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Filed 6/9/22 P. v. Deary-Smith CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RASHID DEARY-SMITH,

Defendant and Appellant.

C093753

(Super. Ct. No. 11F04334)

In 2015, defendant Rashid Deary-Smith was found guilty of, among other things, 

attempted murder and sentenced to prison. In 2020, following the passage of Senate Bill 

No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for 
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resentencing pursuant to Penal Code section 1170.95.1 The trial court denied the petition 

based on what it then deemed to be controlling authority standing for the proposition that 

individuals convicted of attempted murder, as opposed to murder, were not eligible for 

Senate Bill 1437 relief. The court further concluded defendant failed to make the 

requisite prima facie showing. Defendant appealed. After the matter was initially fully 

briefed, we directed the parties to submit supplemental briefing on the effect, if any, of 

Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), effective January 1, 2022,

on defendant’s appeal.

We shall reverse the order denying defendant’s petition and remand for the trial 

court to issue an order to show cause and hold a hearing under section 1170.95, 

subdivision (d). Senate Bill 775 makes clear defendants convicted of attempted murder 

are entitled to avail themselves of the changes effected by Senate Bill 1437. Defendant’s 

petition satisfied the prima facie showing required under section 1170.95, and nothing in 

his record of conviction establishes his petition lacks merit as a matter of law.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are quoted from the opinion of another panel of this court on 

defendant’s first appeal from the judgment. (People v. Deary-Smith (Apr. 3, 2019, 

C080821) [nonpub. opn.] (Deary-Smith).)

“Returning home from a night of karaoke, the girlfriend (the first victim) pulled 

her car into her garage and closed the garage door behind her. Getting out of her car, two 

men, defendant and the accomplice, rushed her. The men wore all black with face 

coverings. Both had handguns: Defendant, a .45-caliber pistol; the accomplice, a ninemillimeter handgun.

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 Further undesignated statutory references are to the Penal Code.
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“The girlfriend raised her hands, pleading with them not to hurt her. One said, 

‘Shut up bitch,’ and demanded she open the door connecting the garage to the house, 

while shoving her towards the door. Possibly because she was not moving fast enough, 

defendant hit her in the head with his gun, causing her to fall to the floor.

“The boyfriend (the other victim) was inside the house. Hearing the ruckus, he 

grabbed his .40-caliber gun, and partially opened the door to the garage. As he did, he 

was pushed back into the house and shot in the stomach. The boyfriend, however, was 

able to return fire, and shots were exchanged through the closed doorway connecting the 

house and the garage.

“During the battle, the girlfriend got into her car, drove through the closed garage 

door, and drove to a nearby pharmacy, waiting for police to arrive.

“The boyfriend got his shotgun from his bedroom, called 911, and went to the 

garage. He found defendant on the floor with a gunshot to his head. Zip ties were next to 

defendant (neither victim owned zip ties). Neither victim had ever seen defendant before.

“Responding officers found a loaded, semiautomatic handgun next to defendant. 

He was wearing black gloves and a sweatshirt with a pulled up hood. When rolled to his 

side, two more zip ties fell out of his pocket. Defendant’s gun had not been fired.

“The accomplice went to the hospital for a gunshot to the leg. Defendant was also 

taken to the hospital.” (Deary-Smith, supra, C080821, fn. omitted.) 

“A jury found defendant guilty of attempted murder (§ 664/187, subd. (a); count 

3), first degree burglary (§ 459; count 4), being a convicted felon in possession of a 

firearm (former § 12021, subd. (a)(1), Stats. 2011, ch. 15, § 501.5, eff. April 4, 2011; 

count 5), and two counts of attempted first degree robbery in an inhabited building 

(§ 664/211; counts 1 and 2). As to counts 1, 2, 3 and 4, it found defendant personally 

used a firearm. (§§ 12022.53, subd. (b) [counts 1, 2, & 3], 12022.5, subd. (a)(1) [count 

4].)” (Deary-Smith, supra, C080821.) The trial court imposed an aggregate sentence of 

21 years 8 months. On defendant’s first appeal, among other things, we affirmed the 
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convictions of attempted murder and first degree burglary and reversed the two 

convictions of attempted first degree robbery.

On July 22, 2020, defendant filed a petition for resentencing pursuant to section 

1170.95. Defendant asserted that he had been found guilty of attempted murder as an 

aider and abettor under the natural and probable consequences doctrine. He further 

asserted the evidence established he was not the principal, did not fire a weapon, and did

not participate in planning to murder or attempt to murder anyone. Defendant asserted he 

was entitled to section 1170.95 resentencing following enactment of Senate Bill 1437. 

He further asserted Senate Bill 1437 applied to attempted murder convictions as well as 

murder convictions. Defendant appended a declaration in which he averred, among other 

things, that a complaint, information, or indictment had been filed against him that 

allowed the prosecution to proceed under a theory of attempted murder under the natural 

and probable consequences doctrine; that, at trial, he was convicted of attempted murder 

pursuant to the felony-murder rule or the natural and probable consequences doctrine; 

and that he could not now be convicted of attempted murder due to changes made to 

sections 188 and 189, effective January 1, 2019. He further asserted he was not the 

actual shooter; he did not, with the intent to kill, aid, abet, or assist the actual shooter in 

the commission of attempted murder; he was not a major participant in the felony; and he 

did not act with reckless indifference to human life. He also requested the appointment 

of counsel.

The prosecution opposed and sought dismissal of defendant’s petition, asserting 

that Senate Bill 1437 did not apply to attempted murder convictions. The prosecution 

also asserted defendant’s petition failed to make a prima facie showing that the grounds 

for his conviction rested on the natural and probable consequences doctrine or the felonymurder rule.

The trial court denied defendant’s petition. Based on what the court deemed to be 

controlling authority, the court concluded defendant was not eligible for section 1170.95 
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relief based on his conviction of attempted murder as opposed to murder. The court 

further concluded that, in any event, defendant had not made the requisite prima facie 

showing because he failed to demonstrate his jury was instructed on the natural and 

probable consequences doctrine. The court stated that its file did not include the jury 

instructions given at defendant’s trial, and defendant had not included those instructions 

with his petition to support his prima facie showing.

DISCUSSION

I

Murder and Senate Bill 1437

“Murder is the unlawful killing of a human being, or a fetus, with malice 

aforethought.” (§ 187, subd. (a).) “For purposes of Section 187, malice may be express 

or implied.” (§ 188, subd. (a).) Prior to the enactment of Senate Bill 1437, “the natural 

and probable consequences doctrine rendered a defendant liable for murder if he or she 

aided and abetted the commission of a criminal act (a target offense), and a principal in 

the target offense committed murder (a nontarget offense) that, even if unintended, was a 

natural and probable consequence of the target offense.” (People v. Lamoureux (2019) 

42 Cal.App.5th 241, 248.)

On September 30, 2018, the Governor signed Senate Bill 1437, which became

effective January 1, 2019. Senate Bill 1437 was enacted “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).) Senate 

Bill 1437 achieved this by amending sections 188 and 189.

Subdivision (a)(1) of section 188 defines express malice and subdivision (a)(2) 

defines implied malice. Following enactment of Senate Bill 1437, subdivision (a)(3) of 

section 188 now provides: “Except as stated in subdivision (e) of Section 189, in order to 
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be convicted of murder, a principal in a crime shall act with malice aforethought. Malice 

shall not be imputed to a person based solely on his or her participation in a crime.” 

Thus, following enactment of Senate Bill 1437, and where the felony-murder rule is not 

at issue, a person must act with malice aforethought to be convicted of murder. (§ 188, 

subd. (a)(3); see In re R.G. (2019) 35 Cal.App.5th 141, 144.)

Relevant to felony murder, section 189, subdivision (e) now provides: “A 

participant in the perpetration or attempted perpetration of a felony listed in subdivision 

(a) [(defining first degree murder)] in which a death occurs is liable for murder only if 

one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The 

person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, 

commanded, induced, solicited, requested, or assisted the actual killer in the commission 

of murder in the first degree. [¶] (3) The person was a major participant in the 

underlying felony and acted with reckless indifference to human life, as described in 

subdivision (d) of Section 190.2.”

In addition to amending sections 188 and 189, Senate Bill 1437 also authorized, 

through newly enacted section 1170.95, an individual convicted of felony murder or 

murder based on the natural and probable consequences doctrine to petition the 

sentencing court to vacate the conviction and to be resentenced on any remaining counts 

if he or she could not have been convicted of murder because of Senate Bill 1437’s 

changes to sections 188 or 189. (See People v. Lewis (2021) 11 Cal.5th 952, 959 

(Lewis).)

II

Attempted Murder Convictions and Senate Bill 775

Prior to the enactment of Senate Bill 775, there was a split among the Courts of 

Appeal as to whether Senate Bill 1437 applied to attempted murder convictions. On 

January 1, 2022, Senate Bill 775 became effective and resolved the conflict. Senate Bill 

775 “[c]larifies that persons who were convicted of attempted murder or manslaughter 
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under a theory of felony murder and the natural probable consequences doctrine are 

permitted the same relief as those persons convicted of murder under the same theories.” 

(Stats. 2021, ch. 551, § 1, subd. (a).)

After the case was initially fully briefed, we directed the parties to provide 

supplemental briefing on the effect, if any, of Senate Bill 775 on defendant’s appeal. 

Supplemental briefing was deemed completed on May 10, 2022. In his supplemental 

opening brief, defendant asserts Senate Bill 775 made clear that Senate Bill 1437 applies 

to attempted murder convictions, and that defendants with such convictions may petition 

for relief pursuant to section 1170.95. The Attorney General agrees that, following 

enactment of Senate Bill 775, the resentencing procedures in section 1170.95 are 

available to those convicted of attempted murder.

We agree defendant is entitled to avail himself of the benefits of the provisions of 

section 1170.95. Following the enactment of Senate Bill 775, it is clear that those 

convicted of attempted murder may be eligible for section 1170.95 relief.

III

Prima Facie Showing on a Section 1170.95 Petition

In his supplemental briefing, citing Lewis, supra, 11 Cal.5th at page 971, 

defendant asserts his petition was sufficient to make a prima facie showing, and therefore 

requests that we reverse and remand the matter with directions that the trial court issue an 

order to show cause and conduct a hearing pursuant to section 1170.95, subdivision (d). 

The Attorney General disagrees, asserting that, because the trial court made its

determination prior to the issuance of Lewis, supra, 11 Cal.5th 952, “there has never been 

a determination that [defendant] has made a prima facie showing of entitlement to relief 

under the correct standards.” Therefore, the Attorney General asserts the matter should 

be remanded to the trial court, which can then make the prima facie determination in the 

first instance. The Attorney General has not persuaded us there is any reason we should 

not reach the issue of whether defendant made a prima facie showing under the 
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applicable standards. As we shall explain, we agree with defendant that his petition 

satisfied the prima facie showing requirement, and we will remand for the trial court to 

issue an order to show cause and conduct a hearing pursuant to section 1170.95, 

subdivision (d).

Subdivision (a) of section 1170.95 provides: “A person convicted of felony 

murder or murder under the natural and probable consequences doctrine or other theory 

under which malice is imputed to a person based solely on that person’s participation in a 

crime, attempted murder under the natural and probable consequences doctrine, or 

manslaughter may file a petition with the court that sentenced the petitioner to have the 

petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be 

resentenced on any remaining counts when all of the following conditions apply: [¶] 

(1) A complaint, information, or indictment was filed against the petitioner that allowed 

the prosecution to proceed under a theory of felony murder, murder under the natural and 

probable consequences doctrine or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime, or attempted murder under 

the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of 

murder, attempted murder, or manslaughter following a trial or accepted a plea offer in 

lieu of a trial at which the petitioner could have been convicted of murder or attempted 

murder. [¶] (3) The petitioner could not presently be convicted of murder or attempted 

murder because of changes to Section 188 or 189 made effective January 1, 2019.”

Subdivision (b) of section 1170.95 sets forth procedures for filing and service of

the petition and what must be included in the petition, including, among other things, a 

“declaration by the petitioner that the petitioner is eligible for relief under this section, 

based on all the requirements of subdivision (a).” (§ 1170.95, subd. (b)(1)(A).) 

Subdivision (c) provides for further briefing by the parties after the filing of a petition in

compliance with subdivision (b). “After the parties have had an opportunity to submit 

briefings, the court shall hold a hearing to determine whether the petitioner has made a 
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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.” (§ 1170.95, subd. (c).)

At the prima facie stage, “a petitioner’s allegations should be accepted as true, and 

the court should not make credibility determinations or engage in ‘factfinding involving 

the weighing of evidence or the exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at 

p. 974.) “Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the 

court takes petitioner’s factual allegations as true and makes a preliminary assessment 

regarding whether the petitioner would be entitled to relief if his or her factual allegations 

were proved.” ’ ” (Id. at p. 971.) The “ ‘prima facie bar was intentionally and correctly 

set very low.’ ” (Id. at p. 972.) To determine whether the petitioner has made the 

requisite prima facie showing, the trial court may examine the petitioner’s record of 

conviction. (Id. at pp. 970-971.) “Appellate opinions . . . are generally considered to be 

part of the record of conviction.”

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 (Id. at p. 972.) If the court determines in its 

preliminary assessment that the petitioner would be entitled to relief if the petition’s

factual allegations were proved, the court must issue an order to show cause. (Id. at 

p. 971.) However, if the record of conviction establishes the petition lacks merit as a 

matter of law, the trial court may deny the petition without conducting further 

proceedings. (See ibid. [the “record of conviction will necessarily inform the trial court’s 

prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with 

potential merit from those that are clearly meritless”].)

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 We grant the Attorney General’s requests that we take judicial notice of our prior 

opinions on defendant’s two previous appeals, Deary-Smith, supra, C080821, and 

People v. Deary-Smith (July 24, 2020, C090444) (nonpub. opn.). (See Evid. Code, 

§§ 452, subd. (d), 459.)
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Defendant’s petition satisfies the prima facie showing required. As stated in his 

petition, defendant asserted he had been found guilty of attempted murder as an aider and 

abettor under the natural and probable consequences theory. In his appended declaration, 

he asserted a charging instrument had been filed against him that allowed the prosecution 

to proceed under a theory of attempted murder under the natural and probable 

consequences doctrine; that, at trial, he was convicted of attempted murder pursuant to 

the felony-murder rule or the natural and probable consequences doctrine; and that he 

could not now be convicted of attempted murder due to changes made to sections 188 

and 189, effective January 1, 2019. (See § 1170.95, subd. (a).) He further asserted he 

was not the actual shooter; he did not, with the intent to kill, aid, abet, or assist the actual 

shooter in the commission of attempted murder; he was not a major participant in the 

felony; and he did not act with reckless indifference to human life.

In sum, Senate Bill 775 established that the changes effected by Senate Bill 1437, 

including the petitioning mechanism of section 1170.95, apply to convictions for 

attempted murder. Defendant filed a petition that satisfied the requisite prima facie 

showing. (See § 1170.95, subds. (a), (b).) Nothing in defendant’s record of conviction 

establishes his petition lacks merit as a matter of law. (See Lewis, supra, 11 Cal.5th at 

p. 971.) Defendant is entitled to issuance of an order to show cause and a hearing on 

whether to vacate his attempted murder conviction and to recall sentence and resentence 

him on the remaining counts. (§ 1170.95, subds. (c), (d).)
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DISPOSITION

The order denying defendant’s petition for resentencing pursuant to section 

1170.95 is reversed. The matter is remanded with directions to issue an order to show 

cause and hold a hearing under section 1170.95, subdivision (d).

 /s/

HOCH, Acting P. J.

We concur:

 /s/

KRAUSE, J.

 /s/

EARL, J.