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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.
2

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 attemptedmurder 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.].)
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 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 attemptedmurder 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.
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 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].’”
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. 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.
6

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.
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. 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 
8

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 
9

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.”
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 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.
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, 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.
12

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.