People v. Gatison CA3

Filed 6/25/21 P. v. Gatison CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C089321

Plaintiff and Respondent, (Super. Ct. No. STKCRFECOD201513987) v.

KENNETH WAYNE GATISON, JR.,

Defendant and Appellant.

Defendant Kenneth Wayne Gatison, Jr., appeals from the denial of his Penal Code section 1170.951 petition for resentencing, arguing the trial court erred in finding his voluntary manslaughter conviction ineligible for relief under the statute and the court’s ruling deprived him of equal protection. We affirm.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged in 2016 with murder and felony murder with robbery and attempted burglary special circumstances (§§ 187, subd. (a), 190.2, subd. (a)(17)(A), (G)), residential burglary (§ 459), attempted first degree robbery in concert (§ 664/213, subd. (a)(1)(A)), two counts of assault with a firearm (§ 245, subd. (a)(2)), and two counts of child endangerment (§ 273a, subd. (a)). On December 15, 2017, defendant pleaded no contest to voluntary manslaughter with personal use of a firearm (§§ 190.2, 12022.5), the burglary charge, and both child endangerment charges. He was sentenced to a 25-year state prison term on February 26, 2018. The parties stipulated to the preliminary hearing and the police report as the factual basis of the plea. A transcript of the preliminary hearing is not in the record, but the police report is summarized in the probation report. According to the probation report summary, defendant conspired with four other people to rob a marijuana dealer at the dealer’s home. Two of the conspirators, but not defendant, entered the victim’s home and shot and killed the man during the attempted robbery. Defendant and the other four then drove off. Defendant filed a section 1170.95 petition on January 4, 2019. The trial court denied the petition on February 19, 2019, finding defendant was ineligible for relief because he was convicted of manslaughter rather than murder. DISCUSSION I Section 1170.95 Defendant claims on appeal that section 1170.95 applies to persons who were charged with murder under a felony murder or natural and probable consequences theory but pleaded guilty to manslaughter to avoid trial.