P. v. West

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Filed 2/10/20 P. v. West CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON WEST,
Defendant and Appellant.
A157163
(Alameda County
Super. Ct. No. 152985C)
In 2007, defendant Jason West was convicted of first-degree murder
committed during the course of an attempted carjacking and sentenced to life
without possibility of parole. In 2018, the Governor signed Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437), which
narrowed the definition of felony murder and provided a procedure whereby
defendants whose crimes did not fall within the narrowed definition could
petition for resentencing. West filed such a petition, and the trial court
denied it in a written opinion. West argues that the trial court erred in
denying the petition, and in doing so without first appointing counsel to
represent him. We affirm.
BACKGROUND
In 2007, West was convicted, together with Ishmael Johnson and
Terrell Watson, of the first-degree murder of Lamar Whitehead

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(Pen. Code, § 187),1 committed in the course of an attempted carjacking
(§ 190.2, subd. (a)(17)(L)), and, together with Watson, of the attempted
murder of Keith Griffin (§§ 664, 187).2 In 2010, this court affirmed his
conviction. (People v. Johnson (June 14, 2010, A121366) [nonpub. opn.]
(Johnson).) Our opinion summarized certain facts of the offense, as shown by
the evidence at trial, as follows:
“Keith Griffin testified that he and his long-time friend, Lamar
Whitehead, the murder victim, were interested in modifying and
accessorizing their cars. Griffin equipped a Chevrolet Monte Carlo with
elaborate 20-inch chrome wheel rims that cost about $1,400. These rims
could not simply be popped off with a crowbar; they could only be removed
after jacking up the car and unscrewing a number of lug nuts. He estimated
that it would take ‘about 15 minutes’ to remove the rims from his car, ‘plus
you got to get through the lock nuts.’ Therefore, he testified, if someone was
going to steal his rims, they would have to take his whole car to do it.
“Griffin worked in San Leandro and Whitehead, 21 years old at the
time of his death, worked a graveyard shift in Oakland starting at 11:00 p.m.
Griffin was often asked by Whitehead for a ride to work, and drove his car to
Whitehead’s residence at least 100 times after installing the rims. At 10:45
p.m. on January 27, 2005, Griffin drove his Monte Carlo to Whitehead’s
residence again, located in an apartment complex at 3901 Webster Street in
Oakland, to give Griffin a ride to work again, arriving there at 10:51 p.m.
1 Subsequent undesignated statutory references are to the Penal Code.
2 The jury also found true various firearm enhancements, including
that West personally and intentionally discharged a firearm causing death to
Lamar Whitehead, and great bodily injury to Keith Griffin (§ 12022.7,
subd. (a); § 12022.53, subd. (d)).

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The apartment complex consisted of three apartment buildings, with a
parking lot serving all three, for which there was only one entrance/exit.
“As Griffin pulled into the complex parking lot, he saw a group of about
five men and women standing on the sidewalk, and a group of about three
young men standing across the street near a battered, brown Buick Skylark.
He stopped at the far end of the parking lot and called Whitehead, who came
out of his apartment and entered the car. As Griffin started to back up, he
heard a noise which, according to his testimony, sounded ‘like somebody
balled up their fist and . . . gave like two knocks on the side of the car, like
“Stop.” ’ Griffin put on his brakes. He saw a man ‘walking around the back
of the car. They came up the driver’s side, and they walked all the way up. . .
. I rolled the window down, and I was like “Ah, my bad.” ’ The man walked
toward the front of the car, turned around, and asked, ‘What did you say?’
He then opened the driver’s side door, reached into his waistband and said,
‘Nigger, check this out.’ Griffin testified that he assumed the man, who
looked like defendant Watson, was reaching for a gun.
“Griffin pulled the car door shut and ‘just hit the gas.’ As he backed
into the gate of the parking lot entrance, he heard a gunshot, which did not
hit any of his car’s windows. The man was standing in the middle of the
parking lot pointing a black revolver, which Griffin thought was probably .38
caliber, straight at Griffin’s head from 20 to 25 feet away. Griffin testified, ‘I
threw the car in drive, and I punched the gas, and I tried to run him over,
and he jumped over to the side in between some parked cars and I ran into a
car.’ As Griffin shifted in reverse, he saw a flash, his driver’s side window
shattered, and he felt something land on his arm.
“Griffin ‘hit the gas to go backwards.’ He steered through the parking
lot gate and turned onto the street, where the crowd had grown bigger. A

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man standing next to a rock quickly pointed a gun at Griffin’s vehicle and
fired, shattering the passenger-side window, and, Griffin thought, hitting
Whitehead, who slumped over and made a gurgling sound, as if he was
choking. Griffin could not describe this shooter, other than to say he was
calm. In his first two statements to police, Griffin thought it was the same
person who shot at him in the parking lot, but at trial he testified that he
thought there were two shooters. Griffin ducked down, shifted gears, and
‘punched the gas.’ He ran into the back of a parked truck, but pushed it out
of the way, and drove off. He heard more shots, but did not see where they
came from.
“As Griffin drove home, he called 911 and asked for an ambulance,
which arrived within a minute of his arrival at his house. Griffin was
eventually taken to the hospital. A gunshot had entered his body under his
armpit and come out at the top of his arm.
“Whitehead was killed. The parties stipulated that he died from a
bullet wound to the chest. It passed through his left arm, then penetrated his
left lung, pericardial sac, heart, liver, and right lung, exiting into his right
chest wall. Two bullet fragments were taken from Whitehead’s body, one was
found on his jacket, and another was found on the back floorboard of Griffin’s
car.” (Johnson, supra, at pp. 3–8.)
Our opinion also described the testimony of E.L., a witness who was a
minor at the time of the shooting:
“According to E.L.’s trial testimony, Watson opened the passenger side
door of his car, reached across E.L., and pulled out a black gun. He also put
on a ‘hoodie’ and a leather jacket. Watson and Johnson walked across the
street together, and Watson entered the parking lot while Johnson stood by
the parking lot gate. West remained behind Watson’s vehicle.

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“Within two to three minutes, E.L. saw a ‘big light flash’ and heard
gunshots coming from the parking lot. She testified, ‘I heard a big crash . . .
like, it was a big car accident, and then all of a sudden I seen a car spinning,
and he like hit all the cars trying to come out the parking lot. He hit about
like four cars coming out of the parking lot. And when he was like by the
fence where [Johnson] was at, that’s when [Johnson] hollered, “Shoot.
Shoot.” The very next thing that happened was after he said, “Shoot. Shoot.”
all the other guys just—I turned around. All the other guys just start pulling
out guns and just started shooting every which way.’ West stood in the
middle of the street and fired a silver gun twice at the car. About three
others also fired guns.” (Johnson, supra, at pp. 9–11.)
And we described the testimony of M.P., also a minor at the time of the
shooting, regarding her interview with the police:
“M.P. renounced the incriminating information about defendants she
told to police in her interview, testifying that none of what she said was true.
This included that she saw ‘the end’ of Whitehead getting shot, opened her
door and saw Whitehead’s friend’s car crashing, looked outside after the
shooting and saw Watson running away with a gun in his hand, saw West
fire two shots with a gun from across the street at a car driving away with
Whitehead inside, saw that West’s gun ‘broke,’ saw Watson shoot his gun
when Johnson yelled, ‘Shoot, shoot,’ saw the car crash into another car on
Webster Street, saw ‘heck of boys’ running when the car crashed, and saw,
that, as the car went towards 38th Street, Johnson, West and Watson
together, ran in the opposite direction, towards 40th Street, with Watson and
West holding guns in their hands. M.P. said she lied to the police, did not
know why she lied, and was nervous, scared, and under pressure at the time.”
(Johnson, supra, at p. 13.)

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West was sentenced to seven years for the attempted murder, a
consecutive term of life without parole for the murder, and two consecutive
terms of 25 years to life for the firearm enhancements under section
12022.53, subdivision (d).3
Senate Bill 1437 and West’s Petition for Resentencing
SB 1437, which took effect on January 1, 2019, limits first degree felony
murder liability to three categories of defendants: (1) “the actual killer”; (2) a
defendant who “was not the actual killer, but, with the intent to kill,” aided
and abetted the actual killer; or (3) a defendant who “was a major participant
in the underlying felony and acted with reckless indifference to human life.”
(§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3, p. 92.) SB 1437
also provides that a defendant convicted of felony murder may petition the
sentencing court to have his or her conviction vacated if the following three
conditions are satisfied:
“(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.
“(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, subd. (a), added by Stats. 2018, ch. 1015, § 4, p. 830.)
After such a petition is filed, SB 1437 provides: “The court shall review
the petition and determine if the petitioner has made a prima facie showing
that the petitioner falls within the provisions of this section. If the petitioner
3 The remaining firearm enhancements were imposed and stayed.

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has requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response within 60 days of
service of the petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines shall be
extended for good cause. If the petitioner makes a prima facie showing that
he or she is entitled to relief, the court shall issue an order to show cause.” (§
1170.95, subd. (c), added by Stats. 2018, ch. 1015, § 4, p. 830.) After issuing
an order to show cause, the court must then hold an evidentiary hearing to
determine whether the petitioner is entitled to relief. (§ 1170.95, subd. (d),
added by Stats. 2018, ch. 1015, § 4, p. 830.)
On March 20, 2019, acting in propria persona, West filed a handwritten
petition for resentencing under SB 1437. The petition asserted a variety of
arguments, including that certain statutes and jury instructions were
unconstitutionally vague, and, as will be discussed, a few brief references to
SB 1437. The petition also attached several exhibits: the abstract of
judgment (exhibit A); a reporter’s transcript of the return of the jury’s verdict
and sentencing hearing (exhibit B); copies of the jury instructions on murder,
felony murder, and aiding and abetting (exhibit C); the jury’s verdict (exhibit
D); a Senate Committee Analysis of Senate Bill No. 261 relating to youth
offender parole (exhibit E); the jury instructions on the carjacking special
circumstance (exhibit F); and the jury instructions on first degree murder
(exhibit G).
On March 26, without appointing counsel and before receiving a
response from the government, the trial court denied the petition in a 15-
page written order. After recounting the procedural background and the
facts of the offense as drawn from our opinion on appeal, the order denying
the petition concluded as follows:

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“The Petition is denied because relief under section 1170.95 is
unavailable to Petitioner. As provided in Petitioner’s direct appeal, there was
substantial evidence that Petitioner intended to engage in the carjacking of
Griffin’s vehicle. As provided in that opinion, there was a significant amount
of substantial evidence, largely contained in E.L.’s and/or M.P.’s testimony,
that the defendants planned to take control of Griffin’s car and steal the rims.
Griffin testified that he had driven his rim-accessoried Monte Carlo to the
apartment complex at least 100 times, and often gave Whitehead a ride to his
job, which started at 11:00 p.m. Watson and Petitioner frequented the
apartment complex, and Johnson lived there. Johnson was heard talking to
Watson and Petitioner about waiting for someone to bring him some rims on
the day of the shooting. The three were seen leaving and returning to the
area of the apartment complex together, where they waited outside for at
least one-half hour. When Griffin drove up in his Monte Carlo, Johnson was
heard to say, ‘That’s him right there. That’s him. There he go.’ Watson was
seen immediately retrieving a gun from his car, putting on a hoodie, and
walking across the street to the complex’s parking lot with Johnson, while
Petitioner stayed behind Watson’s car. Subsequent events indicate Watson
and Petitioner were each armed with a loaded weapon. Watson then followed
Griffin’s car into the parking lot. Petitioner, already armed, remained across
the street from the apartment complex, and Johnson positioned himself by
the parking lot gate, somewhere between Watson and Petitioner. After
Whitehead got in the car, Watson approached, manufactured a confrontation
with Griffin, opened the driver’s side door, and showed Griffin his weapon.
Griffin’s testimony indicated that when he resisted Watson’s intimidation,
Watson did not hesitate to shoot at him—before Griffin tried to run him over,
indicating the willingness to use weapons fire to carjack Griffin’s car. When

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Griffin continued his efforts to escape, Johnson promptly yelled to shoot and
Petitioner promptly did so, stopping only because his gun broke. It was only
after Griffin escaped that they ran away.
“As the Court of Appeal pointed out, the jury could reasonably infer
from defendants’ positioning (with Petitioner outside the complex and
Johnson by the parking lot gate) and Watson’s opening of the driver’s side
door, that they planned all along for Watson to jump into the driver’s seat
after intimidating or forcing Griffin and Whitehead to give up the car, pick up
Johnson and Petitioner, and drive away. Additionally, substantial evidence
presented at trial indicated that Watson and Petitioner fired multiple times
a[t] the car within moments of each other, that either could have been the
proximate cause of the injuries, and that it was not possible to determine who
shot Griffin or Whitehead. Furthermore, there was no evidence presented at
trial that Petitioner had any ‘sudden quarrel’ with Griffin or Whitehead, that
they said or did anything sufficient to provoke an ordinarily reasonable
person to deadly violence, or that Petitioner acted under the heat of passion.
Similarly, there was not substantial evidence that Petitioner believed himself
or anyone else to be in imminent danger of death or great bodily harm when
he shot at the Monte Carlo. There was no evidence that Griffin attempted to
do any harm to Petitioner when he drove out of the parking lot. There was no
substantial evidence that Petitioner acted in response to anything other than
Johnson’s shout to shoot.
“Accordingly, Petitioner was either the actual killer or, with the intent
to kill, aided, abetted, counseled, commanded, induced, solicited, requested,
or assisted the actual killer in the commission of murders in the first degree,
or was a major participant in the underlying felony and acted with reckless
indifference to human life, given the true finding on the special circumstance

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allegation. (§§ 189, subd. (e); 190.2, subds. (c), (d).) Additionally, Petitioner
was not convicted of murder under the natural and probable consequences
doctrine. Rather, Petitioner was convicted on a valid theory of murder which
survives the changes to sections 188 and 189 made by SB 1437. (§ 1170.95,
subd. (a)(3).)”
West timely appeals.
DISCUSSION
West argues that the trial court erred in concluding that he had not
made a prima facie showing that he is entitled to relief under SB 1437, both
because it should have credited his petition’s assertion that the requirements
of the statute were satisfied and because it should not have looked beyond the
allegations of the petition to the facts as described in our opinion on appeal.4
And he argues that the trial court did not follow the statutory procedure
because it should have appointed counsel before ruling on his petition.
The Trial Court Did Not Err in Concluding the Petition Does
Not Establish a Prima Facie Case
We do not agree that the trial court erred in concluding that West’s
petition failed to establish a prima facie case that he was entitled to relief
under SB 1437.
As noted, West’s petition briefly makes a wide range of arguments,
including that various statutes and jury instructions are unconstitutionally
vague, that he lacked the mental capacity to understand the consequences of
actions because of his youth, and that he should be resentenced under Senate
Bill No. 620 (2017–2018 Reg. Sess.), granting the trial court discretion to
strike certain firearm enhancements in interest of justice. The only
arguments in the petition that arguably relate to SB 1437 are a few
conclusory statements, including that West was not the “actual killer and no
4 On appeal, we ordered counsel appointed for West.

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evidence exist[s] to satisfy Pen[al] Code [section] 190.2 subd[ivision], (d)
conduct requirement of a major participant,” that West’s “personal
involvement was not substantial,” and that his “aiding and abetting sentence
warrants retroactive resentencing under People v. Chiu (2014) 59 Cal.4th
155, and newly enacted Senate Bill [No.] 1437.” The petition does not provide
or discuss the facts of the offense or any of the evidence at trial, nor does it
offer any argument or explanation why West does not fit into the three
categories of defendants who can still be convicted of felony murder after the
passage of SB 1437.
Nor does West’s appointed counsel offer any such argument on appeal.
Again, his brief does not discuss the facts of the offense or the evidence at
trial, and it does not explain why West does not fit into any of the three
categories of defendants who can be convicted of felony murder after the
passage of SB 1437. Instead, his brief simply states, in relevant part, that
“Mr. West’s petition asserted under penalty of perjury that . . . [h]e could not
be convicted of first- or second-degree murder because of changes made to
section 188 made effective January 1, 2019.”5 West then argues that this
assertion was sufficient to establish a prima facie case and that the trial
court “exceeded its statutory authority” by going on to consider the evidence
at trial. We are not persuaded.
Whatever a prima facie showing under section 1170.95, subdivision (c)
requires, it certainly requires more than the conclusory assertion that the
requirements of the statute have been satisfied—in particular, it requires
evidence. (See People v. Verdugo (Jan. 15, 2020, B296630) __ Cal.App.5th __
5 For this proposition, West cites three pages of the petition, but those
pages do not contain this assertion. At best, as noted, they assert that
“Petitioners aiding and abetting sentence warrants retro active resentencing
under . . . newly inacted [sic] Senate Bill [No.] 1437.”

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[pp. 11–13]; Black’s Law Dict. (11th ed. 2019) p. 1141, col. 2 [“prima facie
case” defined as “[a] party’s production of enough evidence to allow the fact-
trier to infer the fact at issue and rule in the party’s favor”]; People v.
Johnson (2015) 242 Cal.App.4th 1155, 1163 [“Normally, however, a ‘prima
facie showing’ connotes an evidentiary showing that is made without regard
to credibility”]; ibid. at p. 1163 [“A ‘prima facie’ showing refers to those facts
which will sustain a favorable decision if the evidence submitted in support of
the allegations by the petitioner is credited”].)
And it is not clear how any such showing could have been made. Even
assuming that West was not the actual killer and did not have the intent to
kill, he did not qualify for resentencing if he “was a major participant in the
underlying felony and acted with reckless indifference to human life.” (§ 189,
subd. (e).) In finding the special circumstance true, the jury necessarily
concluded either that West had the intent to kill, or that all of the following
were true: “1. The defendant’s participation in the crime began before or
during the killing; [¶] 2. The defendant was a major participant in the
crime; [¶] AND 3. When the defendant participated in the crime, he acted
with reckless indifference to human life.” (See CALCRIM No. 703.) As the
trial court discussed, the evidence showed that West participated in the
carjacking and that he fired at least two shots at Griffin’s occupied vehicle,
amply demonstrating reckless indifference to human life. And in our opinion
on direct appeal, we concluded that the true finding on the special
circumstance allegation was supported by substantial evidence. (People v.
Johnson, supra A121366.) West has not offered any argument or alleged any
facts to address any of this, either below or with the benefit of appointed
counsel on appeal. Under these circumstances, he has failed to make a prima
facie case that he is entitled to resentencing.

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West also argues that the trial court erred in looking beyond the face of
the petition and relying on the summary of the facts contained in our opinion.
But section 1170.95, subdivision (d)(3) provides that at the hearing to be held
once the petitioner has made a prima facie case, “[t]he prosecutor and the
petitioner may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens.” And our opinion, which
summarized certain of the evidence at trial, was a part of the record of
conviction. (See People v. Woodell (1998) 17 Cal.4th 448, 450–451, 456
[appellate court opinion is part of record of conviction for determining
whether prior conviction qualifies as serious felony]; People v. Brimmer
(2014) 230 Cal.App.4th 782, 800 [unpublished opinion by Court of Appeal “is
sufficient evidence of the record of conviction” for resentencing petition under
§ 1170.126].) Given that the parties could rely on the record of conviction at
such a hearing, we see no reason why the trial court should be barred from
relying on the record of conviction at the prima facie stage—at least where,
as here, West has not disputed the facts contained in our opinion or explained
how it misstates the evidence. (See People v. Verdugo, supra, __ Cal.App.5th
__ [pp. 3, 13, 19] [proper for trial court to consider opinion in direct appeal as
part of the record of conviction in evaluating § 1170.95 petition at prima facie
stage]; People v. Lewis (2020) 43 Cal.App.5th 1128, 1138 [same].)
Any Error in Ruling on the Petition Before Appointing Counsel
Was Harmless
West also argues that the trial court erred in ruling on his petition
without first appointing counsel to represent him. West asserts that the
failure to appoint counsel violated section 1170.95, subdivision (c), as well as
the requirements of due process and the Sixth Amendment.
We need not address the merits of these arguments, because under the
circumstances of this case, any failure to appoint counsel was clearly

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harmless beyond a reasonable doubt.6 The parties do not dispute that had
the trial court determined that West had made the required prima facie
showing, it would have then been required to appoint counsel for him. (See
§ 1170.95, subd. (c).) West’s argument is thus that after receiving his
petition, the trial court should have appointed counsel and deferred ruling on
the petition until the government had filed a response, and West—with the
assistance of counsel—a reply. But West has not offered any explanation for
how the assistance of counsel in drafting a reply brief could have produced a
different result. As discussed at length above, West’s petition failed to
establish a prima facie case that he was eligible for relief.7 And even with the
benefit of counsel appointed to represent him in this appeal, West has not
explained how he meets the requirements for resentencing under the statute.
Under these circumstances, the trial court’s failure to appoint counsel for
West after receiving his petition was harmless beyond a reasonable doubt.
(See People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [rejecting contention
that trial court erred in ruling on § 1170.95 petition before appointing counsel
where petitioner was “indisputably ineligible for relief”].)
DISPOSITION
The order denying the petition is affirmed.
6 At least two courts have held that the duty to appoint counsel under
section 1170.95, subdivision (c) does not arise until after the court determines
that the petitioner has made the required prima facie showing. (See People v.
Verdugo, supra, __ Cal.App.5th__ [pp. 17–18]; People v. Lewis, supra, 43
Cal.App.5th at pp. 13−15].)
7 Given this, we need not address West’s argument that the trial court
“short-circuited” his right to a hearing on the merits of his petition. The
statutory right to an evidentiary hearing on the merits requires an order to
show cause, which in turn requires a prima facie showing that the petitioner
is entitled to relief. (See § 1170.95, subds. (c) & (d).)

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_________________________
Richman, Acting P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. West (A157163)

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