1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

Plaintiff and Respondent,

v.

PAUL WESTMORELAND,

Defendant and Appellant.

 A166966

 (Contra Costa County

 Super. Ct. No. 05000517854)

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.
2

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, 
3

“contain[s] facts refuting the allegations made in the petition,” then “the 

court is justified in making a credibility determination adverse to the 

petitioner.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).)

“Appellate opinions . . . are generally considered to be part of the record 

of conviction.” (Lewis, supra, 11 Cal.5th at p. 972.) However, “ ‘the factual 

summary in an appellate opinion is not evidence that may be considered at 

an evidentiary hearing to determine a petitioner’s eligibility for resentencing.’

[Citations.] By logical extension, the factual summary also may not be used 

to determine a petitioner’s eligibility at the prima facie stage.” (People v. Lee

(2023) 95 Cal.App.5th 1164, 1183; see also § 1172.6, subd. (d)(3).)

The record of conviction established the following. The information 

charged both appellant and a codefendant with murder, robbery, and 

burglary. The information alleged appellant personally used a weapon, to 

wit, a knife, in the commission of the murder (§ 12022, subd. (b)(1)), but did 

not so allege as to his codefendant. His codefendant’s case was severed and 

she pled guilty or no contest to voluntary manslaughter, robbery, and 

burglary. At appellant’s trial, the jury was instructed on felony murder, as 

well as on conspiracy and aiding and abetting principles. As to the personal 

use allegation, the jury was instructed that “personal[] use[]” of a weapon 

meant “the defendant must have intentionally displayed a weapon in a 

menacing manner or intentionally struck or hit a human being with it.” The 

jury found appellant guilty of first degree murder (and robbery and burglary) 

and found the personal use enhancement true. 

In denying appellant’s resentencing petition, the trial court found the 

above facts in the record of conviction conclusively demonstrate the jury 

convicted appellant as the actual killer. We disagree. “The question at the 

prima facie stage of the section 117[2.6] analysis is whether, as instructed, it 
4

was possible for a juror to convict [appellant] of first degree felony murder as 

other than the actual killer.” (People v. Harden (2022) 81 Cal.App.5th 45, 54,

fn. 7, second italics added; see also People v. Davenport (2021) 71 Cal.App.5th 

476, 481 [“In making this [prima facie] assessment, the trial court ‘should 

accept the assertions in the petition as true unless facts in the record 

conclusively refute them as a matter of law.’ ”].) Neither the codefendant’s 

plea to voluntary manslaughter nor the absence of a personal use allegation 

as to the codefendant in the original information establishes the lack of 

evidence that the codefendant was the actual killer. Therefore, they do not

conclusively demonstrate the jury found appellant was the actual killer. 

Similarly, the jury’s true finding on appellant’s personal use enhancement 

proves only that appellant used a knife either by displaying it in a menacing 

manner or by striking the victim with it.2 

On appeal, the People additionally point to the jury’s true finding as to 

a felony-murder special circumstance allegation (§ 190.2, subd. (a)(17)). As 

appellant argues, under the instructions given for this allegation, the true 

finding does not conclusively demonstrate the jury found appellant was the 

actual killer. 

Accordingly, we will reverse and remand for the trial court to hold an 

evidentiary hearing on appellant’s resentencing petition.

2 Cases relied on by the People are easily distinguishable. (People v. 

Hurtado (2023) 89 Cal.App.5th 887, 893 [no prima facie entitlement to relief 

for attempted murder conviction where record established the defendant 

“alone attempted to commit murder”]; People v. Garcia (2022) 82 Cal.App.5th 

956, 969–972 [in appeal following evidentiary hearing, the record established 

the defendant was convicted as the actual killer and “[the] defendant did not 

seek to present any new or additional evidence”].)
5

DISPOSITION

The trial court’s order denying the petition is reversed and remanded

with directions to issue an order to show cause under section 1172.6,

subdivision (c), and hold a hearing pursuant to section 1172.6,

subdivision (d), to determine whether to vacate appellant’s murder conviction

and recall his sentence and resentence him.

SIMONS, J.

We concur. 

JACKSON, P. J.

CHOU, J. 

(A166966)