People v. Weathers CA5 ( 2022 )

Filed 12/29/22 P. v. Weathers CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F082180
Plaintiff and Respondent,
(Super. Ct. No. CF91438575)
v.
WINONA MARIE WEATHERS, OPINION
Defendant and Appellant.
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.
INTRODUCTION
Appellant Winona Marie Weathers appeals the trial court’s denial of her petition
for resentencing filed under former Penal Code section 1170.95.1 We previously
affirmed the court’s order in an unpublished opinion (People v. Weathers (June 30, 2022,
F082180 [nonpub. opn.]), concluding that Weathers was ineligible for relief as a matter
of law based upon the jury’s finding that the murder occurred during the commission of a
robbery, and that Weathers had acted as a major participant in the robbery with reckless
indifference to human life. (Pen. Code,2 § 190.2, subd. (a)(17).)
Our Supreme Court granted review of Weathers’s case and transferred the matter
back to this court with directions to vacate our decision and to reconsider the cause in
light of People v. Strong (2022) 13 Cal.5th 698 (Strong). In Strong, our Supreme Court
held that a pre-Banks/Clark3 felony-murder special circumstance finding does not render
a petitioner seeking relief under section 1172.6, ineligible for relief as a matter of law.
(Strong, at p. 703.)
We invited the parties to submit supplemental briefing concerning the effect of
Strong on Weathers’s case. Weathers argued that Strong compels reversal of the trial
court’s order. The Attorney General did not file a response.
In conformity with our Supreme Court’s directive, we order our prior decision
vacated and for the reasons stated herein, we reverse the trial court’s order denying
Weathers’s petition for resentencing. On remand, the trial court is directed to issue an
order to show cause and to hold an evidentiary hearing on the petition (§ 1172.6, subds.
(c)-(d)).
1 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no
change in text (Stats. 2022, ch. 58, § 10). Weathers filed her petition prior to this
renumbering, and she therefore referred to the statute as section 1170.95 in her petition.
2 All undefined statutory citations are to the Penal Code unless otherwise indicated.
3 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th
522 (Clark).
2.
PROCEDURAL HISTORY
On December 4, 1992, a jury convicted Weathers of the first degree murder of
William McClelland (§ 187, count 1), the robbery of 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.
On February 5, 2019, Weathers filed a petition for resentencing under former
section 1170.95. The prosecutor 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 her petition.
On November 25, 2019, Weathers filed a renewed petition.
On October 20, 2020, the trial court denied the petition.
On June 30, 2022, this court affirmed the denial of Weathers’s petition. (People v.
Weathers, supra, F082180.) Weathers filed a petition for review with our Supreme
Court.
On October 12, 2022, our Supreme Court granted review of Weathers’s case and
transferred the matter back to this court for reconsideration in light of Strong.
STATEMENT OF FACTS
The following statement of facts is derived from the probation officer’s report in
Weathers’s underlying criminal case. This factual summary is recited for the limited
purpose of providing context to Weathers’s criminal conviction:
3.
“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 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-in-law,
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
4.
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.
“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,
5.
‘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 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 erroneously denied her petition for resentencing
under former section 1170.95 based upon the fact that the robbery-murder special
circumstance was found true more than 20 years prior to our Supreme Court’s decisions
in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. The Attorney General
did not file an objection disputing Weathers’s contentions.
In Strong, our Supreme Court held that where, as here, a petitioner’s case “was
tried before both Banks and Clark, the special circumstance findings do not preclude him
6.
[or her] from making out a prima facie case for resentencing under section 1172.6.”
(Strong, supra, 13 Cal.5th at p. 721.) Our Supreme Court reasoned that section 1172.6
requires the petitioner to make a prima facie showing that he or she could not be
convicted of murder under the amended versions of sections 188 and 189, and “[a] pre-
Banks and Clark special-circumstance finding does not negate that showing because the
finding alone does not establish that the petitioner is in a class of defendants who would
still be viewed as liable for murder under the current understanding of the major
participant and reckless indifference requirements.” (Strong, at pp. 717-718.)
“This is true even if the trial evidence would have been sufficient to support the
findings under Banks and Clark.” (Strong, supra, 13 Cal.5th at p. 710; see People v.
Montes (2021) 71 Cal.App.5th 1001, 1008 [trial court may not deny § 1172.6 petition at
prima facie stage based on its own determination defendant was major participant in
felony and acted with reckless disregard for human life].) Thus, “[n]either the jury’s pre-
Banks and Clark findings nor a court’s later sufficiency of the evidence review amounts
to the determination section 1172.6 requires, and neither set of findings supplies a basis
to reject an otherwise adequate prima facie showing and deny issuance of an order to
show cause.” (Strong, at p. 720.)
Here, the jury made its true findings on the robbery-murder special circumstance
allegation more than two decades before our Supreme Court decided Banks, supra, 61
Cal.4th 788, and Clark, supra, 63 Cal.4th 522. Under Strong, those findings do not
preclude Weathers from stating a prima facie case for relief. (Strong, supra, 13 Cal.5th at
p. 721.)
We conclude that Weathers’s petition alleged the facts necessary for relief under
former section 1170.95, and the superior court erred by summarily denying her petition
based on the jury’s finding on the special circumstance allegation. Accordingly, we will
reverse the trial court’s order and remand the matter to the court with directions to issue
an order to show cause and to hold an evidentiary hearing. (§ 1172.6, subds. (c), (d);
7.
Strong, supra, 13 Cal.5th at pp. 708-709; People v. Duchine (2021) 60 Cal.App.5th 798,
816.)
DISPOSITION
This court’s opinion filed on June 30, 2022 is vacated. The trial court’s order
denying Weathers’s petition for resentencing under former section 1170.95 is reversed.
The matter is remanded to the superior court with directions to issue an order to show
cause and, to the extent necessary, hold an evidentiary hearing. (§ 1172.6, subds. (c)-
(d).)
8.