People v. Woods CA3

Filed 12/17/21 P. v. Woods CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C093035

Plaintiff and Respondent, (Super. Ct. No. 94833)

v.

BARRY WOODS,

Defendant and Appellant.

Defendant Barry Woods appeals from the summary denial of his petition for resentencing under Penal Code section 1170.95. 1 We shall affirm the order. BACKGROUND The facts underlying defendant’s crimes, set forth in our partially published opinion People v. Woods (1992) 8 Cal.App.4th 1570 (Woods) affirming defendant’s

1 Undesignated statutory references are to the Penal Code.

1

convictions, were as follows: Defendant, along with John Windham and several other accomplices, attacked Susan Allen and Trudy Johnson to find the whereabouts of a rival gang member who shot their friend. (Id. at p. 1577.) They then left Allen and Johnson’s apartment and went to their parked car. “A few parking stalls away, Craig Chmelik and James McMahon were preparing to depart in Chmelik’s Mustang. Noticing the pair, Woods drew a large handgun, loaded it, and fired six shots into the Mustang. McMahon was wounded, and Chmelik was killed.” (Ibid.) Defendant was convicted of first degree murder of Chmelik, attempted murder of McMahon, and assaults with a firearm on Allen and Johnson, and it was found true that defendant used a firearm in the commission of the offenses and that he had served a prior prison term. (Ibid.) Defendant appealed; we reversed a sentence enhancement but otherwise affirmed his conviction. (People v. Woods, supra, 8 Cal.App.4th at p. 1596.) One of defendant’s contentions on appeal was that his “first degree murder conviction must be reversed because there was insufficient evidence of premeditation and deliberation.” (People v. Woods (Aug. 24, 1992, C010320) [nonpub. portion].) We rejected this argument, “[g]iven [defendant’s] violent mental state and the fact he took time to load his gun just prior to the shooting, a jury could infer [defendant] planned the killing even though the time for reflection was slight.” (Ibid. [“we conclude the facts of this case support the jury’s determination that the killing was premeditated and deliberated, i.e., in the first degree”].) We also noted there was no provocation by the victims. (Ibid.) On June 2, 2020, defendant filed a petition for resentencing under section 1170.95. Defendant alleged he was found guilty of “first degree murder under the natural and probable consequences doctrine.” In response to the People’s motion to dismiss, defendant’s counsel filed a reply brief, which attached the jury instructions from defendant’s trial. The jury was instructed that to find defendant guilty of first degree murder, it had to find the murder was premeditated and deliberate. There was no instruction on felony murder.