Opinion
A170435
11-07-2024
THE PEOPLE, Plaintiff and Respondent, v. TAVON JAMARI FOSTER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 17-CR-007803)
TUCHER, P.J.
Tavon Foster appeals from an order denying his petition for resentencing. (Pen. Code, § 1172.6; statutory references are to this code.) Foster's appointed appellate counsel has filed a brief that raises no issue for appeal and requests that this court exercise our discretion to conduct an independent review of the record. (People v. Delgadillo (2022) 14 Cal.5th 216.) Foster has submitted a brief raising issues. After reviewing Foster's arguments and the record, we affirm.
BACKGROUND
In 2017, Foster was charged with three offenses: murder of Darnell Foster (§ 187, subd. (a)); carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1)); and carrying a loaded firearm on his person in a city (§ 25850, subd. (a)). In connection with the murder charge, the People alleged Foster personally and intentionally discharged a firearm (§§ 12022.7, 12022.5, 12022.53), and personally inflicted great bodily injury on another person (§ 12022).
The charges against Foster were resolved in 2019, albeit not all at one time. In January, he pled no contest to the firearm possession charges. In June, he pled no contest to voluntary manslaughter and admitted he personally used a firearm during commission of the offense. (§§ 192, subd. (a), 12022.5, subd. (a).) In July, Foster was sentenced in accordance with his plea agreement to a total term of 15 years in prison. He did not appeal from the 2019 judgment.
In March 2022, Foster filed a petition to vacate his manslaughter conviction and for resentencing pursuant to former section 1170.95. He checked boxes on the form petition to allege: a charging document filed against him permitted the prosecution to proceed on a theory of imputed malice based solely on a person's participation in a crime; he was convicted of murder, attempted murder or manslaughter; and he could not presently be convicted of that offense because of changes made to sections 188 and 189, effective January 1, 2019. The superior court appointed counsel for Foster and requested that the People respond to the petition.
Former section 1170.95 was renumbered as section 1172.6 without substantive change. (People v. Vargas (2022) 84 Cal.App.5th 943, 947, fn. 2; see Stats. 2022, ch. 58, § 10.)
In August 2022, the People filed a response, arguing that Foster failed to make a prima facie case for relief. By way of background, the People discussed preliminary hearing testimony, which showed that the victim had been shot approximately 25 to 30 times, and that a witness saw Foster standing over and shooting the victim, while the victim was on the ground. The People also summarized Foster's record of conviction, which showed that he pled to the manslaughter charge after a jury failed to reach a verdict as to the murder charge. The People argued Foster was ineligible for resentencing because jury instructions proved he was not prosecuted under a theory of felony murder, murder under the probable and consequences doctrine, or any other theory of imputed malice. Based on this aspect of the record of conviction, without consideration of any underlying facts, the People urged the court to find that Foster failed to state a prima facie case of relief.
In a November 2022 reply brief, Foster confirmed that his murder trial had resulted in a hung jury, but he argued that jury instructions from that proceeding were not part of the record of his conviction, "which came by way of a plea long after the jury was unable to reach a verdict." He argued further that even if the instructions could be considered, they were not dispositive, as the People could have retried him on a different theory of murder liability. Foster maintained he met the low threshold of establishing a prima facie case.
In April 2024, the court held a hearing on Foster's petition. The court stated it had reviewed the petition, briefs by both sides, the preliminary hearing transcript, and other relevant documents in the record of conviction. It observed that if the preliminary hearing testimony could be considered at that juncture, it showed that Foster was prosecuted as the actual killer. Regarding the People's reliance on jury instructions, the court questioned their relevancy since the conviction was not based on a verdict but on Foster's plea several months later. Then the court invited argument.
The People argued that, assuming the case started "afresh and anew" after the mistrial was declared, Foster had received all the benefits of amendments to section 188 and 189 when he entered his plea because the entire posttrial phase of the case occurred after those amendments went into effect on January 1, 2019. Foster's counsel disagreed, arguing that the petition allegations were sufficient to make a prima facie case because (1) it would be improper to deny the petition based on a preliminary hearing transcript in light of the mistrial, (2) the only relevant record of conviction pertained to the plea, and (3) there was no proof that when Foster pled no contest to manslaughter (and admitted the personal gun use enhancement) the parties were aware of amendments to section 188 and 189, which were still relatively new.
After the matter was submitted, the court elected not to rely on preliminary hearing testimony or jury instructions. It found that "by timing alone" Foster was barred from pursuing his petition. Because Foster's conviction was based on a plea entered after the effective date of amendments to section 188 and 189, his allegation that he could not currently be convicted due to those changes failed as a matter of law. Thus, the court denied the petition, finding Foster had not made a prima facie case.
DISCUSSION
The procedure for seeking resentencing relief "begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill [No.] 1437." (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong), quoting § 1172.6, subd. (a)(3).) Upon receipt of a facially valid petition, "the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.'" (Strong, at p. 708.) At that stage, the "court may look at the record of conviction, which will necessarily inform its 'prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless.'" (People v. Williams (2022) 86 Cal.App.5th 1244, 1251; see People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) "If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, at p. 708, citing § 1172.6, subd. (c).) If, on the other hand, "the defendant has made a prima facie showing of entitlement to relief, 'the court shall issue an order to show cause.'" (Strong, at p. 708.) "We review de novo whether the trial court conducted a proper inquiry under section 1172.6." (Williams, at p. 1251.)
The record summarized in the background section of this opinion shows the trial court conducted a proper inquiry and reached the correct conclusion that Foster failed to present a prima facie case. Foster has filed a supplemental brief disputing the court's conclusion, but his arguments miss their mark. To begin with, we note that Foster acknowledges that his jury trial was held after the 2019 amendments to section 188 and 189 went into effect, and that the prosecution did not rely on the felony murder rule or the natural and probable consequences doctrine in seeking a murder conviction. Nevertheless, Foster maintains that he established a prima facie case for relief, offering two theories.
First, Foster posits that the trial court erred because it based its ruling on the preliminary hearing transcript, which contained testimony from only one witness. Foster argues that excerpts from the trial testimony of other witnesses (which he has attached to his brief) show that it was not clear who witnessed the shooting, what actually happened, who the shooter actually was, and how many people were involved. Contrary to Foster's argument, the trial court did not base its decision on evidence from the preliminary hearing. Moreover, the trial evidence attached to Foster's brief (which we do not consider) was not before the court when it ruled on the resentencing petition, nor should it have been since the court does not engage in factfinding at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.)
Foster's second argument is that the record of conviction pertaining to his no contest plea to the manslaughter charge does not establish that he was the actual killer. Foster reasons that when he entered his plea, he did not stipulate "to any specific theory," he did not admit to being the actual killer or an accomplice, and he did not admit to the truth of the preliminary hearing transcript. Thus, Foster posits, in order to have found him ineligible for relief as a matter of law, the court must have weighed the evidence and concluded he was the actual killer, which was impermissible.
Contrary to Foster's second argument, the court did not find that Foster was the actual killer, nor was it required to make that finding in order to deny the petition. The court found (correctly) that Foster cannot establish the third element of a prima facie case for resentencing relief, which requires the petitioner to show that he could not currently be convicted of his offense due to the changes to section 188 and 189 that went into effect January 1, 2019. Foster checked a box on his petition to allege that he has met this requirement, but his allegation was conclusively rebutted by his record of conviction. (Lewis, supra, 11 Cal.5th at p. 972; Strong, supra, 13 Cal.5th at p. 708.)
DISPOSITION
The order denying Foster's petition for resentencing is affirmed.
WE CONCUR: PETROU, J. RODRÍGUEZ, J.