People v. Glass CA2/6 ( 2021 )

Filed 6/3/21 P. v. Glass CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303432
(Super. Ct. No. MA074807)
Plaintiff and Respondent, (Los Angeles County)
v.
CORNELL CAREY GLASS,
Defendant and Appellant.
Cornell Carey Glass appeals from the judgment after
he was convicted in a court trial of two counts of home invasion
robbery (counts 1 and 2; Pen. Code,1 §§ 211, 213, subd. (a)(1)(A)),
assault with a firearm (count 5; § 245, subd. (a)(2)), and battery
with serious bodily injury (count 6; § 243, subd. (d)). The court
found true allegations that the crimes were committed to benefit
a criminal street gang (counts 1, 2, 5, and 6; § 186.22, subd. (b)),
use of a firearm (counts 1 and 2; § 12022.53, subds. (b) & (e)), and
1
All subsequent undesignated statutory references are to
the Penal Code.
being armed with a firearm (counts 5 and 6; § 12022, subd.
(a)(1)). The court also found true an allegation that all counts
were committed while Glass was on bail (§ 12022.1). The court
struck allegations of a prior prison term (§ 667.5, subd. (b)).2
The trial court sentenced Glass to two consecutive
indeterminate terms of 15 years to life for counts 1 and 2.
(§ 186.22, subd. (b)(4)(B).) The court stayed sentences of nine
years each for counts 5 and 6 with gang and armed with firearm
enhancements. The court stayed sentencing for the on-bail
enhancements pending disposition of the case for which he was
on bail.
In written findings of fact and conclusions of law, the
trial court stated that the section 12022.53 firearm
enhancements as to counts 1 and 2 would be stricken. At
sentencing, however, the court enhanced the sentences for counts
1 and 2 by ten years each pursuant to subdivisions (c) and (e)(1)
of section 12022.53, but ordered them stayed.
Glass contends: (1) he was denied due process as to
the robbery counts because the prosecution failed to provide
notice of the aiding and abetting theory, (2) his counsel rendered
ineffective assistance, and (3) the firearm use enhancements for
robbery must be stricken. We modify the judgment to strike the
firearm use enhancements and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
T.J., C.P., and C.S. robbed Z.W. and I.W. inside their
home. The trial court found that Glass, who remained outside,
2 Glass was charged with, and convicted of, multiple counts
arising from a separate incident during the same trial. Because
Glass does not challenge these convictions, we do not discuss
them in this opinion.
2
was the getaway driver and was guilty as an aider and abettor.
Glass and the other suspects were connected in
several ways. Glass, T.J., and C.P. were members of the Rolling
60’s criminal street gang. C.P. and Glass exchanged 62 telephone
calls in the two months before the robbery. Glass is depicted in a
photograph with C.P. and C.S. C.S. had a moniker of NFKANT
C-Loc (Infant C-Loc), after his father, who was a Rolling 60’s
gang member with the moniker C-Loc. C.S.’s parents rented a
shop in a strip mall owned by Z.W. C.S.’s aunt, K.W., had two
children with C.P.
A month before the robbery, C.S. and Glass
exchanged texts, which were interpreted at trial by a gang
expert. C.S. referred to Glass as “big cro” (big brother), which
indicated that Glass had a higher status in the gang. C.S. texted
they would “go troop Friday” (go on a mission). C.S. asked to
borrow a “blower” and Glass agreed to give C.S. a “billy” (both of
which referred to a gun).
A few days later, Glass texted C.S., “Hit me ASAP I
got something up.” He texted C.S. to “bring my seven back I need
it.” A gang expert testified that this referred to an FN Bristol
Five-seven pistol, which is the model depicted in a photograph on
Glass’s phone.
Nine days before the robbery, C.S. texted Glass
looking for “[s]umbody I could rob.” C.S. asked if Glass had “any
plugs” for “[w]eed [or] anything,” which a gang expert explained
referred to narcotics dealers. Glass responded, “U can’t rob
them.” C.S. then texted, “I just followed these [M]uslim people
[home] today . . . They had dough.”3
3 The victims are from Syria and speak Arabic and English.
3
Glass was arrested on July 9, 2018, for an unrelated
crime and was released from custody on July 14. Between 4:00
and 7:00 p.m., either “a couple days” or approximately a week
before the robbery, Z.W. and I.W. saw an SUV in the middle of
the street containing four men looking at the victims’ home.
Shortly after 6:00 a.m. on July 16, Glass and C.P.
went to Walmart in a silver Chevrolet Traverse SUV owned by
C.P.’s girlfriend. C.P. walked behind Glass into the store. Glass,
pulling a shopping cart, went to the hardware department where
zip ties, gloves, cleaning supplies, masks, and glasses were
located. C.P. then took the cart, went to a register, and
purchased Lysol, blue latex gloves, safety glasses, white masks,
and zip ties. At the next register, Glass purchased khaki pants,
shirts, and towels or cleaning rags.
At about 1:00 p.m. that day, Z.W. and I.W. were
upstairs at home with their seven-month-old baby. Three men
holding guns and wearing masks and dark sunglasses came up
the stairs. Two wore blue latex gloves and one wore brown
gloves.
One man pointed a gun at I.W. while she was holding
her crying baby and said, “Make him shut up or I’ll make him
shut up.” One man pointed a gun at Z.W.’s head while another
zip-tied Z.W.’s hands and ankles. The men demanded money and
guns. The robbers punched Z.W. in the eye, knocked him down,
and kicked him. One man pistol-whipped Z.W., causing injuries
that required staples and stiches to the back of his head.
At gunpoint, I.W. went to a closet and handed the
gunman an envelope with $20,000 in cash and a bottle with
$13,000. The robbers took a leather bag with $150,000 to
$170,000, mostly in new, sequentially numbered $100 bills. They
4
also took jewelry worth $70,000 to $80,000, guns, bullets, silver
bars, and hundreds of silver dollars. They put the stolen
property into I.W.’s blue suitcase. One of the robbers wiped the
stairwell with Lysol. Z.W. escaped and called police. The three
men ran out of the house.
Surveillance video showed a man running down the
street pulling a blue suitcase and a silver Traverse driving past
him. Another video showed two men wearing blue shirts, beige
pants, and white masks similar to those Glass and C.P.
purchased at Walmart. A witness saw two men, one wearing a
mask and dragging a blue suitcase, wave down a silver or bluish
SUV and enter it. The vehicle sped away, but the witness caught
up with it and photographed the license plate.
The robbers left behind blue towels, blue latex gloves,
unused zip ties, and a container of hand wipes. The victims
found bullet holes in a stairway railing and wall, and a bullet
casing on the floor. A bullet was lodged in the bedroom wall.
T.J.’s DNA was found on a fragment of a glove left at
the victims’ home. C.P.’s DNA was identified on several zip ties.
Glass’s DNA was not found inside the house.
Six days after the robbery, C.P. was found in the
Traverse and arrested. Under the floor mat were $3,500 in new
$100 bills. The victims identified a photograph of the Traverse as
the vehicle parked outside their home the afternoon before the
robbery.
GPS data showed C.P.’s cell phone moving towards
the victims’ residence at approximately 5:41 p.m. the afternoon
before the robbery. GPS data from a device attached to the
Traverse showed it was at the victims’ residence eight minutes
later. At 12:45 p.m. and 1:37 p.m. the day of the robbery, C.P.’s
5
phone made and received calls from a location near the victims’
home.
Two days after the robbery, K.W. texted C.P. a news
article about the robbery and asked, “Did you see this?” C.P.
responded, “Yeah. They got my plates. They looking for my car.”
A month after the robberies, sheriff’s deputies
stopped Glass for traffic violations. He then backed into a patrol
car, accelerated toward a deputy, led deputies on a chase, and
pointed a stolen handgun at a deputy. In Glass’s pants pocket
were $6,300 in uncirculated sequentially numbered $100 bills.
The series dates on the bills were consistent with the stolen
money.
Glass’s cell phone contained news photographs of
police outside the victims’ home after the robbery. Glass had a
second cell phone that contained a photograph of the street sign
on the same block as the victims’ residence.
In October 2018, Glass spoke on the phone from jail.
Glass said it was a home invasion robbery, and even though he
“didn’t go in there,” he could be charged with aiding and abetting.
He added that his lawyer was “saying . . . all right you didn’t go
in but you still could get charged with fucking aiding and shit.
Aiding.”
DISCUSSION
Aiding and abetting theory
Glass contends he was denied due process because
the prosecution argued he was identified as one of the robbers
inside the house, and did not assert the aiding and abetting
theory until rebuttal argument. We reject this contention.
We review the due process claim de novo. (People v.
Quiroz (2013) 215 Cal.App.4th 65, 70 (Quiroz).) We conclude that
6
the accusatory pleading provided the required notice, the
prosecution relied on evidence that Glass helped plan and
prepare the robberies, and both the prosecution and the defense
mentioned the aiding and abetting theory during trial. This is
therefore not a case of “the People affirmatively misleading or
ambushing the defense with their theory” of aiding and abetting.
(Id. at p. 71.)
An accusatory pleading need not state the aiding and
abetting theory. (§§ 31, 952, 971.) “[N]otice as a principal is
sufficient to support a conviction as an aider or abettor.” (People
v. Garrison (1989) 47 Cal.3d 746, 776, fn. 12.) This is true even
where the prosecution attempts to prove the defendant was a
perpetrator. (Ibid. [“defendant’s potential liability as an
accomplice was before the jury despite the prosecution’s concerted
attempt to prove him the actual killer”].) Notice of an aiding and
abetting theory is “constitutionally sufficient when the defendant
is . . . alerted to the theory . . . by the People’s express mention of
that theory before or during trial sufficiently in advance of
closing argument.” (Quiroz, supra, 215 Cal.App.4th at p. 70.)
That notice was provided here.
In her opening statement, the prosecutor discussed
Z.W.’s identification of Glass and asserted that he was one of the
robbers inside the home. But she also discussed the men in the
SUV surveilling the victims’ home the day before the robbery,
Glass and C.P. taking the same SUV to Walmart to purchase
materials for the robbery, Glass’s phone calls to C.P. before the
robbery, and Glass’s texts with C.S. to plan the robbery. The
prosecutor described Glass’s later flight and attack on deputies as
“the most powerful piece of evidence in this case . . . that really
links him to the home invasion robbery.”
7
Notice was also sufficient because Glass was alerted
by evidence of planning and preparation presented by the
prosecution. (Quiroz, supra, 215 Cal.App.4th at p. 70.) Nine
days before the robbery, C.S. texted Glass, looking for somebody
to rob. C.S. said he had followed “[M]uslim people” who had
“dough,” an apparent reference to Z.W. and I.W. A few days
later, four males in the SUV surveilled the victims’ home. The
trial court reasonably concluded that the photograph of the street
sign on Glass’s phone was evidence he was one of the men in the
SUV. On the morning of the robbery, C.P. followed Glass, who
had a higher status than C.P. in the gang, into Walmart to
purchase masks, zip ties, and other items for the robbery.
The robbery was committed by three men inside the
house. Photographic and cell phone evidence linked Glass with
C.P., whose DNA was found inside the house. Glass was found
with $6,300 in new $100 bills.
In addition, the prosecution’s trial brief gave notice
that it intended to present the jail telephone call in which Glass
impliedly admitted being involved in the robbery despite not
being present inside the house. The prosecution’s supplemental
trial brief stated that Glass “was involved in the sophisticated
planning of this home invasion robbery” and “the People are
proceeding under a conspiracy theory.”
While conspiracy and aiding and abetting are
different theories, both can be based on conduct before
commission of the target crime and can confer responsibility for
conduct of other participants. (See People v. Smith (2014) 60
Cal.4th 603, 615-617.) At a hearing on the admissibility of a
photograph during the prosecution’s case-in-chief, the prosecutor
said, “One of the theories that we’re proceeding under is not only
8
aiding and abetting but a conspiracy theory.”
Nor did closing argument mislead Glass into
believing that his presence inside the house was the only
evidence of his guilt. The prosecutor stated that the conspiracy
began when Glass and C.S. exchanged texts about committing a
robbery. She identified the Walmart surveillance video showing
Glass and C.P. inside and outside the store as “some of the most
compelling and incriminating evidence” of Glass’s participation in
a conspiracy.
Defense counsel was aware of the aiding and abetting
theory. As noted in Glass’s phone call from jail, his prior
attorney discussed his possible liability as an aider and abettor.
Glass’s motion to dismiss the gang allegations after the
preliminary examination (§ 995) argued that “there was no proof
. . . that this defendant committed the offense or aided and
abetted the co-defendant[s] with respect to the charges in the
alleged home invasion robbery.”
In closing argument, Glass’s counsel argued not only
that Z.W.’s identification was mistaken, but also that the
evidence did not establish that Glass participated in the crimes
or conspired to commit them. Counsel asserted that neither the
communications with C.P. and C.S., nor his presence at Walmart,
was “enough to prove Mr. Glass committed the crime of home
invasion or was involved in any conspiracy to commit the crime of
home invasion.” Counsel also discussed the jail phone call that
referred to aiding and abetting as the basis for his culpability.
In rebuttal, the prosecutor argued that even if the
court were to reject the identification evidence (which it
ultimately did), there was sufficient evidence to connect Glass
pursuant to an aiding and abetting or conspiracy theory. The
9
prosecutor relied on the same evidence she argued previously,
including the common gang membership of the participants, texts
before commission of the crime, the date of Glass’s release from
custody, the Walmart purchases, and the jail phone call.
This case is unlike Sheppard v. Rees (9th Cir. 1990)
909 F.2d 1234, where a felony-murder theory was raised for the
first time immediately before closing argument. (Id. at p. 1235.)
“At no time during pretrial proceedings, opening statements, or
the taking of testimony was the concept of felony-murder raised,
directly or indirectly.” (Ibid.) The Attorney General there
conceded that “a pattern of government conduct affirmatively
misled the defendant, denying him an effective opportunity to
prepare a defense. ‘The defendant was ambushed.’” (Id. at p.
1236, italics omitted.) Here, the prosecution at trial discussed
liability based on planning and preparation for the robbery, and
specifically aiding and abetting. The prosecution did not mislead
or ambush the defense.
Nor is this case like Lankford v. Idaho (1991) 500
U.S. 110, which involved the “unique circumstance” in which the
trial court sentenced the defendant to death after the prosecution
provided formal notice that it was not seeking death. (Id. at p.
111.) There, the prosecution and defense argued other
sentencing choices without the court giving any indication it was
contemplating death. (Id. at pp. 119-120.) Here, the defense was
on notice of the aiding and abetting theory, and in its argument
discussed the evidence relevant to that theory.
Ineffective assistance of counsel
Glass next contends that his trial counsel rendered
ineffective assistance by failing to address the aider and abettor
theory and by failing to object to the prosecutor’s reliance on the
10
theory in rebuttal argument. We disagree.
Counsel renders constitutionally ineffective
assistance when “‘counsel’s performance was deficient, in that it
fell below an objective standard of reasonableness under
prevailing professional norms,’” and there is “‘a reasonable
probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.’” (People v.
Hoyt (2020) 8 Cal.5th 892, 958.) Neither prong has been
established here.
Defense counsel cross-examined prosecution
witnesses, moved to exclude text messages between Glass and
C.S., and moved to dismiss the gang allegations on the ground
that the evidence did not show Glass “committed the offense or
aided and abetted.” Counsel argued that the phone calls, texts,
photographs, presence at Walmart, and possession of cash relied
on by the prosecution did not link Glass to the crime. Counsel
was not ineffective by failing to raise or emphasize particular
issues in argument. (People v. Thomas (1992) 2 Cal.4th 489,
531.) Counsel’s failure to object to the accusatory pleading or to
the prosecutor’s rebuttal argument was not deficient because the
objections would have lacked merit. (People v. Mitcham (1992) 1
Cal.4th 1027, 1080.)
Nor is it reasonably probable that absent any
shortcomings of counsel the result would have been different. We
agree with the trial court’s conclusion that the evidence of guilt
was “overwhelming.” Glass has not shown a reasonable
likelihood that additional objections or argument would have
changed the outcome.
Firearm use enhancements
Glass contends, and the Attorney General concedes,
11
that the enhancement for personal use of a firearm in the
commission of counts 1 and 2 must be stricken. We agree.
An enhancement pursuant to section 12022.53 cannot
be imposed in addition to the gang enhancement because there is
no evidence that Glass personally used a firearm in the robberies.
(§ 12022.53, subd. (e)(2); People v. Brookfield (2009) 47 Cal.4th
583, 595.) Moreover, because the information alleged the
12022.53 enhancements only pursuant to subdivision (b), the
facts required to prove the enhancements pursuant to subdivision
(e) were not “pled and proved.” (§ 12022.53, subd. (e)(1); People v.
Anderson (2020) 9 Cal.5th 946, 953-957.) Accordingly, we modify
the judgment to strike the firearm use enhancements.
DISPOSITION
The firearm use enhancements pursuant to section
12022.53 for counts 1 and 2 are stricken. The superior court
clerk is directed to prepare amended abstracts of judgment
reflecting the amended sentence and the fact that trial was by
the court rather than by jury, and transmit a copy to the
Department of Corrections and Rehabilitation. As so modified,
the judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J. PERREN, J.
12
Henry J. Hall, Judge
Superior Court County of Los Angeles
______________________________
Shannon Chase, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster,
Deputy Attorneys General, for Plaintiff and Respondent.