People v. Bobo CA2/1 ( 2021 )

Filed 6/24/21 P. v. Bobo CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B305298
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. A365859)
v.
ALVIN BOBO,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Idan Ivri and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________
Alvin Bobo and a codefendant, Derrick Elliott Gray, were
each convicted in 1982—after separate trials—of murder,
burglary, and robbery for the events that led to the February
1981 death of George Latronis.
On January 9, 2019, Bobo filed a petition under Penal Code
section 1170.95 for resentencing, alleging that he could not be
convicted of first or second degree murder because of changes to
Penal Code sections 188 and 189 that became effective on
January 1, 2019.1 The trial court denied that petition on the
merits on February 4, 2019. Bobo did not appeal from the denial
of that petition.
On February 10, 2020, Bobo filed a second section 1170.95
petition for resentencing, making the same allegations as in his
January 2019 petition. On February 11, 2020, the trial court
denied the second petition.
Bobo filed a notice of appeal from the second petition. The
arguments Bobo presents here are foreclosed by our opinion in
People v. Galvan (2020) 52 Cal.App.5th 1134, review granted
October 14, 2020, S264284 (Galvan). We will affirm the trial
court’s order.
BACKGROUND
Bobo and Gray broke into Latronis’s home on February 5,
1981. When Latronis’s son and wife returned home that evening,
“both the garage and kitchen windows were broken and
numerous items of property were missing. . . . George Latronis
had been bound and gagged and had died as a result of
1 Further statutory references are to the Penal Code.
2
strangulation or suffocation.” (People v. Bobo (Oct. 4, 1983, 2
Crim. No. 42179) [nonpub. opn.] p. 3.)
After separate trials, juries found both Bobo and Gray
guilty of first degree murder, burglary, and robbery. “Each jury
found that the murder was committed during the course of the
robbery and burglary. The trial court denied defendant’s motions
to strike the special circumstances findings.” (People v. Bobo,
supra, 2 Crim. No. 42179, at p. 2.) The trial court sentenced Bobo
to life without the possibility of parole on the first degree murder
count and to the upper terms on the burglary and robbery counts,
but stayed the sentences on the burglary and robbery counts
pending service of the sentence for murder. (Ibid.)
We affirmed Bobo’s conviction in an unpublished opinion
filed on October 4, 1983. (People v. Bobo, supra, 2 Crim. No.
42179, at p. 19.)
In 2018, the Legislature enacted Senate Bill No. 1437,
which “amend[ed] the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder . . . .”
(Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437
became effective on January 1, 2019. Among other changes to
the Penal Code, the legislation added section 1170.95, which
created the procedure by which a defendant could petition a trial
court for relief under the provisions of the new legislation. (Stats.
2018, ch. 1015, § 4.)
On January 9, 2019, Bobo filed a petition for resentencing
under section 1170.95. On February 4, 2019, the trial court
denied Bobo’s petition. The trial court’s February 4, 2019 minute
order says that “[t]he appellate decision affirming petitioner’s
conviction and sentence . . . reflects that petitioner was a direct
aider and abettor in the murder of the victim and, at the very
3
least, petitioner was a major participant in the robbery murder
and burglary murder of the victim and acted with reckless
indifference to human life.” Bobo did not appeal from the trial
court’s denial of his 2019 section 1170.95 petition.
On May 17, 2019, Bobo filed a section 1170.95 petition in
this court. We considered Bobo’s petition as a petition for writ of
mandate, and summarily denied it on May 29, 2019. (Bobo v.
Superior Court (May 29, 2019, B297660) [order denying petition
for writ of mandate].) On October 31, 2019, Bobo filed a petition
for writ of habeas corpus in this court arguing that he was
entitled to relief under People v. Banks (2015) 61 Cal.4th 788 and
People v. Clark (2016) 63 Cal.4th 522. We summarily denied the
habeas petition on November 6, 2019. (In re Alvin Bobo (Nov. 6,
2019, B301889) [order denying petition for writ of habeas
corpus].)
On February 10, 2020, Bobo filed a second petition in the
trial court under section 1170.95. The trial court denied the
petition on February 11, 2020. The trial court’s minute order
states: “Petitioner’s previous Penal Code section 1170.95 petition
was denied on February 4, 2019. The Court of Appeal rejected
petitioner’s petition for writ of mandate on May 17, 2019.
Petitioner now raises the same issues raised and rejected before.
Petitioner remains ineligible for relief. [¶] Petition denied.”
Bobo filed a timely notice of appeal from the trial court’s
order denying his second section 1170.95 petition for
resentencing.
DISCUSSION
As in Galvan, “[t]he outcome of this case depends on the
operation of section 1170.95, the statute the Legislature enacted
to provide a procedure for defendants who were previously
4
convicted of murder, but who could no longer be convicted
because of the changes to the law enacted by Senate Bill No.
1437, to petition to vacate their convictions and be resentenced.
“The statute requires a defendant to submit a petition
affirming that he meets three criteria of eligibility: (1) He was
charged with murder in a manner ‘that allowed the prosecution
to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine’ (§ 1170.95, subd.
(a)(1)); (2) He ‘was convicted of’ or pleaded guilty to ‘first degree
or second degree murder’ (§ 1170.95, subd. (a)(2)); and (3) He
‘could not be convicted of first or second degree murder because of
changes to Section[s] 188 or 189 made effective’ as a part of
Senate Bill No. 1437 (§ 1170.95, subd. (a)(3)). . . . [T]hose
changes eliminated the natural and probable consequences
doctrine as a basis for murder liability, and added a requirement
for felony murder that a defendant must have been at least a
major participant in the underlying felony and have acted with
reckless indifference to human life.
“Upon receipt of a petition, the trial court reviews it to
determine whether the petitioner has made a prima facie case for
relief. (§ 1170.95, subd. (c).) If the petitioner meets this
requirement, the court issues an order to show cause and holds a
hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d)(1).) At this final stage of the proceeding, the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)” (Galvan, supra, 52 Cal.App.5th at pp. 1139-1140.)
Similar to Galvan, “[i]n this case, the trial court denied
[the] petition at the first stage of prima facie review under section
1170.95, subdivision (c). A denial at that stage is appropriate
5
only if the record of conviction demonstrates that ‘the petitioner
is ineligible for relief as a matter of law.’ [Citations.] This is a
purely legal conclusion, which we review de novo.” (Galvan,
supra, 52 Cal.App.5th at p. 1140, fn. omitted.)
Bobo first contends that—contrary to our opinion in People
v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18,
2020, S260598—the trial court was not permitted to deny his
petition at the first stage of prima facie review based on a record
of conviction that demonstrated that he was ineligible for relief as
a matter of law. Rather, Bobo argues that the trial court was
required to appoint counsel and “giv[e] appellant the opportunity
to develop the record and to be heard.”
Bobo’s argument contends that Lewis was incorrectly
decided and that we should adopt the opposite approach. We
acknowledge the split in authority, but we have no reason at this
juncture to revisit our opinion in Lewis, and decline Bobo’s
invitation to do so.
Bobo’s remaining argument is a challenge to the jury’s
special circumstance findings based on the Supreme Court’s
decisions in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522.
In Galvan, we concluded that section 1170.95 is not the
proper vehicle for a challenge to the sufficiency of the evidence to
support a jury’s special circumstance findings under Banks and
Clark. We “analyze[d] the issue by turning to the language of
section 1170.95 itself: In order to be eligible for resentencing, a
defendant must show that he or she ‘could not be convicted of
first or second degree murder because of changes to Section[s]
188 or 189 made effective’ as part of Senate Bill No. 1437.
6
(§ 1170.95, subd. (a)(3).)” (Galvan, supra, 52 Cal.App.5th at p.
1142.)
In that case, we explained that “[a]lthough Galvan [was]
asserting that he could not now be convicted of murder, the
alleged inability to obtain such a conviction is not ‘because of
changes’ made by Senate Bill No. 1437, but because of the
clarification of the requirements for the special circumstance
finding in Banks and Clark. Nothing about those requirements
changed as a result of Senate Bill No. 1437. Just as was the case
before that law went into effect, the special circumstance applies
to defendants who were major participants in an underlying
felony and acted with reckless indifference to human life. If
Galvan is entitled to relief based on Banks and Clark, the avenue
for such relief is not section 1170.95, but a petition for writ of
habeas corpus.” (Galvan, supra, 52 Cal.App.5th at p. 1142.)
The People also argue that Bobo is entitled to reversal on
the merits under section 1170.95, but the People’s theory for
reversal is wholly distinct from Bobo’s. The People argue here
that changes in the law since Bobo’s 1982 conviction and our
1983 opinion affirming the conviction render the record of
conviction insufficient to support the trial court’s denial of Bobo’s
1170.95 petition.2
The People argue that Bobo was convicted under a version
of section 190.2 that “did not explicitly state that [certain]
defendants must have had the intent to kill.” In 1983, the People
2The People primarily contend that the trial court properly
denied Bobo’s second section 1170.95 petition because it was a
successive petition barred by collateral estoppel. Based on our
conclusion that our opinion in Galvan forecloses Bobo’s petition,
we do not reach the People’s collateral estoppel argument.
7
argue, the California Supreme Court interpreted that statute as
requiring an intent to kill. (See Carlos v. Superior Court (1983)
35 Cal.3d 131, 140-141, overruled by People v. Anderson (1987) 43
Cal.3d 1104, 1147.) Because Bobo’s conviction was pre-Carlos,
the People argue, his conviction does not necessarily mean the
jury found an intent to kill, “and thus does not preclude section
1170.95 relief as a matter of law.”
The People’s argument, however, demonstrates its own
contradiction with Galvan.
The People’s concession is that Bobo may be entitled to
relief under section 1170.95 because a California Supreme Court
case from the 1980s changed a required element of proof for
felony murder. Although Bobo did not make that argument and
does not appear in his reply brief to endorse it, we see no
difference between a challenge to the special circumstance
finding based on Carlos and a challenge to the special
circumstance finding based on Banks and Clark. The relief under
the People’s theory would be based not on or because of a change
to section 188 or 189 the Legislature made as part of Senate Bill
No. 1437, but rather because of a Supreme Court opinion that
predated Senate Bill No. 1437 by decades.
In Galvan, we declined to “expand [section 1170.95] beyond
its plain language.” (Galvan, supra, 52 Cal.App.5th at p. 1144.)
We see no meaningful distinction between Galvan and Bobo’s
case. The appropriate remedy for Bobo is a petition for writ of
habeas corpus in the trial court challenging his special
circumstance findings.3
3 Our summary denial of Bobo’s petition for writ of habeas
corpus should present no obstacle to that remedy “because a
summary denial of a habeas petition does not establish law of the
8
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
case or have a res judicata effect in future proceedings.” (Galvan,
supra, 52 Cal.App.5th at p. 1143.)
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
9