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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

Plaintiff and Respondent,

v.

THOMAS WOODSON,

Defendant and Appellant.

 B299633

 (Los Angeles County

 Super. Ct. No. BA419591)

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.
2

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.)
3

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.)
4

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. 
5

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 
6

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. 
7

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.
8

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 
9

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; 
10

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 
11

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.)
12

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