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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Responden t,

v.

ALVIN BOBO,

Defendant and Appellant. B305298

(Los Angeles County Super. Ct. No. A365859)

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.
Lieberma n, Deputy Attorneys General, for Plaintiff and Respondent.2 ____________________________ 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 F ebruary 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
P eople v. Galvan (2020) 52 Cal.App.5th 1134, review granted
Oct ober 14, 2020, S264284 ( Galvan )

. We will affirm the trial
court’s order.

BACKGROUND Bobo and Gray broke into Latronis’s home on February 5,
198 1 . 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.3

strang ulation 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 Senat e 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, t he 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 very4

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 20 19 section 1170.95 petition. On May 17, 2019, Bobo filed a section 1170.95 petition in
this cou rt. We considered Bobo’s petition as a petition for writ of
mandat e, 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 a rguing that he was
entitled to relief under People v. Banks (2015) 61 Cal.4th 788 and People v. Cla rk (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 u nder 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 re lief. [¶] 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 previously5

convicte d 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 conv icted 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. 14 37 (§ 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 un derlying 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 reas onable 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 appropriate6

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, w hich 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, S 260598

— the trial court was not permitted to d eny 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] appellan t 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 (201 6) 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 o r 189 made effective’ as part of Senate Bill No. 1437.7

(§ 1170.95, subd. (a)(3).) ” ( Galvan

, supra , 52 Cal.App.5th at p. 1142.) In that case, w e 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 res ult 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 entitl ed 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 t he 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 insufficie nt to support the trial court’s denial of Bobo’s 1170.95 petition. 2
T he 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

2 The 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.8

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 Peopl e’s argument, however, demonstrates its own contrad iction 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
felo ny 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 rel ief 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 Bil l 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 r emedy for Bobo is a pet ition 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 the9 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.