Filed 6/1/22 P. v. Watson CA2/2
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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
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confusion on June 10, 2021, when the trial court invited
argument after giving a tentative ruling on the petition, stating
that it found the evidence sufficient to find defendant guilty of
murder under existing law as an aider and abettor with intent to
kill.
After hearing argument of counsel the court revised its
tentative ruling, noting that the prosecutor had met his burden to
prove beyond a reasonable doubt that defendant was guilty of
murder under existing law as an aider and abettor with the
specific intent to kill. The court stated that it had reviewed the
appellate opinion and the instructions given to the jury and
heard further argument. The prosecutor pointed out that the
jury had found the special circumstance true after being
instructed that if it found defendant guilty as an aider and
abettor, it was required to find an intent to kill in order to find
the special circumstance allegation true.2 The trial court adopted
the revised tentative ruling.
Defendant filed a timely notice of appeal from the court’s
order. His appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436, raising no issues and asking this
court to conduct an independent review of the record for arguable
2 In Watson I, supra, B060665, we noted that the jury was
given a modified former CALJIC No. 8.80.1 instruction, in
relevant part as follows: “‘If you find that a defendant was not the
actual killer of a human being, but decide beyond a reasonable
doubt the defendant was an aider and abettor or co-conspirator
you still cannot find the special circumstance to be true unless he
had an intent to kill.’” Because of this instruction, the jury
necessarily found that defendant harbored and intent to kill and
its true finding made defendant ineligible for relief under section
1170.95 as a matter of law. (See People v. Farfan (2021) 71
Cal.App.5th 942, 954.)
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issues. Where appointed counsel finds no arguable issues in an
appeal seeking postjudgment relief, the appellate court is not
required to conduct such an independent review of the record.
(People v. Serrano (2012) 211 Cal.App.4th 496, 503.) However if
the defendant files his own supplemental brief or letter we review
the contentions or arguments set forth therein. If defendant does
not file a supplemental brief, the appeal will be dismissed as
abandoned. (People v. Cole (2020) 52 Cal.App.5th 1023, 1039-
1040, review granted Oct. 14, 2020, S264278.) Defendant was
notified of the court’s policy and failed to file a supplemental
brief.
Although we have concluded, consistent with People v. Cole,
that dismissal is appropriate without more, we are mindful that
our Supreme Court is currently deciding whether such a
dismissal is appropriate or whether a further, independent
examination of the record is instead required. (See People v.
Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review
granted Feb. 17, 2021, S266305.) In an abundance of caution, we
have independently examined the entire record and are satisfied
that defendant’s appellate counsel has fully complied with his
responsibilities and that no arguable issues exist. (See People v.
Wende, supra, 25 Cal.3d at pp. 441-443.)
DISPOSITION
The appeal is dismissed.
* ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
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