People v. Bobo CA2/1

California Court of Appeal Jun 24, 2021 No. B305298Unpublished

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Holding. The court held that a defendant cannot use a Penal Code section 1170.95 petition to challenge the sufficiency of evidence supporting special circumstance findings based on case law like Banks and Clark, as such challenges must be brought via habeas corpus.

Issues

Whether a trial court may deny a section 1170.95 petition at the prima facie stage based on the record of conviction.
Whether section 1170.95 is the proper vehicle to challenge special circumstance findings based on Banks and Clark.

Disposition. affirmed

Quotations verified verbatim against the opinion

“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.”

“The appropriate remedy for Bobo is a petition for writ of habeas corpus in the trial court challenging his special circumstance findings.”

Filed 6/24/21 P. v. Bobo CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B305298

Plaintiff and (Los Angeles County Respondent, Super. Ct. No. A365859)

ALVIN BOBO,

Defendant and Appellant.

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.

____________________________ 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.

People v. Bobo CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B305298

ALVIN BOBO,

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