Opinion
G058669
03-23-2021
THE PEOPLE, Plaintiff and Respondent, v. BOBBY LEON LOVE, III, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF122615) OPINION Appeal from a postjudgment order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2007, a jury in Riverside County convicted defendant Bobby Leon Love, III, of four counts of attempted murder, four counts of assault with a deadly weapon, one count of discharging a firearm at an occupied motor vehicle, and two counts of resisting an executive officer. The jury found the attempted murders were willful, deliberate, and premeditated and that defendant personally and intentionally discharged a firearm in the commission of the attempted murders. The court found defendant had four prior serious felony convictions, which also qualified as strikes under the "Three Strikes" law, and sentenced defendant to a state prison term of 70 years to life. (People v. Delgado (Oct. 9, 2009, G040636) [nonpub. opn.].)
In his first appeal, defendant argued the court erred by denying his pretrial motion for review of the arresting officers' personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. We agreed, conditionally reversed the judgment, and remanded the matter for the trial court to conduct an in camera review of documents responsive to defendant's Pitchess motion and determine whether they contained information that should have been disclosed to defendant. (People v. Delgado, supra, G040636.) On remand, the trial court conducted the in camera hearing but found no relevant information to disclose to defendant and the judgment was reinstated. Defendant appealed again, requesting we independently review the in camera proceeding. We did, and finding no error, we affirmed the judgment. (People v. Love (Sept. 20, 2010, G043401) [nonpub. opn.].)
In 2019, defendant petitioned for resentencing under Penal Code section 1170.95. Section 1170.95 was added as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 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).) Section 1170.95 permits a defendant previously "convicted of felony murder or murder under a natural and probable consequences theory" to petition the court to have his or her "murder conviction vacated and to be resentenced" under certain circumstances. (Id., subd. (a), italics added.) Defendant's petition was denied because he had not suffered a murder conviction. On appeal, defendant contends the court erred by denying his petition because Senate Bill 1437's provisions also apply to attempted murder. We disagree.
All statutory references are to the Penal Code.
In denying defendant's petition, the court relied on People v. Munoz (2019) 39 Cal.App.5th 738, review granted November 26, 2019, S258234, which was one of the first published decisions to reach the conclusion that "Senate Bill 1437 does not apply to the offense of attempted murder." (Id. at p. 743.) Since then, this court and several others have reached the same conclusion. (People v. Dennis (2020) 47 Cal.App.5th 838, 844-846, review granted July 29, 2020, S262184 (Dennis); id. at p. 847 ["Senate Bill 1437 does not entitle defendant to a reversal of his attempted murder convictions"]; see People v. Love (2020) 55 Cal.App.5th 273, 278-279 [collecting cases], review granted Dec. 16, 2020, S265445.) The Fifth Appellate District has reached a different conclusion as to nonfinal attempted murder convictions. (People v. Medrano (2019) 42 Cal.App.5th 1001, 1007-1008, 1017-1019 [in direct appeal, concluding Senate Bill 1437 eliminated the natural and probable consequences theory for attempted murder convictions], review granted Mar. 11, 2020, S259948; People v. Larios (2019) 42 Cal.App.5th 956, 968 ["Senate Bill 1437's abrogation of the natural and probable consequences doctrine . . . necessarily applies to attempted murder"], review granted Feb. 26, 2020, S259983; id. at pp. 966-968.) But it agrees a defendant convicted of attempted murder cannot obtain relief through the petitioning procedure in section 1170.95. (Medrano, at pp. 1008, 1016; Larios, at p. 961.) The Supreme Court will have the final word as it has granted review on whether Senate Bill 1437 applies to attempted murder liability under the natural and probable consequences doctrine. (People v. Lopez (2019) 38 Cal.App.5th 1087, review granted Nov. 13, 2019, S258175.)
Defendant acknowledges several cases have held Senate Bill 1437 and the petition procedure in section 1170.95 do not apply to attempted murder. Nevertheless, he urges us to interpret section 1170.95 as providing relief to defendants convicted of attempted murder under a natural and probable consequences theory. Defendant has not persuaded us to reverse our conclusion in Dennis that Senate Bill 1437 does not provide relief to defendants convicted of attempted murder. (Dennis, supra, 47 Cal.App.5th at pp. 844-846, review granted.) We adhere to the seemingly unanimous weight of authority that a defendant convicted of attempted murder is ineligible for relief under section 1170.95. Accordingly, the court properly denied defendant's petition for relief under section 1170.95.
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.