People v. Love CA2/5

California Court of Appeal Apr 21, 2021 No. B306398Unpublished

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Holding. A defendant is ineligible for Penal Code section 1170.95 relief as a matter of law if the jury's true finding on a robbery-murder special circumstance confirms the defendant acted with the intent to kill.

Issues

Whether a jury's true finding on a robbery-murder special circumstance precludes relief under Penal Code section 1170.95 as a matter of law.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“defendant is not entitled to section 1170.95 relief as a matter of law because the availability of such relief extends only to defendants, unlike him, who “could not be convicted of first or second degree murder because of changes” SB 1437”

“After enactment of SB 1437, defendant could still be convicted of felony murder because, as his trial jury determined in finding the special circumstance true, he harbored an intent to kill the victim and aided and abetted the victim’s killing.”

Filed 4/21/21 P. v. Love CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B306398

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A394113-01) v.

CHRISTOPHER LOVE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, James Richard Dabney, Judge. Affirmed. Marilee Marshall, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Rene Judkiewicz, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Christopher Love (defendant) appeals from an order denying his Penal Code section 1170.95 petition to vacate his decades-old murder conviction.1 We consider whether the trial jury’s true finding on a special circumstance allegation attached to the murder charge establishes he is not entitled to relief as a matter of law.

I Defendant and an accomplice, Randy Lewis, were charged with murder after a husband and wife agreed to give the two men a ride in their car and Lewis shot the husband from the back seat while defendant attacked the wife with a knife. The motive for the murder (and attempted murder of the wife) was robbery—the husband’s wallet was found missing after the shooting2—and a robbery-murder special circumstance (§ 190.2, subd. (a)(17)) was alleged in connection with the murder charge. At defendant’s trial in 1986, the court instructed the jury on felony murder and the natural and probable consequences theory of aiding and abetting liability. The jury was not instructed on a malice theory of murder. In connection with the murder charge, the court gave the jury two instructions on the alleged robbery-murder special

People v. Love CA2/5

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B306398

CHRISTOPHER LOVE,

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

RUBIN, P. J.

MOOR, J.

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