Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

People v. Sheed CA2/8

California Court of Appeal

• Citations: None known
• Docket Number: B341987

• Precedential Status: Non-Precedential

• Opinion

• Authorities (1)

• Cited By (0)

• Summaries (0)

• Similar Cases (74)

• PDF

Combined Opinion

Filed 2/26/26 P. v. Sheed CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE B341987

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A650993)
v.

DONNY KAY SHEED,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Teresa P. Magno, Judge. Reversed and
remanded with directions.

Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.

We review an order denying Donny Kay Sheed’s motion to
vacate his conviction based on newly discovered evidence of
factual innocence, pursuant to Penal Code1 section 1473.7,
subdivision (a)(2). We reverse the order because Sheed was
entitled to a hearing in the trial court to consider his eligibility
for relief under section 1473.7, subdivision (d).
FACTS AND PROCEDURAL BACKGROUND
On May 3, 1989, pursuant to a plea agreement, Sheed
pleaded no contest to one count of forcible oral copulation in
violation of section 288a, subdivision (c) and one count of forcible
rape in violation of section 261, subdivision (a)(2). Under the
terms of the plea bargain, Sheed agreed to a three-year term of
imprisonment, plus the low term of five years for violating the
terms of his probation. On May 17, 1989, the trial court
sentenced Sheed to a concurrent term of three years in prison on
each of the two counts.
Over three decades later, on June 6, 2024, Sheed filed a
motion pursuant to section 1473.7, subdivision (a)(2), to vacate
his prior conviction based on newly discovered evidence of actual
innocence, including that he was forced into a plea by his
attorney, who rendered ineffective assistance.
Sheed waived his personal presence at the hearing on the
motion because he was “otherwise in custody” at Salinas Valley
State Prison on an unrelated matter. Sheed also requested
counsel “upon a finding by the court that there is a prima facie
case for relief,” stating he was “indigent and . . . cannot afford to
hire a lawyer.”

1 Undesignated statutory references are to the Penal Code.

2
In his five-page motion, plus several exhibits, Sheed argued
that at the preliminary hearing, the testifying victim “didn’t
know who [he] was” and, in response to the victim’s testimony,
his attorney immediately “ask[ed] for a dismissal.” The deputy
district attorney then asked for a continuance of the preliminary
hearing, and, in turn, defense counsel requested a court order for
“forensic science services” to obtain samples from Sheed so that
they would be made available for comparison to evidence from
the rape kit and preparation of a confidential report for the
defense, which the court granted. In his motion, Sheed did not
specify whether forensic testing was actually completed or what
the results were. Sheed argued that at the continued preliminary
hearing, while represented by a second public defender, Sheed
told the court that he was not willing to waive time, but then
represented he had only recently been read the police report from
his case, and then requested a continuance. The court denied the
continuance. Defense counsel then stated “there is some
indications that there was some lab testing to be done” and then
represented that the forensic evidence “is not going to make any
difference in this point; and it may not make any difference at
trial. I don’t know. I am not going to commit myself one way or
other.”
Sheed argued he was eventually forced to plead “no
contest” at a subsequent hearing while represented by a third
public defender. In his motion, Sheed averred that the delay in
the filing of his motion was because he “wasn’t able to read and
didn’t know what to do about this problem,” but that once he
learned to read in prison he filed the instant motion “with due
diligence.”

3
On October 17, 2024, the trial court summarily denied the
petition without any parties present as follows: “This matter was
placed on calendar for purported habeas corpus petition. I have
the file and I do not see any petition. [¶] Actually, I take that
back. There is a handwritten one-page motion to vacate a
conviction of sentence as legally invalid. [¶] Okay. I think I can
rule on this. [¶] [His]2 petition reads as follows—and, again, it’s a
motion to vacate a conviction. [He] indicates that because
Assembly Bill [No.] 1259 passed, [he] believes it expands the
category of persons able to seek to vacate a conviction as legally
invalid, regardless of how that person was convicted or
sentenced. [¶] [He] then invokes [section] 1473.7, for the
proposition that those no longer in custody can seek to vacate the
conviction. However, the rest of [his] one-page motion does not
state any grounds for [him] to be qualified—for qualification for
the relief. [¶] This petition is denied for the failure to cite to a
basis for the relief. [¶] [The clerk] to give notice to [Mr. Sheed]
regarding the court’s denial of [his] petition.” This appeal
followed.
DISCUSSION
The construction and interpretation of a statute is a
question of law that we consider de novo on appeal. (People v.
Fryhaat (2019) 35 Cal.App.5th 969, 975 (Fryhaat).) Section
1473.7 expressly provides that “[a] person who is no longer in
criminal custody may file a motion to vacate a conviction or
sentence” based on “[n]ewly discovered evidence of actual
innocence . . . that requires vacation of the conviction or sentence

2
The trial court mistakenly refers to Sheed as “her” and
“she.”

4
as a matter of law or in the interests of justice.” (§ 1473.7,
subd. (a)(2).) Persons who file a section 1473.7 motion are
entitled to a hearing on the merits of the motion. (Id., subd. (d)
[“All motions shall be entitled to a hearing.”].) The plain
language of section 1473.7 also entitles the moving party to be
personally present at the hearing. (Ibid.) However, “[u]pon the
request of the moving party, the court may hold the hearing
without the personal presence of the moving party provided that
it finds good cause as to why the moving party cannot be
present.” (Ibid.)
The plain language of section 1473.7, subdivision (d),
establishes Sheed’s entitlement to a hearing on the merits of his
motion, at which hearing he is entitled to be personally present.
Here, Sheed waived his personal presence. At a minimum the
trial court erred in not making a ruling on whether good cause
excused Sheed’s presence at any hearing.
As to appointment of counsel on Sheed’s behalf, the trial
court was required to determine whether his petition stated a
prima facie case for relief. If a prima facie case has been made,
“ ‘ “appointment of counsel is demanded by due process
concerns.” ’ ” (Fryhaat, supra, 35 Cal.App.5th at pp. 981, 983
[concluding section 1473.7 requires appointment of counsel where
an indigent moving party has set forth factual allegations stating
a prima facie case for entitlement to relief under the statute].)
Here, the trial court summarily denied the petition without
addressing entitlement to counsel and whether Sheed had
presented a prima facie case for relief. The court reviewed only a
“handwritten one-page motion” that it determined “fail[s] to cite
to a basis for the relief” without reviewing the entirety of Sheed’s
42-page motion.

5
Even if we assumed the People are correct in arguing that
Sheed’s petition does not, by itself, state a prima facie case, the
People do not address why that determination—which bears on
appointment of counsel—would require affirmance of a denial
that should have followed, but did not follow, a properly
conducted hearing on the merits.
Remand is appropriate for a hearing in compliance with
section 1473.7. The trial court shall determine whether Sheed
still desires to waive his appearance, whether good cause exists
for such a waiver, and whether Sheed has set forth factual
allegations stating a prima facie case under section 1473.7 and
entitlement to appointment of counsel. If Sheed has met his
burden, the trial court must appoint Sheed counsel and address
the merits of his motion.
DISPOSITION
The order is reversed and the matter is remanded with
instructions to the trial court to conduct a hearing in compliance
with section 1473.7. It shall consider whether good cause exists
for Sheed to waive his presence, evaluate whether Sheed has
alleged a prima facie case for relief, and determine whether to
appoint counsel based on a review of Sheed’s entire 42-page
motion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY, J. SCHERB, J.

6