Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hillary Westfall v. Tina Hornbeak

January 3, 2012



Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2006 judgment of conviction entered against her in the Sacramento County Superior Court on a charge of first degree murder with use of a weapon. She seeks relief on the grounds that the evidence introduced at her trial was insufficient to support her conviction, and the trial court violated state law when it denied her motion for a new trial. Upon careful consideration of the record and the applicable law, and for the reasons set forth below, petitioner's application for habeas corpus relief must be denied.

I. Background*fn1

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.


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 non-responsive.*fn2 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 defendant's right hand tested positive for gunshot residue. Defendant did not have blood on her hands or clothes.

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 defendant's boyfriend.

On the evening of February 7, defendant and the victim were packing items for a planned move to a new house. The victim's 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 defendant's residence around 2:30 or 3:00 a.m. Patricia testified that when she left defendant's 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 Patricia's 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. Patricia's phone records show that she made a call to defendant's 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 Patricia's room was paid for at 3:38 a.m. and a new key card was issued at 3:45 a.m.*fn3

Kelley E. (Kelley), the ex-girlfriend of defendant's neighbor, Tony

B. (Tony), testified that she drove home from a girlfriend's house at approximately 4:00 a.m. on February 8. At the time of the victim's murder, the victim and defendant were living at 1344 Shadowglen Road. Tony was living at 1336 Shadowglen Road, one house away from the victim's residence. Kelley decided to take a route close to Tony's 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 defendant's residence because Tony and the victim were friends, and Tony often spent time there. Kelley testified that she saw defendant's silver Mustang convertible in the driveway of defendant's residence. Kelley knew that this was defendant's 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 defendant's 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 victim's mother provide an alibi.

Several witnesses testified to defendant's motive for the offense. Terri F. (Terri), Brian W., and Jennifer B. (Jennifer), members of defendant's 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 defendant's 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 victim's death.

Several of defendant's 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 Crystal's 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 boyfriend's 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 victim's 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 boyfriend's 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 victim's 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.

Resp.'s Lodg. Doc. 4 (hereinafter Opinion), at 1-7.

II. Analysis

A. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. ยง 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.