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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

KENNETH WAYNE GATISON, JR.,

Defendant and Appellant.

C089321

(Super. Ct. No. 

STKCRFECOD201513987)

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.
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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. 
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“ ‘If the language [of a statute] is clear, courts must generally follow its plain 

meaning unless a literal interpretation would result in absurd consequences the 

Legislature did not intend.’ [Citation.]” (People v. Flores (2020) 44 Cal.App.5th 985, 

992 (Flores).)

Section 1170.5 states in pertinent part: 

“(a) A person convicted of felony murder or murder under a natural and probable 

consequences theory may file a petition with the court that sentenced the petitioner to 

have the petitioner’s murder conviction vacated and to be resentenced on any remaining 

counts when all of the following conditions apply:

“(1) A complaint, information, or indictment was filed against the petitioner that 

allowed the prosecution to proceed under a theory of felony murder or murder under the 

natural and probable consequences doctrine.

“(2) The petitioner was convicted of first degree or second degree murder 

following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder.

“(3) The petitioner could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, 

subd. (a).)

Defendant’s claim is based on the language in subdivision (a)(2), “accepted a plea 

offer in lieu of a trial at which the petitioner could be convicted for first degree or second 

degree murder,” and to similar language in the Legislative Counsel’s Digest to the bill 

enacting section 1170.95, Senate Bill No. 1437.2 According to defendant, the “broad”

2 Defendant mistakenly refers to the bill’s digest as the preamble. The Legislative 

Counsel’s Digest to Senate Bill No. 1437 states in pertinent part: “This bill would 

provide a means of vacating the conviction and resentencing a defendant when a 

complaint, information, or indictment was filed against the defendant that allowed the 

prosecution to proceed under a theory of first degree felony murder or murder under the 
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language of these two provisions applies “to someone who pled to manslaughter to avoid 

a conviction for murder.” 

“[O]ur appellate courts have repeatedly rejected the argument [defendant] makes 

here regarding his voluntary manslaughter conviction. As the Fourth Appellate District 

observed earlier this year in People v. Turner (2020) 45 Cal.App.5th 428 (Turner), 

courts, ‘[r]elying on the clear language of [section 1170.95], . . . have concluded that 

section 1170.95 is unambiguous and does not provide relief to persons convicted of 

manslaughter. (People v. Cervantes (2020) 44 Cal.App.5th 884, 887 [Second District] 

[“The plain language of the statute is explicit; its scope is limited to murder 

convictions.”]; accord, People v. Flores (2020) 44 Cal.App.5th 985, 993 [Fourth 

District].)’ ” (People v. Paige (2020) 51 Cal.App.5th 194, 201 (Paige).) We join the 

unanimous verdict of appellate courts rejecting this claim.

“[S]ection 1170.95 authorizes only a person who was ‘convicted of felony murder

or murder under a natural and probable consequences theory [to] file a petition with the 

court that sentenced the petitioner to have the petitioner’s murder conviction 

vacated . . . .’ (Id., subd. (a), italics added.) If the petitioner makes a prima facie 

showing that he or she is entitled to relief, the sentencing court must ‘hold a hearing to 

determine whether to vacate the murder conviction and to recall the sentence and 

resentence the petitioner on any remaining counts . . . .’ (Id., subd. (d)(1), italics added.) 

In lieu of a resentencing hearing, the parties may stipulate that ‘the petitioner is eligible to 

have his or her murder conviction vacated’ and to be resentenced. (Id., subd. (d)(2), 

italics added.)” (Flores, supra, 44 Cal.App.5th at p. 993.)

natural and probable consequences doctrine, the defendant was sentenced for first degree 

or 2nd degree murder or accepted a plea offer in lieu of a trial at which the defendant 

could be convicted for first degree or 2nd degree murder, and the defendant could not be 

charged with murder after the enactment of this bill.” (Stats. 2018, ch. 1015, italics 

added.)
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“Through its repeated and exclusive references to murder, the plain language of 

section 1170.95 limits relief only to qualifying persons who were convicted of murder.”

(Flores, supra, 44 Cal.App.5th at p. 993; see People v. Cervantes (2020) 44 Cal.App.5th 

884, 887 (Cervantes) [“The plain language of [section 1170.95] is explicit; its scope is 

limited to murder convictions”].)

“Section 1170.95 does not mention, and thus does not provide relief to, persons 

convicted of manslaughter, which, ‘while a lesser included offense of murder, is clearly a 

separate offense . . . .’ [Citation.] Had the Legislature intended to make section 1170.95 

available to defendants convicted of manslaughter, it easily could have done so.

[Citations.]” (Flores, supra, 44 Cal.App.5th at p. 993; see Cervantes, supra, 44 

Cal.App.5th at p. 887 [“there is no reference [in section 1170.95] to the crime of 

voluntary manslaughter”].)

Because the plain language of section 1170.95 is clear, and does not lead to an 

absurd result, we, like every other appellate court to address the issue, will follow its 

plain meaning. Defendant’s contention regarding the references to pleas in the digest and 

subdivision (a)(2) “places outsized importance on a single clause to the exclusion of the 

provision’s other language. . . . [T]he remaining portions of section 1170.95 repeatedly 

and exclusively refer to murder, not manslaughter.” (Flores, supra, 44 Cal.App.5th at p. 

995.)

The fatal flaw with defendant’s argument is that it takes this reference to pleas 

without considering the context of a statutory scheme that limits relief to those convicted 

of murder. (Paige, supra, 51 Cal.App.5th at p. 202.) The plea language defendant relies 

on in subdivision (a)(2) is one of three conditions a petitioner must meet to be eligible for 

relief, as specified in subdivisions (a)(1) through (a)(3) of section 1170.95. Those 

provisions are subsets of section 1170.95, subdivision (a), which limits eligibility for 

relief to those “convicted of felony murder or murder under a natural and probable 

consequences theory[.]” “Given the structure of the statute and the language in the first 
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paragraph of section 1170.95, subdivision (a), the reference to a person who ‘accepted a 

plea offer’ in subdivision (a)(2) must necessarily mean a person who accepted a plea to, 

and was convicted of, first or second degree murder in lieu of a trial at which he could 

have been convicted of either of those charges.” (Paige, at p. 202, fn. omitted.) Further 

evidence that section 1170.95 applies only to murder convictions are provisions 

addressing the hearing on the petition, that “the court shall hold a hearing to determine 

whether to vacate the murder conviction” (§ 1170.95, subd. (d)(1)), and that “[t]he parties 

may waive a resentencing hearing and stipulate that the petitioner is eligible to have his 

or her murder conviction vacated and for resentencing.” (Id., subd. (d)(2).)

The language of section 1170.95 is unambiguous. Read in context, the reference 

to accepting a plea offer in lieu of trial is limited to those defendants convicted of a 

qualifying murder offense through a plea rather than a trial. This reading does not lead to 

an absurd result. “The legislative goal was to eliminate the sentencing disparity caused 

by the felony murder rule. That goal was properly achieved by the section 1170.95 

petition procedure to vacate those murder convictions.” (Cervantes, supra, 44 

Cal.App.5th at p. 889, fn. omitted; see Flores, supra, 44 Cal.App.5th at pp. 996-997.)

The punishment for manslaughter is already less than that imposed for first or second 

degree murder, and the determinate sentencing ranges permit a sentencing judge to make 

punishment commensurate with a defendant’s culpability based on aggravating and 

mitigating factors. “Providing relief solely to defendants convicted of murder under a 

felony-murder or natural and probable consequences theory does not conflict with the 

Legislature’s stated objective to make ‘statutory changes to more equitably sentence 

offenders.’ ” (People v. Turner (2020) 45 Cal.App.5th 428, 439.)

We conclude a person convicted of voluntary manslaughter rather than murder is 

ineligible for relief under section 1170.95. The trial court did not err in reaching this 

conclusion.
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II

Equal Protection

Defendant claims the trial court’s ruling deprived him of equal protection because 

he is similarly situated to those defendants convicted of felony murder following a trial. 

“ ‘The first prerequisite to a meritorious claim under the equal protection clause is 

a showing that the state has adopted a classification that affects two or more similarly 

situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether 

persons are similarly situated for all purposes, but ‘whether they are similarly situated for 

purposes of the law challenged.’ [Citation.]” (Cooley v. Superior Court (2002) 29 

Cal.4th 228, 253.)

Defendant was convicted of voluntary manslaughter, a different crime than 

murder, which carries a different punishment than murder; he is not similarly situated to 

those convicted of murder. (See Paige, supra, 51 Cal.App.5th at p. 206; Cervantes, 

supra, 44 Cal.App.5th at p. 888; People v. Sanchez (2020) 48 Cal.App.5th 914, 920-921.) 

Thus, defendant’s equal protection challenge fails at the first step. 

DISPOSITION

The order denying the section 1170.95 petition is affirmed.

 /s/

BLEASE, J.

We concur:

 /s/

RAYE, P. J.

 /s/

MAURO, J.