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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and 

 Respondent,

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. 

Lieberman, 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 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.
3

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 
4

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 
5

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 
6

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. 
7

(§ 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 

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 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 
9

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.