People v. Westmoreland CA1/5

Filed 5/28/24 P. v. Westmoreland CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, A166966 Plaintiff and Respondent, v. (Contra Costa County Super. Ct. No. 05000517854) PAUL WESTMORELAND, Defendant and Appellant.

Paul Westmoreland (appellant) appeals from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.6.1 We reverse and remand. BACKGROUND In 2009, appellant was convicted, following a jury trial, of first degree murder and other offenses. This court affirmed the conviction on direct appeal. (People v. Westmoreland (Jul. 11, 2013, A127394) [nonpub. opn.].)

1 All undesignated statutory references are to the Penal Code.

Section 1170.95 was renumbered section 1172.6, without substantive change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) For clarity, we will refer to the section by its current numbering.

1

In 2022, appellant filed a petition for resentencing. The trial court appointed counsel and received briefs; the parties waived oral argument. The court found appellant failed to establish a prima facie case for relief and denied the petition. DISCUSSION “Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437) significantly limited the scope of the felony-murder rule,” providing that “a defendant who was not the actual killer and did not act with the intent to kill can only be liable for murder if she was a major participant in the underlying felony and acted with reckless indifference to human life.” (People v. Guiffreda (2023) 87 Cal.App.5th 112, 122–123.) “Senate Bill No. 1437 also established a new procedure to allow defendants who could not have been convicted under the new law to petition the sentencing court to vacate their murder convictions and resentence them on any remaining counts. (See § 1172.6, subd. (a); [citation].) After receiving a petition containing the required information, ‘the court must evaluate the petition “to determine whether the petitioner has made a prima facie case for relief.” ’ [Citation.] If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether relief should be granted. (§ 1172.6, subds. (c), (d)(3).)” (Guiffreda, at p. 122.) “[T]he prima facie inquiry . . . is limited. 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. If so, the court must issue an order to show cause.” ’ [Citation.] . . . ‘However, if the record, including the court’s own documents,