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People v. Watson

California Court of Appeals, Fourth District, First Division

February 10, 2017

THE PEOPLE, Plaintiff and Respondent,
KHARY WATSON, Defendant and Appellant

          APPEAL from a judgment of the Superior Court of San Diego County, No. SCD215231, No. HC20480, Kerry Wells, Judge.


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          Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Theodore M. Cropley and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

         Huffman, J., with McConnell, P. J., and Aaron, J., concurring.


          [214 Cal.Rptr.3d 50] HUFFMAN, J.

          Khary Watson challenges his sentence of life without the possibility of parole [214 Cal.Rptr.3d 51] (LWOP) for committing felony murder when he was only four months shy of his 18th birthday. Watson's offense occurred after he chased down a woman who tried to run away while Watson was robbing her. Watson shot her in the back. He now contends his sentence violates the Eighth Amendment of the United States Constitution. He also maintains California's sentencing scheme as well as specific Penal Code provisions violate the equal protection and due process clauses of the United States Constitution. We conclude Watson's arguments lack merit; thus, we affirm.


         To provide the necessary context for the issues Watson raises here, we repeat the factual background verbatim from Watson's previous appeal of his judgment convicting him of felony murder. (See People v. Watson (July 20, 2011, D056848) [nonpub. opn.], review den. Oct. 26, 2011, S195873.)

         " In October 1994, Patricia Lopez was fatally shot during a street robbery. The murder remained unsolved until after 2006, when the police received an anonymous phone call which led them to information concerning the persons involved in the crimes. The authorities identified the suspects as two males (defendant and Tyrone Katrel Lynch) and a female (Komoa Greene). Lynch eventually identified defendant as the shooter, entered into a plea agreement, and agreed to testify.

         " In addition to Lynch, several eyewitnesses to the shooting testified at trial, including Lopez's friend (Barbara Nickerson) and Nickerson's son (Paul). Nickerson was with Lopez at the time of the shooting. At about 10:00 p.m. on October 1, 1994, the two women were walking to Lopez's apartment when a man came out of the bushes, pointed a gun at Nickerson, and told Nickerson to remove her fanny pack. Nickerson unbuckled and dropped her

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fanny pack, and the man picked it up from the ground. Nickerson called out to Paul (who was at Lopez's apartment), and Paul came outside. Meanwhile, Lopez was running towards her apartment. The man ran after Lopez, grabbed her, and shot her. While this was occurring, another man was standing in the street waiting for the man with the gun. After Lopez was shot, the other man said, '" Come on, man. We have to go." ' The two men ran off together. Lopez died at the scene.

         " After receiving the anonymous phone call and commencing their investigation, the authorities made contact with Lynch, who was living in Albuquerque, New Mexico. Beginning in February 2008, the police and Lynch had several phone conversations and in-person interviews to discuss the incident. In August 2008, Lynch was arrested for the murder. On August 7, 2008, Lynch was placed in a holding cell with defendant, and while in the cell for several hours Lynch tried to convince defendant to tell the truth about the shooting. Unbeknownst to Lynch and defendant, the conversations were recorded. At one point during the conversations, Lynch, lamenting that he was being charged with murder, asked defendant, 'Why couldn't you just shoot her in the leg or something man.' Defendant did not respond to this statement.

         " In May 2009, Lynch reached a plea agreement with the prosecution, pleading guilty to voluntary manslaughter, robbery, and attempted robbery.

         " Testifying on behalf of the prosecution at trial, Lynch stated that on the night of the shooting he and defendant (with Greene acting as the driver) committed two street robberies. They committed the first robbery in an alley. Greene then [214 Cal.Rptr.3d 52] drove them to another location, where defendant and Lynch got out of the car and approached two women (Nickerson and Lopez). Defendant was carrying a gun owned by Greene. When Lynch saw defendant grab one of the women, he got nervous and started looking around. Lynch saw a woman on a balcony, and he kept his eye on her to make sure she did not run into the house to call the police. Lynch heard someone screaming, '" Stop. Leave me alone. No," ' and then heard a gunshot. Lynch looked back and saw defendant bent towards the ground. Lynch told defendant to 'come on' and they ran back to the car. When they were back in the car, defendant stated that 'he got the shell casing.' Greene asked defendant, '" Why did you shoot?," ' and defendant responded, '" Because the bitch bit me." '

         " Dominic Holmes, a friend of defendant and Lynch, testified that defendant talked to him about the shooting. Holmes testified that defendant stated that he, Lynch, and Greene were 'out taking purses' and that he shot '[s]ome bitch.'

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         " The jury found defendant guilty of first degree murder with personal use of a firearm and with the special circumstance of murder during the commission or attempted commission of robbery. He was sentenced to life without the possibility of parole."

         Watson appealed the judgment following the jury's guilty verdict, and this court affirmed the judgment in an unpublished decision.

         In his third petition for a writ of habeas corpus, Watson claimed his LWOP sentence violated the Eighth Amendment as well as Miller v. Alabama (2012) 567 U.S. 460');">567 U.S. 460 [183 L.Ed.2d 407, 132 S.Ct. 2455] ( Miller ) and People v. Gutierrez (2014) 58 Cal.4th 1354');">58 Cal.4th 1354 [171 Cal.Rptr.3d 421, 324 P.3d 245] ( Gutierrez ). An order to show cause was issued.

         The People conceded that Watson was entitled to a new sentencing hearing.

         The superior court subsequently granted the requested relief in part and ordered a new sentencing hearing under Penal Code section 190.5, subdivision (b)[1] as well as Miller, supra, 567 U.S. ___ [132 S.Ct. 2455] and Gutierrez, supra, 58 Cal.4th 1354');">58 Cal.4th 1354.[2]

         The same superior court judge who presided over Watson's trial and sentencing after that trial handled Watson's resentencing hearing. As an initial matter, the judge informed the parties that she had erred in sentencing Watson under section 190.2, subdivision (a)(17) instead of section 190.5, subdivision (b) because he was 17 years old at the time he committed the subject crime. In addition, the judge indicated, to prepare for the hearing, she read the People's sentencing memorandum, Watson's statement in mitigation, Watson's motion to apply Miller, supra, 567 U.S. ___ [132 S.Ct. 2455] and Gutierrez, supra, 58 Cal.4th 1354');">58 Cal.4th 1354 retroactively, her notes from the trial, and several of the cases cited by the parties, including Miller and Gutierrez.

         The judge then proceeded to conduct an extremely thorough resentencing hearing. First, two witnesses, Rosemary Ruybal and Paul Nickerson, addressed the court. Ruybal, the victim's daughter, spoke of how painful the ordeal of her mother's murder had been for her family. She explained that she did not know why her mother was killed until she learned that [214 Cal.Rptr.3d 53] Watson decided to kill Lopez " because, quote, 'the bitch bit me.'" Ruybal was particularly troubled by Watson's lack of remorse: " That is what bangs around in my brain on a regular basis. Fifteen years after he gunned her down, that's his explanation. No remorse, no compassion. Just like that."

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         Nickerson, who observed Watson chasing and killing Lopez, expressed his sadness and anger that Watson killed the victim " over a petty crime of theft" and stated that Watson had destroyed Nickerson's family's life and the victim's family's life.

         Next, the People offered argument regarding various factors under Miller, supra, 567 U.S. ___ [132 S.Ct. 2455] and Gutierrez, supra, 58 Cal.4th 1354');">58 Cal.4th 1354 supporting their position that an LWOP sentence was appropriate for Watson. Watson's attorney countered, asserting Watson should not receive an LWOP sentence under the same factors.

         Finally, Watson addressed the court, stating he was " deeply remorseful" for his action and for the victim's family's losses. He asked the court for the opportunity to redeem himself and receive a lesser sentence.

         The court then considered the relevant factors and rendered its opinion. Because the court so thoroughly discussed the matter, we take the unusual step of including in this opinion much of the court's discussion at the resentencing hearing:

         " In looking at the factors that the courts--Miller and Gutierrez has advised the trial courts to consider, I want to go through each of these. The first one is chronological age and hallmark features of youth.

         " As noted, the defendant in this case at the time of the murder was 17 years and eight months. He was four months shy of 18, of full adulthood, and it does sometimes strike me as not appropriate to have that line that somebody becomes an adult and fully culpable at age 18 but not at 17 years and 11 months, because I happen to know some eighteen-year-olds that are pretty immature and some sixteen-year-olds that I think are pretty mature.

         " But be that as it may, it is clear that Mr. Watson was very close to full adulthood chronologically.

         " There's an argument that's been made that he, Mr. Watson, was subject to the pressures of his cohorts that night, and, quite frankly, I don't think the evidence supports that. Mr. Katrel Lynch was 18 years old, the defendant was 17 years old, Ms. Greene was 22 years old. And the evidence is that they had all been friends for a long time, particularly Katrel and the defendant. They grew up together; they had been friends for a long time.

         " There was no suggestion that any of them were particularly exerting power or pressure over any of the others. In fact, it seems that all three of them were simply equal ...

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