People v. Watson CA2/2

Filed 6/1/22 P. v. Watson CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B314528

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA015290) v.

KENNETH EARL WATSON,

Defendant and Appellant.

THE COURT:* Defendant and appellant Kenneth Earl Watson appeals from the order denying his petition for vacatur and resentencing under Penal Code section 1170.95.1 In 1991, defendant was convicted of the first degree felony murder of Cledoaldo Clarecy Souza, attempted second degree robbery, and conspiracy to commit robbery. The jury found true the felony-murder special circumstance alleged pursuant to former section 190.2, subdivision (a)(17). The jury was unable to

1 All further statutory references are to the Penal Code, unless otherwise indicated.

reach a decision as to the allegation that defendant personally used a firearm. Defendant was sentenced to life in prison without parole under former section 190.2, subdivision (a), plus a consecutive five years for the conspiracy. This court affirmed the judgment in People v. Watson (Oct. 30, 1992, B060665) (nonpub. opn.) (Watson I). That opinion summarizes the evidence presented at trial, which showed that defendant and his coconspirator, William Leon Franklin, entered into an agreement to rob drug users or Mexican-Americans. When Souza, who appeared to them to be of Mexican descent, drove by defendant’s residence in his truck, defendant picked up a shotgun, and he and Franklin ran after the truck. The two stood in front of the truck and defendant fired the shotgun, striking Souza in the head and causing his death. (Watson I, supra, B060665.) In a later police interview, defendant admitted the conspiracy but claimed it was Franklin who had fired the shotgun. (Ibid.) In April 2020, defendant filed a petition for vacatur and resentencing under section 1170.95, alleging he had been convicted of felony murder, was not the actual killer, did not aid and abet the actual killer with the intent to kill, was not a major participant who acted with reckless indifference to life in committing the attempted robbery, and could not now be convicted of murder due to the changes to section 189, effective January 1, 2019. The trial court appointed counsel and entertained briefing from both sides. A petition for review hearing was scheduled for June 10, 2021. The court did not expressly rule that defendant had made a prima facie showing of eligibility, issue an order to show cause, or schedule an evidentiary hearing as provided by section 1170.95, subdivisions (c) and (d)(1). This caused some