People v. Woods CA2/5

Filed 6/24/22 P. v. Woods CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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 T. Sirna, Judge. Affirmed, in part,
reversed, in part.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys 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 denying his
petition without first issuing an order to show cause and
conducting an evidentiary hearing. He further contends that the
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, in part, and reverse, in part.
II. 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.
2 The following is 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 returned to 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 dropped 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 was responsible for the shooting. When the
officer asked him if he recognized anyone, he replied, “‘Thee
Dog.’” He also told another officer that Thee Dog was the person
with the gun.
Pomona Police 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.
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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.
Pomona Police 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].’”
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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.
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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.
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.
On April 24, 2019, the trial court issued an order 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]
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1170.95[, subdivision (a)].” In the alternative, the court ruled
that Senate Bill 1437 was unconstitutional.
Defendant appealed from the order denying his section
1170.95 petition and, on October 21, 2020, we affirmed the order.
Defendant filed a petition for review in our Supreme Court and
on December 30, 2020, the Supreme Court granted the petition
for review and deferred additional briefing until further order of
the court.
On October 5, 2021, the Governor signed Senate Bill
No. 775, which sought to “clarif[y] that persons who were
convicted of attempted murder or manslaughter under a theory of
felony murder and the natural probable consequences doctrine
are permitted the same relief as those persons convicted of
murder under the same theories.” (Sen. Bill No. 775 (2021–2022
Reg. Sess.), as amended October 5, 2021, p. 3; Stats. 2021,
ch. 551, § 1–2 (Senate Bill 775).) The Supreme Court then
transferred the matter back to us with directions to vacate our
decision and reconsider the cause in light of Senate Bill 775 and
People v. Lewis (2021) 11 Cal.5th 952 (Lewis). We vacated our
opinion, and defendant and the Attorney General then submitted
additional supplemental briefs.
On or about January 6, 2022, while this appeal was
pending, defendant filed a new petition for resentencing pursuant
to section 1170.95; and the trial court set a hearing on the
petition for March 8, 2022.
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III. DISCUSSION
A. Section 1170.95
Section 1170.95, as amended by Senate Bill 775, “creates a
procedure for convicted murderers [and attempted murderers]
who could not be convicted under the law as amended to
retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 957.)
Where a petitioner files a section 1170.95 petition that contains
all of the statutorily required information and requests counsel,
the court must appoint counsel and order briefing. (Id. at p. 966.)
“After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner
makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause.” (§ 1170.95,
subd. (c).) In determining whether petitioner has made a prima
facie case, “a trial court can rely on the record of conviction.”
(Lewis, supra, 11 Cal.5th at pp. 970–971.) ““[A] court should not
reject the petitioner’s factual allegations on credibility grounds
without first conducting an evidentiary hearing.” [Citation.]
“However, if the record, including the court’s own documents,
‘contain[s] facts refuting the allegations made in the petition,’
then ‘the court is justified in making a credibility determination
adverse to the petitioner.’” [Citation.]” (Id. at p. 972.)
If the trial court issues an order to show cause, within 60
days of such order, the court shall hold a hearing “to determine
whether the petitioner is entitled to relief.” (§ 1170.95, subd.
(d)(1) & (3).) “[T]he burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is guilty of
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murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (d)(3).) The trial court acts
as the finder of fact when determining whether the prosecution
has met its burden beyond a reasonable doubt. (See Ibid.; People
v. Gentile (2020) 10 Cal.5th 830, 855 [“section 1170.95 requires
the superior court to determine on an individualized basis, after
considering any new or additional evidence offered by the parties,
whether the defendant is entitled to relief”].)
B. Analysis
1. Murder Conviction
Defendant contends that the trial court erred by denying
his petition on the murder conviction without first issuing an
order to show cause and holding an evidentiary hearing. The
jury was instructed with CALJIC No. 8.25.1 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 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. 8.25.1 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
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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. 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 denying the
petition as to the murder conviction without issuing an order to
show cause because defendant’s intent to kill the victim made
him ineligible, as a matter of law, for resentencing under section
1170.95. (People v. Daniel (2020) 57 Cal.App.5th 666, 677.)
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2. 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. But, because the court also correctly denied
defendant’s petition on the alternative ground that he was
ineligible as a matter of law for resentencing on his murder
conviction based on the record of his conviction, we affirm the
denial of the petition on that basis.
3. Attempted Murder Conviction
Defendant contends, the Attorney General concedes, and
we agree that under Senate Bill 775, defendant is entitled to a
remand for further proceedings on his attempted murder
conviction. We therefore will remand for that limited purpose.
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IV. DISPOSITION
The trial court’s order denying defendant’s section 1170.95
petition is affirmed as to his murder conviction, but reversed as
to his attempted murder conviction. The cause is remanded with
directions to issue an order to show cause and hold a hearing
pursuant to section 1170.95, subdivision (d) only as to the
attempted murder conviction on either the instant petition or the
new petition filed on or about January 6, 2022. Alternatively, the
court may consolidate the instant proceedings with the
proceedings on the new petition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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