People v. Love CA2/6 ( 2022 )


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  • Filed 5/25/22 P. v. Love CA2/6
    (opinion on rehearing)
    NOT TO BE PUBISHED 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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
    THE PEOPLE,                                                  2d Crim. No. B302725
    (Super. Ct. No. YA040317)
    Plaintiff and Respondent,                               (Los Angeles County)
    v.                                                           OPINION FOLLOWING
    REHEARING
    GLEN QUINTRELL LOVE,
    Defendant and Appellant.
    Here we remand so that the trial court may conduct a
    hearing that complies with the requirements of Penal Code1
    section 1170.95 and its amendments as reflected in Senate Bill
    No. 775.
    Glen Quintrell Love appeals an order denying his petition
    for resentencing (§ 1170.95) of his first degree murder conviction.
    In 1999, he was convicted of second degree robbery (§ 211) and
    1   All statutory references are to the Penal Code.
    first degree murder with a robbery-murder special circumstance
    finding (§§ 187, 189, 190.2, subd. (a)(17)(A)).
    In 2019, Love filed a petition for resentencing. The trial
    court issued an order to show cause on his section 1170.95
    petition and held an evidentiary hearing. It found Love was not
    entitled to resentencing because he was “a major participant and
    acted with reckless indifference” to human life. After we affirmed
    the order denying his petition, Love filed a petition for rehearing.
    We granted the petition to consider the impact of recently passed
    Senate Bill No. 775 (2021 Reg. Sess.) that amended the section
    1170.95 hearing procedure. (Stats. 2021, ch. 551, § 2.)
    Reversals and remands are not necessarily a criticism of
    the trial court due to the continual changes and reinterpretations
    of the law involving resentencing under section 1170.95. We
    conclude, among other things, that: 1) Love is entitled to a new
    evidentiary hearing; 2) the burden is on the People to prove Love
    could be convicted of murder under current law; and 3) the trial
    court erred in not making findings under current standards for
    murder liability. We reverse and remand.
    FACTS
    Raymond Williams was fatally shot one night after he won
    money gambling. On the night of April 11, 1997, Chaka Thomas
    picked up Love and drove to a dice game in Hawthorne. Several
    other men were there, including Lamar Salone and Williams.
    Salone showed Thomas a semiautomatic pistol and said he was
    “strapped.” Love participated in the dice game and lost money.
    Williams won his bets that evening and boasted about his
    luck to the others. He left the game and drove away in his van.
    Thomas left the game shortly after Williams departed and was
    joined by Love and Salone. According to Thomas, he decided to
    2
    drive them home because he was nervous about Salone having a
    gun.
    When they reached the corner of 139th Street and
    Kornblum Avenue, Salone asked Thomas to stop the car so he
    could use the telephone. Thomas parked near a phone booth and
    Salone got out, followed by Love. A few moments later, Thomas
    heard four or five gunshots. Love ran back to the car and
    excitedly told Thomas, “Let’s go.” As they were driving away,
    Love told Thomas that Williams “started trippin so we had to
    knock him off.” He showed Thomas a roll of money and offered
    him some, which Thomas refused.
    Williams was still breathing after being shot. He was alive
    when police and paramedics arrived, but he died after being
    taken to the hospital.
    On the day after the shooting, Thomas and Salone drove to
    Love’s house where they all discussed the crime and agreed on a
    story about Thomas giving Love a ride on the night of the dice
    game after Love’s car overheated.
    Herschel Houston attended the dice game on April 11. He
    told police that he had a conversation with Love. Love described
    the robbery and shooting. Love said he had “jacked” Williams
    and that Williams had been shot in the head; Salone had fired
    the gun after Williams made a “funny” move.
    DISCUSSION2
    Denying the Section 1170.95 Petition
    The origin of section 1170.95 stems from Senate Bill No.
    1437 (2017-2018 Reg. Sess.) in 2018. (Stats. 2018, ch. 1015, § 4.)
    “Senate Bill 1437 ‘amend[s] the felony murder rule and the
    natural and probable consequences doctrine, as it relates to
    2   We grant the People’s request for judicial notice.
    3
    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.’ ” (People v.
    Gutierrez-Salazar (2019) 
    38 Cal.App.5th 411
    , 417, italics added.)
    A defendant convicted of felony murder may file a petition
    under section 1170.95 alleging he or she “could not be convicted
    of first or second degree murder” because of changes to the law
    required by Senate Bill No. 1437. (People v. Gutierrez-Salazar,
    supra, 38 Cal.App.5th at p. 417.) The trial court must determine
    if the petitioner has made a prima facie showing that he or she
    falls within the provisions for resentencing relief under the
    statute. (§ 1170.95, subd. (c).) If the petitioner has made such a
    showing, the trial court “shall issue an order to show cause.”
    (Ibid.) The trial court must then hold a hearing to determine
    whether to vacate the murder conviction and resentence the
    petitioner. (Id., subd. (d)(1).)
    There are two stages involved in a section 1170.95 petition.
    If a prima facie showing is made for relief in the first stage, the
    trial court proceeds to the second stage and issues an order to
    show cause and the case proceeds to an evidentiary hearing.
    The Evidentiary Hearing
    This case went to a second stage section 1170.95
    evidentiary hearing.
    At the time Love filed his petition for resentencing, the
    statute provided, “At the hearing to determine whether the
    petitioner is entitled to relief, the burden of proof shall be on the
    prosecution to prove, beyond a reasonable doubt, that the
    petitioner is ineligible for resentencing. If the prosecution fails to
    sustain its burden of proof, the prior conviction, and any
    4
    allegations and enhancements attached to the conviction, shall be
    vacated and the petitioner shall be resentenced on the remaining
    charges. The prosecutor and the petitioner may rely on the record
    of conviction or offer new or additional evidence to meet their
    respective burdens.” (Former § 1170.95, subd. (d)(3), italics
    added.)
    After the trial court issued the order to show cause, the
    People elected to rely on the “record of conviction.” (Former
    § 1170.95, subd. (d)(3).) They attached the appellate decision
    that affirmed Love’s conviction and they relied on the statement
    of facts in that decision. In that 2001 decision, we affirmed the
    special circumstances findings. (People v. Love (Aug. 1, 2001,
    B140458) [nonpub. opn.].) We rejected Love’s claims that he was
    not a major participant in the robbery and that he did not act
    with reckless indifference to human life. We said: 1) “[Love] was
    riding in a car with Thomas and Salone, who was armed with a
    gun”; 2) “Love left the car with Salone, approached Williams, and
    by his own later admission to Herschel Houston, ‘jacked’
    Williams”; 3) Salone shot Williams when Williams resisted, and
    Love took money “from Williams’ pockets”; and 4) “Love had a
    motive to rob Williams because Williams had won money
    gambling that evening while Love had lost his bets.”
    We also stated, “The jury could reasonably infer from this
    evidence that Love acted with reckless indifference to human life
    when he and an armed cohort approached Williams to rob him at
    gunpoint.” (People v. Love, supra, B140458.) We said the jury
    “could further infer that Love was a major participant in the
    robbery based on” 1) “his presence at the scene of the robbery and
    shooting”; 2) “his admission that he had ‘jacked’ Williams”; and 3)
    5
    “his removal of the money from Williams’ pocket.” (Ibid., italics
    added.)
    At the end of the second stage section 1170.95 hearing, the
    trial court indicated it read the summary of facts in the appellate
    opinion and stated: 1) “Mr. Salone was armed with a gun. Mr.
    Love left the car with Mr. Salone, or within seconds after Mr.
    Salone left, approached the victim”; 2) “[Love] admitted when he
    returned to the car that he jacked the victim”; 3) “four or five
    gunshots were heard”; 4) “Mr. Love had a motive to rob Mr.
    Williams because he had gambled with Mr. Williams, and lost
    money to Mr. Williams”; and 5) “Mr. Love returned to the car,
    and showed everyone a roll of money” and “admitted to jacking
    Mr. Williams” with “knowledge that Mr. Salone had fired the
    gun.”
    Senate Bill No. 775
    Love filed a petition for rehearing noting that the
    Legislature passed Senate Bill No. 775 which contains new
    procedures for section 1170.95 evidentiary hearings.
    As will be seen, Love did not receive a valid section 1170.95
    hearing. He is therefore entitled to a reversal and remand for a
    new hearing. The trial court must apply current law required by
    Senate Bill No. 775. (People v. Navarro (2007) 
    40 Cal.4th 668
    ,
    681; People v. Charles (1967) 
    66 Cal.2d 330
    , 335; People v. Sims
    (2021) 
    59 Cal.App.5th 943
    , 964.)
    The Burden of Proof
    At the evidentiary hearing, the trial court placed the
    burden on Love to initially present his case. The court said to
    Love’s counsel, “Since you’re the moving party, I believe it’s your
    turn to go first.”
    6
    But this was error because under the statute, at the
    hearing the People have the burden of proof to show that Love
    was ineligible for resentencing under current law beyond a
    reasonable doubt. (§ 1170.95, subd. (d)(3).) Love already made a
    prima facie showing that he was entitled to relief which is why
    the trial court issued an order to show cause for the evidentiary
    hearing.
    Placing the burden on the petitioner does not comply with
    the statutory procedure and deprives the defendant of the
    opportunity to receive the hearing mandated by the statute.
    Moreover, switching the burden to the defendant, instead of
    the prosecutor, involves a structural error that cannot be
    sustained. (Armstrong v. Manzo (1965) 
    380 U.S. 545
    , 551.) “For
    ‘it is plain that where the burden of proof lies may be decisive of
    the outcome.’ ” (Ibid.) Consequently, switching the burden to the
    wrong party implicates serious due process infirmities involving
    the structural integrity of the proceedings. (Ibid.; Speiser v.
    Randall (1958) 
    357 U.S. 513
    , 525-526.) Had the court required
    the prosecutor to go first, the People’s failure of proof would have
    entitled the defendant to request that his petition be granted. It
    is well established that the burden of proof “never shifts to the
    defendant to prove that he is innocent.” (People v. Fiu (2008) 
    165 Cal.App.4th 360
    , 383.) The People are required “to prove the
    facts establishing a defendant’s guilt beyond a reasonable doubt.”
    (People v. Mower (2002) 
    28 Cal.4th 457
    , 478.)
    Findings on the Current Standards for Murder Liability
    Love claims the trial court’s findings and the jury’s prior
    special circumstances findings are not consistent with current
    legal standards involving findings involving major participants
    acting with reckless indifference to human life. We agree.
    7
    Years after Love’s 2001 conviction, the California Supreme
    Court highlighted a series of additional factors that must be
    considered before a defendant who was not the actual killer can
    be convicted of murder as a major participant who acted with
    reckless indifference to human life under current law. (In re
    Scoggins (2020) 
    9 Cal.5th 667
    ; People v. Clark (2016) 
    63 Cal.4th 522
    ; People v. Banks (2015) 
    61 Cal.4th 788
    .)
    In Banks, the court mentioned several relevant factors,
    including: “What role did the defendant have in planning the
    criminal enterprise that led to one or more deaths? What role did
    the defendant have in supplying or using lethal weapons? What
    awareness did the defendant have of particular dangers posed by
    the nature of the crime, weapons used, or past experience or
    conduct of the other participants? Was the defendant present at
    the scene of the killing, in a position to facilitate or prevent the
    actual murder, and did his or her own actions or inaction play a
    particular role in the death?” (People v. Banks, supra, 61 Cal.4th
    at p. 803.)
    In Clark, the court held, “A defendant’s knowledge of
    factors bearing on a cohort’s likelihood of killing are
    significant . . . .” (People v. Clark, supra, 63 Cal.4th at p. 621,
    italics added.)
    In Scoggins, the court held there was no ground to find
    reckless indifference to human life in a case of a defendant who
    planned an unarmed assault and robbery where one of his
    associates at the crime scene unexpectedly used a gun and shot a
    victim to death. The court noted that the defendant did not
    “know that a gun would be used during the felony.” (In re
    Scoggins, supra, 9 Cal.5th at p. 677.)
    8
    During the hearing, Love’s counsel said the record of
    conviction did not answer critical questions regarding relevant
    Banks factors, including, among other things, 1) whether Love
    “was aware that Salone was armed” when they were in the car; 2)
    whether Love “arrived at the scene of the shooting before the shot
    rang out”; and 3) whether Love “had any history of knowing
    Salone would be willing to arm himself, and use lethal force.”
    Here the trial court erred by not requiring the People to
    initially meet their burden of proof at the evidentiary hearing
    and by not making findings on the relevant Banks, Clark, and
    Scoggins factors. These are factors to be considered and weighed
    in deciding the petition and in ruling on whether the People met
    their burden of proof. If the record of conviction does not contain
    facts on these issues, the People must present evidence on them
    to satisfy their initial burden of proof beyond a reasonable doubt.
    Because the record of conviction does not include facts on the
    Banks, Clark, and Scoggins factors, solely relying on that record
    was error.
    DISPOSITION
    The order denying the section 1170.95 petition is reversed.
    The case is remanded to the trial court for a new evidentiary
    hearing at which the parties may present additional evidence as
    they see fit.
    NOT TO BE PUBLISHED.
    GILBERT, P. J.
    We concur:
    YEGAN, J.               PERREN, J.
    9
    Laura C. Ellison, Judge
    Superior Court County of Los Angeles
    ______________________________
    Donna L. Harris, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Rob Bonta, Xavier Becerra, Attorneys General, Lance E.
    Winters, Chief Assistant Attorney General, Susan Sullivan
    Pithey, Assistant Attorney General, Idan Ivri and Allison H.
    Chung, Deputy Attorneys General, for Plaintiff and Respondent.
    10
    

Document Info

Docket Number: B302725A

Filed Date: 5/25/2022

Precedential Status: Non-Precedential

Modified Date: 5/25/2022