Filed 6/30/22 P. v. Weathers CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

WINONA MARIE WEATHERS,

Defendant and Appellant.

F082180

(Super. Ct. No. CF91438575)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. 

Harrell, III, Judge.

Sandra Gillies, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and 

Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo-

* Before Peña, Acting P. J., Smith, J. and Meehan, J.
2.

INTRODUCTION

In 1992, a jury convicted appellant Winona Marie Weathers of several offenses, 

including first degree murder (Pen. Code,1 § 187), with a robbery-murder special 

circumstance (§ 190.2, subd. (a)(17)). She was sentenced to a prison term of life without 

the possibility of parole. Following the passage of Senate Bill No. 1437 (2017-2018 Reg. 

Sess.) (Senate Bill No. 1437), Weathers filed a section 1170.95 petition for resentencing. 

The Fresno County Superior Court denied Weathers’s petition without appointing 

counsel or requesting additional briefing. 

On appeal, Weathers argues the trial court erred by: (1) failing to appoint counsel 

to represent her on the petition, (2) relying upon the record of conviction to deny her 

petition, and (3) finding her ineligible for resentencing as a matter of law based upon the 

special circumstance finding. We affirm. 

PROCEDURAL HISTORY

On December 4, 1992, a jury convicted Weathers of the first degree murder of 

William McClelland (§ 187, count 1), the robbery of William McClelland (§§ 211/212.5, 

subd. (b), count 2), and assault with a firearm on Michael Allen (§ 245, subd. (a)(2), 

count 4). In addition, the jury found true enhancements alleging counts 1 and 2 occurred 

while Weathers was armed with a firearm (§ 12022, subd. (a)(1)), as well as a special 

circumstance alleging the murder occurred during the commission of a robbery (§ 190.2, 

subd. (a)(17)). 

On July 20, 1993, Weathers was sentenced to a determinate term of four years 

followed by a term of life without the possibility of parole for special circumstance 

murder. 

1 All undefined statutory citations are to the Penal Code unless otherwise indicated. 
3.

On February 5, 2019, Weathers filed a section 1170.95 resentencing petition. The 

People opposed the petition on the ground that the robbery-murder special circumstance 

rendered Weathers ineligible for relief as a matter of law. 

On March 22, 2019, Weathers withdrew the petition. 

On November 25, 2019, Weathers filed a renewed section 1170.95 resentencing 

petition. 

On October 20, 2020, the court denied the petition. 

On December 18, 2020, Weathers filed a notice of appeal. 

STATEMENT OF FACTS

The following statement of facts is derived from the probation officer’s report in 

Weathers’s underlying criminal case:

“On December 23, 1990, at 4:52 a.m. Fresno Police Department 

officers were dispatched to [a condominium on] Winery Circle [in] Fresno 

regarding a robbery where the victim was shot in the head. Officers located 

the victim, William Paul McClelland, in the garage area of the residence, 

and noted he had a bleeding wound in the forehead area. Paramedics 

arrived and transported the victim to Valley Medical Center.

“Tanya Minnick testified that in December 1990 she resided [in a 

condominium on] Winery Circle [in] Fresno with her fiancee, William Paul 

McClelland (also called Paul McClelland). She said they had been living 

together at her condominium for about six and a half months. She reported 

that in August 1990 Paul McClelland was arrested and he was in jail for 

eight days. Tanya said she received $750 for his bail from Winona 

Weathers (a defendant), and that she had given defendant Weathers a gold 

bangle bracelet for the bail money.

“Tanya Minnick testified that on December 23, 1990, at about 2:30 

a.m., she and Paul McClelland were watching a movie at her residence. 

She said defendant Weathers entered the condominium. Tanya indicated 

that Winona was her best friend, and that she had given Winona a key. She 

said defendant Weathers stayed at the condominium previously. Tanya 

said she had watched defendant Weathers’[s] children before. Tanya 

Minnick said a man had come in with defendant Weathers. She said he was 

a white man, and he was wearing a pendelton and a black baseball cap. In 
4.

Court she identified John Crisp (a defendant) as the man who first entered 

with defendant Winona Weathers. Ms. Minnick said defendant Weathers 

asked Paul if he could get three ounces of crank, and she said she had 

$3,000 to spend. Tanya said she had known Paul to sell methamphetamine 

in $20 amounts before. She said Paul told defendant Weathers that he 

could get what she wanted.

“Tanya Minnick said Paul made a telephone call, and then he left. 

She said defendant Crisp then left the condominium, but he returned after a 

minute, and two other men were with him. She said one of these men was 

wearing a long green trench coat, and a beanie cap. She later described this 

as a ski cap. Minnick said the other man was wearing levi’s, a pendelton, 

and a beanie cap. She said defendant Weathers told her that these men had 

come with her from Hanford, and that she was taking them back to 

Hanford. 

“Tanya Minnick related that Paul returned home with his brother-inlaw, Michael Allen. Paul, Michael, and defendant Weathers went out to the 

garage, but Weathers returned to the living room. The two men, who came 

into the apartment after Paul had first left, then went with defendant 

Weathers into the garage. Ms. Minnick made an in Court identification of 

Steven McGrew (a defendant) and Johnnie Bell (a defendant) as the two 

men who accompanied Weathers into the garage. Tanya said she then 

heard defendant Weathers say, ‘This is because you owe me $1,500,’ and 

‘Shoot him.’ She then heard sounds like pounding, and two pops. Tanya 

said she ran to the garage, and she saw Paul on the floor bleeding from his 

head. She said Michael was in the corner, and he had a big cut on his face.

“Ms. Minnick said the man wearing the green coat was standing 

over Paul’s body, and the other man was standing in front of Michael. She 

said the man in the green coat had a small brown revolver, and he pointed it 

in her direction. Defendant Crisp then came into the garage, and he took 

her by the arm back into the living room. She said he told her not to call 

the cops; that they would come back if she called the cops. Tanya said as 

the three men were leaving she heard one of them yell, ‘Get the dope.’

“Tanya Minnick testified she tried to use the telephone in the living 

room, but the telephone line had been cut. She said the three men had left, 

but defendant Weathers was still there. She said Winona told her not to call 

the police, or they would come back and kill her. Defendant Weathers then 

ran to her car, a yellow Datsun Honeybee. Tanya said she then ran upstairs 

and called 911. She said she then went to the garage to assist Paul, and she 

said Mike left.
5.

“Victim William Paul McClelland was transported by ambulance to 

Valley Medical Center. He was found to have a gunshot wound to the head 

1 1/4 inches below the top of the head, and 1 1/2 inches to the right of the 

midline of the forehead. The victim was pronounced brain dead at 9:30 

a.m. on December 24, 1990. All mechanical life support devices were 

removed at 9:40 a.m. on December 24, 1990. The coroner’s verdict found 

the cause of death to be gunshot wound to the head. A sample of the 

victim’s blood was taken at the hospital at 5:24 a.m. on December 23, 

1990. The analysis on the victim’s blood sample was positive for 

methamphetamine: 0.23 mg/L.

“On December 24, 1990, at approximately 1:45 p.m., Michael Allen 

responded to Fresno Police Department headquarters. He was interviewed 

by Detective J. Chilberto, who noted Allen had a large swelling and a 

bruise under his right eye. Michael Allen reported that on Sunday morning, 

December 23rd, Paul McClelland had come to his home at about 2:00 or 

3:00 a.m., and asked for a ride home. Allen said when they arrived at 

McClelland’s home, McClelland asked him to come inside to cover his 

back. He said once inside the residence, he observed defendant Weathers 

and three males. Allen reported he followed McClelland into the garage, 

and they were followed by two of the males, and defendant Weathers.

“Michael Allen reported that once in the garage, the subject in the 

long green trench coat said, ‘Let’s see the dope.’ He said McClelland 

answered, ‘Where’s the money?’ The man in the trench coat then produced 

what appeared to be a .22 caliber handgun. Allen said he stated, ‘What the 

fuck’s going on?’ He said the second man swung his right hand, in which 

he was holding a .25 caliber chrome handgun, and struck him just below his 

right eye. Michael said he then went down on one knee. At this time the 

subject in the trench coat began yelling at McClelland to get down on his 

knees.

“Michael Allen reported Paul McClelland said, ‘What’s going on 

Nona?’ Defendant Weathers then responded, ‘Fuck you Paul, you owe me 

money, shoot him, shoot him.’ Allen said the subject in the trench coat 

then shot, hitting victim McClelland in the head. McClelland fell to the 

ground, and Tanya Minnick ran into the garage. The other subject grabbed 

the shooter, and said, ‘Let’s get out of here.’

“Detective Chilberto then showed Michael Allen a photo lineup. 

After viewing the photo lineup, Allen selected the photograph of defendant 

McGrew indicating this subject looked a lot like the male in the trench coat 

doing the shooting. Detective Chilberto showed Michael Allen a second 
6.

photo lineup. After viewing this photo lineup, Allen selected the 

photograph of defendant Bell indicating he was positive this was the 

subject who struck him in the face with the .25 caliber handgun.

“Michael Allen reported that defendant McGrew started to come 

back towards him in the garage, but he threw some speakers in front of the 

door. He reported defendant McGrew then stuck his arm in the room, and 

fired about three times. Allen said that defendant Weathers had run out of 

the room, and he began yelling for Tanya to call the police. Michael Allen 

said Paul looked like he was dying. Allen said he went into a state of 

shock, and decided to leave and go look for the suspects. Allen said he was 

terribly afraid as these subjects were the kind that would come back to kill 

him.”

DISCUSSION

Weathers contends the trial court erred by denying her petition for resentencing 

under section 1170.95 in several respects. First, without appointing counsel and 

considering further briefing. Second, by making factual findings before holding an 

evidentiary hearing. Third, by relying upon the record of conviction to deny resentencing 

relief. Finally, Weathers contends the trial court erred by concluding the jury’s true 

finding on the special circumstance renders her ineligible for relief as a matter of law. 

We conclude Weathers has failed to demonstrate prejudicial error. 

I. Background: Senate Bill No. 1437

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend 

the felony murder rule and the natural and probable consequences doctrine ... to ensure 

that murder liability is not imposed on a person who is not the actual killer, did not act 

with the intent to kill, or was not a major participant in the underlying felony who acted 

with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate 

Bill No. 1437 accomplished this task by adding three separate provisions to the Penal 

Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the 

natural and probable consequences doctrine, the bill added section 188, subdivision

(a)(3), which requires a principal to act with malice aforethought before he or she may be 

convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to 
7.

amend the felony murder rule, the bill added section 189, subdivision (e), which provides

the following:

“A participant in the perpetration or attempted perpetration of [qualifying 

felonies] in which a death occurs is liable for murder only if one of the following 

is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not 

the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, 

induced, solicited, requested, or assisted the actual killer in the commission of 

murder in the first degree. [¶] (3) The person was a major participant in the 

underlying felony and acted with reckless indifference to human life, as described 

in subdivision (d) of Section 190.2.” (§ 189, subd. (e); accord, Gentile, supra, 10

Cal.5th at p. 842.)

Finally, Senate Bill No. 1437 added section 1170.95 to provide a procedure for 

those convicted of a qualifying offense “to seek relief under the two ameliorative 

provisions above.” (Gentile, supra, 10 Cal.5th at p. 843.) This procedure is available to 

persons convicted of “felony murder or murder under the natural and probable 

consequences doctrine or other theory under which malice is imputed to a person based 

solely on that person’s participation in a crime, attempted murder under the natural and 

probable consequences doctrine, or manslaughter.” (§ 1170.95, subd. (a).)

To seek relief under section 1170.95, a petitioner must file a petition in the 

superior court averring that: 

“(1) A complaint, information, or indictment was filed against the petitioner 

that allowed the prosecution to proceed under a theory of felony murder or murder 

under the natural and probable consequences doctrine[;] 

“(2) The petitioner was convicted of first degree or second degree murder 

following a trial or accepted a plea offer in lieu of a trial at which the petitioner 

could be convicted for first degree or second degree murder[; and] 

“(3) The petitioner could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective January 1, 2019.” 

(§§ 1170.95, subds. (a)(1)-(3); see also 1170.95, subd. (b)(1)(A).) 

Additionally, the petition shall state “[w]hether the petitioner requests the 

appointment of counsel.” (§ 1170.95, subd. (b)(1)(C).) 
8.

If a petition fails to comply with these requirements, “the court may deny the 

petition without prejudice to the filing of another petition.” (§ 1170.95, subd. (b)(2).) 

However, if the petition complies with section 1170.95, subdivision (b)’s requirements, 

then the court must assess whether the petitioner has made “a prima facie showing” for 

relief. (§ 1170.95, subd. (c).) 

II. The Trial Court Erred by Failing to Appoint Counsel

In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our Supreme Court held that 

“the statutory language and legislative intent of section 1170.95 make clear that 

petitioners are entitled to the appointment of counsel upon the filing of a facially 

sufficient petition (see § 1170.95, subds. (b), (c)) and that only after the appointment of 

counsel and the opportunity for briefing may the superior court consider the record of 

conviction to determine whether ‘the petitioner makes a prima facie showing that he or 

she is entitled to relief.’ ” (Id. at p. 957.)

Here, Weathers’s petition met the requirements of section 1170.95, subdivision

(b)(1). Accordingly, appointment of counsel and a full opportunity for briefing were 

required by section 1170.95, subdivisions (b)(3) and (c). (See Lewis, supra, 11 Cal.5th at 

pp. 961-963, 967.) The court erred in denying Weathers’s petition without following 

these procedures.

III. Factfinding at the Prima Facie Stage

Next, Weathers contends the trial court engaged in improper factfinding at the 

prima facie review. The trial court may not engage in factfinding involving the weighing 

of the evidence at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.) It may, 

however, consider the record of conviction in “determining whether [a] petitioner is 

entitled to relief.” (People v. Simmons (2021) 65 Cal.App.5th 739, 746, review granted 

Sept. 1, 2021, S270048 (Simmons).) If the record of conviction contains facts refuting 

the allegations asserted in the petition, the trial court will be justified in denying the 
9.

petition at the prima facie review stage. (People v. Farfan (2021) 71 Cal.App.5th 942, 

953.)

Here, the trial court concluded Weathers was ineligible for resentencing, 

explaining: “[t]he condition set out at [section] 1170.95[, subdivision ](a)(3) does not 

apply” because “[Weathers] did, with the intent to kill, aid, abet, counsel, command, 

induce, solicit, request, or assist the actual killer in the commission of murder in the first 

degree. [Weathers] was a major participant in the felony.” Because the court did not 

clarify how it made this determination, it is unclear whether the trial court reached these 

conclusions based purely upon the jury’s true finding on the special circumstance, or 

whether it engaged in factfinding. We further observe that while the court found 

Weathers was a major participant in the underlying robbery, it failed to explicitly find 

that she acted with reckless indifference to human life. However, as discussed further 

below, any presumed error by the court is harmless. 

IV. Prejudice 

Because the trial court erred in failing to appoint counsel, and may have erred by 

engaging in factfinding, we may affirm only if petitioner was not prejudiced by the error. 

(Lewis, supra, 11 Cal.5th at pp. 972-974.) Under People v. Watson (1956) 46 Cal.2d 

818, the petitioner must “ ‘demonstrate there is a reasonable probability that in the 

absence of the error he ... would have obtained a more favorable result.’ ” (Lewis, at p. 

974.) “More specifically, a petitioner ‘whose petition is denied before an order to show 

cause issues has the burden of showing “it is reasonably probable that if [he or she] had 

been afforded assistance of counsel his [or her] petition would not have been summarily 

denied without an evidentiary hearing.” ’ ” (Ibid., citing People v. Daniel (2020) 57 

Cal.App.5th 666, 676.) We conclude Weathers has failed to meet her burden of showing 

prejudice. 
10.

Relief under section 1170.95 is available only if the petitioner makes a prima facie 

showing that he or she “could not be convicted of first or second degree murder because 

of changes to Section 188 or 189” made by Senate Bill No. 1437. (§ 1170.95, subd. 

(a)(3); People v. Farfan, supra, 71 Cal.App.5th at p. 954.) In finding the special 

circumstance (§ 190.2, subd. (a)(17)) true, the jury necessarily found that Weathers was 

either (1) the actual killer; (2) an aider and abettor who harbored an intent to kill or (3) a 

major participant who acted with reckless indifference to human life, findings that would 

make her guilty of murder under the amended law.2 (See §§ 189, subd. (e)(3), 1170.95, 

subd. (a).) Any of these findings preclude Weathers from section 1170.95 resentencing 

relief as a matter of law. (People v. Farfan, at p. 954.)

We acknowledge that there is split of authority among appellate courts regarding 

whether a special circumstance finding precludes section 1170.95 resentencing relief as a 

matter of law. Some courts have concluded that a petitioner with a special circumstance 

finding that occurred prior to our Supreme Court’s decisions in People v. Banks (2015) 

61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) may have been 

convicted based on “conduct that is not prohibited by section 190.2 as currently 

understood.” (People v. Torres (2020) 46 Cal.App.5th 1168, 1180, review granted June 

24, 2020, S262011, overruled on other grounds by Lewis, supra, 11 Cal.5th at p. 963; 

accord, People v. Harris (2021) 60 Cal.App.5th 939, 958, review granted April 28, 2021, 

S267802; People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, 

S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, 

S262835.) And, if the jury’s finding on a felony-murder special circumstance is legally 

insufficient under Banks and Clark, such a finding cannot “conclusively refute a prima 

2 Weathers filed a request for judicial notice of CALJIC No. 8.80.1, the jury 

instruction given at her criminal trial pertaining to the special circumstance. We take 

judicial notice of this document. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
11.

facie showing of entitlement to resentencing relief.” (People v. Secrease (2021) 63

Cal.App.5th 231, 256, review granted Jun. 30, 2021, S268862.) Thus, in considering 

whether a petitioner is entitled to relief pursuant to section 1170.95, the sentencing court 

must first determine whether “the evidence presented at trial was sufficient to support the 

felony-murder special-circumstance finding under Banks and Clark.” (Secrease, at p. 

264.)

A contrary line of authority has emerged rejecting this contention and concluding 

that a special circumstance finding bars section 1170.95 resentencing relief as a matter of 

law. (See People v. Nunez (2020) 57 Cal.App.5th 78, 92, review granted Jan. 13, 2021, 

S265918; People v. Jones (2020) 56 Cal.App.5th 474, 478-479, review granted Jan. 27, 

2021, S265854; People v. Allison (2020) 55 Cal.App.5th 449, 458; People v.

Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct. 14, 2020, 

S264284; People v. Gomez (2020) 52 Cal.App.5th 1, 13-14, review granted Oct. 14, 

2020, S264033.) “Courts which have held that a pre-Banks and Clark felony-murder

special-circumstance finding bars section 1170.95 resentencing relief have reasoned

that Banks and Clark merely clarified the law as it always was.” (Simmons, supra,

65 Cal.App.5th at p. 747.) Banks and Clark merely relied upon decisions by the United 

States Supreme Court to clarify principles that have long been in existence. 

(Simmons, at p. 749, citing Enmund v. Florida (1982) 458 U.S. 782 & Tison v.

Arizona (1987) 481 U.S. 137.)

Consistent with this court’s opinion in Simmons, we conclude that a special 

circumstance finding precludes resentencing relief under section 1170.95 as a matter of 

law. By finding the special circumstance allegation true, the jury made the requisite 

findings necessary to support Weathers’s murder conviction under the law as amended by 

Senate Bill No. 1437. 
12.

Weathers contends there are several problems with Simmons and requests that we 

depart from our prior holding. We decline to do so. 

The issue is currently pending review in our Supreme Court as well, so we will 

soon have clarity one way or the other. (People v. Strong (Dec. 18, 2020, C091162) 

[nonpub. opn.], review granted Mar. 10, 2021, S266606 [“This case presents the 

following issue: Does a felony-murder special circumstance finding (Pen. Code, § 190.2, 

subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark

(2016) 63 Cal.4th 522 preclude a defendant from making a prima facie showing of 

eligibility for relief under Penal Code section 1170.95?”].) In the interim, given the 

vigorous debate and detailed analysis that has already been dedicated to this issue, we do 

not address Weathers’s contentions. Pursuant to our holding in Simmons, we conclude 

the special circumstance finding here precludes Weathers from section 1170.95 

resentencing relief as a matter of law. 

DISPOSITION 

The trial court’s order denying Weathers’s section 1170.95 petition is affirmed.