People v. Woodard CA1/5 ( 2024 )

Filed 9/30/24 P. v. Woodard CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A168271
v.
LAWRENCE WOODARD, (Marin County
Super. Ct. No. SC010467B)
Defendant and Appellant.
A jury found defendant and appellant Lawrence Woodard guilty of both
conspiracy to commit murder and first degree murder. The jury further
found true the special circumstance of an intentional murder of a peace
officer. Years later, Woodard petitioned the trial court for resentencing
pursuant to Penal Code section 1172.6,1 claiming that he could not be found
liable for murder under current law. The court denied Woodard’s petition,
concluding he was ineligible for relief as a matter of law based on the record
of his conviction. Woodard appeals, contending that the jury instructions
could have led the jury to convict him of murder without finding he
personally harbored malice. His arguments are meritless, and we will affirm
the order.
1 All statutory references herein are to the Penal Code.
1
I. FACTS AND PROCEDURAL HISTORY
A. The Crimes2
In 1985, Woodard was an inmate at San Quentin Prison. He and two
other inmates, Jarvis Masters and Andre Johnson, were members of a prison
gang known as the Black Guerilla Family (BGF). BGF planned to kill two
prison guards, have inmates from the Crips gang kill two guards, and then
attack other inmates associated with rival gangs. Woodard and Masters met
with other BGF gang members during exercise periods to plan the attacks,
and it was decided that Sergeant Dean Burchfield would be the first victim.
Johnson was chosen to do the killing because it was dark outside his cell.
The plan was for Burchfield to be attracted to the area of Johnson’s cell and
for Johnson to stab him. Another BGF member made a shaft to attach to a
knife and form a spear, which would allow Johnson to reach out of his cell
and kill Burchfield as he walked past.
In June 1985, as Sergeant Burchfield made his rounds to check on the
inmates, he was “hit” outside Johnson’s cell; a relatively small, sharp-edged
stab wound to the upper chest severed his pulmonary artery, causing him to
collapse and bleed to death. Johnson, Masters, and Woodard were charged
with his murder.
2 We set forth the crimes as summarized in our prior opinion in this
matter. (See People v. Johnson (1993) 19 Cal.App.4th 778 (Johnson).)
Because the opinion in Johnson is only partially published, respondent seeks
judicial notice of the entire opinion. Respondent also seeks judicial notice of
the record in the prior appeal (People v. Woodard (Oct. 20, 1993, A052254)
[nonpub. opn.]). We hereby grant these unopposed requests for judicial
notice. In resolving the issues on appeal, however, we rely on our
independent review of the record of conviction, including the jury instructions
and verdicts, and not the factual statements in our prior opinion. (See People
v. Williams (2022) 86 Cal.App.5th 1244, 1247, fn. 3 (Williams).)
2
B. Jury Verdict and Affirmance
As relevant here, the trial court instructed the jury on conspiracy to
commit murder and assault (§ 182; count one), murder (§ 187, subd. (a); count
two), direct aiding and abetting, degrees of murder, and the special
circumstance for murder of a peace officer who was intentionally killed while
engaged in the performance of his duties (§ 190.2, subd. (a)(7)). The jury was
not instructed on felony murder or the natural and probable consequences
theory of murder.
The jury convicted Woodard of conspiracy to commit murder and
assault as well as murder in the first degree. The jury also found true the
special circumstance for intentional murder of a peace officer.3 The trial
court sentenced him to life in prison without the possibility of parole.
Woodard appealed, and this court affirmed his convictions in October
1993. (Johnson, supra, 19 Cal.App.4th 778.)
C. Changes to the Law
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(SB 1437) amended “the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability
is not imposed on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f); see People v. Gentile (2020) 10 Cal.5th 830, 842, superseded by
3 Woodard was tried with Johnson and Masters. Woodard’s jury
rendered its verdict on January 8, 1990. On January 3, 1990, a separate jury
convicted Johnson of conspiracy to commit murder and first degree murder.
It also found true the allegation that Johnson personally used a deadly
weapon during the commission of the murder and the special circumstance
for the intentional murder of a peace officer.
3
statute on other grounds as stated in People v. Wilson (2023) 14 Cal.5th 839,
869.) SB 1437 accomplished this by amending section 188, subdivision (a)(3),
to require that a defendant must act with express or implied malice to be
convicted as a principal of that crime, with the exception of felony murder as
defined under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.)
SB 1437 also added former section 1170.95 (now section 1172.6), which
established a procedure for defendants convicted of murder under the old law
to seek resentencing if they could not be convicted of murder under amended
sections 188 and 189. (Stats. 2018, ch. 1015, § 4.) As clarified by case law
and subsequent statutory amendments, the procedure is essentially as
follows. If the petition is properly pleaded, the trial court appoints counsel
for the petitioner upon request. The court conducts an initial analysis, with
briefing by the parties, to determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of the statute. If there
is no prima facie showing, the petition is dismissed. If there is a prima facie
showing, the court issues an order to show cause and conducts an evidentiary
hearing, at which the prosecutor bears the burden of proving beyond a
reasonable doubt that the petitioner is ineligible for relief. (§ 1172.6, subds.
(c)-(d); see People v. Lewis (2021) 11 Cal.5th 952, 961–967 (Lewis).)4
4 Effective January 1, 2022, Senate Bill No. 775 (2021–2022 Reg. Sess.)
(SB 775) amended section 1170.95 to expand its scope and clarify its
procedures. (Stats. 2021, ch. 551.) Among other changes, SB 775 permits
individuals to petition for resentencing if an attempted murder or
manslaughter conviction was based on a natural and probable consequences
theory, a felony murder theory predating SB 1437, or some “other theory
under which malice is imputed to a person based solely on that person’s
participation in a crime.” (§ 1172.6, subd. (a)(1).) Section 1170.95 was
renumbered as section 1172.6 effective June 2022.
4
D. Woodard’s Motion for Resentencing
In March 2022, Woodard filed a motion for resentencing pursuant to
current section 1172.6. The prosecution opposed, arguing that Woodard was
ineligible for relief because the record of conviction established that the jury
found he harbored an intent to kill and because his conviction was not based
on felony murder, the natural and probable consequences doctrine, or any
other theory of imputed malice. The prosecution provided 11 exhibits from
Woodard’s trial, including the amended information, the prosecutor’s closing
arguments, the jury instructions, the verdict forms, and this court’s opinion
on direct appeal.
The trial court denied Woodard’s petition without issuing an order to
show cause. The court found that Woodard had not established a prima facie
case under section 1172.6 because the jury instructions and his conviction of
first degree premeditated murder established that the jury necessarily found
he harbored an intent to kill. The court also found that the conspiracy
instructions, including that a co-conspirator is liable for the natural and
probable consequences of the acts of another co-conspirator, were made in the
context of the conspiracy charge and did not suggest that the jury should
ignore the instructions on the separate murder charge.
Woodard filed a timely notice of appeal.5
II. DISCUSSION
At the prima facie stage of a section 1172.6 proceeding, the trial court
shall deny the resentencing petition if the petitioner is ineligible for relief as
a matter of law. (People v. Mancilla (2021) 67 Cal.App.5th 854, 864,
5 The trial court also denied Johnson’s motion for resentencing under
section 1172.6, and Johnson appealed from that ruling (People v. Johnson
(A168079, app. pending)).
5
superseded by statute on other grounds as stated in People v. Lee (2023)
95 Cal.App.5th 1164, 1184; People v. Drayton (2020) 47 Cal.App.5th 965,
980–981, abrogated on other grounds by Lewis, supra, 11 Cal.5th at p. 963.)
“A petitioner is ineligible for resentencing as a matter of law if the
record of conviction conclusively establishes, with no factfinding, weighing of
evidence, or credibility determinations, that (1) the petitioner was the actual
killer, or (2) the petitioner was not the actual killer, but, with the intent to
kill, aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree,
(3) the petitioner was a major participant in the underlying felony and acted
with reckless indifference to human life, or (4) the petitioner acted with
malice aforethought that was not imputed based solely on participation in a
crime.” (People v. Lopez (2022) 78 Cal.App.5th 1, 14 (italics added); see
§§ 188, subd. (a)(3), 189, subd. (e).)
Thus, a petitioner is ineligible for relief and the petition must be denied
if the record of conviction shows that the murder conviction was necessarily
based on a theory of liability that remains valid under SB 1437, such as the
theory that the petitioner acted with express or implied malice. (See, e.g.,
People v. Estrada (2022) 77 Cal.App.5th 941, 945–949 [conviction based on
direct aiding and abetting malice murder is ineligible for § 1172.6 relief];
People v. Medrano (2021) 68 Cal.App.5th 177, 184 (Medrano I) [petitioner
convicted of first degree murder and conspiracy to commit first degree
murder is ineligible for relief under § 1172.6]; People v. Medrano (2024)
98 Cal.App.5th 1254, 1265 (Medrano II) [same].)
We review the trial court’s ruling at the prima facie stage de novo.
(Williams, supra, 86 Cal.App.5th at p. 1251; People v. Cortes (2022)
75 Cal.App.5th 198, 205 (Cortes); People v. Harden (2022) 81 Cal.App.5th 45,
6
52 (Harden).) Generally, we may affirm the ruling if it is correct on any
ground. (Harden, at p. 60, fn. 13.)6
A. The Record of Conviction Establishes Ineligibility
The record of conviction establishes that Woodard was ineligible for
resentencing under section 1172.6. The jury was not instructed that it could
convict Woodard of murder based on a felony-murder theory, the natural and
probable consequences doctrine of murder, or any other imputed malice
theory disallowed by SB 1437. (People v. Allen (2023) 97 Cal.App.5th 389,
395 (Allen) [“A petitioner is ineligible for section 1172.6 relief as a matter of
law if, for example, the jury instructions show that jurors were not instructed
on any theory of liability affected by [SB] 1437’s changes to sections 188 and
189”]; People v. Daniel (2020) 57 Cal.App.5th 666, 677 [petitioner ineligible as
a matter of law where no instructions were given on felony murder or murder
under the natural and probable consequences doctrine]; Cortes, supra,
75 Cal.App.5th at p. 205 [petitioner ineligible for resentencing where “the
6 Respondent argues that the issue of Woodard’s intent has already been
resolved under the law of the case doctrine due to our ruling in his prior
appeal. (See Medrano II, supra, 98 Cal.App.5th at p. 1262.) In that appeal,
Woodard contended that the trial court’s instruction on the special
circumstance did not adequately inform the jury that an aider and abettor to
the murder would have to possess an intent to kill. We concluded that the
trial court properly instructed the jury with CALJIC No. 8.80. We also
observed that it was “impossible to conceive of a juror who found appellant
Woodard guilty of first degree murder and conspiracy to murder, yet believed
Woodard did not intend to kill the victim of the conspiracy to murder.”
Woodard counters that the law of the case doctrine does not apply at the
prima facie stage of a section 1172.6 proceeding. We need not and do not
decide whether the law of the case doctrine applies, because we resolve this
appeal on other grounds.
7
jury was not instructed on any theory of liability for murder or attempted
murder that required that malice be imputed to him”].)
More notably, the record demonstrates that Woodard was convicted of
murder consistent with current murder laws, based on findings that he
personally harbored malice. In finding that he was guilty of murder, the jury
necessarily found that he acted with malice given the court’s instructions on
direct aiding and abetting. Moreover, the jury found that he was liable for
murder in the first degree, which requires an intent to kill.
1. Aiding and Abetting
An actual killer is not entitled to relief under section 1172.6. (People v.
Garrison (2021) 73 Cal.App.5th 735, 743–745.) Assuming that Woodard was
found guilty of murder as an aider and abettor rather than the actual killer
(which appears likely), the record of conviction still demonstrates that he is
ineligible for relief.
Pursuant to CALJIC No. 3.01, the jury was instructed that Woodard
could not be liable for aiding and abetting murder unless he had “knowledge
of the unlawful purpose of the perpetrator” and acted “with the intent or
purpose of committing, encouraging, or facilitating the commission of the
crime.” (Italics added.) This is direct aiding and abetting, as distinguished
from indirect aiding and abetting under a natural and probable consequences
theory. (People v. Soto (2020) 51 Cal.App.5th 1043, 1056 (Soto).) A murder
conviction under a direct aiding and abetting theory precludes relief under
section 1172.6 as a matter of law. (Allen, supra, 97 Cal.App.5th at p. 395
[conviction under a direct aiding and abetting theory of murder precludes
section 1172.6 relief because jurors must have concluded that he harbored
the intent to kill]; Williams, supra, 86 Cal.App.5th at p. 1252 [“It is well
settled that SB 1437 ‘does not eliminate direct aiding and abetting liability
8
for murder because a direct aider and abettor to murder must possess malice
aforethought’ ”].)
2. Premeditation and Deliberation for First Degree Murder
Pursuant to CALJIC No. 8.20, the trial court instructed the jury on
first degree murder as follows: “All murder which is perpetrated by any kind
of willful, deliberate and premeditated killing with express malice
aforethought is murder of the first degree. [¶] The word ‘willful,’ as used in
this instruction, means intentional. [¶] The word ‘deliberate’ means formed
or arrived at or determined upon as a result of careful thought and weighing
of considerations for and against the proposed course of action. The word
‘premeditated’ means considered beforehand. [¶] If you find that the killing
was preceded and accompanied by a clear, deliberate intent on the part of the
defendant to kill, which was the result of deliberation and premeditation, so
that it must have been formed upon pre-existing reflection and not under
sudden heat of passion or other condition precluding the idea of deliberation,
it is murder of the first degree.” (Italics added.)
By finding that Woodard was liable for first degree murder, the jury
necessarily found that he had a “clear, deliberate intent . . . to kill.” (CALJIC
No. 8.20.) A defendant who acted with an intent to kill is not entitled to relief
under section 1172.6 as a matter of law. (Allen, supra, 97 Cal.App.5th at
p. 392 [“So long as [petitioners] intend to kill a human being, they are
ineligible for [] section 1172.6 resentencing as a matter of law”].)
The absence of any instruction on imputed malice murder, as well as
the trial court’s instructions and jury findings on first degree murder and
direct aiding and abetting liability, demonstrate that the jury convicted
Woodard of murder based on a theory of personal malice consistent with the
9
amended murder statutes.7 Woodard is ineligible for relief under section
1172.6 as a matter of law, and the court did not err in denying his petition.
B. Woodard’s Arguments are Unavailing
Woodard contends that the jury instructions pertaining to the
conspiracy count allowed him to be convicted of conspiracy to commit second
degree murder rather than first degree murder. To the contrary, the jury
was instructed that conspiracy to commit murder required a “specific intent
to commit such offense” (CALJIC No. 6.10) and “the crime of murder requires
the specific intent to kill” (CALJIC No. 3.31). The jury’s conviction on count
one thus confirmed that the jury believed Woodard harbored an intent to kill
as required for first degree murder.
Woodard nonetheless points out that the CALJIC No. 3.31 instruction
further stated that the “specific intent required is also included in the
definition of the crimes.” (Italics added.) He claims the jury was “thereby
directly referred to the instructions identifying the specific intent for the
target offenses, and the instructions for murder did not specify that an intent
to kill was required” because they referred both to express malice and to
implied malice.
The argument is of no moment. In the first place, the reference in
CALJIC No. 3.31 that the required “specific intent” – referring to the “specific
intent to kill” mentioned earlier in the instruction – “is also included in the
definition of the crimes” is logically understood to mean that the intent to kill
would be discussed later in the part of CALJIC No. 8.10 that addresses the
intent to kill (express malice). It would make no sense for the jury to think
7 In addition, we note that the jury found true the special circumstance
for the intentional killing of a peace officer. (See CALJIC No. 8.80; accord
CALJIC No. 8.81.7.)
10
that the “specific intent [to kill]” in CALJIC No. 3.31 could mean the absence
of an intent to kill as discussed in the part of CALJIC No. 8.10 dealing with
implied malice. Nothing about the instructions, therefore, could reasonably
lead the jury to believe that it could convict Woodard of conspiracy to commit
murder without finding that he harbored an intent to kill. (See People v.
Beck and Cruz (2019) 8 Cal.5th 548, 642–644 (Beck and Cruz) [trial court’s
instruction on conspiracy to commit second degree murder was harmless
because there was “no reasonable possibility that the jury embraced the
‘logical impossibility’ of a conspiracy to commit implied malice murder as
opposed to convicting [the defendants] of conspiracy to commit murder upon a
finding of intent to kill”].)
Moreover, even if the jury was given the impression that a conviction
for conspiracy to commit murder (and murder) could be based on implied
malice as well as express malice, Woodard still would have no right to relief
under section 1172.6. Relief under the statute extends only to murder
convictions that were based on imputed malice, and Woodard fails to show
any possibility of that here.
In this regard, Woodard’s reliance on People v. Whitson (2022)
79 Cal.App.5th 22 (Whitson) is misplaced. There, the trial court failed to
instruct the jury that it could not convict the defendant of conspiracy to
commit murder unless it found that he intended the murder. (Id. at pp. 31–
32.) Noting that such an instruction would have rendered the defendant
ineligible for resentencing relief under SB 1437 (Whitson, at p. 32), the
appellate court held that the absence of the instruction precluded a
conclusion that the jury necessarily found the requisite intent, and it
therefore could not be said that resentencing relief was unavailable as a
matter of law. (Id. at p. 33.) Here, by contrast, the jury was instructed that
11
it would have to find that Woodard intended to kill to convict him of
conspiracy to murder. Under Whitson, therefore, Woodard is ineligible for
resentencing relief as a matter of law. (Allen, supra, 97 Cal.App.5th at pp.
397–398 [distinguishing Whitson on this ground].)
Woodard next attacks the trial court’s instruction under CALJIC
No. 3.00, which defines principals in a crime. The court instructed: “The
persons concerned in the commission of a crime who are regarded by law as
principals in the crime thus committed[,] and equally guilty thereof[,] include
one, those who directly and actively commit the act constituting the crime, or,
two, those who aid and abet the commission of the crime.” According to
Woodard, because CALJIC No. 3.00 “deem[ed] the aider and abettor ‘equally
guilty’ of the crime committed by the slayer, the mens rea of the slayer is
imputed to the aider and abettor. Put another way, once the jury determines
that the actual killer deliberated and killed, this established the guilt for
first-degree murder of all other charged defendants.”
Woodard is incorrect. Nothing in the trial court’s instruction suggested
that one defendant’s state of mind was sufficient to convict all other
defendants even if they lacked the state of mind necessary for the crime. The
instruction merely stated that “[t]hose who directly and actively commit the
act constituting the crime” are equally guilty with “[t]hose who aid and abet
the commission of the crime.” (CALJIC No. 3.00.) That was and is a correct
statement of the law. And it still required the jury to determine whether
Woodard “aid[ed] and abet[ted] the commission of the crime” (CALJIC
No. 3.00), which, pursuant to the court’s instruction under CALJIC No. 3.01,
required proof that Woodard acted with malice (see CALJIC No. 3.01 [aiding
and abetting liability requires proof that the defendant had “the intent or
12
purpose of committing, encouraging, or facilitating the commission of the
crime”]).
Moreover, the jury convicted Woodard of first degree murder after
being instructed with CALJIC No. 8.20, which stated that first degree
murder requires an intent to kill. We presume the jury followed the trial
court’s instruction (People v. Cortez (2016) 63 Cal.4th 101, 131), and there is
nothing in the record to suggest otherwise. The inescapable conclusion is
that the jury believed Woodard acted with the intent to kill.
Woodard’s reliance on People v. Daveggio and Michaud (2018) 4 Cal.5th
790 is unavailing. There, the defendants argued that the trial court erred by
instructing on the “equally guilty” language because it allowed the jury to
convict them based on the direct perpetrator’s culpability without considering
their own intent. Our high court observed that the instruction correctly
stated the law, and although it might be misleading in some circumstances, it
was not misleading in the circumstances of that case. (Id. at pp. 846–847.)
We reach the same conclusion here.
In a similar vein, Woodard argues that “once the jury found Johnson
premeditated the murder, [Woodard] was ‘equally guilty’ of first-degree
murder, regardless of his individual intent, because all murder was deemed a
‘natural and probable consequence’ of the conspiracy charged in count 1.”
(Italics added.) Again, his analysis is incorrect. One of the conspiracy
instructions (CALJIC No. 6.11) stated that “[a] member of a conspiracy is not
only guilty of the particular crime that to his knowledge his confederates are
contemplating committing, but is also liable for the natural and probable
consequences of any act of a co-conspirator to further the object of the
conspiracy, even though such act was not intended as a part of the original
plan and even though he was not present at the time of the commission of
13
such act.” In some cases, this language could result in a defendant being
liable for a crime greater than the crime he conspired to commit. But here,
the jury found that Woodard was guilty not only of conspiracy to commit
assault, but conspiracy to commit murder; there was, therefore, no use of the
“natural and probable consequences” language to convict Woodard of murder.
(See Beck and Cruz, supra, 8 Cal.5th at p. 645 [because defendants were
charged with conspiracy to commit murder, rather than conspiracy to commit
a lesser crime that resulted in murder, there is no possibility they were found
guilty of murder on a natural and probable consequences theory”]; Medrano
II, supra, 98 Cal.App.5th at p. 1267 [“ ‘murder was the object of the
conspiracy, not the natural and probable consequence of an act committed to
further the object of the conspiracy’ ”].)8
In his reply brief, Woodard tries to sidestep the first degree murder
conviction by challenging the trial court’s instruction on premeditation and
deliberation under CALJIC 8.20. Woodard argues: “Notably, the first-degree
murder instruction given in [Woodard’s] joint trial stated that while murder
in the first degree requires ‘the defendant’ have the intent to kill, the
instruction also stated: ‘To constitute a deliberate and premeditated killing,
the slayer must weigh and consider the question of killing and the reasons for
and against such a choice and, having in mind the consequences, he decides
to and does kill.’ ”
8 Woodard argues that the conspiracy conviction did not reflect a finding
of intent to kill because he was charged with conspiracy to commit murder
“and/or assault” rather than just conspiracy to commit murder. Not so. The
jury did not merely convict Woodard of conspiracy to commit assault but
convicted him of conspiracy to commit murder, and conspiracy to commit
murder required a finding that he intended to kill.
14
We are not persuaded. Pursuant to CALJIC No. 8.20, the trial court
clearly instructed the jury it would have to find that Woodard intended to kill
in order to convict him of murder in the first degree: “If you find that the
killing was preceded and accompanied by a clear, deliberate intent on the part
of the defendant to kill, which was the result of deliberation and
premeditation, so that it must have been formed upon pre-existing reflection
and not under sudden heat of passion or other condition precluding the idea
of deliberation, it is murder of the first degree.” (Italics added.) The fact that
the instruction went on to explain what would constitute a deliberate and
premeditated killing for “the slayer” does not change that. By no means did
the instruction suggest that Woodard would not have to personally possess
the intent to kill to be found guilty of first degree murder, or that Woodard
could be convicted based on someone else’s intent to kill.9
In sum, the record of conviction confirms that the trial court was
correct in denying Woodard’s petition. The jury convicted Woodard of first
degree murder after the court instructed that first degree murder required a
9 Woodard states that the same “defect” occurred in People v. Chiu (2014)
59 Cal.4th 155 (Chiu), superseded by statute on another ground as stated in
In re Ferrell (2023) 14 Cal.5th 593, 602, because the jury was instructed that
“to find defendant guilty of first degree murder, the People had to prove that
the perpetrator acted willfully, deliberately, and with premeditation.” (Id. at
p. 161, italics added.) That language played no role in the Chiu decision,
however. Our Supreme Court in Chiu held that a first degree murder
conviction could not be based on the natural and probable consequences
theory (with target offenses of assault and disturbing the peace) because it
would be inconsistent with reasonable concepts of culpability to punish
someone for first degree premeditated murder when that person did not
actually perpetrate or intend the killing. (Id. at pp. 165–166.) But Chiu
instructs that first degree murder can be based on a direct aiding and
abetting theory, as occurred in Woodard’s case. (Id. at p. 159.) And that is
still the law.
15
finding that Woodard intended to kill. He was convicted of murder under a
direct aiding and abetting theory after the court instructed that it required a
finding that Woodard intended to commit, encourage, or facilitate the killing.
And he was convicted of conspiracy to commit murder after the court
instructed that conspiracy to commit murder required a specific intent to kill.
The record of conviction leaves no possibility that he was convicted of murder
under a theory of imputed malice or any other theory banned by SB 1437.
III. DISPOSITION
The order is affirmed.
CHOU, J.
We concur.
JACKSON, P. J.
BURNS, J.
(A168271)
16