Filed 10/21/20 P. v. Woods CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

CEDRIC J. WOODS,

Defendant and Appellant. B297732

(Los Angeles County Super. Ct. No. KA033813)

APPEAL from an order of the Superior Court of the County of Los Angeles, Salvatore Sirna, Judge. Affirmed. Barbara A. Smith, under appointmen t 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 Gene ral, for Plaintiff and Respondent.2 I. INTRODUCTION

Defendant Cedric J. Woods appeals from the trial court’s order denying his petition under Penal Code section 1170.95 1 for resentencing on his murder and attempted murder convictions. According to defen dant, 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 BACKGROUND 2

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 s itting in Ken nedy Park in Pomona with W .I. and another companion

. The attempted

- murder victim saw a large four

- door maroon car in “ ‘ bad shape ’ ” e merge from a nearby housing area.
The f ront passenger made a gang sign for the Westside Mafia.
The car then turned around

, entered the park

, and stopped in a parking lot. When f

our 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 dir ect appeal from the judgment of conviction

. ( People v. Woods (Apr. 8, 1999, B121999 [nonpub. opn.].)3

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 th e opposite side
of the street

, where he saw the passenger

- side door of the car

open and heard gunfire as t he 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, w hen the victim fell, told bystanders across the street to call the police.
Pomona Police Office r 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 a sked him if he recognized anyone, he r eplied, “ ‘ Thee Dog. ’ ” The attempted

- murder victim t old another o fficer that Thee D og was the person with the gun. Detective Greg Guenther interviewed the attempted

murder victim the day after the shooting. H e admitted that both
he and the victim were members of the Trey57 Sintown Crips and
that

, after th e men in the car made Westside Mafia gang signs,
the victim responded with Trey57 signs. H e also told the
detective that he recognized the right

- front passenger as Thee Dog , and he identifie d Tyrone Hill from a photographic line

- up a s Thee Dog.4 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 o f 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

s howed W.I. another set of photographs, and he identified
defendant , whom he knew as “ ‘ Tiny Dot

, ’ ” as the driver of the car.
But a t trial, W.I. denied making the identifications.
When defendant was interviewed after the shooting, he

c laimed his car had be en parked at his residence the entire day of the shooting with a flat tire. According to defendant, he spent
the afternoon at a m all and a p ark with Hill and another man. Officer Bozarth testified at trial as an expert on Pomona street gangs. He explain ed 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 o fficer confirmed that Hill’s

gang name wa s Thee Dog.
D etective Robert Nelson testified that the Westside Mafia Crips wer e rivals of the Trey57 gang. He explained that making gang signs in a rival gang’s territory wa s a challenge and a gesture of disrespect. Detective Nel son also explained that gang
members we re generally unwilling or reluctant to cooperate with law enforcement because they prefer red to handle matters themselves and because they d id not w ant to be known as

“ ‘ snitch [es]

. ’ ”5 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

. T he District Attorney also alleged that : the murder was perpetrated by means of dischargi ng a firearm from a motor vehic le 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) ;
t he offenses we re committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subd ivision ( b)(1) and (4); and a principal in the commission of the offenses was armed with a handgun within the mea ning 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, su bdivision (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 o f section 12022, subdivision (a)(1).
The trial court sentenced defend ant 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 m urder conviction, two thre e

- year term s f or the section 186.22 enhancements, and two one

- y ear term s for the section 12022
enhancement s

.6 On April 8, 1999, the C ourt of Appeal issued its unpublished opinion in defendant’s direct appeal from the judgment of conviction , case number B 12 1999

. 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 th e 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)(2 1)
included a necessary finding that defendant shared the shooter’s
intent to kill. On April 2, 2019, defendant filed his reply in support of h is petition. In addition to certain constitutional arguments, defendant asserted that he was entitled to resent encing 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 attorn ey Arthur P. Lindars be appointed to represent him. O n 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 indica ted that attorney Lindars had previously been appointed as counsel for defendant.7 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. T he 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 convic tion 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

co nviction 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 o f first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be8

convicted for first degree or second degree murder[, and] [¶] (3) [t]he petitioner could not be convicted of first or se cond 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 fro m 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.5 th ] at p. 332 ; [ People v .] Lewis [(20 20 )] 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 mu rder 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 fr o m 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 and9

probable consequences doctrine, defendant concludes tha t 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 CA LJIC 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 , a betted, 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 th e record of conviction, including the jury’s true finding on the special circumstance allegation under section 190.2, we conclude that the trial c ourt 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.”10

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 estab lish 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 section s 188 and 189”].)

2. Attempted Murder Conviction

Defendant also cont ends the trial court erred by summarily denying his section 1170.95 petition on his attempted murder
conviction. He a cknowledg e s that court s are divided on the issue of whether section 1170.95 applies to attempted murder, but

a rgues t he cases holding that section 1170.95 does not apply to attempted murder 5 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 cons equences 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 murd er

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.5t h 738 , review granted November 26, 2019, S 258234 ( Munoz )

, the courts held that defendant s convict ed of attempted murder under the natural and probable consequences doctrine are not eligible for section 1170.95 relief.11

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, w e 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

D efendant additio nally 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. B ecause the court also correctly denied defendant’s petition on the alt ernative 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.12 IV. DISPOSITION

The order denying the resentencing petition under section
1170.95 is af

firmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.