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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.].)


                                            2
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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