P. v. Westfall

Filed 6/5/08 P. v. Westfall CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Hillary Westfall of first degree murder, and found she personally and intentionally discharged a firearm. (Pen. Code 187, subd. (a), 12022.53, subd. (d), respectively.) Sentenced to a prison term of 50 years to life, defendant argues on appeal that there was insufficient evidence to sustain her conviction and firearm finding, and that the trial court failed to independently review the evidence on her new trial motion. We shall affirm.

Background

Because defendant challenges the sufficiency of the evidence, we state the facts in detail so we may thoroughly examine her argument.

At 5:38 a.m. on February 8, 2004, defendant placed a 911 call stating she had just returned home to find her boyfriend, Rusty Davis (victim or boyfriend), bleeding on the love seat and nonresponsive.^[1] Police officers arrived minutes later and found the victim slumped on the love seat with a single gunshot entry wound to the back of his neck. A paramedic arrived at 5:45 a.m. and confirmed that the victim was dead. The paramedic opined that the victim had died within the last few hours. The victim was last seen alive at his home around 2:30 or 3:00 a.m. There was no evidence of forced entry or ransacking. Samples from defendants right hand tested positive for gunshot residue. Defendant did not have blood on her hands or clothes.

On the evening of February 7, defendant and the victim were packing items for a planned move to a new house. The victims mother, Patricia D. (Patricia), had arrived a few days earlier to help the couple with their move and helped them pack that evening. Patricia noticed that defendant became upset at several points during the packing because of something the victim had done or something defendant had found. Patricia testified that the victim was tired that evening and dozed on the couch several times. Patricia left defendants residence around 2:30 or 3:00 a.m. Patricia testified that when she left defendants residence the victim was sitting on the love seat asleep. Patricia believed that she and defendant left the residence about the same time.

Patricia returned to her room at a Motel 6. She took a sleeping pill, ate a snack, and took a shower. Patricia testified that defendant called her from a Walgreens store and asked her if she wanted anything. Defendant indicated that she would come to the Motel 6 to pay for Patricias next few nights and would bring her something to eat. Patricia testified that she thought defendant came to her room between 10 and 30 minutes after the phone call, but it was hard to give a correct estimate because she had already taken the sleeping pill, so time kind of drags. Patricia estimated that once defendant arrived, they were in the motel room together for about 30 or 45 minutes. At one point, defendant dropped her cellular phone in the toilet and asked Patricia to call the phone to see whether it still worked. Patricias phone records show that she made a call to defendants cell phone at 4:56 a.m. Patricia testified that defendant left her hotel room about 20 minutes after making the call.

Video surveillance tapes from Walgreens showed that defendant entered the store at 2:52 a.m. and left at 3:14 a.m. A Chevron gas station video surveillance tape indicated that defendant was at the station at 3:24 a.m. Motel 6 records showed that Patricias room was paid for at 3:38 a.m. and a new key card was issued at 3:45 a.m.^[2]

Kelley E. (Kelley), the ex-girlfriend of defendants neighbor, Tony B. (Tony), testified that she drove home from a girlfriends house at approximately 4:00 a.m. on February 8. At the time of the victims murder, the victim and defendant were living at 1344 Shadowglen Road. Tony was living at 1336 Shadowglen Road, one house away from the victims residence. Kelley decided to take a route close to Tonys house to see if Tony was awake. Kelley drove down Glenwood Road, which intersects with Shadowglen, and looked down Shadowglen for any indications that Tony was up. Kelley also observed defendants residence because Tony and the victim were friends, and Tony often spent time there. Kelley testified that she saw defendants silver Mustang convertible in the driveway of defendants residence. Kelley knew that this was defendants car because she had seen defendant drive it on several occasions. Kelley testified that it was 4:06 a.m. when she made these observations. Kelley stated that she remembered the time because she looked at the clock and realized how late it was, and thought that Tony should be asleep at that time of night.

The investigating detective testified that it takes eight minutes to drive between the Motel 6 and defendants residence in light traffic conditions. The prosecution theorized that defendant paid for the Motel 6 room at 3:45 a.m., returned home to kill the victim, and drove back to the Motel 6 to have the victims mother provide an alibi.

Several witnesses testified to defendants motive for the offense. Terri F. (Terri), Brian W., and Jennifer B. (Jennifer), members of defendants study group at the University of Phoenix, testified that defendant had stated that her boyfriend was abusive and had cheated on her, and she wanted to get rid of him. Defendant told the group that she wanted her boyfriend dead and repeatedly asked Terri if she knew someone who could assist her. Defendant told Terri that she wanted to have her boyfriend taken care of. Marival B., another member of defendants study group, gave a statement indicating that on several occasions defendant said she wished someone would kill her boyfriend. Jennifer added that defendant said her boyfriend was afraid that she would poison him when she cooked him food, so he would feed the food to her beloved dog first. Defendant made these statements in the few months preceding the victims death.

Several of defendants employees (defendant ran a lucrative escort service and apparently also an online adult store) also testified along similar lines. Jacqueline F. (Jacqueline) testified that defendant said her boyfriend was cheating on her and she wanted him to die. Crystal W. (Crystal) testified that defendant stated she wanted her boyfriend dead [and] gone and expressed interest when Crystal said her father had possible mob connections; defendant indicated that she thought they would know how to take care of people [and] get away with it. Defendant asked Crystal to talk to her father about paying to have her boyfriend killed and wanted to make it look like an accident. Defendant mentioned that if her boyfriend was shot, it should look like a gang-related shooting because her boyfriend had a lot of enemies and no one would be surprised. A few weeks before the murder, defendant solicited Crystals boyfriend to have the victim taken care of, but he did not take her remarks seriously. Crystal also testified that defendant told her that she used to put sleeping pills and Valium in her boyfriends food, and she talked about putting rat poison in his food.

There was additional evidence to suggest that defendant was secretly trying to leave the victim. A few months before the victims death, defendant rented a duplex in West Sacramento and told the owner that she wanted to leave her [boyfriend] and . . . find her own place. Jacqueline also stated that defendant was trying to move out of her house to a duplex in West Sacramento she had recently rented without her boyfriends knowledge. Jacqueline helped defendant move small items to the duplex so her boyfriend would not notice. Defendant told Jacqueline she was afraid that her boyfriend would not let her move if he found out her plan. Crystal, who was living at the duplex in West Sacramento, received a call from defendant one week before the victims murder warning Crystal to lock the doors to the duplex. Defendant told Crystal that her boyfriend had discovered a rent check for the duplex and worried that he might get violent with Crystal.

Discussion

1. Standard of Review

In an appeal based on the sufficiency of the evidence, we review the record in the light most favorable to the judgment. (People v. Lewis (2001) 26 Cal.4th 334, 365, citing People v. Kraft (2000) 23 Cal.4th 978, 1053.) Substantial evidence is evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid., italics added.) When reviewing a sufficiency of the evidence challenge, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment. (People v. Hill (1998) 17 Cal.4th 800, 849, citing People v. Bean (1988) 46 Cal.3d 919, 933.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792, citing Bean, supra, at p. 932.)

2. Sufficiency of the Evidence

Defendant contends that the evidence is insufficient to prove she shot the victim. Defendant alleges that the timeline of events conclusively shows that she was not at the scene of the crime when the shooting occurred. We disagree with defendants characterization of the evidence, and instead find that substantial evidence exists to uphold defendants conviction and firearm finding.

Defendants claim that Patricias testimony provides an indisputable alibi that defendant was with Patricia from 3:45 a.m. to roughly 5:00 a.m. is erroneous. Patricia testified that defendant came to her hotel room between 10 and 30 minutes after defendants phone call from Walgreens, which would indeed place her in Patricias hotel room around 3:45 a.m. However, Patricia also testified that she had taken a sleeping pill upon arriving at the motel room and was very sleepy. Patricia testified that time kind of drags when she takes a sleeping pill and admitted that she could not give a good estimate of how much time had passed between defendants call and her arrival in the hotel room. Additionally, Patricia testified that defendant was with her in the motel room for about 30 or 45 minutes, but probably not as long as 90 minutes. If defendant had arrived at Patricias room at 3:45 a.m., she would have spent at least 90 minutes in the room (based on evidence of Patricias call to defendants cell phone at 4:56 a.m., and Patricias testimony that defendant did not leave and return). Therefore, Patricias testimony with regard to the timing of events is not a model of clarity, if not contradictory.

Moreover, an eyewitness placed defendants car at the scene of the crime during the time defendant could have driven home to murder the victim. Kelley testified that she saw defendants silver Mustang parked in the driveway of the victims residence at 4:06 a.m. Kelley testified that she remembered it was 4:06 a.m. because she looked at the clock after observing Tonys (her ex-boyfriends) house and the victims residence one house away and realized that it was appropriate that Tony was asleep so late at night. Apparently, the jury gave Kelleys testimony more weight than Patricias on the issue of timing, and we may not disturb this evaluation on appeal. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder].) Additionally, the investigating detective testified that driving between the victims residence and the Motel 6 in light traffic conditions takes only eight minutes. Therefore, defendant had time to leave the Motel 6 office at 3:45 a.m., return home to shoot the victim, and arrive at Patricias hotel room not long thereafter.

Furthermore, defendants right hand tested positive for gunshot residue. The defense claimed this was because defendant had touched the victim when she found him on the love seat. However, the jury was not obliged to believe that explanation and could reasonably have concluded that the gunshot residue was a result of her shooting the victim.

Additionally, defendant made several statements in the 911 call that were inconsistent with evidence found on the victim and on defendant. First, in response to the 911 operators request to get the victim flat on the floor, defendant stated that she was trying to move him but couldnt get him on the floor because he was really heavy. However, the coroner, who was a petite woman, testified that she had no difficulty moving the victim by grabbing his arm. Second, defendant claimed that she tried to move the victim, which would have resulted in smearing the blood on the love seat. Defendant also told Jennifer (a fellow student) that she started shaking the victims shoulder when she came home. However, the coroner testified that there were no signs of blood smears or movement when she arrived, which indicates that defendant did not attempt to move the victim as claimed. Third, defendant did not have any blood on her hands or clothes, and the victims right hand had blood on it when it was examined. These facts are inconsistent with defendants claim that she tried to move the defendant. Fourth, samples from defendants right hand tested positive for gunshot residue, though it appears that defendant did not actually touch the victim after he was shot. Fifth, defendant repeatedly stated that the victim was really cold and freezing cold to her touch. While the deputy sheriff did note that the victims neck was cold to the touch, the paramedic noticed that the body was warm and rigor had not yet set in.

A review of the record in the light most favorable to the judgment shows that substantial evidence supports the conviction and firearm finding. Defendants motive was clearly established. Apparently, even the victim suspected defendant of trying to poison him. Defendant had a window of time in which to kill the victim, dispose of the murder weapon, and then visit Patricia at the Motel 6. Defendants right hand tested positive for gunshot residue. Following the murder, defendant gave statements in her 911 call that were inconsistent with evidence found at the scene of the crime. These and other facts, most notably the observation of defendants car parked outside her house at the time of the murder, defendants knowledge that the victim was sleeping on the love seat when she left, and lack of signs of ransacking or forced entry, warranted the jury in finding defendant guilty of murder and the gun enhancement.

3. Trial Courts Denial of New Trial Motion Alleging

Insufficient Evidence

Defendant also claims that the trial court failed to properly review the evidence on the motion for new trial. Specifically, defendant alleges that the trial court did not independently weigh the evidence regarding the issue of whether defendant had the opportunity to murder the victim.

In ruling on a motion for new trial that alleges insufficient evidence, the trial court is to determine independently whether it is persuaded that there is sufficient credible evidence to sustain the verdict. (People v. Dickens (2005) 130 Cal.App.4th 1245, 1252, citing People v. Robarge (1953) 41 Cal.2d 628, 634.) We review a trial courts determination of a motion for a new trial for abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 524.)

A review of the trial courts ruling on the new trial motion shows that the court complied with its duty to independently review the evidence. In this ruling, the court went through the evidence and mentioned several specific items it found persuasive. Although the court did not explicitly discuss the issue of whether defendant had the opportunity to commit murder, the courts detailed summary of the evidence shows that it determined independently that the evidence was sufficient to convict defendant. There is no indication that the court believed it was bound by the jurys decision in so ruling. Therefore, we find that the trial court did not abuse its discretion when it denied defendants motion for new trial.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] The victim was found on the love seat, but several witnesses described this piece of furniture as a couch. Defendant also stated that the victim was on the couch in the 911 call. There was a couch adjacent to the love seat. For purposes of clarity, we refer to this particular piece of furniture as a love seat.

Apparently, defendant referred to the victim as her husband, as did many witnesses. However, defendant and the victim were never legally married and we refer to the victim as defendants boyfriend.

^[2] An investigating detective checked the Chevron time stamp and the Motel 6 cash register to determine whether their times were correct. The Chevron stamp was three minutes fast and the Motel 6 cash register was five minutes slow. The times above reflect the true times that defendant was at the Chevron station and made the Motel 6 payment, as opposed to the time stamped in the Motel 6 and Chevron records. The detective did not check whether the Motel 6 key card system was on the same clock system as the cash register.