Filed 10/21/20 P. v. Woods CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B297732
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA033813)
v.
CEDRIC J. WOODS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Salvatore Sirna, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Daniel C. Chang and Joseph P. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Cedric J. Woods appeals from the trial court’s
order denying his petition under Penal Code section 1170.951 for
resentencing on his murder and attempted murder convictions.
According to defendant, the trial court erred by summarily
denying his petition without first issuing an order to show cause
and conducting an evidentiary hearing. He further contends that
the trial court erred by denying his petition on the alternative
ground that Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill 1437) is unconstitutional. We affirm.
II. FACTUAL BACKGROUND2
On August 16, 1997, the murder victim, 12-year-old D.W.
(the victim), and 16-year-old M.H. (the attempted-murder victim)
were sitting in Kennedy Park in Pomona with W.I. and another
companion. The attempted-murder victim saw a large four-door
maroon car in “‘bad shape’” emerge from a nearby housing area.
The front passenger made a gang sign for the Westside Mafia.
The car then turned around, entered the park, and stopped in a
parking lot. When four men exited the car, the attempted-
murder victim told the victim to get on his bicycle and leave. The
victim rode away, and the attempted-murder victim ran with
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The facts are taken from the opinion in the direct appeal
from the judgment of conviction. (People v. Woods (Apr. 8, 1999,
B121999 [nonpub. opn.].)
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him. At some point, the attempted-murder victim took control of
the bicycle while the victim rode on the handlebars.
The four men got back into the car and followed the two
minors. The victim warned that one of the car’s doors was open,
causing the attempted-murder victim to cross to the opposite side
of the street, where he saw the passenger-side door of the car
open and heard gunfire as the car came about two feet from the
bicycle.
The minors left the bicycle and ran down a driveway. The
attempted-murder victim saw blood coming from the victim’s side
and mouth and, when the victim fell, told bystanders across the
street to call the police.
Pomona Police Officer Brian Bozarth responded to a call of
a shooting around 2:50 p.m. and found the two minors, both of
whom had gunshot wounds. The victim died from his wounds at
the hospital.
The attempted-murder victim told Officer Bozarth that the
Westside Mafia had done the shooting. When the officer asked
him if he recognized anyone, he replied, “‘Thee Dog.’” The
attempted-murder victim told another officer that Thee Dog was
the person with the gun.
Detective Greg Guenther interviewed the attempted-
murder victim the day after the shooting. He admitted that both
he and the victim were members of the Trey57 Sintown Crips and
that, after the men in the car made Westside Mafia gang signs,
the victim responded with Trey57 signs. He also told the
detective that he recognized the right-front passenger as Thee
Dog, and he identified Tyrone Hill from a photographic line-up as
Thee Dog.
3
Detective Guenther interviewed the attempted-murder
victim again a few days later and showed him a photograph of
defendant’s car which he confirmed looked like the one involved
in the shooting. At trial, however, he was more equivocal about
the identifications and descriptions.
About a month after the shooting, Detective Guenther
interviewed W.I. who selected a photograph of Tyrone Hill,
known to him as Thee Dog, as the right-front passenger in the
car that chased his two companions from the park. The detective
showed W.I. another set of photographs, and he identified
defendant, whom he knew as “‘Tiny Dot,’” as the driver of the car.
But at trial, W.I. denied making the identifications.
When defendant was interviewed after the shooting, he
claimed his car had been parked at his residence the entire day of
the shooting with a flat tire. According to defendant, he spent
the afternoon at a mall and a park with Hill and another man.
Officer Bozarth testified at trial as an expert on Pomona
street gangs. He explained that the shooting took place inside
territory claimed by the Trey57 Sintown Crips. Defendant and
Hill had previously admitted to Officer Bozarth that they were
members of the Westside Mafia. The officer confirmed that Hill’s
gang name was Thee Dog.
Detective Robert Nelson testified that the Westside Mafia
Crips were rivals of the Trey57 gang. He explained that making
gang signs in a rival gang’s territory was a challenge and a
gesture of disrespect. Detective Nelson also explained that gang
members were generally unwilling or reluctant to cooperate with
law enforcement because they preferred to handle matters
themselves and because they did not want to be known as
“‘snitch[es].’”
4
III. PROCEDURAL BACKGROUND
In an information, the Los Angeles County District
Attorney charged defendant in count 1 with the murder of the
victim and in count 2 with the attempted, premeditated murder
of the attempted-murder victim. The District Attorney also
alleged that: the murder was perpetrated by means of
discharging a firearm from a motor vehicle at another person
outside the vehicle with the intent to inflict death; the attempted
murder was committed willfully, deliberately, and with
premeditation within the meaning of section 664, subdivision (a);
the offenses were committed for the benefit of, at the direction of,
and in association with a criminal street gang within the
meaning of section 186.22, subdivision (b)(1) and (4); and a
principal in the commission of the offenses was armed with a
handgun within the meaning of section 12022, subdivision (a)(1).
The jury found defendant guilty of murder and attempted
premeditated murder. The jury also found true the allegations
that: the murder occurred during a drive-by shooting within the
meaning of section 190.2, subdivision (a)(21); both offenses were
committed for the benefit of a criminal street gang within the
meaning of section 186.22, subdivisions (b)(1) and (b)(4); and a
principal was armed with a firearm in the commission of both
offenses within the meaning of section 12022, subdivision (a)(1).
The trial court sentenced defendant to life without the possibility
of parole for the murder conviction and to a consecutive term of
17 years, comprised of a nine-year term for the attempted murder
conviction, two three-year terms for the section 186.22
enhancements, and two one-year terms for the section 12022
enhancements.
5
On April 8, 1999, the Court of Appeal issued its
unpublished opinion in defendant’s direct appeal from the
judgment of conviction, case number B121999. Among other
things, the court concluded that there was sufficient evidence
showing that defendant “shared the shooter’s intent to kill.” The
court also concluded that the trial court’s instructions on the
natural and probable consequences doctrine were not erroneous.
On January 3, 2019, defendant, who was represented by
counsel, filed his petition for resentencing under section 1170.95.3
On March 20, 2019, the prosecution filed its opposition to
defendant’s petition, arguing that the opinion in the direct appeal
concluded that there was sufficient evidence to show that
defendant shared the shooter’s intent to kill. The prosecution
also argued that the jury’s true finding on the special
circumstance allegation under section 190.2, subdivision (a)(21)
included a necessary finding that defendant shared the shooter’s
intent to kill.
On April 2, 2019, defendant filed his reply in support of his
petition. In addition to certain constitutional arguments,
defendant asserted that he was entitled to resentencing because
both his murder and attempted murder convictions were based
on the natural and probable consequences doctrine.
3 On January 16, 2019, defendant filed an amended petition
that corrected by interlineation his name. In both petitions,
defendant requested that attorney Arthur P. Lindars be
appointed to represent him. On March 13, 2019, he filed another
petition using a standardized form provided for that purpose.
That petition listed attorney Lindars as defendant’s counsel. On
April 19, 2019, the trial court indicated that attorney Lindars
had previously been appointed as counsel for defendant.
6
On April 24, 2019, the trial court issued an order
summarily denying the petition because defendant was not
entitled to relief as a matter of law. The court found that
“although [defendant] was not the actual killer, [he], with the
intent to kill, aided and abetted the actual killer in the
commission of the murder.” The court also concluded that
defendant’s attempted murder conviction did “not qualify for
consideration under [section] 1170.95[, subdivision (a)].” In the
alternative, the court ruled that Senate Bill 1437 was
unconstitutional.
III. DISCUSSION
A. Senate Bill 1437’s Amendments to Sections 188 and 189
and Addition of Section 1170.95
“Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of murder
under a felony murder theory of liability [or the natural and
probable consequences doctrine] could petition to have his
conviction vacated and be resentenced. Section 1170.95 initially
requires a court to determine whether a petitioner has made a
prima facie showing that he or she falls within the provisions of
the statute as set forth in subdivision (a), including that ‘(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) [t]he 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
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convicted for first degree or second degree murder[, and] [¶]
(3) [t]he petitioner could not be convicted of first or second degree
murder because of changes to [s]ection[s] 188 or 189 made
effective January 1, 2019.’ (See § 1170.95, subd. (c); People v.
Verdugo (2020) 44 Cal.App.5th 320, 327 [(Verdugo)] . . . , review
granted Mar. 18, 2020, [S260493].) If it is clear from the record
of conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. (Verdugo,
[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination
of eligibility requires an assessment of the evidence concerning
the commission of the petitioner's offense, the trial court must
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95. (Verdugo, [supra, 44
Cal.App.5th] at p. 332; [People v.] Lewis [(2020)] 43 Cal.App.5th
[1128,] 1140, rev[iew] granted [Mar. 18, 2020, S260598].)”
(People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. omitted.)
B. Analysis
1. Murder Conviction
Defendant contends that the trial court erred by summarily
denying his petition on the murder conviction without first
issuing an order to show cause and holding an evidentiary
hearing. According to defendant, the jury was instructed with
CALJIC No. 8.251 which provided that a murder committed by a
perpetrator who discharged a firearm from a motor vehicle at a
person outside the vehicle was first degree murder if the
perpetrator intended to inflict death. Because the jury was also
instructed with CALJIC No. 3.02, defining the natural and
8
probable consequences doctrine, defendant concludes that the
instructions allowed the jury to convict him as an aider and
abetter of a murder that was the natural and probable
consequence of shooting from a motor vehicle.
Although CALJIC Nos. 8.251 and 3.02 may have allowed
the jury to convict defendant on an aiding and abetting theory
under the natural and probable consequences doctrine, the jury’s
findings included a true finding on the special circumstance
allegation under section 190.2, subdivision (a)(21). On that
allegation, the trial court delivered CALJIC No. 8.80.1 which
provided, in pertinent part: “If you find that the defendant was
not the actual killer of a human being, you cannot find the special
circumstance to be true unless you are satisfied beyond a
reasonable doubt that such defendant, with the intent to kill
aided, abetted, or assisted any actor in the commission [of] the
murder in the first degree.” (Italics added.) Accordingly, the
jury’s true finding on the special circumstance allegation
necessarily included a finding that defendant, who was not the
actual killer, aided and abetted the shooting with the intent to
kill, i.e., he shared Hill’s intent to shoot and kill the victim.4 In
other words, the jury instructions and the special circumstance
finding demonstrate that defendant could not have been
convicted of first degree murder under a natural and probable
consequences theory.
Based on the record of conviction, including the jury’s true
finding on the special circumstance allegation under section
190.2, we conclude that the trial court did not err by summarily
4 As noted, the court’s opinion in the direct appeal concluded
that there was sufficient evidence in the record to support an
inference that defendant “shared the shooter’s intent to kill.”
9
denying the petition because defendant’s intent to kill the victim
made him ineligible, as a matter of law, for resentencing under
section 1170.95. (Verdugo, supra, 44 Cal.App.5th at p. 330 [the
record of conviction may establish that defendant “is ineligible for
relief as a matter of law because he or she was convicted on a
ground that remains valid notwithstanding Senate Bill 1437’s
amendments to sections 188 and 189”].)
2. Attempted Murder Conviction
Defendant also contends the trial court erred by summarily
denying his section 1170.95 petition on his attempted murder
conviction. He acknowledges that courts are divided on the issue
of whether section 1170.95 applies to attempted murder, but
argues the cases holding that section 1170.95 does not apply to
attempted murder5 were wrongly decided. We disagree.
The plain language of section 1170.95 demonstrates that it
is limited to: (1) felony-murder convictions or (2) murder
convictions under the natural and probable consequences
doctrine. Pursuant to that section, defendants “convicted of
felony murder or murder under a natural and probable
consequences theory may file a petition [for resentencing] . . . .”
(§ 1170.95, subd. (a).) Defendants convicted of attempted murder
5 In People v. Lopez (2019) 38 Cal.App.5th 1087, review
granted November 13, 2019, S258175 (Lopez) and People v.
Munoz (2019) 39 Cal.App.5th 738, review granted
November 26, 2019, S258234 (Munoz), the courts held that
defendants convicted of attempted murder under the natural and
probable consequences doctrine are not eligible for section
1170.95 relief.
10
are not mentioned in section 1170.95 and are therefore ineligible
for the relief provided by that section.
In light of the express language of section 1170.95, we
follow the decisions in Lopez, supra, 38 Cal.App.5th 1087 and
Munoz, supra, 39 Cal.App.5th 738 and conclude that the trial
court did not err by denying the petition on the attempted
murder conviction because that conviction was based on an
offense that was not eligible for relief under section 1170.95.
3. Constitutionality
Defendant additionally challenges the trial court’s ruling
that Senate Bill 1437 is unconstitutional. The Attorney General
concedes that the court’s constitutional ruling was erroneous, and
we agree. Because the court also correctly denied defendant’s
petition on the alternative ground that he was ineligible as a
matter of law for resentencing based on the record of his
conviction, we affirm the denial of the petition on that basis.
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IV. DISPOSITION
The order denying the resentencing petition under section
1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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