Filed 8/12/22 P. v. Love CA4/3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Riverside County, John D. Molloy, Judge. Reversed and remanded. Request for judicial notice. Denied.

Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, A. Natasha Cortina, Lynne G. McGinnis and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Bobby Leon Love, III, appeals from the trial court’s order denying his resentencing petition filed under former Penal Code section 1170.95 (now § 1172.6), in which he sought relief on his four attempted murder convictions.[1] The trial court denied Love’s petition because at that time, resentencing relief under the statute was unavailable to defendants convicted of attempted murder. New legislation has since taken effect that expands the scope of former section 1170.95 to include defendants convicted of attempted murder under the natural and probable consequences doctrine. (§ 1172.6, subd. (a); Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) (Stats. 2021, ch. 551, § 1, subd. (a)).) Because the issue of whether Love is entitled to relief under the amended statute has not been litigated below, we reverse the trial court’s order denying Love’s petition and remand the matter for the trial court to consider this issue.

FACTS

In 2007, a Riverside County jury convicted Love 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 Love personally and intentionally discharged a firearm in the commission of the attempted murders. The court found Love had four prior serious felony convictions, which also qualified as strikes under the “Three Strikes” law, and the court sentenced Love to a term of 70 years to life. (People v. Delgado (Oct. 9, 2009, G040636) [nonpub. opn.] (case no. G040636); the facts underlying the offenses can be found in our prior opinion.)

In 2019, Love petitioned for resentencing relief under former section 1170.95 for his four attempted murder convictions. The trial court denied the petition solely on the ground Love had not suffered a murder conviction and therefore was not entitled to relief under former section 1170.95, a ruling consistent with several appellate decisions at the time. (See People v. Alaybue (2020) 51 Cal.App.5th 207, 222, citing cases].) Love appealed the denial of his resentencing petition, and a panel of this court affirmed the court’s order in a prior unpublished decision. (People v. Love (Mar. 23, 2021, G058669) [nonpub. opn.].) Our Supreme Court granted review and later transferred the matter back to us with directions to vacate our prior decision and reconsider in light of Senate Bill 775. The parties thereafter filed supplemental briefs addressing Senate Bill 775’s impact on the appeal (Cal. Rules of Court, rule 8.200(b)(1)), and we vacated our prior decision.

DISCUSSION

Senate Bill No. 1437 (2017-2018) “amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It made these changes by substantively amending sections 188 and 189. (Id., §§ 2-3; People v. Lewis (2021) 11 Cal.5th 952, 959.) It also added former section 1170.95, which provided a procedure for defendants previously convicted of felony murder or murder under a natural and probable consequences theory to petition the superior court to have their murder convictions vacated and be resentenced if they could no longer be convicted of murder under the amendments to sections 188 and 189. (Id., § 4; People v. Lewis, supra, 11 Cal.5th at p. 959.)

Effective January 1, 2022, former section 1170.95 was amended by Senate Bill 775 to permit defendants convicted of attempted murder under the natural and probable consequences doctrine to petition for resentencing. (Former § 1170.95, subd. (a); Stats. 2021, ch. 551, § 1, subd. (a).) This ameliorative change in the law applies to Love. (See People v. Porter (2022) 73 Cal.App.5th 644, 652 [the revisions in Senate Bill 775 apply to a petitioner whose appeal is not yet final].)

In his supplemental brief after the Supreme Court’s transfer order, Love argues the trial court’s order denying his petition must be reversed and the matter remanded for the trial court to consider his petition under the amended law. The Attorney General disagrees. He argues Love is ineligible for resentencing relief as a matter of law even under the amended statute because the record of conviction demonstrates the jury could have only convicted Love of attempted murder if it found he personally acted with malice. As support for this argument, the Attorney General relies on the jury instructions and the jury’s verdicts and findings at Love’s trial. This argument was not made below (because it was unnecessary at the time) and was not considered by the trial court. The Attorney General requests we take judicial notice of the record in Love’s direct appeal (case no. G040636), consider the record of conviction, conduct a prima facie inquiry, reach the conclusion Love is not entitled to relief as a matter of law, and affirm the denial of Love’s resentencing petition.

We conclude the most prudent course of action is to reverse the trial court’s order and remand the matter to allow the trial court to consider Love’s petition under section 1172.6 in the first instance. As an appellate court, “we are a court of review, not of first view . . . .” (Cutter v. Wilkinson (2005) 544 U.S. 709, 718, fn. 7.) On remand, both parties can brief the issue of whether Love is entitled to relief under the amended statute on his attempted murder convictions. (§ 1172.6, subd. (c).) “After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” (Ibid.) Given our conclusion that it is appropriate to remand the matter to the trial court for further proceedings on Love’s petition, we deny the Attorney General’s request we take judicial notice of the records in Love’s initial appeal, People v. Delgado, (Oct. 9, 2009, G040636 [nonpub. opn.).

DISPOSITION

The postjudgment order denying Love’s petition is reversed, and the matter is remanded for further proceedings consistent with this opinion.

MARKS, J.*

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in the text, pursuant to Assembly Bill No. 200 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 58, § 10).