People v. Waters CA2/3 ( 2021 )

Filed 2/17/21 P. v. Waters CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B306137
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA006449)
v.
KEVIN CHRISTOPHER
WATERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura C. Ellison, Judge. Reversed and
remanded.
Alex Green, 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, Assistant
Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
Kevin Christopher Waters petitioned the trial court seeking
resentencing under Penal Code1 section 1170.95, alleging that he
was not the actual shooter, that his murder conviction was based
on the felony murder rule or murder under the natural and
probable consequence doctrine, and that because of changes in
the definition of murder promulgated by Senate Bill No. 1437, he
could not now be convicted of first or second degree murder. The
trial court denied the petition, finding that Waters would have
been so convicted because he was a major participant in the
robbery who acted with reckless indifference to human life during
that offense. The People concur that the trial court erred, and
the case should be remanded for the trial court to issue an order
to show cause and to conduct an evidentiary hearing on his
petition. We agree.
BACKGROUND
The following facts are taken from Waters’s and
codefendant Charles J. Mooney’s direct appeal. (People v. Waters
(Dec. 20, 1994, B062837) [nonpub. opn.].)
This case involves a bungled armed robbery attempt at a
movie theater that resulted in the shooting death of an usher.
On the evening of January 12, 1991, Waters, Mooney, and an
unidentified companion, went to a 10:00 p.m. film at the United
Artist Theater in Torrance. Waters and Mooney were armed,
carried walkie talkies, and had masks. Before the movie ended,
the three men left the theater and walked towards the lobby.
Two theater employees were in the projection room
preparing to close the theater. One employee opened the door to
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
leave, Waters and Mooney were standing outside. One of the two
men pointed a gun at the employee’s head, asked for the
manager, ordered the two employees to lie on the floor, taped
their mouths, and bound their hands and feet. They returned a
few minutes later, kicked one of the employees in the head, and
left. The employees freed themselves and attempted to telephone
for assistance, but the line was dead.
Waters and Mooney confronted a painter as he was getting
supplies from the storeroom. Mooney pointed a gun at his head
and asked, “Where is the money?” When the painter explained
who he was, Waters and Mooney took him to an office and forced
him to lie face down on the floor. A few minutes later, two fellow
painters were brought into the office and, at gunpoint, ordered to
lie on the ground. The three painters were then told to stay
where they were and not to open the door or they would be killed.
Waters and Mooney left the office. A few minutes later, one of
the painters heard a gun fire. Daniel Hernandez, an usher at the
theater, staggered into the office. He had been shot in the face.
Waters and Mooney were charged with murder (§ 187,
subd. (a); count 1), robbery (§ 211; count 2), and three counts of
assault with a firearm (§ 245, subd. (a)(2); counts 3, 4, & 5). The
information against them also alleged, as to counts 1 and 2, that
a principal was armed with a firearm (§ 12022, subd. (a)(1)), and
as to all the counts, that Waters and Mooney personally used a
firearm (§ 12022.5).
A jury convicted Waters of all counts and found true the
enhancements except for the allegation that he personally used a
firearm in the commission of the murder. The trial court
sentenced Waters to a determinate term of 15 years and four
months plus 25 years to life.
3
On January 16, 2019, Waters filed a petition for
resentencing pursuant to section 1170.95. The trial court
appointed counsel to represent Waters. The prosecutor filed an
opposition to the petition. The prosecutor acknowledged that the
jury was unable to determine whether Waters or Mooney actually
killed Hernandez. However, the prosecutor argued that Waters
was ineligible for resentencing relief because he was a major
participant who acted with reckless indifference to human life.
The trial court summarily denied the petition. The trial
court found that “the facts of the matter as outlined in various
documents submitted to me . . . . [¶] . . . show, I think, clearly
that [Waters] was a major participant, and he acted with reckless
indifference to human life.” The court found that Waters and
Mooney prepared for their crimes, “[a]rmed themselves with
weapons, walkie talkies, masks, went to the [theater] sometime
after midnight, robbed [an employee], robbed [a painter], [and]
shot the victim Hernandez in the face.” The trial court found the
evidence contradicted counsel’s argument that Waters was at the
movie theater, “but not in the vicinity of the actual killing.”
The trial court denied Waters’s motion to vacate his murder
conviction and for resentencing, concluding that he failed to make
a prima facie showing that he was entitled to relief and thus
there was no need to continue with an evidentiary hearing under
section 1170.95. Waters appealed.
DISCUSSION
Waters argues we should reverse the trial court’s order and
remand the case for the trial court to issue an order to show
cause and hold an evidentiary hearing to properly litigate his
eligibility for resentencing pursuant to section 1170.95. The
4
People concede the issue, and we agree the matter should be
reversed and remanded.
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with malice
aforethought to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
doctrine no longer applies to murder. Also, a participant in
enumerated crimes is liable under the felony-murder doctrine
only if the participant was the actual killer; or with the intent to
kill, aided and abetted the actual killer in commission of first
degree murder; or was a major participant in the underlying
felony and acted with reckless indifference to human life. (§ 189,
subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also created a petitioning process by
which defendants convicted of murder under a now invalid theory
can be resentenced. Newly added section 1170.95, subdivision (a)
provides that individuals who meet three conditions are eligible
for relief: (1) the person must have been charged with murder
under a theory of felony murder or murder under the natural and
probable consequences doctrine, (2) convicted of first or second
degree murder, and (3) could not be convicted of first or second
degree murder because of changes to section 188 or 189 made
effective January 1, 2019. (See People v. Drayton (2020)
47 Cal.App.5th 965, 973.)
Section 1170.95 provides for multiple reviews of a petition
by the trial court. (People v. Tarkington (2020) 49 Cal.App.5th
892, 897–898, review granted Aug. 12, 2020, S263219; People v.
Drayton, supra, 47 Cal.App.5th at p. 974; People v. Cornelius
5
(2020) 44 Cal.App.5th 54, 57–58, review granted Mar. 18, 2020,
S260410; People v. Verdugo (2020) 44 Cal.App.5th 320, 328
(Verdugo), review granted Mar. 18, 2020, S260493; but see People
v. Cooper (2020) 54 Cal.App.5th 106, review granted Nov. 10,
2020, S264684.) Subdivision (b) of section 1170.95 describes an
initial review to determine the facial sufficiency of the petition.
(Verdugo, at p. 328.) Subdivision (c) of section 1170.95 then
describes the next two levels of review. It provides, “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 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.” (Ibid.)
The first sentence in subdivision (c) refers to a prebriefing,
initial prima facie review to preliminarily determine a
petitioner’s statutory eligibility for relief as a matter of law.
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,
the trial court determines, based upon its review of readily
ascertainable information in the record of conviction and the
court file, whether the petitioner is statutorily eligible for relief.
(Id. at pp. 329–330.) The court may review the complaint, the
information or indictment, the verdict form or the documentation
for a negotiated plea, and the abstract of judgment. (Ibid.) If
these documents reveal ineligibility for relief, the trial court can
dismiss the petition. (Id. at p. 330.)
6
If the record of conviction does not establish as a matter of
law the petitioner’s ineligibility for resentencing, evaluation of
the petition proceeds to the second prima facie review, in which
“the court must direct the prosecutor to file a response to the
petition, permit the petitioner (through appointed counsel if
requested) to file a reply and then determine, with the benefit of
the parties’ briefing and analysis, whether the petitioner has
made a prima facie showing he or she is entitled to relief.”
(Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial court must
accept as true the petitioner’s factual allegations and make a
preliminary assessment regarding whether the petitioner would
be entitled to relief if the factual allegations were proved. (Id. at
p. 328.)
Here, Waters’s petition alleged that an information was
filed against him that permitted the prosecution to proceed under
either the felony murder rule or the natural and probable
consequences doctrine, that he was convicted of either first or
second degree murder under one of those theories, and that he
could no longer be so convicted under the changes to sections 188
and 189. The record shows that Waters was charged with
murder and could have been convicted under the felony murder
rule or natural and probable consequences doctrine. The jury
was instructed on both theories and the prosecution argued both
theories to the jury. Therefore, Waters made a prima facie
showing that he is entitled to relief and an order to show cause
should have issued.
The trial court’s decisionmaking authority at the prima
facie stages was “limited to readily ascertainable facts from the
record (such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion
7
(such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime).”
(People v. Drayton, supra, 47 Cal.App.5th at p. 980.) This test of
ineligibility as a matter of law applies in both prima facie steps,
even though the steps differ “in the nature and extent of
materials properly presented to the court,” i.e., one occurring
before and one after briefing by the parties. (Verdugo, supra, 44
Cal.App.5th at p. 329.) The trial court could not make a major
participant or reckless indifference finding without issuing an
order to show cause and holding an evidentiary hearing.
The jury was not specifically required to consider the
question of whether Waters was a major participant and acted
with reckless disregard to human life because Waters was not
charged with special circumstance felony murder under section
190.2. It was also not required to find Waters was the actual
killer or acted with actual malice. Before Senate Bill No. 1437,
section 189 permitted a conviction for felony murder by imputing
malice to those who commit a felony inherently dangerous to
human life, such as robbery, which results in homicide. (People v.
Chun (2009) 45 Cal.4th 1172, 1184.) As a result, the trial court’s
observations about the evidence in the record in support of its
major participant or reckless indifference findings are insufficient
to show that Waters is ineligible for section 1170.95 relief as a
matter of law. (See Verdugo, supra, 44 Cal.App.5th at pp. 329–
330.)
8
DISPOSITION
The order is reversed. The case is remanded for the trial
court to issue an order to show cause and proceed in accordance
with section 1170.95, subdivision (d).
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
EDMON, P. J.
9
LAVIN, J., Concurring :
I join the majority in reversing the trial court’s order. I
write separately because I disagree that a trial court may
summarily deny a statutorily-compliant resentencing petition
under Penal Code section 1170.95 based on its independent
review of the record of conviction. (See People v. Tarkington
(2020) 49 Cal.App.5th 892, 917, review granted Aug. 12, 2020,
S263219 (dis. opn. of Lavin, J.); see also People v. Cooper (2020)
54 Cal.App.5th 106, 118, review granted Nov. 10, 2020, S264684.)
LAVIN, J.