People v. Love CA2/6 ( 2024 )

Filed 5/31/24 P. v. Love CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B326304
(Super. Ct. No. YA040317)
Plaintiff and Respondent, (Los Angeles County)
v.
GLEN QUINTRELL LOVE,
Defendant and Appellant.
Glenn Quintrell Love was convicted by a jury of second
degree robbery and first degree murder with a robbery-murder
special circumstance. (Pen. Code, §§ 187, 189, 190.2, subd.
(a)(17)(A), 211.)1 The jury also found true that a principal was
armed with a firearm during the commission of the offenses.
(§ 12022.5.) The trial court sentenced Love to life without the
possibility of parole plus a consecutive year for the firearm
enhancement. We affirmed. (People v. Love (Aug. 1, 2001,
B140458) [nonpub. opn.].)
1 All statutory references are to the Penal Code.
Love petitioned for resentencing under former section
1170.95, now renumbered without substantive change as section
1172.6. The trial court denied the petition. We reversed on the
ground that the court incorrectly placed the burden of proof on
Love. (People v. Love (May 25, 2022, B302725) [nonpub. opn.].)
On remand, after an evidentiary hearing, the court found the
prosecution proved beyond a reasonable doubt that Love is
ineligible for resentencing.
We reverse and remand for a new evidentiary hearing. The
trial court misapprehended a material fact and did not make all
the required findings.
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.” (People v. Love, supra, B140458.) Love and Salone
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.
When they reached the corner of 139th Street and
Kornblum Avenue, Salone asked Thomas to stop the car. Thomas
parked and Salone got out followed by Love. A witness who was
in the area testified, “At first I heard one shot, then about four or
five after that.” (People v. Love, supra, B140458.) Love ran back
to the car and said “Let’s go.” (Ibid.) He was laughing as he said
it. As they were driving away, Love told Thomas that Williams
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“started trippin so we had to knock him off.” (Ibid.) 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. (People v. Love,
supra, B140458.)
Section 1172.6 Hearing
Love did not present any new evidence at the hearing.
Instead he argued that under People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), he
was not a major participant in the crimes and did not act with
reckless indifference to human life. The trial court disagreed and
found the prosecution proved its case beyond a reasonable doubt.
In so concluding, the trial court found:
“Under the Banks factors, I believe that there is sufficient
circumstantial evidence and direct evidence to show the
following: One, that you were present the night before, and
aware that the shooter in this case had a firearm. I believe that
the record shows that there was a gambling game going on that
Mr. Love lost some significant amount of money in that game,
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and had a motive to regain the money that was lost from the
victim, Mr. Williams.
“I believe the record shows direct and circumstantially that
Mr. Love was a participant in the robbery. He wasn’t just
present at the scene of the robbery, but he was present at the
scene of the shooting. He was present with the knowledge that
the shooter in this case did have a firearm, if not the same day,
then the night before, which was in very close proximity to this
robbery.
‘There was significant evidence that you had a motive to
quote, ‘jack Mr. Williams,’ and, in fact, . . . you stated personally
that you jacked, that’s the word used jacked, or robbed, the victim
in this case.
“There is direct evidence that you removed money from the
victim’s pockets, that you attempted to share that money with
other co-conspirators….
“So I think looking at the Banks factors you are aware that
the weapon would likely be present, you were, in fact, aware that
the gun was present the night before while the money was being
lost by you….
“You were, in fact, present at the scene of the killing, you
were not sitting in the car with one of the other co-conspirators,
you were actually at the scene of where the victim was shot
multiple times, put your hands in his pockets, you removed his
money.
“So because you were present at the scene of the crime, you
were in a position to facilitate or prevent the actual murder, and
you did not prevent it. You were facilitating it by your presence,
and support of the actual killer. And that facilitation was, again,
with the knowledge and the motive, knowledge of the firearm
4
being present, and also your own particular motive to regain your
lost gamble money.”
DISCUSSION
Section 1172.6
Section 1172.6, subdivision (a) provides, in part: “A person
convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime . . . may file a petition with the court
that sentenced the petitioner to have the petitioner’s murder . . .
conviction vacated and to be resentenced on any remaining
counts . . . .”
Under section 1172.6, defendants who were neither actual
killers nor acted with intent to kill can be held liable for murder
only if they were major participants in the underlying felony and
acted with reckless indifference to human life. (People v. Strong
(2022) 13 Cal.5th 698, 708.) The prosecution had the burden
beyond a reasonable doubt to prove the defendant is not entitled
to relief. (§ 1172.6, subd. (d)(3).)
Major Participant (Banks)
In Banks, supra, 61 Cal.4th at page 803, our Supreme
Court stated that in determining whether the defendant was a
major participant in the underlying crimes, the finder of fact
must consider the totality of the circumstances 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
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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? What did the defendant do after lethal force was
used? No one of these considerations is necessary, nor is any one
of them necessarily sufficient.”
Reckless Indifference (Clark)
In Clark, supra, 63 Cal.4th at pages 618-623, our Supreme
Court enumerated factors relevant to whether the defendant
acted with reckless indifference to human life: 1) knowledge of
weapons and use and number of weapons; 2) physical presence at
the crime and opportunities to restrain the crime and/or aid the
victim; 3) duration of the felony; 4) defendant’s knowledge of the
cohort’s likelihood of killing; and 5) defendant’s efforts to
minimize the risks of violence during the felony.
II
Substantial Evidence
Love contends the trial court’s order denying the petition is
not supported by substantial evidence.
In reviewing the sufficiency of the evidence, we view the
evidence in a light most favorable to the judgment or order.
(People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard
evidence that does not support the judgment or order as having
been rejected by the trier of fact for lack of sufficient verity.
(People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no
power on appeal to reweigh the evidence or judge credibility.
(People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must
affirm if we determine that any rational trier of fact could find
the elements of the crime beyond a reasonable doubt. (Johnson,
at p. 578.)
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Major Participant
The trial court erred in assessing the Banks factors relating
Love’s knowledge that Salone had a firearm. The court found
that Love had knowledge Salone had a firearm “if not the same
day, then the night before [the shooting].” There is evidence
Salone showed the gun to Thomas the night before the shooting,
but no evidence Salone showed Love the gun on the day of the
shooting. The court’s misapprehension was caused most likely by
the prosecutor misleading the court when he told the court, “[At
the dice game] Mr. Love became aware Mr. [Salone] had a
firearm because he showed it to him and said he was strapped.”
The People argue there was one shot followed by a series of
shots. Love must have known Salone was armed after the first
shot. But it is not a fact on which the trial court’s conclusion is
based. The court believed Salone showed Love the gun at the
dice game. The People also suggest that when Love and Salone
followed Williams from the dice game, their obvious intent was to
rob Williams, and Love must have known Salone was armed for
that purpose. The People point out that when Love returned to
Thomas’s car, Love showed no surprise that Williams had been
shot. But the trial court made no such findings. Instead, it
appears to have based its decision in part on the false
representation by the district attorney that Salone showed the
gun to Love at the card game.
The trial court also made other findings in support of its
conclusion that Love was a major participant in the crimes. But
it is impossible to tell from the record how much weight the court
placed on the mistaken finding in assessing the Banks factors.
The defendant cannot get a fair determination if the trial court
misapprehends the facts. We must remand for a new hearing.
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Reckless Indifference (Clark)
In our previous opinion remanding the matter for a new
hearing, we reversed in part because the trial court did not make
findings on the relevant Banks and Clark factors. (People v.
Love, supra, B302725.) Here, although the trial court made
findings on the Banks factors, it did not mention Clark. It is
possible the second time the court mentioned the Banks factors in
its analysis it actually meant the Clark factors It is not entirely
clear. There is some overlap between the factors. In any event,
presumably the court’s analysis of the Clark factors included the
erroneous finding based on the prosecutor’s representation that
Love knew Salone was armed the night before the shooting. This
is another reason we must remand the matter.
III
Right to be Present and
Confidentially Communicate with Counsel
Love contends he was denied the right to be personally
present at the hearing and to confidentially communicate with
his counsel.
Love appeared by WebEx from prison. There is no way to
confidentially communicate with counsel on WebEx. Love claims
he was denied his right to be personally present under the Sixth
and Fourteenth Amendments to the United States Constitution
and his statutory right to a confidential telephone line to his
counsel as required by section 977.2, subdivision (c) for
incarcerated defendants appearing electronically.
The People argue that Love’s appearance by WebEx
satisfies his right to be present, that he waived his right to be
present, and that the failure to provide a confidential telephone
line pursuant to section 977.2, subdivision (c) was harmless. The
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issue of Love’s right to personally appear remains because he is
entitled to a new hearing.
A defendant has the right to be present at any stage of a
criminal proceeding critical to its outcome if his presence would
contribute to the fairness of the procedure. (People v. Clark
(2016) 63 Cal.4th 522, 568.) Section 1172.6, subdivision (d)(3)
provides that the parties may offer new or additional evidence.
Thus, the prosecution may produce one or more witnesses, or the
defendant may wish to testify on his own behalf. Love has the
right to be personally present so that he can confront any
witnesses against him and so that the trial court can personally
observe his demeanor if he testifies. Of course, Love can elect to
appear electronically, in which case he must be provided with a
telephone line to confidentially communicate with his counsel.
IV
Love’s Youth
Love contends his counsel was ineffective for failing to
request that the trial court consider his youth of 23 years when
he committed the crimes. Love may raise the issue on remand.
The matter is reversed and remanded for a new hearing
pursuant to section 1172.6.
NOT TO BE PUBLISHED.
GILBERT, P. J.
I concur:
BALTODANO, J.
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YEGAN, J., Dissenting:
I respectfully dissent. This is a post-evidentiary
resentencing appeal. The majority opinion reweighs the evidence
and draws inferences away from the order here under review.
This is not permissible. (E.g., People v. Schell (2022) 84
Cal.App.5th 437.) It also impeaches the trial court’s order by
using contemporaneous remarks. This is also not permissible.
(E.g., People v. Session (2023) 93 Cal.App.5th 723, 730-731; see
also People v. Dimitrov (1995) 33 Cal.App.4th 18, 27; People v.
Gibson (1987) 195 Cal.App.3d 841, 853; People v. Superior Court
(Chapman) (2012) 204 Cal.App.4th 1004, 1011; People v. Baker
(2008) 164 Cal.App.4th 1152, 1156.) If the majority is correct, we
remand for a third postjudgment hearing.
The facts, as stated in the majority opinion, lead to but one
rational conclusion i.e.,— appellant was “in on” the robbery and
murder, was a major participant, and acted with more than a
reckless indifference to life. The trial court so found.
As noted in the majority opinion, the trial court recited that
the firearm was shown to appellant at the dice game. Even if
this is not supported by direct evidence, it is a fair inference. It
seems obvious that appellant knew that Lamar Salone had a
firearm even if it was not shown to appellant at the dice game.
And, the only conclusion to be drawn by the trial court will be
reiterated at the next hearing—appellant resorted to robbery and
murder to retrieve his money lost in the dice game. He even
bragged about how “we” jacked the victim.
As to the claim of lack of presence at the evidentiary
hearing, there is no showing, as a matter of law, that appellant
was not “present.” And, any error in this regard is harmless
beyond a reasonable doubt. (People v. Santos (2024) 100
Cal.App.5th 666, 677-678.)
NOT TO BE PUBLISHED.
YEGAN, J.
2
Laura C. Ellison, Judge
Superior Court County of Los Angeles
______________________________
Robert E. Boyce, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.