P. v. Westerfield

Filed 11/22/16 P. v. Westerfield CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CLEO WESTERFIELD,
Defendant and Appellant.
B269019
(Los Angeles County
Super. Ct. No. KA043390)
APPEAL from an order of the Superior Court of Los Angeles County.
William Ryan, Judge. Affirmed.
Jonathan B. Steiner, Executive Director, California Appellate Project,
Cheryl Lutz, Staff Attorney, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Noah Hill
and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________

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Defendant Cleo Westerfield appeals from the postjudgment order
denying his petition to recall his sentence and for resentencing pursuant to
Penal Code section 1170.126,1 added by Proposition 36 (or Act).2 He contends
the Proposition 36 court erred in finding he was armed with a deadly weapon,
because: (1) the court improperly made factual findings beyond those that
establish the nature or basis of his current conviction in violation of People v.
Guerrero (1988) 44 Cal.3d 343 (Guerrero); (2) the court improperly considered
evidence outside the record of conviction, i.e., the preliminary hearing
transcript, and relied on the prosecutor’s mistaken assertion he had been
convicted of firearm possession; (3) the court applied the incorrect
preponderance of the evidence rather than the correct beyond a reasonable
doubt standard of proof; and (4) the evidence was insufficient to establish he
was armed with a firearm during the commission of the current crime,
because the evidence did not establish he had control over or ready access to
the firearm found in his car or the existence of a facilitative nexus between
the firearm and the felony evading offense.
In his supplemental brief, defendant contends he was denied his
constitutional right to effective assistance of counsel (U.S. Const., 6th
Amend.) if his counsel’s failure to object to the Proposition 36 court’s
admission of the preliminary hearing transcript and application of the
1 All further section references are to the Penal Code unless otherwise
indicated.
2 “On November 6, 2012, the electorate passed Proposition 36, the Three
Strikes Reform Act of 2012 . . . . Proposition 36 reduced the punishment to be
imposed with respect to some third strike offenses that are neither serious
nor violent, and provided for discretionary resentencing in some cases in
which third strike sentences were imposed with respect to felonies that are
neither serious nor violent.” (People v. Johnson (2015) 61 Cal.4th 674, 679.)
Proposition 36 was effective on November 7, 2012. (Johnson, at p. 680.)

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preponderance of the evidence standard of proof results in forfeiture of these
claims of error.
We affirm the order. The Proposition 36 court found “[d]uring the
commission of the current offense, the defendant . . . was armed with a
firearm,” which is an expressly enumerated factor for disqualifying, or
rendering ineligible, a defendant for resentencing under Proposition 36
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). This finding is
legally sound and supported by substantial evidence. Defendant’s reliance on
Guerrero is misplaced, as Guerrero is factually inapplicable. Further,
contrary to his claim, the record of conviction includes the preliminary
hearing transcript, which the trial court therefore was entitled to consider.
The court also correctly applied the preponderance of the evidence standard,
a lesser standard of proof, rather than the greatest standard of proof, beyond
a reasonable doubt. Accordingly, no prejudice resulted from the failure of
defendant’s counsel to object to admission of the preliminary hearing
transcript and to the application of the preponderance of the evidence
standard of proof.
BACKGROUND
In the early morning hours of January 26, 1999, after Pomona Police
Officer Paul Western activated the lights and siren on his marked patrol car
to make a lawful stop of a 1997 Mitsubishi Mirage driven by defendant,
defendant attempted to evade the officer by increasing his speed, driving past
two stop signs without stopping, and entering the 10 Freeway. Other officers
joined the chase, including Officer Robert McCrary, who took over the lead.
At times, defendant drove at speeds over 90 miles per hour and on
occasion over 110 miles per hour. He transitioned to the 57 Freeway and
then onto the 60 Freeway. Thirty minutes later, defendant exited the 60

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Freeway at a high rate of speed. Upon hitting a parked car and the curb, his
car became airborne, rolled over, crashed through a fence, and landed
upright. Defendant, who was in the driver’s seat, exited and ran. He stopped
and lay on the ground when ordered by McCrary.
A woman was in the front passenger seat, and a man identified as
Willie Barnes was in the back seat. During the chase, McCrary saw the man
in the back seat duck down and conceal himself. A loaded handgun was
found on the front passenger seat. During booking, defendant laughed and
told Western, “I almost slipped your ass.”
At trial, defendant admitted making that statement. He also admitted
he was the driver during the chase. He identified the front passenger as his
girlfriend and stated Barnes was in the rear seat. Defendant denied his
criminal record prompted his failure to stop. He explained the real reason
was Barnes was holding a hand gun and told him to keep driving. When
asked if Barnes had threatened him, defendant responded, “The gun alone
threatened me by itself. I was—I felt—I don’t know what he [sic] going to do.
I’m scared. I’m in the car, he got [sic] a gun.” He acknowledged, however,
Barnes did not say, “Drive the car or I will kill you.”
A jury convicted defendant of evading an officer with willful or wanton
disregard for the safety of persons or property (Veh. Code, § 12800.2, subd.
(a)) and having a concealed firearm in a vehicle (§ 12025, subd. (a)(1)). The
court found he had sustained three prior serious felony convictions under the
Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that he
had served three prior prison terms (§ 667.5, subd. (b)). He was sentenced to
prison to 25 years to life on his evading conviction and to three concurrent
one-year terms for the prior prison term enhancements, plus a concurrent
six-month term for the firearm conviction.

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In his earlier appeal from the judgment, defendant challenged his
conviction for having a concealed firearm in a vehicle (count 2) for lack of
evidence the firearm was concealed. We found his claim to be well taken. As
to that count, we reversed the judgment, vacated the sentence, and ordered
the information dismissed. We otherwise affirmed the judgment.3
On April 9, 2013, defendant filed a Proposition 36 petition to recall his
sentence and for resentencing.
On April 19, 2013, the Proposition 36 court issued an order to show
cause. The People filed opposition to the petition.
On June 5, 2014, defendant filed a document entitled “Amended
Petition and Reply to People’s Opposition.”
On February 4, 2015, the People filed a second revised opposition to the
petition.
On November 16, 2015, following a hearing, the Proposition 36 court
denied the petition, finding defendant “was armed with a firearm in the
commission of the current offense.”
DISCUSSION
1. Jury’s Verdict Does Not Preclude Armed Finding by
Proposition 36 Court
Defendant contends the Proposition 36 court’s “own factual finding”
that defendant was armed with a firearm is unsupported by the record of
conviction, i.e., the jury’s verdict, and that the court’s “‘relitigation’ of the
circumstances of the crime” is prohibited under Guerrero, supra, 44 Cal.3d
343, 355. We find his contention to be without merit.
3 The above background is taken from the earlier unpublished opinion
(B134599), of which we take judicial notice. (Evid. Code, §§ 452, subd. (d)(1),
459.)

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The fatal fallacy lies in his misguided focus on “the ‘nature or basis’ of
the verdict,” i.e., the jury merely found defendant had a concealed firearm
rather than defendant was “armed” with a firearm. That the jury did not
find specifically defendant was “armed” with a firearm is of no consequence.
In People v. Newman (2016) 2 Cal.App.5th 718 (Newman),4 this court
explained that a disqualifying factor, such as the one here, is “not a subject
for a jury to determine, because [such factors] do not cause an increase in
punishment beyond the statutory punishment for the current offense.”
Rather, “the existence of a disqualifying factor that would render a defendant
ineligible for resentencing under Proposition 36, which would lessen his
punishment if he were eligible, is a determination solely within the province
of the Proposition 36 court to make.” (Newman, at p. 724.) Further, we
explained that Guerrero is factually inapplicable. “Guerrero, which was
decided long before enactment of Proposition 36, concerns what evidence a
trial court may consider in determining the truth of a prior conviction
allegation.” (Newman, at. p. 726.)
2. No Improper Reliance on Preliminary Hearing Transcript or
Prosecutor Argument
Defendant contends the Proposition 36 court erroneously found he was
“armed” with a firearm based on evidence the bullet found in defendant’s
pocket matched the bullets in the gun’s magazine, which evidence was only in
the preliminary hearing transcript, not in the record of conviction, and on the
prosecutor’s mistaken assertion defendant had been convicted of firearm
possession. These contentions lack merit.
4 On September 28, 2016, a petition for review was filed in Newman
(S237491).

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a. Proposition 36 Hearing
At the hearing, the prosecutor argued defendant was driving the
vehicle; of the three occupants of the vehicle only defendant ran away when
the car stopped after having rolled over during the chase; a loaded gun was
found on the front passenger seat; the bullets found in defendant’s pocket
matched the bullets in the gun; at the preliminary hearing, he was held to
answer to possessing a concealed weapon; and the jury found him guilty of
possession of a concealed weapon.
Defendant’s counsel argued defendant testified the rear passenger was
the one who possessed and showed the gun. When the court asked how the
bullets got into defendant’s pocket, counsel admitted he did not know. He
added the police admitted the gun was not tested for fingerprints. The court
responded, “And yet the jury found him guilty as a man with a gun.” Counsel
pointed out the Court of Appeal reversed.
The prosecutor clarified “[w]hat happened was, at [the] preliminary
hearing, the deputy D.A. who was doing the prelim did not have a 969(b)
packet, and so therefore the ex-felon with a gun charge wasn’t held to
answer, and, instead, the People asked for the lesser charge of a concealed
weapon. At trial, he was found guilty of the concealed weapon [charge.]”
Referring to footnote 10 in the appellate court opinion, the prosecutor argued,
“The court of appeals [sic] reversed that charge solely based on the fact that
the weapon was not concealed, not on the fact of the possession.”5
5 Footnote 10 appears on pages 16 and 17 of our earlier opinion and
reads: “We note that the magistrate found sufficient evidence to show that
[defendant] possessed a concealed firearm in a public place. At the
conclusion of the preliminary hearing, after acknowledging that he lacked
evidence to establish the ex-felon element of the offense then alleged, the
prosecutor asked the magistrate to add ‘the lesser charge of possession of a
. . . loaded firearm’ under . . . section 12021, subdivision (a.) The magistrate

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Counsel argued the appellate “court never reached the issue of
possession. The magistrate found sufficient cause to hold him over for
possession. That’s quite a different thing.” He pointed out that when the
police arrived at the end of the chase, defendant was already out of the car
and Barnes was in the back seat. The court again asked how the bullets got
into defendant’s pocket. Counsel responded, “A man can have bullets in his
pocket.”
The prosecutor countered that the evidence reflected after the car
rolled, the gun was found on the front passenger seat, not the back seat; the
bullets in the gun’s magazine matched those in defendant’s pocket; and
defendant was the only one to flee the car. She argued the preliminary
hearing judge held defendant to answer that he had the gun; the jury found
he had the gun, and reversal was solely on the concealment issue.
The court then received into evidence the exhibits filed by both parties
and the pleadings. Based on “the submissions and argument of counsel,” the
court found defendant ineligible for relief, “because he was armed with a
firearm in the commission of the current offense” and denied the Proposition
36 petition.
b. Record of Conviction Includes Preliminary Hearing Transcript
Initially, we note the preliminary hearing transcript reflects that an
officer found one .22-caliber bullet on defendant and this bullet was the same
as those removed from the magazine of the.22-caliber gun retrieved from the
front passenger seat.
Defendant’s contention the Proposition 36 court erred in relying on the
preliminary hearing transcript is unsuccessful. In People v. Reed (1996) 13
found that [defendant] had committed ‘a violation of 12021(a), possession of a
firearm in a public place, a concealed firearm in a public place . . . .’”

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Cal.4th 217 (Reed), our Supreme Court expressly held that the preliminary
hearing transcript is part of the record of conviction which may be considered
by a court. (Id. at p. 223.) Defendant attempts to narrow this holding to the
situation where the defendant enters a plea of guilty, or its equivalent, and
construes the Reed holding to be inapplicable in the situation where the
defendant is convicted of the current offense by a jury. As authority, he relies
on People v. Houck (1998) 66 Cal.App.4th 350 (Houck).)
We find such a dichotomy to be legally unsupportable. In Reed, the
court did not carve out such an exception, and nothing in Reed can be
construed reasonably to support such a distinction. Moreover, as conceded by
the court in Houck, “[t]he exact parameters of ‘record of conviction’ are yet to
be defined.” (Houck, supra, 66 Cal.App.4th at p. 355.) Our Supreme Court
has not yet carved out an exception for preliminary hearing transcripts in the
context of a jury trial. Further, we are not persuaded by the explanation in
Houck for such an exception, namely, that the trial transcript trumps the
preliminary hearing transcript as the “reliable reflection” of what transpired
test pursuant to Reed. (Houck, at pp. 355-357.) This explanation does not
address why the testimony in the preliminary hearing transcript should not
be considered reliable to clarify or amplify the testimony presented during
trial.
Additionally, in the context of a Proposition 36 petition, the court in
People v. Frierson (2016) 1 Cal.App.5th 788 (Frierson),6 concluded the “record
of conviction” is a term that “include[s] material which is part of the record,
such as excerpts from preliminary hearing transcripts,” citing to Reed, supra,
13 Cal.4th 217, at page 223. (Frierson, at p. 792, italics added.) In Reed, the
6 A petition for review was granted in Frierson on October 19, 2016
(S236728).

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court concluded “the procedural protections afforded the defendant during a
preliminary hearing tend to ensure the reliability of such evidence.” (13
Cal.4th at p. 223.) We find the analysis in Frierson to be persuasive and
decline to follow Houck.
c. Proposition 36 Court Was Not Misled by the Prosecutor
Defendant contends that during the hearing, the prosecutor
mischaracterized his firearm-related conviction by asserting “[a]t trial, [he]
was found guilty of possession of a concealed weapon,” which the trial court
misrelied on in finding defendant was armed during the commission of the
current crime. We disagree that the Proposition 36 court was misled by the
prosecutor’s characterization of defendant’s conviction.
In our earlier opinion resolving the appeal from the judgment, we
clearly pointed out the jury convicted defendant of having a concealed firearm
in a vehicle in violation of section 12025, subdivision. (a)(1).) The People
offered this opinion as an exhibit, which the Proposition 36 court admitted
into evidence. The Proposition 36 court therefore is presumed to have
adhered to our description of defendant’s conviction rather than what the
prosecutor argued at the hearing. (See People v. Chamberlin (1966) 242
Cal.App.2d 594, 597 [presumed court read the hearing transcript].)
3. Preponderance of the Evidence Is the Applicable Standard of
Review
Defendant contends the Proposition 36 court applied the incorrect
standard of proof in making its factual findings, because the appropriate
standard is beyond a reasonable doubt, as enunciated by the court in People
v. Arevalo (2016) 244 Cal.App.4th 836, not preponderance of the evidence.
We are not persuaded.

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In Frierson, the court disagreed with Arevalo and concluded the correct
standard of proof is preponderance of the evidence. (Frierson, supra,
1 Cal.App.5th at pp. 793, 794, rev.gr.) In Newman, this court concurred with
that conclusion. We noted “beyond a reasonable doubt, the highest standard
of proof, implicates issues regarding guilt or innocence of a charged crime but
not sentencing,” as a general matter, unless the issue involves a factual
finding that might subject a defendant to a potential sentence greater than
that authorized by the verdict of the trier of fact itself. (Newman, supra, 2
Cal.App.5th at p. 731.) We held the preponderance of the evidence standard
applies, because “Proposition 36 operates to decrease a defendant’s
punishment, not to increase the ‘penalty for a crime beyond the prescribed
statutory maximum’” (id. at p. 732), the scenario in Apprendi v. New Jersey
(2000) 530 U.S. 466, 490). Defendant offers nothing new or different that
would warrant revisiting our conclusions in Newman.
4. Armed with a Firearm Finding Is Supported by Substantial
Evidence
Defendant contends the trial court erred in finding he was armed with
a firearm during the commission of the current offense, because the evidence
is insufficient to establish he possessed the firearm in his car, i.e., he had
control over or ready access to the firearm, or the requisite nexus between the
firearm and the felony evading offense. We find substantial evidence
supports the court’s challenged finding.
The factual findings of the Proposition 36 court are reviewed for
substantial evidence. (People v. Dove (2004) 124 Cal.App.4th 1, 10; People v.
Johnson (2003) 114 Cal.App.4th 284, 290.) Under the applicable review
standard, we examine the evidence, both direct and circumstantial, in light of
the entire record and must indulge in favor of the order all presumptions, as

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well as every logical inference, that the court could have drawn from the
evidence. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Carter (2005)
36 Cal.4th 1114, 1156; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The
reviewing court “uphold[s] any express or implied factual findings of the . . .
court that are supported by substantial evidence.” (People v. Robinson (2010)
47 Cal.4th 1104, 1126.)
Based on our review of the record, we conclude substantial evidence
supports the Proposition 36 court’s factual finding that defendant was armed
with a firearm during the commission of the current offense. This evidence
established defendant was the driver during the reckless and dangerous
police chase. He was the only one who fled from the car after it had flipped
and stopped. The loaded firearm was found on the front passenger seat
within easy reach of defendant. The unexplained presence of a bullet on
defendant’s person that matched those in the gun tied defendant to the gun.
The Proposition 36 court was entitled to disbelieve, as self-serving,
defendant’s testimony that Barnes, the rear passenger, was the one with the
gun and defendant only continued to drive in the face of the gun threat,
especially in light of Officer McCrary’s testimony that during the chase, the
rear passenger was ducking down and concealing himself.
We disagree that the finding defendant was armed during the
commission of the current offense is defective, because there was no evidence
of a “facilitative nexus” between his crime and his possession of the weapon,
i.e., intent to use the gun to commit the crime. As defendant concedes, the
appellate courts have rejected the requirement of a “facilitative nexus” where
the evidence in the record of conviction of a possession offense reveals the
defendant had ready access to the weapon, which is the case here. (See, e.g.,
People v. White (2016) 243 Cal.App.4th 1354, 1360-1364; People v. Brimmer

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(2014) 230 CalApp.4th 782, 797-799; People v. Elder (2014) 227 Cal.App.4th
1308, 1312-1314; People v. Blakely (2014) 225 Cal.App.4th 1042, 1051-1052;
People v. Hicks (2014) 231 Cal.App.4th 275, 283-284; People v. Osuna (2014)
225 Cal.App.4th 1020, 1030-1038; People v. White (2014) 223 Cal.App.4th
512, 518-519.)
5. No Ineffective Assistance of Counsel Shown
In its opening brief, respondent contends the absence of an objection
forfeits defendant’s claims of error regarding the preliminary hearing
transcript and the preponderance of the evidence standard. Defendant
contends his counsel was ineffective (U.S. Const., 6th Amend.) should this
court decide counsel’s failure to object to the Proposition 36 court’s admission
of the preliminary hearing transcript and its application of the
preponderance of the evidence standard of proof amounts to forfeiture of his
claims of error. He fails to show his counsel was ineffective.
As discussed above, we have addressed defendant’s claims of error on
the merits and found them to be without merit. The omission of objections on
the part of his counsel therefore was nonprejudicial, and no further
discussion of the adequacy of counsel’s performance in this regard is
warranted. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 748, People v,
Mendoza (2000) 24 Cal.4th 130, 170.)
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J. HOFFSTADT, J.

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