Filed 3/1/24 P. v. Foster CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

DAYMOND LEE FOSTER,

Defendant and Appellant.

B324335

Los Angeles County

Super. Ct. No. A969446

APPEAL from an order of the Superior Court of Los 

Angeles County, Craig E. Veals, Judge. Affirmed. 

Kevin D. Sheehy, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael C. Keller and Yun K. Lee, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

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 firearm in the 

1 All undesignated statutory references are to the Penal 

Code. Effective June 30, 2022, the Legislature renumbered 

section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) 

There were no substantive changes to the statute. 

2 For purposes of clarity, we note that Foster was charged 

under the name “Rodney Thompson, a.k.a., Damon Lee Foster,”

and was referred to at his original trial as Rodney Thompson.
3

commission of counts one through three (§ 12022.5, subd. (a)); 

and (2) murdered the victim while engaged in the commission 

and attempted commission of robbery (§ 190.2, subd. (a)(17)).

3

Foster and Whittenburg had a joint trial with separate 

juries. Foster’s jury found him guilty on all counts. It also found 

true the allegations on all counts that Foster personally used a 

firearm, in addition to finding true the allegation that Foster 

committed the murder during the commission and attempted 

commission of robbery. The trial court sentenced Foster to life 

without the possibility of parole on the murder count. On direct 

appeal, a different panel of this court affirmed the judgment.

In February 2022, Foster filed a resentencing petition 

under former section 1170.95. The trial court tentatively ruled 

Foster was ineligible for relief as a matter of law because he was 

the actual killer, then appointed counsel on Foster’s behalf. The 

prosecution filed a response, and attached as exhibits this court’s 

opinion resolving Foster’s direct appeal, the jury instructions 

from Foster’s trial, and the jury verdicts.

In August 2022, the trial court held a hearing on Foster’s 

eligibility for relief. After both sides submitted without argument, 

the court denied Foster’s petition. In denying relief, the court 

explained the record demonstrated the jury convicted Foster as 

the actual killer, in addition to finding he personally used a 

firearm in the commission of the murder.

Foster timely appealed. We granted the parties’ requests 

for judicial notice and to augment the record to include various 

3 The amended information charged Whittenburg with 

counts one through three and alleged the special circumstance on 

count one, but did not charge him with personal use of a firearm 

on any count. 
4

documents, including the closing arguments, jury instructions, 

and verdict forms from Foster’s original trial, as well as this 

court’s opinion resolving Foster’s direct appeal.

FACTUAL BACKGROUND

The following facts are taken from this court’s opinion 

resolving Foster’s direct appeal. We include this information 

solely to provide background and context for the parties’ 

arguments, and do not rely on it to resolve this appeal. (See 

People v. Delgadillo (2022) 14 Cal.5th 216, 222, fn. 2.)

“On the night of September 17, 1987, Feliz Zuniga Estrada 

(‘Estrada’) accompanied his brother-in-law, Juan Rivas Avendano 

(‘Avendano’) to make a call from the public telephones outside a 

convenience store in their neighborhood in Los Angeles. While 

they were standing at the telephone, two men approached from 

behind. Estrada and Avendano turned, and Estrada saw Foster 

pointing a pistol at Avendano. Whittenberg was standing at 

Foster’s side and did not have a gun. Foster, speaking English, 

demanded money, pointing the gun at Avendano. Whittenberg 

grabbed Estrada’s arm, put his hand in Estrada’s left front 

trouser pocket and took money from his person. The amount 

taken was less than $10.

“Avendano resisted, grabbing the outside of his pockets and 

shaking his head from side to side in a negative manner.

Avendano removed his hands from his pockets, flashed them at 

appellants and dropped them. He then pushed Foster’s gun aside 

with his hand and said ‘Run.’ Whittenberg let go of Estrada’s 

arm, and both victims fled. As Avendano and Estrada ran toward 

the market, Estrada looked back and saw Foster fire three or four 

shots in rapid succession directly at Avendano. Avendano 

collapsed in front of the market and was helped inside by 
5

Estrada. He had been shot four times and died at the scene. 

Appellants fled.

“The preliminary hearing testimony of Rell King, who 

witnessed the shooting, was read to both juries. She was standing 

across the street from the convenience store when she saw Foster 

and another man confront a third man she identified as 

Avendano. She could not hear what was said, but observed Foster 

draw a handgun and point it at Avendano. The victim shook his 

head from side to side, pulled his hands from his pockets and 

dropped them to his side and began to back away from Foster. 

King heard Foster fire four shots at Avendano. Foster and his 

companion then fled, running toward King. King did not see 

Estrada until she entered the store after Avendano died. She 

identified Foster as the shooter from a photographic lineup and 

at both the preliminary hearing and trial.

“Marcus Branson testified that he was on his way to the 

same market when he heard four gunshots. He then saw Foster 

and a man he was unable to identify running toward him from 

the direction of the market. Prior to the night of the shooting 

Branson often had seen Foster playing basketball at the school 

Branson attended. As they ran past Branson, one man said ‘I

think we killed them.’ The other responded ‘I know. Let’s go.’

“The Foster jury heard the testimony of Los Angeles Police 

Detective William Baird who interviewed Foster after his arrest. 

Foster told Baird that he had encountered Whittenberg near the 

convenience store on the evening of the shooting. Whittenberg 

announced that he was planning to commit a robbery. According 

to Foster’s account, Whittenberg accosted the victims, pointed a 

gun at them, struggled with one victim when he resisted and 
6

then shot that victim while Foster fled. Foster claimed that his 

role was limited to removing money from Estrada’s hand.

“The Whittenberg jury heard Los Angeles Police

Department Detective Eric Campos testify to a statement made 

by Whittenberg after his arrest in which he implicated Foster as 

the instigator of the robbery which culminated in Foster’s 

shooting of Avendano. According to Whittenberg, his only role 

was taking the money from Estrada’s hand.

“Whittenberg presented no defense. Foster offered the 

testimony of a private investigator who contradicted Nell King’s 

testimony about the distance from her vantage point to the site of 

the shooting. A search of the appellants’ homes revealed no 

property relating to the crimes.” (People v. Foster et al. (Feb. 26, 

1991, B042375) [nonpub. opn.], fn. omitted.)

DISCUSSION

I. Governing Law

The Legislature enacted Senate Bill No. 1437 (SB 1437) “to 

amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, 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); 

accord, § 189, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 959 

(Lewis).) 

SB 1437 also added section 1170.95 to the Penal Code 

which, as mentioned above, was later renumbered to section 

1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This 

section permits individuals who were convicted of felony murder 
7

or murder under the natural and probable consequences doctrine, 

but who could not be convicted of murder following SB 1437’s 

changes to sections 188 and 189, to petition the sentencing court 

to vacate the conviction and resentence on any remaining counts. 

(§ 1172.6, subd. (a).) The statute also provides relief for certain 

individuals convicted under any “other theory under which 

malice is imputed to a person based solely on that person’s 

participation in a crime.” (Ibid.)

A petition for relief under section 1172.6 must include a 

declaration by the petitioner that he or she is eligible for relief 

based on all the requirements of subdivision (a), the superior 

court case number and year of the petitioner’s conviction, and a 

request for appointment of counsel, should the petitioner seek 

appointment. (§ 1172.6, subd. (b)(1).) 

Subdivision (c) of section 1172.6 provides: “Within 60 days 

after service of a petition that meets the requirements set forth in 

subdivision (b), the prosecutor shall file and serve a response. 

The petitioner may file and serve a reply within 30 days after the 

prosecutor’s response is served. These deadlines shall be 

extended for good cause. After the parties have had an 

opportunity to submit briefings, the court shall hold a hearing to 

determine whether the petitioner has made a prima facie case for 

relief. If the petitioner makes a prima facie showing that the 

petitioner is entitled to relief, the court shall issue an order to 

show cause. If the court declines to make an order to show cause, 

it shall provide a statement fully setting forth its reasons for 

doing so.” 

If the trial court determines the petitioner has made a 

prima facie showing for relief and issues an order to show cause, 

the court must hold a hearing “to determine whether to vacate 
8

the murder . . . conviction and to recall the sentence and 

resentence the petitioner on any remaining counts in the same 

manner as if the petitioner had not previously been sentenced, 

provided that the new sentence, if any, is not greater than the 

initial sentence.” (§ 1172.6, subd. (d)(1).) At the hearing, the 

parties may rely on the record of conviction or present “new or 

additional evidence” to support their positions, and “the burden of 

proof shall be on the prosecution to prove, beyond a reasonable 

doubt, that the petitioner is guilty of murder . . . under California 

law as amended by the changes to Section 188 or 189 made 

effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) 

II. Analysis

Foster argues the trial court erred by denying his petition 

as a matter of law. Specifically, he contends: (1) in light of People 

v. Strong (2022) 13 Cal.5th 698 (Strong), the felony murder 

special-circumstance finding did not render him ineligible for 

relief as a matter of law; (2) instructions on the specialcircumstance allegation were ambiguous as to which codefendant 

could be the actual killer or had the intent to kill; (3) the jury was 

not instructed on Foster’s liability as an accomplice or aider and 

abettor for the felony-murder special circumstance; and (4) the 

personal use of a firearm finding did not preclude the possibility 

that it was Whittenberg, not Foster, who killed the victim. 

Foster’s contentions are without merit. Although the jury 

was instructed on the felony murder rule, Foster is ineligible for 

section 1172.6 relief as a matter of law, because the record 

demonstrates the jury convicted him of murder under the theory 

he was the actual killer. (See § 189, subd. (e)(1) [actual killers are 

still liable for felony murder under current law]; Lewis, supra, 11 

Cal.5th at p. 959 [section 1172.6 relief extends to convicted 
9

murderers who could not be convicted under current law, but 

does not extend to actual killers].)

In concluding Foster is ineligible for relief as a matter of 

law, we first turn to the jury instructions and verdicts. Using 

CALJIC No. 8.80, the trial court instructed the jury, in pertinent 

part, as follows regarding the special circumstance:

If, and only if, you find the defendant in this case

guilty of murder in the first degree, you must then

determine if the following special circumstance is true or 

not true that the murder was committed while the

defendant was engaged in the commission of a robbery or 

attempted robbery.

The People have the burden of proving the truth of a 

special circumstance. If you have a reasonable doubt

whether a special circumstance is true, you must find it to 

be not true.

If, and only if, you find beyond a reasonable doubt

that the defendant was the actual killer, then you must also 

find beyond a reasonable doubt that the defendant intended 

to kill a human being.

In order to find a special circumstance alleged in this 

case to be true or untrue, you must agree unanimously.

(Italics added.)

It is thus clear that, by finding the special circumstance true on 

Foster’s murder count, the jury concluded beyond a reasonable 

doubt Foster was the actual killer (in addition to finding he 

harbored the intent to kill).
10

It is true, as Foster notes, that the trial court instructed the 

jury as follows using CALJIC No. 1.11: “The word ‘defendant’ 

applies equally to each defendant unless you are expressly 

instructed otherwise.” According to Foster, when viewed in 

tandem, CALJIC Nos. 8.80 and 1.11 created an ambiguity 

regarding whether the jury found Foster was the actual killer, or 

alternatively, found Whittenburg was the actual killer. We 

discern no such ambiguity. CALJIC No. 8.80, as given in Foster’s 

case, clearly specified that it was referring to “the defendant in 

this case.” (Italics added.) Because Foster and Whittenburg were 

tried by separate juries, it was clear to the jury that the

instruction was referring to Foster. 

Other parts of the record likewise support the conclusion

that Foster’s jury convicted him of murder as the actual killer.

For example, that was the sole theory the prosecution presented 

to the jury during closing arguments. The prosecution argued to 

the jury:

What happened during the course of this robbery?

What happened is the evidence is clear that someone was 

gunned down in coldblooded murder and Mr. Thompson 

[a.k.a. Foster] is the one that did it. . . . [¶] What happened 

was that Mr. Thompson [Foster] shot him. Not once. Not 

twice. Not three times. But four times. He hit him each and 

every time. He shot him at close range in the hand, he shot 

him at close range in the side, and as Mr. Avendano was 

fleeing for his life, he shot him twice in the back in 

coldblooded murder . . . . [¶] The evidence is clear Mr. 

Thompson is the murderer in this case.

In his reply brief, Foster does not dispute the fact that the 

prosecution’s sole theory was that he was the actual killer. 
11

Additionally, when addressing the jury regarding the special 

circumstance allegation, the prosecution explained why the 

evidence demonstrated Foster harbored the intent to kill. In 

arguing this point, the prosecution again expressed its sole 

theory that Foster was the actual killer:

How can you tell that Mr. Thompson [Foster] 

intended to kill Mr. Avendano? You can tell by the 

number of times he was shot. If he just wanted to wound 

Mr. Avendano, he could have stopped after shooting him in

the hand. He could have stopped after shooting him in the 

side. But, no, that’s not where he stopped. He didn’t stop 

there at all. He waited until the man was fleeing, an 

unarmed fleeing man, running for his life, and then shot 

him twice in the back. [¶] If that isn’t intent to kill, ladies 

and gentlemen, then I don’t know what is.

Because the prosecution’s sole theory was Foster was the actual 

killer, it follows logically that the jury convicted him of murder

under that theory.4

Foster argues the jury’s finding that he personally used a 

firearm in the commission of the murder does not prove, as a 

matter of law, that the jury convicted him under the theory he 

was the actual killer. Although it may be correct that such a 

personal use true finding may not be dispositive in all section 

1172.6 cases, here, it provides further support for what the rest of 

the record demonstrates, i.e., that the jury convicted Foster as 

the actual killer. In other words, the jury’s true finding on the 

4 Consistent with the prosecution theory that Foster was the 

actual killer, the District Attorney brought no personal firearm 

use allegations against codefendant Whittenburg. 
12

special circumstance allegation demonstrates as a matter of law 

that Foster is ineligible for section 1172.6 relief, and the jury’s 

true finding on the firearm enhancement only bolsters that 

conclusion. 

Contrary to Foster’s assertions on appeal, Strong is 

inapplicable to his case. Strong deals with a fairly narrow set of 

circumstances in which the trial court denied section 1172.6 relief 

as a matter of law based on an outdated jury finding that the 

defendant was a major participant in the felony underlying the 

murder conviction who acted with reckless indifference to human 

life. (Strong, supra, 13 Cal.5th at p. 703.)5 Here, by contrast, the 

trial court denied relief based on a conclusion that the record 

demonstrated as a matter of law Foster was convicted of murder 

as the actual killer. Strong thus deals with an issue not present 

in Foster’s case.

We likewise reject Foster’s argument that remand is 

warranted because current law would require the trial court to 

instruct the jury using CALCRIM No. 703. As Foster points out, a 

trial court’s sua sponte duty to instruct the jury with CALCRIM 

No. 703 regarding “the mental state required for accomplice 

liability when a special circumstance is charged” arises when 

“there is sufficient evidence to support the finding that the 

defendant was not the actual killer.” (Bench Note to CALCRIM 

No. 703, citing People v. Jones (2003) 30 Cal.4th 1084, 1117.)

5 Strong held: “Findings issued by a jury before [People v.] 

Banks [(2015) 61 Cal.4th 788] and [People v.] Clark [(2016) 63 

Cal.4th 522] [that a defendant was a major participant who acted 

with reckless indifference to human life] do not preclude a 

defendant from making out a prima facie case for relief under 

Senate Bill 1437.” (Strong, supra, 13 Cal.5th at p. 710.)
13

Here, even assuming (without deciding) that a CALCRIM No. 703 

instruction would be required under current law based on the 

evidence presented in Foster’s case, Foster’s record of conviction 

nevertheless demonstrates the jury found beyond a reasonable 

doubt he committed murder as the actual killer, rendering him 

ineligible for section 1172.6 relief as a matter of law.6

Foster lastly suggests the trial court engaged in improper 

factfinding based on its statement “the evidence established” 

Foster was the actual killer. We need not address that 

contention, because we review the court’s ruling rather than its 

reasoning. (People v. Brooks (2017) 3 Cal.5th 1, 39.) For the 

reasons expressed in this opinion, the court’s ruling was legally 

correct. The record demonstrates Foster is ineligible for section 

1172.6 relief as a matter of law as the actual killer.

6 Many of Foster’s arguments on appeal are premised on the 

notion that, because there was some evidence presented at trial 

suggesting he was not the actual killer (i.e., his statements to 

police that Whittenburg was the killer), his case must be 

remanded for an evidentiary hearing. This premise is incorrect. 

The record demonstrates the jury convicted Foster as the actual 

killer.
14

DISPOSITION

The order denying Foster section 1172.6 relief is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, P. J.

We concur: 

COLLINS, J.

ZUKIN, J.