P. v. Love

Filed 3/23/21 P. v. Love CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
THE PEOPLE,
Plaintiff and Respondent,
v.
BOBBY LEON LOVE, III,
Defendant and Appellant.
G058669
(Super. Ct. No. RIF122615)
O P I N I O N
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.].)1
In 2019, defendant petitioned for resentencing under Penal Code section
1170.95.2 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
1 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.].)
2 All statutory references are to the Penal Code.

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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.
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

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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.

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