Filed 10/21/20 P. v. Woodson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B299633
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA419591)
v.
THOMAS WOODSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Ronald S. Coen, Judge. Affirmed.
Victor J. Morse, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorney General, Charles S. Lee and
Ryan M. Smith, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Thomas Woodson (defendant)
appeals from the order denying his petition filed pursuant to
Penal Code section 1170.95.1 Defendant contends that the trial
court erred in looking beyond the allegations of the petition to
determine that he did not come within the provisions of the
statute. Defendant also contends the trial court was required to
appoint counsel and permit briefing prior to summarily denying
the petition. Finding no merit to defendant’s contentions, we
affirm the order.
BACKGROUND
Defendant’s 2016 conviction
Defendant was charged along with codefendants, Ernest
Lamont Williams (Williams) and Anthony Boochie (Boochie),
with murder and conspiracy to commit murder, with special
allegations of lying in wait and a motive of financial gain. There
was also allegations that a principal personally used and
intentionally discharged a firearm and that the crime was
committed for the benefit of a criminal street gang. (People v.
Williams et al. (Oct. 24, 2018, B281118) [nonpub. opn.] (Williams
I).)2
The murder occurred in 1998, and the three codefendants
were arrested in 2013. (Williams I, supra, B281118, at pp. 4-6.)
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 As the trial court reviewed the superior court file and the
appellate opinion issued upon defendant’s appeal, we take
judicial notice of both the opinion and the appellate record of the
trial. (See Evid. Code, §§ 452, subd. (d), 459.)
2
Defendant gave police interviews in October and December 2013.
(Id. at pp. 15-17, 17-18.) Defendant identified Boochie as the
person who drove the threesome in a van to the scene of the
shooting. Defendant claimed that when they arrived at the crime
scene, he fell asleep in the back of the van, and did not awake or
see the gun until hours later, when the shooter got back into the
van.3 Defendant claimed he thought they were going to commit a
robbery, and that he had never done anything like that before.
(Id. at pp. 16-17) In his second interview, defendant admitted
having previously committed robberies with Williams and that he
was usually the lookout. (Id. at p. 17.)
Defendant was tried by a separate jury simultaneously
with his codefendants. Defendant was convicted of second degree
murder and acquitted of conspiracy. The gang and firearm
allegations were found true, but the lying-in-wait and financial
gain special circumstances were found untrue. (Williams I,
supra, B281118, at pp. 2-3.) Boochie and Williams were
convicted of first degree murder, conspiracy to commit murder,
and the special circumstances of lying in wait and murder for
financial gain. (Id. at p. 3.)
Woodson was sentenced to 15 years to life in prison, plus a
consecutive term of 25 years to life pursuant to section 12022.53,
subdivisions (d) and (e)(1). The remaining firearm enhancements
and a 10-year gang enhancement were imposed and stayed.
(Williams I, supra, B281118 at p. 4.) On appeal, we ordered the
10-year gang enhancement stricken, and remanded to the trial
court for it to exercise discretion whether to strike or dismiss the
3 There was conflicting evidence suggesting that defendant
pretended to be asleep. (See Williams I, supra, B281118, at pp.
19-22.)
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firearm enhancement. On remand, the court chose not to do so.
(Id. at pp. 57-58.)
The current appeal
In April 2019, defendant filed a petition pursuant to section
1170.95, alleging that he had been convicted of first or second
degree murder pursuant to the natural and probable
consequences doctrine, and could not now be convicted of murder
because of changes to the law enacted by Senate Bill No. 1437
(S.B. 1437). The petition included a request that counsel be
appointed to represent him. On April 29, 2019, the trial court
summarily denied the petition after finding that defendant was
not eligible for relief as a matter of law.
Defendant’s notice of appeal of that order was received by
the superior court on July 11, 2019, and was thus filed beyond
the time allowed by California Rules of Court, rule 8.308(d). The
notice confirms that the appeal is taken from the denial of the
petition for relief under S.B. 1437, by order dated May 21, 2019.
However, the order denying relief under S.B. 1437 was entered
on April 29, 2019. On May 21, 2019, the trial court entered an
order denying defendant’s request to strike or dismiss the firearm
enhancement imposed under section 12022.53.
We issued an order to show cause why the appeal should
not be dismissed. Defendant’s appellate counsel submitted his
declaration attesting to his knowledge that defendant was
unlearned in the law. Defendant submitted his declaration that
he is currently incarcerated, that his appointed counsel in the
trial court, a deputy Alternate Public Defender, prepared and
filed the section 1170.95 petition, that when the petition was
summarily denied, defendant asked her to file a notice of appeal,
and relied on her to do so. The People filed no response.
4
Neither defendant nor his attorney were in court on April
29, but the court’s minutes reflect that counsel appeared in court
with defendant on the next day, April 30, 2019. On that date,
counsel received a copy of the minute order summarily denying
the section 1170.95 petition the day before. Our review of the
reporter’s transcript of April 30 shows that the trial court did not
inform defendant of his right to appeal the denial of his petition
or of the time within which he was required to file a notice of
appeal. We conclude that given defendant’s reliance on counsel,
and the trial court’s failure to inform defendant of his right to
appeal, the notice of appeal should be deemed constructively filed
within the time allowed. (See In re Benoit (1973) 10 Cal.3d 72,
86-88.)
S.B. 1437
In 2018, the Legislature passed S.B. 1437, which amended
sections 188 and 189, effective January 1, 2019. As amended,
section 188 limits a finding of malice as follows: “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).) Subdivision (e) of
section 189 now reads: “A participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a) in
which a death occurs is liable for murder only if one of the
following is proven:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with
the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted
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the actual killer in the commission of murder in the
first degree.
“(3) The person was a major participant in the
underlying felony and acted with reckless
indifference to human life, as described in subdivision
(d) of Section 190.2.”
Section 1170.95 was added by S.B. 1437 to provide a procedure by
which those convicted of murder can seek retroactive relief if
affected by the changes in sections 188 or 189. (People v.
Martinez (2019) 31 Cal.App.5th 719, 722.) A petition under
section 1170.95 must allege the following allegations:
“(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)(1)-(3).)4
4 All further references to stand-alone statutory subdivisions
are meant to refer the subdivisions of section 1170.95, unless
otherwise indicated.
6
In addition, the petition must include the petitioner’s
declaration showing eligibility for relief under this section, the
superior court case number and year of conviction, and any
requests for the appointment of counsel. (§ 1170.95, subd.
(b)(1).)5
Defendant’s section 1170.95 petition
In April 2019, defendant filed a preprinted section 1170.95
petition prepared by counsel, with checked boxes alleging that a
complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under a theory of felony
murder or the natural and probable consequences doctrine. The
petition also alleged that defendant had been convicted of first or
second degree murder pursuant to the felony murder rule or
under the natural and probable consequences doctrine, and that
he could not now be convicted of murder because of changes made
to sections 188 and 189. The petition included a request that
counsel be appointed to represent him.
The court summarily denied the petition and explained its
order in relevant part as follows:
“Per the court file and Court of Appeal opinion,
petitioner aided and abetted others in a murder.
Although aiding and abetting instructions were
given, natural and probable doctrine instructions
were not given. In addition, felony murder
instructions were not given. The only mental state
instruction given was malice aforethought. As such,
petitioner is not entitled to relief under Penal Code
section 1170.95.”
5 The petition was signed by a deputy alternate public
defender, and no declaration by defendant was attached to the
petition.
7
DISCUSSION
Defendant contends that court’s order denying defendant’s
petition must be reversed because the trial court failed to comply
with the statutory requirements of appointing counsel for
defendant and ordering briefing by the parties. Defendant
argues that because his form petition stated all three required
allegations under 1170.95, subdivision (b)(1)(A) through (b)(1)(C),
the court was required to find that his petition made a prima
facie showing of entitlement to relief, and to follow the
procedures in subdivision (c).
Upon receipt of a section 1170.95 petition and before
following the procedures in subdivision (c), the trial court makes
an initial determination of the facial sufficiency of the petition,
and that initial review is governed by subdivision (b)(2).
Subdivision (b)(2) provides as follows:
“If any of the information required by this
subdivision is missing from the petition and cannot
be readily ascertained by the court, the court may
deny the petition without prejudice to the filing of
another petition and advise the petitioner that the
matter cannot be considered without the missing
information.”
Section 1170.95, subdivision (c) states:
“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 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
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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.”
Respondent notes that recently published cases have
expressed the view that subdivision (c) calls for an initial review
and two-step prima facie analysis. (See People v. Verdugo (2020)
44 Cal.App.5th 320, 328-330, review granted Mar. 18, 2020,
S260493 (Verdugo); People v. Lewis (2020) 43 Cal.App.5th 1128,
1137-1138 (Lewis), review granted Mar. 18, 2020, S260598;
People v. Cornelius (2020) 44 Cal.App.5th 54, 57-58 (Cornelius),
review granted Mar. 18, 2020, B260410.) In the initial review,
the trial court is permitted to review readily ascertainable
information in the court file’s record of conviction, such as the
“complaint, information or indictment filed against the petitioner;
the verdict form or factual basis documentation for a negotiated
plea; and the abstract of judgment.” (Verdugo, supra, at pp. 328-
330.) The record of conviction also includes jury instructions and
any appellate opinion in the case. (Lewis, supra, at pp. 1138-
1139.)
The first-step prima facie review of subdivision (c) requires
a determination of the petitioner’s “statutory eligibility for
resentencing, a concept that is a well-established part of the
resentencing process under Propositions 36 and 47. [Citations.]”
(Verdugo, supra, 44 Cal.App.5th at p. 329, italics added.) The
trial court examines the information in the record of conviction,
and if those documents do not contradict the otherwise sufficient
allegations of the petition, the first prima facie showing has been
made and the trial court may not summarily deny the petition.
(Id. at pp. 329-331; see Cornelius, supra, 44 Cal.App.5th at p. 58;
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Lewis, supra, 43 Cal.App.5th at p. 1137.) However, if the record
of conviction shows that the petitioner was not actually convicted
of first or second degree murder or was convicted as a direct aider
and abettor of the murder, the court can dismiss the petition.
(Verdugo, supra, at pp. 330; Lewis, supra, at pp. 1135, 1137-
1139.) Thus, under the two-step procedure, it is only when the
initial prima facie showing has been made that the court is
obligated to appoint counsel for the defendant and the prosecutor
is required to file and serve a response. (Verdugo, supra, at p.
332.) Then, the trial court determines whether the defendant has
made a prima facie showing of entitlement to relief, and if so, the
court issues an order to show cause. (Ibid.)
In his reply, defendant contends that the two-step
construction of subdivision (c) is erroneous, and points out that
the California Supreme Court has granted review in Verdugo and
other decisions applying that procedure. Defendant submits that
the correct view is expressed in Justice Lavin’s dissent in People
v. Tarkington (2020) 49 Cal.App.5th 892, review granted Aug. 12,
2020, S263219, where it was concluded that the statute
“establishes a four-step resentencing process: the petition, the
prima facie review, an evidentiary hearing, and the
resentencing.” (Id. at p. 915 (dis. opn. of Lavin, J.); accord, People
v. Cooper (2020) 54 Cal.App.5th 106, 119-121.) He explained that
“Senate Bill 1437’s textual history clarifies that the Legislature
contemplated a petitioner would be represented by counsel upon
filing a sufficient petition, and counsel would help the court
determine whether to hold a resentencing hearing. [Citation.]”
(Id. at p. 918 (dis. opn. of Lavin, J.).) Successive drafts and
revisions of the legislation were reviewed to demonstrate that the
statute is intended to require the prosecutor, not the court, to
10
assemble any relevant parts of the record of conviction and to
respond automatically within 60 days of service of the petition;
and he posited that the statute’s final revision was made “to
ensure every petitioner who wanted a lawyer would have one --
not to impose a barrier where none had existed.” (Id. at pp. 919-
920 (dis. opn. of Lavin, J.).)
We need not resolve the parties’ disagreement, as the
records reviewed by the trial court show that defendant is
ineligible for relief as a matter of law. We thus agree with
respondent that even if the court followed the wrong procedure,
the error was harmless.
Section 1170.95, subdivision (a) provides that those persons
who may file a petition for resentencing are those who have been
“convicted of felony murder or murder under a natural and
probable consequences theory . . . .” The trial court looked to the
appellate opinion in Williams I, as well as the jury instructions
given in the trial. We too have reviewed the jury instructions. As
the trial court determined, CALJIC No. 8.21, the usual
instruction regarding felony murder, was not given to the jury,
nor was the jury given any other instruction regarding felony
murder. In addition, the jury was not given CALJIC No. 3.02
(regarding the natural and probable consequences doctrine) nor
any other instruction regarding the natural and probable
consequences doctrine. The jury was instructed with CALJIC
Nos. 3.01, 8.11, and 8.20, which explain the aiding and abetting
theory of liability, as well as express malice, implied malice, and
second degree murder.6
6 On appeal from the judgment we found substantial
evidence to support a finding defendant shared his accomplices’
intent to kill. (Williams I, supra, B281118, at pp. 19-24.)
11
Defendant was thus not convicted under either the felony
murder rule or the natural and probable consequences doctrine,
making him ineligible for resentencing under section 1170.95.
(§ 1170.95, subd. (a).) Section 1170.95 applies only to those
convicted of felony murder or murder under a natural and
probable consequences doctrine. (People v. Flores (2020) 44
Cal.App.5th 985, 997; see People v. Soto (2020) 51 Cal.App.5th
1043, 1059, review granted Sept. 23, 2020, S263939.) Therefore
we would find any error in the summary denial of the petition to
be harmless under any standard.
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
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