Filed 9/9/16 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E065554
v. (Super.Ct.No. FSB024269)
DURLENE OLEVIA WESTFALL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Durlene Olevia Westfall appeals following a resentencing
hearing that occurred after her petition for writ of habeas corpus was granted and her first
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degree murder conviction was reduced to second degree murder pursuant to People v.
Chiu (2014) 59 Cal.4th 155 (Chiu). We find no error and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND1
On September 27, 1999, a two-year-old child was allegedly abused. Defendant
and the child’s great-aunt, along with others, confronted the murder victim and the victim
who survived (hereinafter, the surviving victim) about this at the home where the child
had been staying (hereinafter, the first home). Both victims were hit and the murder
victim was pushed. The surviving victim felt that his life was in danger. Against their
will, both victims were taken from the first home to the home of codefendant Thomas
Allen Timney II’s (Timney) companion. Defendant and the child’s great-aunt were in the
car in which the murder victim rode. Sometime after arriving at Timney’s companion’s
home, defendant called Timney’s companion, who was staying at a nearby motel, and
told him to come home because she needed help with someone who had beat up a baby.
Timney’s companion left the motel with Timney, who had been staying in a nearby room.
Timney brought along a shotgun, which, when he arrived at his companion’s home, he
gave to Danny Vasquez to hold on the victims as they sat on the kitchen floor. Timney’s
companion threatened the surviving victim with a cutting tool. Eventually, the victims
were forced to get into Timney’s companion’s car, with Timney, the companion and
1 The factual background is taken from this court’s nonpublished opinion in
defendant’s prior appeal. (People v. Westfall, (Dec. 29, 2004, E033231) [nonpub. opn.].)
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Vasquez. Timney’s companion drove to a dirt portion of a road near Interstate 15 north
of San Bernardino. He walked the surviving victim farther up the road, ostensibly to stab
him to death, but, instead, he secretly let him go, urging him to run and not return to the
area. Timney shot the murder victim. Later, defendant and the child’s great-aunt insisted
on seeing the murder victim’s body and what they thought would be the dead body of the
surviving victim. They also saw the cutting tool Timney’s companion had supposedly
used to kill the surviving victim. Defendant gave Timney and his companion a piece of a
torn dollar bill and told them they could redeem it for a favor because they had killed the
victims.
Timney, defendant, the child’s great-aunt, and Vasquez were tried together.
Timney’s companion claimed at trial that Timney had forced him to participate in the
crimes. For his part, Timney claimed that his companion had forced him to participate
and he accidentally shot the victim while attempting to let the latter escape.
On December 12, 2002, a jury found defendant guilty of first degree murder (Pen.
Code, § 187, subd. (a); count 1)2 and two counts of kidnapping (§ 207, subd. (a); counts 2
& 3). The jury also found true that a principal was armed with a firearm during the
commission of all three offenses (§ 12022, subd. (a)(1).)
On February 14, 2003, defendant was sentenced to 25 years to life, plus seven
years as follows: 25 years to life on count 1, plus five years on count 3, plus two one-
2 All future statutory references are to the Penal Code unless otherwise stated.
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year terms for the firearm enhancement attached to counts 1 and 3; sentence on count 2
was stayed pursuant to section 654.
On May 4, 2015, a writ of habeas corpus was filed on behalf of defendant in the
San Bernardino Superior Court to have her first degree murder conviction reduced to
second degree murder pursuant to Chiu, supra, 59 Cal.4th 155.3
On February 23, 2016, defendant filed a sentencing memorandum urging the trial
court to consider evidence of post-conviction rehabilitation and resentence defendant to
no greater than 15 years to life.
On February 26, 2016, the trial court granted defendant’s petition for writ of
habeas corpus. And, following a sentencing hearing, the trial court resentenced
defendant to an indeterminate term of 15 years to life, plus a determinate term of seven
years, for a total term of 22 years to life.
On March 4, 2016, defendant filed a timely notice of appeal.
II
DISCUSSION
After defendant appealed, upon her request, this court appointed counsel to
represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the
3 In Chiu, the Supreme Court held “an aider and abettor may not be convicted of
first degree premeditated murder under the natural and probable consequences doctrine.
Rather, his or her liability for that crime must be based on direct aiding and abetting
principles.” (Chiu, supra, 59 Cal.4th at pp. 158-159, italics omitted.)
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case, a summary of the facts and potential arguable issues, and requesting this court to
conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and she
has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
CODRINGTON
J.
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