions and inferences from those facts. The court
concluded the evidence and instructions showed that the jury
found that defendant intended to kill the victims.
Defendant filed a timely notice of appeal from the court’s
order.
DISCUSSION
After examination of the record, appointed counsel filed an
opening brief raising no issues. Where, as here, appointed
before Banks and Clark do not preclude a defendant from making
out a prima facie case for relief under” section 1172.6.
6
counsel finds no arguable issues in an appeal that is not taken
from the first appeal after conviction, we are not required to
conduct an independent review of the record if, after giving the
defendant an opportunity to file his own supplemental brief or
letter, he does not do so within the time allowed. (See Delgadillo,
supra, 14 Cal.5th at pp. 226, 232.) Counsel here provided
defendant with a copy of the record on appeal and informed him
of his right to file his own supplemental brief. We too notified
defendant of counsel’s brief, gave him 30 days to file his own
letter or brief stating any grounds for an appeal, contentions, or
arguments that he wished to be considered, and advised him that
if no supplemental brief or letter were timely filed the court may
dismiss the appeal as abandoned. Though defendant has not
filed a supplemental brief within the time allowed, a brief review
of the order denying the petition revealed the trial court’s
determination that defendant had not made a prima facie
showing of eligibility under section 1172.6 may have been based
upon impermissible factors. We thus reviewed the record on
appeal as necessary to resolve that issue.
The prima facie inquiry is limited. (Lewis, supra, 11
Cal.5th at p. 971.) The trial court is required to accept factual
allegations as true unless refuted as a matter of law by the record
of conviction (id. at pp. 971–972), and it must draw “ ‘all factual
inferences in favor of the petitioner’ ” (People v. Clayton (2021) 66
Cal.App.5th 145, 153). Only where the record of conviction
contains established facts showing that petitioner is ineligible for
resentencing as a matter of law may the court find no prima facie
showing has been made. (See Lewis, supra, at p. 971; People v.
Duchine (2021) 60 Cal.App.5th 798, 815.) “As a matter of law”
means the record of conviction conclusively refutes the allegations
7
of the petition without resort to factfinding, weighing of evidence,
or credibility determinations. (People v. Lopez (2022) 78
Cal.App.5th 1, 14; see Lewis, supra, at pp. 957, 970–972.) For
example, if the record shows no jury instructions were given
regarding felony murder or the natural and probable
consequences doctrine, or that petitioner was the actual
perpetrator who acted with malice aforethought, he is ineligible
for relief as a matter of law. (People v. Harden (2022) 81
Cal.App.5th 45, 52–53, 55–56.)
As discussed above, we gleaned from defendant’s
memorandum of points and authorities attached to his section
1172.6 petition sufficient allegations of the three conditions
required by section 1172.6, subdivision (a) to establish a prima
facie showing of eligibility unless refuted as a matter of law. It
appears the trial court’s denial was based in part upon prohibited
factfinding, weighing the evidence, and disbelieving defendant’s
allegations. In addition, the trial court relied on instructions
given at defendant’s trial, as well as factual and legal conclusions
contained in the 2011 appellate opinion, without consideration of
changes in the applicable law since the trial and appeal.
As the trial court acknowledged the jury was given two
theories of murder, felony murder and murder with malice
aforethought. The jury was not required to state the theory upon
which it relied. The trial court defined express and implied
malice for the jury and noted that the jury was instructed with
CALCRIM No. 600, which provides the requirement of an intent
to kill for attempted murder. The trial court also advised the
jury the instructions applied to both defendants, though some
8
instructions might not be applicable, depending on the jury’s
factual findings.5
In sum, the jury was permitted to find defendant guilty of
felony murder without finding he was either the actual killer, an
aider and abettor of the killer who harbored an intent to kill, or a
major participant in the underlying robbery or burglary and
acted with reckless indifference to human life, as described in
section 190.2, subdivision (d), as now required under the law as
amended by Senate Bill 1437. (See § 189, subds. (a) & (e).) As
such, the record of conviction does not conclusively refute as a
matter of law the allegation that defendant could not now be
convicted of murder. (See Lewis, supra, 11 Cal.5th at pp. 957,
970–972; People v. Lopez, supra, 78 Cal.App.5th at p. 14.) We
thus conclude the trial court erred in finding defendant had not
made a prima facie showing of eligibility under section 1172.6 as
to the murder conviction.
DISPOSITION
The order of October 28, 2022 denying defendant’s section
1172.6 petition is reversed. The matter is remanded for
reappointment of counsel, the issuance of an order to show cause,
and further proceedings in accordance with Penal Code section
1172.6, subdivision (d) as to the murder conviction.
NOT TO BE PUBLISHED.
* LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
5 As the attempted murder conviction is based only on a
theory of malice, no relief under section 1172.6 is warranted.
9