People v. Foster CA2/4

INTRODUCTION

In 1989, a jury convicted defendant and appellant Daymond Lee Foster of first degree murder. The jury also found a robbery-murder special circumstance allegation true, which included a finding beyond a reasonable doubt that Foster was the actual killer. In 2022, Foster filed a petition for recall and resentencing under former Penal Code section 1170.95.1 The trial court denied the petition, concluding the record of conviction demonstrated as a matter of law that Foster was the actual killer, and thus Foster is ineligible for resentencing. On appeal, Foster argues the trial court’s conclusion constitutes error, and asks that his case be remanded with instructions to issue an order to show cause and hold an evidentiary hearing. We affirm.

PROCEDURAL BACKGROUND

In 1989, the Los Angeles County District Attorney filed an amended information charging Foster (a.k.a. Rodney Thompson) and codefendant Randy Whittenburg with various crimes.2 The amended information charged Foster with murder (§ 187, subd. (a); count one); attempted second degree robbery (§§ 664/211; count two); and second degree robbery (§ 211; count three). It further alleged Foster: (1) personally used a…