People v. Bobo CA2/1 ( 2023 )

Filed 3/1/23 P. v. Bobo CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. Reversed and remanded
with directions.
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Idan Ivri and Gary A. Lieberman, Deputy Attorneys General, for
Plaintiff and Respondent.
____________________________
A jury convicted Alvin Bobo and a codefendant of murder,
burglary, and robbery and we affirmed the convictions on Bobo’s
direct appeal. (People v. Bobo (Oct. 4, 1983, 2 Crim. No. 42179)
[nonpub. opn.] p. 3 (Bobo I).) In 2019, Bobo filed a facially
sufficient petition under Penal Code section 1172.6 (former
section 1170.95).1 The trial court denied Bobo’s petition on the
merits, and Bobo did not appeal from the trial court’s order.
In 2020, Bobo filed a second facially sufficient petition for
resentencing under section 1172.6. The trial court denied the
second petition as a successive petition. Bobo filed a timely
notice of appeal. We affirmed the trial court’s denial of Bobo’s
petition for resentencing, concluding that Bobo’s argument was
foreclosed by our opinion in People v. Galvan (2020) 52
Cal.App.5th 1134 (Galvan) (disapproved by People v. Strong
(2022) 13 Cal.5th 698, 718, fn. 3 (Strong)). (People v. Bobo (June
24, 2021, B305298) [nonpub. opn.] p. 2 (Bobo II).)
Bobo filed a petition for review in the Supreme Court,
which granted the petition and held the case pending its decision
in Strong. After it decided Strong, the Supreme Court
transferred this case back to us with directions to vacate our
decision and reconsider the cause in light of Strong. On
reconsideration, we reverse the trial court’s order denying Bobo’s
petition for resentencing.
1 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6 with no change in its text. (Stats. 2022, ch. 58,
§ 10.) Further statutory references are to the Penal Code.
2
BACKGROUND
A jury found Bobo and a codefendant guilty of first degree
murder, burglary, and robbery for events leading to the death of
George Latronis on February 5, 1981.2 (Bobo I, supra, 2 Crim.
No. 42179 at pp. 2-3.) 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. (Id. at p. 2.)
We affirmed Bobo’s conviction in an unpublished opinion
filed on October 4, 1983. (Bobo I, supra, 2 Crim. No. 42179 at p.
19.)
On January 9, 2019, Bobo filed a petition for resentencing
under section 1172.6. 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
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.
On May 17, 2019, Bobo filed a section 1172.6 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
2Latronis had been bound and gagged during a robbery
and “died as a result of strangulation or suffocation.” (Bobo I,
supra, 2 Crim. No. 42179 at p. 3.)
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for writ of habeas corpus in this court arguing that he was
entitled to relief under People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). 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 1172.6. 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. We affirmed, concluding that our opinion in
Galvan required Bobo to seek relief based on Banks and Clark on
a petition for writ of habeas corpus. (Bobo II, B305298 at p. 7.)
We concluded that our earlier summary denial of Bobo’s petition
for writ of habeas corpus presented no obstacle to the remedy
because, we said, “ ‘a summary denial of a habeas petition does
not establish law of the case or have a res judicata effect in future
proceedings.’ ” (Id. at pp. 8-9, fn. 3, quoting Galvan, supra, 52
Cal.App.5th at p. 1143.)
The Supreme Court granted Bobo’s petition for review and
held the matter pending its decision in Strong. After it issued its
opinion in Strong, the Supreme Court transferred the matter to
us and directed us to vacate our opinion and reconsider the cause
in light of Strong. We vacated our opinion and now reconsider
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the matter in light of the Supreme Court’s opinion in Strong,
supra, 13 Cal.5th 698.
DISCUSSION
Under section 1172.6, a defendant “convicted of felony
murder” may file a petition to have the murder conviction
vacated and “be resentenced on any remaining counts.”
(§ 1172.6, subd. (a).) A defendant makes a prima facie case for
relief under this section if, among other requirements, the
defendant “could not presently be convicted of murder” under the
amendments to sections 188 or 189 that became effective on
January 1, 2019. (§ 1172.6, subd. (a)(3).) These statutes, as
amended, still authorize a murder conviction under the felony
murder doctrine if the defendant “was a major participant in the
underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e)(3).) Thus, if these facts can be established
as a matter of law based on the record of the defendant’s
conviction, the court may determine that the defendant has failed
to make a prima facie case for relief and deny the defendant’s
petition without an evidentiary hearing. (People v. Lewis (2021)
11 Cal.5th 952, 971 (Lewis).)
On Bobo’s first section 1172.6 petition, the trial court
concluded that Bobo was “a major participant in the robbery
murder and burglary murder of the victim and acted with
reckless indifference to human life.” The trial court’s conclusion,
however, was based on its reading of the “appellate decision
affirming petitioner’s conviction and sentence,” and not based on
the results of an evidentiary hearing under section 1172.6,
subdivision (d)(3). The trial court’s conclusion in this instance
constitutes “factfinding prohibited at the prima facie stage.”
(Strong, supra, 13 Cal.5th at p. 720.)
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The People concede that Bobo is entitled to an evidentiary
hearing under section 1172.6, subdivision (d), and we agree.
Bobo’s facially sufficient section 1172.6 petition entitles him to
the appointment of counsel, an order to show cause, and an
evidentiary hearing under section 1172.6, subdivision (d)(3).
In their briefing on Bobo’s appeal from his second section
1172.6 petition, the People argued that Bobo’s petition should be
barred as a successive petition. Indeed, the trial court denied the
second section 1172.6 petition on that ground. We did not reach
the People’s collateral estoppel argument in our earlier opinion.
Nor will we here. On remand from the Supreme Court, the
People have abandoned their collateral estoppel argument for
purposes of Bobo’s petition. The People pointed out in their
collateral estoppel briefing that Bobo’s relief would have been to
file a petition to allow a late-filed notice of appeal from the trial
court’s denial of his first section 1172.6 petition. Rather than
expend judicial resources that would leave both the parties and
this court in the same place, we have deemed Bobo’s notice of
appeal to be a late-filed notice of appeal from the trial court’s
denial of his first section 1172.6 petition and decide this matter
on the merits. Even if we were to ignore the People’s concession,
we would likely arrive at the same conclusion based on our
reading of Strong: “[P]reclusion does not apply when there has
been a significant change in the law since the factual findings
were rendered that warrants reexamination of the issue. . . . ‘[A]
judicial declaration intervening between the two proceedings may
so change the legal atmosphere as to render the rule of collateral
estoppel inapplicable.’ ” (Strong, supra, 13 Cal.5th at pp. 716-
717.) The Supreme Court’s decisions in Lewis and Strong
represent a significant change in the law upon which the denial
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of Bobo’s initial petition was decided. Bobo’s petition is not
barred by collateral estoppel principles.
We agree with both Bobo and the People that the matter
should be remanded for the trial court to issue an order to show
cause and conduct an evidentiary hearing pursuant to section
1172.6, subdivision (d)(3).
DISPOSITION
The trial court’s order denying Bobo’s petition for
resentencing is reversed. On remand, the trial court will issue an
order to show cause and conduct an evidentiary hearing under
section 1172.6, subdivision (d).
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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