California Court of Appeal Sep 14, 2021 No. E076163Unpublished
Filed 9/14/21 P. v. Westfall CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076163
v. (Super.Ct.No. SCR41572)
LARRY GENE WESTFALL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony
Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant and defendant Larry Gene Westfall appeals from the denial of his
petition to vacate a murder conviction under Penal Code1 section 1170.95, the
resentencing provision of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch.
Pursuant to section 1170.95, an order to show cause may be issued when the
defendant has made a prima facie showing he is entitled to relief. To be entitled to relief,
a defendant must show that he could not currently be convicted of first degree murder
following the amendments to sections 188 and 189. The amendments did not alter the
law regarding the criminal liability of direct aiders and abettors of murder because such
persons necessarily “know and share the murderous intent of the actual perpetrator.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1118.) One who directly aids and abets
another who commits murder is thus liable for murder under the new law just as he was
liable under the old law. (Gentile, supra, 10 Cal.5th at p. 848 [“Senate Bill 1437 does not
eliminate direct aiding and abetting liability for murder because a direct aider and abettor
to murder must possess malice aforethought.”].)
In determining if a defendant is entitled to relief, a trial court considering a section
1170.95 petition may consider the record of conviction, including a prior appellate
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opinion, provided the court has appointed counsel and given counsel an opportunity for
briefing. (People v. Lewis (2021) 11 Cal.5th 952, 958, 971-972 (Lewis).) “[T]he parties
can, and should, use the record of conviction to aid the trial court in reliably assessing
whether a petitioner has made a prima facie case for relief under subdivision (c).” (Id. at
p. 972, fn. omitted.)
As a preliminary matter, we note that the trial court did appoint counsel for
defendant and allowed the parties an opportunity for briefing. Thus, the trial court did
not err in relying upon the record of conviction in making its determination that
defendant was ineligible for relief under section 1170.95. Here, defendant is ineligible
for relief under section 1170.95 as a matter of law because he was convicted on a ground
that is still valid, notwithstanding the amendments to sections 188 and 189. As
previously noted, the court appointed counsel, and the parties submitted informal briefing
on the issues. The People argued that defendant was not eligible for relief since he was
not convicted of murder under a theory of felony murder or under the natural and
probable consequences doctrine. Rather, he was found guilty of first degree murder as an
aider and abettor with the intent to kill, by virtue of the jury finding he committed the
murder for financial gain under the special circumstance alleged. At the hearing on the
petition, the trial court agreed that defendant was not prosecuted under a theory of felony
murder, and that this was not a natural and probable consequences case. The court noted
that the jury found true the special circumstance that defendant committed the murder for
financial gain; thus, the jury found that he acted with the intent to kill. We observe that
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defendant did not challenge the special circumstance finding. The jury’s true finding on
the special circumstance is dispositive.
Section 190.2 sets forth special circumstances that subject a person convicted of
first degree murder to a punishment of death or life imprisonment without the possibility
of parole. The special circumstance in section 190.2, subdivision (a)(1) applies when
“[t]he murder was intentional and carried out for financial gain.” (§ 190.2, subd. (a)(1).)
When a defendant is not the actual killer, the financial-gain special circumstance applies
if the defendant, “with the intent to kill, aids, abets, counsels, commands, induces,
solicits, requests, or assists any actor in the commission of murder in the first degree.”
(§ 190.2, subd. (c).) The true finding on the financial-gain special circumstance thus
indicates the jury found that defendant, with the intent to kill, directly aided and abetted
the commission of the murder. In other words, the jury adopted a theory of murder
liability—direct aiding and abetting—that is still valid after Senate Bill 1437. (§ 188,
subd. (a)(3); Gentile, supra, 10 Cal.5th at p. 848.) In our prior unpublished opinion, we
stated, “[a]n examination of the jury’s verdicts reveals that defendant must have been
found guilty as an aider and abettor,” and we noted that the evidence presented at trial
showed he admitted there was a plan to kill the victim. (People v. Westfall, supra,
E002997.) The record thus establishes that defendant was not convicted of felony murder
or murder under the natural and probable consequences doctrine. Accordingly, he is
ineligible for relief under section 1170.95 as a matter of law.
Defendant claims there was an issue of whether he was convicted of murder on a
theory of natural and probable consequences, and that was “a factual issue that could not
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be summarily denied at this stage of the proceeding without counsel and without the
opportunity to produce more evidence.” He cites People v. Drayton (2020) 47
Cal.App.5th 965 (Drayton), overruled by Lewis, supra, 11 Cal.5th at p. 963, on other
grounds), in which the court concluded that the trial court erred by not issuing an order to
show cause. (Id. at p. 982.) However, Drayton is inapposite. In that case, the court
concluded the trial court improperly engaged in factfinding by evaluating and weighing
the evidence at the prima facie stage and finding that defendant was a major participant in
the underlying felony who acted with reckless indifference to human life. (Ibid.) The
court here did not evaluate or weigh the evidence. Rather, it denied defendant’s petition
based on the jury’s special circumstance finding under section 190.2, subdivision (a)(1).
Moreover, as defendant recognizes, the Drayton court held that the “authority to make
determinations without conducting an evidentiary hearing pursuant to section 1170.95,
subd[ivision] (d) is limited to readily ascertainable facts from the record (such as the
crime of conviction), rather than factfinding involving the weighing of evidence or the
exercise of discretion (such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime).” (Id. at p. 980.) The jury’s
special circumstance finding was a readily ascertainable fact from the record.
In sum, the jury’s special circumstance finding under section 190.2, subdivision
(a)(1), establishes that defendant is ineligible for relief as a matter of law. Thus, the court
properly denied his petition without issuing an order to show cause.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant was ineligible for resentencing under Penal Code section 1170.95 as a matter of law because the jury's true finding on the financial-gain special circumstance established that he acted with the intent to kill, thereby confirming his liability as a direct aider and abettor.
Issues
Whether the trial court erred in summarily denying the defendant's section 1170.95 petition without issuing an order to show cause.
Whether the defendant's conviction for first degree murder with a financial-gain special circumstance precludes relief under Senate Bill 1437.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The jury’s special circumstance finding under section 190.2, subdivision (a)(1), establishes that defendant is ineligible for relief as a matter of law.”