Unreported / Non-Citable
Background
Dashaun Finister appealed the Los Angeles County Superior Court's order denying his petition to vacate his murder conviction and obtain resentencing under Penal Code section 1172.6, subdivision (d). The case arose from a February 1, 2008 home-invasion robbery in Compton by Finister and Michael Harris. Larry Fulton was fatally shot in the back of the head; Steve Harvey was shot in the thigh. Key evidence included Harvey's identification and preliminary-hearing testimony, Domenique Lewis's account of statements she overheard afterward, and three .45-caliber casings fired from the same weapon.
A jury convicted Finister in 2009 of murder and attempted murder, finding true robbery and burglary special circumstances, firearm and gang allegations, and premeditation on the attempted-murder count. After modification on direct appeal, he received life without parole on the murder count and life with parole possible after seven years on the other. His 2021 petition was denied at the prima facie stage, but the Court of Appeal reversed in 2023 and remanded for an evidentiary hearing because the record of conviction did not conclusively refute his eligibility allegation.
At the continued hearings, a newly assigned prosecutor questioned whether Finister was the actual shooter and urged reliance on the major-participant theory and his youthfulness. On May 16, 2025, after reviewing trial transcripts, jury instructions, briefing, and a social history report, the trial court found the prosecution had proved beyond a reasonable doubt that Finister was guilty as the actual killer and/or a major participant acting with reckless indifference to human life, and denied the petition. Finister timely appealed.
The Court’s Holding
The Court of Appeal applied the substantial-evidence standard, asking whether a rational fact finder could make the same determination beyond a reasonable doubt while deferring to the trial court's credibility findings. It held substantial evidence supported the actual-killer finding: Harvey's preliminary-hearing testimony placed Finister's gun going off in front of him, Lewis described Finister shooting a victim, and the ballistics evidence—all three casings from one weapon, one found near where Finister stood—allowed an inference that the shots from his position included all three. The court rejected attacks on Lewis's reliability: she witnessed the later conversation, had been threatened, and gave no reason to protect Harris by falsely accusing Finister.
The court also rejected the claim that Lewis's reference to resistance conflicted with Harvey's account. Harvey had hesitated and grown fidgety; the relevant inference was that Finister believed a victim was resisting and later said so to Lewis. The trial court could therefore credit Lewis and find Finister the actual killer despite Harvey's trial uncertainty about which assailant fired.
Independently, the court affirmed the major-participant and reckless-indifference finding under Banks, Clark, and Scoggins. Finister conceded major participation, so the issue was reckless indifference. Unlike a getaway driver in a garden-variety robbery, he was armed, used his gun to threaten the victims, stayed throughout, did not restrain Harris or leave, and fled without aiding the victims. Though the encounter lasted only one-and-a-half to three minutes and there was little direct evidence of prior knowledge of Harris's violent propensity, the escalating armed conduct gave notice before the shots; common gang membership alone was insufficient but could be considered with the offense events. The order was affirmed.
Key Takeaways
- A section 1172.6 evidentiary-hearing denial is reviewed for substantial evidence, deferring to the trial court's credibility determinations and reasonable inferences.
- The prosecution's burden at the hearing was to prove ineligibility for resentencing beyond a reasonable doubt.
- Harvey's testimony, Lewis's account, and the single-weapon ballistics evidence collectively supported the actual-killer finding.
- The reckless-indifference holding rested on Finister's armed participation, threats, continuing presence, failure to restrain the violence, and flight without aid.
- The court distinguished this active role from a garden-variety armed robbery; knowledge of a confederate's willingness to kill can develop during the felony itself.
Why It Matters
The decision leaves Finister's murder conviction and sentence intact, affirming his ineligibility for section 1172.6 resentencing on two independently supported grounds: actual-killer liability and major participation with reckless indifference to human life. It illustrates how circumstantial evidence, credibility findings, and events unfolding during an armed robbery can satisfy the prosecution's burden at an evidentiary hearing.
The opinion is not to be published in the official reports. It applies Banks, Clark, and Scoggins to this record rather than announcing a new categorical rule, and it does not suggest that being armed or sharing gang membership alone establishes reckless indifference.