People v. Bobo CA2/3 ( 2020 )

Filed 11/17/20 P. v. Bobo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B303305
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A901428)
v.
ALBERT KENNETH BOBO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura C. Ellison, Judge. Reversed and
remanded with directions.
Jonathan E. Demson, 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 William N. Frank, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
A jury convicted defendant and appellant Albert Kenneth
Bobo of the 1982 murder and robbery of Daniel Hernandez. One
of Bobo’s accomplices was the actual killer. In 2019, Bobo
petitioned for resentencing on his murder conviction pursuant to
Penal Code section 1170.95.1 The trial court appointed counsel
for Bobo, but summarily denied his petition after finding he had
failed to make a prima facie showing of entitlement to relief. We
reverse the court’s order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
1. The offenses and Bobo’s original appeal
On March 30, 1982, Bobo, Isiah Smith, and John Williams
were at Helen Keller Park in Los Angeles.2 They spoke to
Angelus Wilson about committing a robbery. Smith showed
Wilson a handgun he was carrying in his waistband. Bobo said
nothing during this conversation. After separating from Wilson,
the trio approached Darryl Conerly and asked him to act as a
lookout for a robbery at a nearby self-service car wash. Conerly
agreed.
Bobo, Smith, and Williams then approached the victim,
Daniel Hernandez, as he was apparently washing a truck at the
car wash. One or more of the assailants yelled, “Raymond Crips.”
Hernandez attempted to spray Smith with water. Smith fired
three shots at Hernandez, one of which struck and killed him.
The assailants took Hernandez’s wallet and $300 in cash that
1
All further undesignated statutory references are to the
Penal Code.
2
We derive the facts from the unpublished opinion in Bobo’s
direct appeal, issued by Division Four of this court on August 15,
1984, of which we take judicial notice. (Evid. Code, §§ 452,
subd. (d), 459.)
2
Hernandez had been carrying for his employer. They then left
the car wash, encountering Wilson as they fled. Wilson agreed to
drive them away from the scene.
While the group was driving away in Wilson’s vehicle, Bobo
had possession of Hernandez’s wallet, which he threw out the
window. The empty envelope that had contained the cash was
left on the dashboard of Hernandez’s truck.
Bobo was charged with conspiracy to commit robbery
(§§ 211, 182), murder (§ 187), and robbery (§ 211). The jury found
him guilty on all counts, and found the murder was in the first
degree. It also found true allegations that a principal was armed
with a firearm, and that Smith personally used a firearm in
commission of the robbery and murder. (§ 12022, 12022.5.) The
trial court sentenced Bobo to a term of 25 years to life for the
murder, plus one year consecutive for the principal armed
enhancement, for a total of 26 years to life. It stayed sentence on
the conspiracy and robbery convictions pursuant to section 654.
As noted, in an unpublished opinion issued in August 1984,
Division Four of this court affirmed Bobo’s convictions. (People v.
Bobo (Aug. 15, 1984, 44504) [nonpub. opn.].) It rejected Bobo’s
contentions that the trial court committed instructional error and
that Bobo’s sentence amounted to cruel or unusual punishment.
2. Bobo’s section 1170.95 petition and appeal
In January 2019, after passage of Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), Bobo filed a petition to
vacate his murder conviction. He also requested the appointment
of counsel. Attached to his petition was a declaration, signed
under penalty of perjury, in which he averred that he was not the
actual killer, “never intended” that the victim be killed, was not
“in a position to influence that tragic outcome,” and did not act
3
with reckless indifference to human life. He was “simply a
participant in what he thought was going to be a robbery.”
The trial court appointed counsel for Bobo. It granted
several continuances requested by the People for filing of their
opposition, which they eventually filed on December 3, 2019.
Therein the People argued that Senate Bill 1437 was
unconstitutional. They additionally averred that the petition
should be denied because Bobo was a major participant in the
crime and acted with reckless indifference to human life; further,
they argued, he was at least guilty of second degree murder
because the evidence showed he acted with implied malice. The
People pointed to the facts that Bobo assisted in planning the
robbery, knew his fellow gang member had a gun, took the
victim’s wallet, was “part of the force and fear used to rob the
victim,” and did not express shock or surprise after the killing.
On December 3, 2019, the trial court concluded that Bobo
was ineligible for resentencing, based on the court of appeal’s
1984 opinion.3 The trial court reasoned that “even a cursory
review of the record” of appeal indicated Bobo was ineligible. It
explained: “Quoting from the Court of Appeal . . . [t]hey say that
‘there was obvious premeditation in the commission of this crime
by’ [Bobo] in that ‘he did know that the co-defendant, Mr. Smith,
was armed with a firearm. He knew they were going to the car
wash together for the purpose of committing an armed robbery.’
3
The People’s opposition was due on November 15, 2019,
and Bobo’s reply was due the day before the hearing, December 2,
2019. However, the People did not file their opposition until the
date of the hearing. Bobo requested additional time to file a reply
brief, but the trial court denied the petition without waiting for a
reply.
4
[¶] I cannot see how in any view of this evidence on the record of
appeal that he would fall within the purview of the re-sentencing
statute. So I’m going to find that a prima facie showing has not
been made, that he’s not entitled to resentencing.”
Bobo filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Cruz (2020) 46 Cal. App. 5th 740, 755; People v. Verdugo
(2020) 44 Cal. App. 5th 320, 323, review granted March 18, 2020,
S260493; People v. Munoz (2019) 39 Cal. App. 5th 738, 763, review
granted Nov. 26, 2019, S258234.)
Prior to Senate Bill 1437’s enactment, “murder committed
in the perpetration of or attempt to perpetrate specified felonies,
including robbery, was first degree murder.” (People v. Torres
(2020) 46 Cal. App. 5th 1168, 1175, review granted June 24, 2020,
S262011; see People v. Powell (2018) 5 Cal. 5th 921, 942.) Senate
Bill 1437 amended section 188 to state that malice may not be
imputed to a person based solely on his or her participation in a
crime. (§ 188, subd. (a)(3).) It also amended section 189. Now,
under section 189, to be liable for murder under the felony
murder doctrine a participant in enumerated crimes must have
been 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); People v.
5
Perez (2020) 54 Cal. App. 5th 896, 902; People v. Munoz, supra,
39 Cal.App.5th at pp. 749-750, rev.gr.)
2. Section 1170.95’s petitioning procedure
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a felony
murder or natural and probable consequences theory may
petition in the sentencing court for vacation of their convictions
and resentencing. (People v. Torres, supra, 46 Cal.App.5th at
p. 1175, rev.gr.) A defendant is eligible for relief under section
1170.95 only if he or she meets three conditions: (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) must have been convicted of first or second degree
murder, and (3) could no longer be convicted of first or second
degree murder due to changes to sections 188 and 189 wrought
by Senate Bill 1437. (§ 1170.95, subd. (a); People v. Duke (2020)
55 Cal. App. 5th 113, 121; People v. Drayton (2020) 47 Cal. App. 5th
965, 973.)
Evaluation of a section 1170.95 petition requires a multi-
step process: an initial review to determine the petition’s facial
sufficiency; a prebriefing, first prima facie review to preliminarily
determine whether the petitioner is statutorily eligible for relief
as a matter of law; and a second, postbriefing prima facie review
to determine whether the petitioner has made a prima facie case
that he or she is entitled to relief. (People v. Tarkington (2020)
49 Cal. App. 5th 892, 897–898, review granted Aug. 12, 2020,
S263219; People v. Verdugo, supra, 44 Cal.App.5th at pp. 327–
330, rev.gr.; People v. Torres, supra, 46 Cal.App.5th at pp. 1177–
1178, rev.gr.; People v. Nguyen (2020) 53 Cal. App. 5th 1154, 1165–
1166.)
6
When conducting the first prima facie review, the court
must determine, 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 as a matter of law,
i.e., whether he or she was convicted of a qualifying crime, based
on a charging document that permitted the prosecution to
proceed under the natural and probable consequences doctrine or
a felony murder theory. (People v. Tarkington, supra, 49
Cal.App.5th at pp. 898–899, rev.gr.; People v. Verdugo, supra,
44 Cal.App.5th at pp. 329–330, rev.gr.) If it is clear from the
record of conviction that the petitioner cannot establish eligibility
as a matter of law, the trial court may summarily deny the
petition. (People v. Bentley (2020) 55 Cal. App. 5th 150, 152;
People v. Tarkington, at p. 898; People v. Verdugo, at pp. 329–
330.)
If, however, the petitioner’s ineligibility is not established
as a matter of law, the court must, after appointing counsel and
considering briefing from the parties, determine whether the
petitioner has made a prima facie showing that he or she is
entitled to relief. (People v. Verdugo, supra, 44 Cal.App.5th at
p. 330, rev.gr.; People v. Tarkington, supra, 49 Cal.App.5th at
p. 898, rev.gr.)
To make this second determination, the court employs the
familiar standard for issuance of an order to show cause in a
habeas corpus proceeding. That is, the court must take
petitioner’s factual allegations as true and make a preliminary
assessment regarding whether the petitioner would be entitled to
relief if the factual allegations were proved. (People v. Verdugo,
supra, 44 Cal.App.5th at p. 328, rev.gr.; People v. Tarkington,
supra, 49 Cal.App.5th at p. 898, rev.gr.) At this stage, the “ ‘trial
7
court should not evaluate the credibility of the petition’s
assertions, but it need not credit factual assertions that are
untrue as a matter of law—for example, a petitioner’s assertion
that a particular conviction is eligible for relief where the crime is
not listed in subdivision (a) of section 1170.95 as eligible for
resentencing. Just as in habeas corpus, if the record “contain[s]
facts refuting the allegations made in the petition . . . the court is
justified in making a credibility determination adverse to the
petitioner.” [Citation.] However, this authority to make
determinations without conducting an evidentiary hearing
pursuant to section 1170.95, subd. (d) is 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 . . . .’ [Citation.]” (People v.
Nguyen, supra, 53 Cal.App.5th at pp. 1165–1166; People v.
Drayton, supra, 47 Cal.App.5th at p. 980; People v. Perez, supra,
54 Cal.App.5th at pp. 903–904.)
If the petitioner makes a prima facie showing of
entitlement to relief, as the next step the court must issue an
order to show cause and conduct a hearing to determine whether
to vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1170.95, subds. (c), (d); People v.
Nguyen, supra, 53 Cal.App.5th at p. 1165–1166.) At that
hearing, the burden of proof is on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing. Both the People and the petitioner may rely on the
record of conviction and present new and additional evidence to
demonstrate the petitioner is, or is not, entitled to resentencing.
(§ 1170.95, subd. (d)(3).) “If the prosecution fails to sustain its
burden of proof, the prior conviction, and any allegations and
8
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.”
(§ 1170.95, subd. (d)(3); People v. Nguyen, at p. 1166.)
3. Because Bobo made a prima facie showing of entitlement
to relief, reversal is required
Bobo asserts that the trial court’s denial of his petition
without issuing an order to show cause and conducting an
evidentiary hearing violated the terms of the statute and his due
process rights. He contends that the ruling must be reversed and
the matter remanded with directions to issue an order to show
cause and hold a hearing at which the parties can present
evidence. The People agree that the trial court “prematurely
weighed facts” in order to dismiss the petition, and should have
issued an order to show cause and held such a hearing.
While not completely clear, it appears that the trial court
conducted the first prima facie review and concluded Bobo was
not ineligible as a matter of law. The court was correct in this
respect. Bobo was convicted of a qualifying crime, first degree
murder. The jury found codefendant Smith personally used a
firearm, whereas in regard to Bobo, it found only a principal
armed enhancement true. Thus, Bobo was not the actual killer.
The record does not contain the jury instructions, but it appears
Bobo was convicted of murder by virtue of the felony murder rule.
The information did not allege that the murder was willful and
premeditated, suggesting the People relied on the felony murder
rule to obtain a conviction for first, rather than second, degree
murder. (See § 189, subds. (a) & (b).) The prosecutor’s and trial
court’s statements at sentencing in 1983 suggest the conviction
was based on a felony murder theory. The prosecutor
characterized the crime as a robbery-murder; the court stayed
9
sentence on the robbery and the conspiracy to rob under section
654 because “the conspiracy to commit robbery was part of the
robbery, which was part of the murder.” And, when opposing
Bobo’s petition below, the People acknowledged that Bobo was
convicted pursuant to the felony murder rule.
Thus, the trial court was next required to determine
whether Bobo made a prima facie case that he was entitled to
relief. (§ 1170.95, subd. (c); People v. Verdugo, supra, 44
Cal.App.5th at p. 330, rev.gr.; People v. Tarkington, supra,
49 Cal.App.5th at p. 898, rev.gr.) As stated ante, in making that
inquiry, the court must treat petitioner’s factual allegations as
true and make a preliminary assessment of whether he would be
entitled to relief if the allegations were proved. (People v.
Verdugo, at p. 328; People v. Tarkington, at p. 898.) Here,
assuming Bobo was convicted under the felony murder rule, he
may not obtain relief if he was either a direct aider and abettor
and had the intent to kill, or if he was a major participant in the
robbery and acted with reckless indifference to human life.
(§ 189, subd. (e).)
As to the first theory—that Bobo was a direct aider and
abettor—nothing in the limited record before us indicates that
the jury found Bobo acted with the intent to kill. Nothing in the
record demonstrates, as a matter of law, that he had the intent to
kill. And, his declaration, attached to his petition, states that he
did not have such an intent. At this juncture, this contention
must be accepted as true.
As to the second theory, even assuming arguendo that Bobo
was a major participant in the crime, the question of whether he
acted with reckless indifference turned upon an assessment of
the facts. The record before us does not reflect a jury or judicial
10
finding on the issue at Bobo’s trial. The fact that a defendant
knowingly participates in an armed robbery is, by itself,
insufficient to demonstrate reckless indifference. (People v.
Banks (2015) 61 Cal. 4th 788, 809 [awareness that a confederate
was armed, and that armed robberies carry a risk of death, is not
enough to demonstrate reckless indifference]; People v. Clark
(2016) 63 Cal. 4th 522, 618 [“[t]he mere fact of a defendant’s
awareness that a gun will be used in the felony is not sufficient to
establish reckless indifference to human life”].)
Therefore, the court’s ruling was premised on its own
evaluation of the facts. While a court must weigh the evidence
after the issuance of an order to show cause and a hearing, such
factfinding is beyond the court’s authority at the second prima
facie review stage. (People v. Perez, supra, 54 Cal.App.5th at
pp. 903–904; People v. Drayton, supra, 47 Cal.App.5th at p. 980
[court’s authority to make determinations without conducting an
evidentiary hearing is limited to readily ascertainable facts from
the record, rather than factfinding involving the weighing of
evidence].)
The trial court based its denial of the petition on the
appellate opinion in Bobo’s original appeal. A trial court can rely
on an appellate opinion when ruling on a section 1170.95
petition. (See, e.g., People v. Gomez (2020) 52 Cal. App. 5th 1, 15,
review granted October 14, 2020, S264033; People v. Tarkington,
supra, 49 Cal.App.5th at p. 909, rev.gr.; People v. Law (2020)
48 Cal. App. 5th 811, 821, review granted July 8, 2020, S262490;
People v. Verdugo, supra, 44 Cal.App.5th at p. 333, rev.gr.; People
11
v. Lewis (2020) 43 Cal. App. 5th 1128, 1136–1138 & fn. 7, review
granted March 18, 2020, S260598.)4
But, here the 1984 opinion does not provide a basis from
which the court could deny the petition without weighing the
facts. One of Bobo’s contentions in his direct appeal was that his
sentence of 26 years to life in prison constituted cruel or unusual
punishment. In rejecting that argument, the appellate court
reasoned that an examination of the offense or the offender, with
particular regard to the degree of danger to society, demonstrated
Bobo’s sentence was not constitutionally excessive. The court
distinguished the facts in Bobo’s case from those in People v.
Dillon (1983) 34 Cal. 3d 441, observing that although Bobo was 17
years old at the time of the crime, he had been involved with
narcotics since the age of eight, involved in criminal activities
since the age of 11, and was an admitted, active gang member.
The court then said: “There was obvious premeditation in the
commission of the crime in that he knew Isiah Smith was armed
and knew that he was going to the car wash with Smith for the
purpose of committing an armed robbery. [¶] The record thus
establishes that appellant’s sentence was appropriate in terms of
his ‘personal responsibility and moral guilt’ [citation] and that he
gave every indication of being ‘the prototype of one who poses a
grave threat to society . . . .’ ”
The 1984 opinion, fairly read, did not suggest that the
murder was premeditated, only that the robbery was. As noted,
4
Our Supreme Court is currently considering whether trial
courts may consider the record of conviction in determining
whether a defendant has made a prima facie showing of
eligibility for relief under section 1170.95. (People v. Lewis,
supra, S260598.)
12
the fact a defendant participates in an armed robbery is, by itself,
insufficient to demonstrate he or she acted with reckless
indifference to human life. (People v. Banks, supra, 61 Cal.4th at
p. 809.) The question of whether the sentence was cruel or
unusual does not necessarily equate to the question of whether a
defendant is entitled to relief under section 1170.95, and it did
not do so here.
Thus, because Bobo made a prima facie showing he is
entitled to relief, the trial court erred by weighing the evidence
and denying the petition, rather than issuing an order to show
cause. We remand with directions to allow Bobo to file a reply
brief, and for the court to issue an order to show cause and hold a
hearing in accordance with the procedures set forth in section
1170.95. We offer no opinion on whether, given the facts of the
case, Bobo could or could not have been convicted of murder
under sections 188 and 189, as amended by Senate Bill 1437.5
5
In light of our conclusion, we need not address Bobo’s
contention that the denial of his petition not only ran afoul of the
procedures set forth in section 1170.95, but also violated his due
process rights.
13
DISPOSITION
The trial court’s order denying Bobo’s section 1170.95
petition is reversed. The matter is remanded with directions to
allow Bobo to file a reply brief, and for the court to issue an order
to show cause and conduct further proceedings in accordance
with section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
14
LAVIN, J., Concurring :
I join the majority in reversing the trial court’s order. I
write separately, however, to voice my disagreement with certain
portions of the majority’s analysis. Specifically, 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.).) I also disagree that
Section 1170.95 “requires two prima facie reviews—much less
two reviews that are substantively different—and entitles a
petitioner to counsel during only the second one.” (People v.
Cooper (2020) 54 Cal. App. 5th 106, 118.)
LAVIN, J.
1