People v. Love CA2/5 ( 2021 )

Filed 4/21/21 P. v. Love CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B306398
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A394113-01)
v.
CHRISTOPHER LOVE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James Richard Dabney, Judge. Affirmed.
Marilee Marshall, 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, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Rene Judkiewicz, Deputy Attorney
General, for Plaintiff and Respondent.
Defendant and appellant Christopher Love (defendant)
appeals from an order denying his Penal Code section 1170.95
petition to vacate his decades-old murder conviction.1 We
consider whether the trial jury’s true finding on a special
circumstance allegation attached to the murder charge
establishes he is not entitled to relief as a matter of law.
I
Defendant and an accomplice, Randy Lewis, were charged
with murder after a husband and wife agreed to give the two men
a ride in their car and Lewis shot the husband from the back seat
while defendant attacked the wife with a knife. The motive for
the murder (and attempted murder of the wife) was robbery—the
husband’s wallet was found missing after the shooting2—and a
robbery-murder special circumstance (§ 190.2, subd. (a)(17)) was
alleged in connection with the murder charge.
At defendant’s trial in 1986, the court instructed the jury
on felony murder and the natural and probable consequences
theory of aiding and abetting liability. The jury was not
instructed on a malice theory of murder.
In connection with the murder charge, the court gave the
jury two instructions on the alleged robbery-murder special
1
Undesignated statutory references that follow are to the
Penal Code.
2
Defendant’s defense at trial was that he did not know
Lewis planned to shoot the husband. As for the wife, defendant
contended he had been using the knife to clean his fingernails
during the car ride and cut her with the knife when he got out of
the car after being surprised by the shooting.
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circumstance that were patterned on the then-prevailing versions
of CALJIC 8.80 and 8.81.17 (see generally People v. Duncan
(1991) 53 Cal.3d 955, 973-974). The first, in relevant part,
provided as follows: “If you find the defendant in this case guilty
of murder of the first degree, you must then determine if the
murder was committed under the following special circumstance:
during the commission or attempted commission of a
robbery. . . . If defendant Love was an accomplice or aider and
abettor but not the actual killer, it must be proved beyond a
reasonable doubt that he intended to aid in the killing of [the
victim] before you are permitted to find the alleged special
circumstance of that first degree murder to be true as to
defendant Love. [¶] The finding of . . . an intent to kill [the wife
of the murder victim] in and of itself is not sufficient to sustain
the finding of the special circumstance.” The second instruction,
in relevant part, similarly reinforced the determination the jury
was required to make regarding defendant’s intent before finding
the special circumstance true: “To find that the special
circumstance referred to in these instructions is murder in the
commission of robbery is true, it must be proved that the murder
was committed while the defendant was engaged in or was an
accomplice in the commission or attempted commission of a
robbery[;] that the defendant intended to kill a human being or
intended to aid another in the killing of a human being; that the
murder was committed in order to carry out or advance the
commission of the crime of robbery or to facilitate the escape
therefrom or to avoid detection.”
The jury found defendant guilty of murder (and the two
other charged offenses) and found the alleged robbery-murder
special circumstance true. On direct appeal, this court affirmed
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defendant’s convictions but remanded for resentencing. (People v.
Love (Jun. 3, 1988, B024875) [nonpub. opn.].) In the course of
evaluating a claim that the court erred by not instructing the
jury that a specific intent to kill is an element of attempted
murder, this court held any error was harmless and relied, in
part, on the determinations the jury must have made in finding
the robbery-murder special circumstance true. Specifically, the
opinion for the court explains: “The jury was instructed,
pursuant to CALJIC No. 8.80, that to find the robbery[-murder]
special circumstance true, which it did, it must find that
[defendant] intended to kill [the husband] and that ‘a finding of
intent to kill [the wife]’ would not ‘in and of itself’ be sufficient to
sustain the special circumstance alleged as to the murder of [the
husband]. Since the attacks on [the husband and wife] were
virtually simultaneous, there is no reasonable doubt that if
[defendant] intended to kill [the husband], he likewise intended
the same for [the wife]. [¶] . . . [¶] Accordingly, the error was
harmless because the parties recognized and argued that intent
to kill was in issue, they presented all the evidence on the intent
issue, and intent was found in view of the jury’s determination of
[defendant’s] intent to kill [the husband] and [defendant’s]
intentional use of the knife during the attempted murder.”
Many years after our resolution of defendant’s direct
appeal, and following enactment of Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (SB 1437), defendant filed a section 1170.95
petition for resentencing. The form petition asserted he was
convicted of first degree murder pursuant to the felony murder
rule or the natural and probable consequences doctrine and,
tracking the language of section 1170.95, subdivision (a)(3), he
“could not now be convicted of 1st or 2nd degree murder because
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of changes made to . . . [sections] 188 and 189, effective January
1, 2019.” The People opposed defendant’s petition on two
grounds: an assertion that SB 1437 was unconstitutional and an
argument that defendant was not entitled to relief anyway
because the jury found he intended to kill the murder victim and
thus was not entitled to relief as a matter of law.
After appointing counsel for defendant and permitting
further briefing, the trial court denied defendant’s section
1170.95 petition. The court did not reach the constitutional issue
and instead reasoned: “[T]he record of conviction clearly
establishes that the jury specifically found that [defendant] acted
with intent to kill. The jury verdict states: ‘We further find the
special circumstance allegation that the defendant . . . intended
to kill [the husband], or intended to aid and abet another in the
killing of [the husband], and the murder of [the husband] was
committed while the defendant . . . was engaged in the
commission and attempted commission of ROBBERY . . . to be
true.’ Therefore, as a matter of law, [defendant] would still be
guilty of first degree felony-murder under . . . [section] 189 and of
the special circumstance under . . . [section] 190.2(c).”
II
The trial court was correct. As we shall briefly explain,
defendant is not entitled to section 1170.95 relief as a matter of
law because the availability of such relief extends only to
defendants, unlike him, who “could not be convicted of first or
second degree murder because of changes” SB 1437 made to the
Penal Code’s murder statutes.
At the time of defendant’s trial in 1986, the law invariably
required the jury to find defendant intended to kill the murder
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victim to find the robbery-murder special circumstance true.
(Carlos v. Superior Court (1983) 35 Cal.3d 131, 135 [intent to kill
or to aid in a killing is an element of the felony-murder special
circumstance] (Carlos), disapproved by People v. Anderson (1987)
43 Cal.3d 1104, 1138-1139 [“As will appear, we conclude that the
broad holding of Carlos that intent to kill is an element of the
felony-murder special circumstance cannot stand, and that the
following narrow holding must be put in its place: intent to kill is
not an element of the felony-murder special circumstance; but
when the defendant is an aider and abetter rather than the
actual killer, intent must be proved before the trier of fact can
find the special circumstance to be true”].) As we have already
summarized, the trial court instructed the jury in accord with
then-prevailing law, and this means the jury necessarily found
defendant intended to kill the victim and aided and abetted the
killing.
To qualify for resentencing under section 1170.95, the
statute requires a petitioner to be able to show three things: first,
that he or she was prosecuted under a theory of felony murder or
murder under the natural and probable consequences doctrine;
second, that he or she was convicted of first degree or second
degree murder following a trial; and third, that he or she “could
not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019
[i.e., changes made by SB 1437].” (§ 1170.95, subd. (a).) The
third of these is dispositive here.
SB 1437 amended section 189, the statute governing felony
murder, to provide that a person can be liable only if (1) the
“person was the actual killer”; (2) the person, with an intent to
kill, was an aider or abettor in the commission of murder in the
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first degree; or (3) the “person was a major participant in the
underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)
After enactment of SB 1437, defendant could still be convicted of
felony murder because, as his trial jury determined in finding the
special circumstance true, he harbored an intent to kill the victim
and aided and abetted the victim’s killing. That means he is not
entitled to relief as a matter of law.
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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