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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN CHRISTOPHER 

WATERS,

Defendant and Appellant.

 B306137

 (Los Angeles County

 Super. Ct. No. YA006449)

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.

——————————
2

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. 
3

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. 
4

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 
5

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
6

(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.)
7

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 
8

(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.)
9

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.
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.