People v. Glass CA2/6

Filed 1/3/23 P. v. Glass 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B314909
(Super. Ct. No. MA074807)
Plaintiff and Respondent, (Los Angeles County)
v.
CORNELL CAREY GLASS,
Defendant and Appellant.
Cornell Carey Glass appeals a judgment following
conviction and resentencing of home invasion robbery (two
counts), assault with a firearm, battery with serious bodily
injury, assault with a deadly weapon (two counts), assault with a
semiautomatic firearm on a peace officer, illegal firearm
possession, evading a peace officer, willful driving in the opposite
direction, and failing to perform legal duty following a vehicle
accident, with criminal street gang, use of a firearm by a
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principal, and out-on-bail findings. (Pen. Code, §§ 211, 1 213,
subd. (a)(1)(A), 245, subd. (a)(2), 243, subd. (d), 245, subds. (c) &
(d), 29800, subd. (a)(1), 186.22, subd. (b), 12022, subd. (a)(1),
12022.1; Veh. Code, §§ 2800.2, 2800.4, 20002.) We vacate the
criminal street gang related enhancement findings and remand
for further proceedings, but otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
In July 2018, Glass aided and abetted three crime partners
during the home invasion robbery of the W. family in Palmdale.
Glass acted as the getaway driver and surveillance videos
captured him driving his crime partners and a suitcase
containing cash and jewelry away. A witness followed Glass’s
vehicle and obtained the license plate number. Approximately
one month later, Glass was stopped for traffic violations. He
backed into a patrol car, accelerated toward a deputy, pointed a
stolen handgun at a deputy, and led deputies on a chase.
Glass and his crime partners were members of the Rolling
60’s criminal street gang. They seized several hundred thousand
dollars in cash, jewelry, guns, ammunition, and silver bars from
the W. family. They also struck and kicked Mr. W. during the
robbery.
Following a court trial, the trial court sentenced Glass in
part to consecutive life terms for two counts of home invasion
robbery with firearm enhancements (stayed) and 15-year
minimum parole eligibility periods. (§ 186.22, subd. (b)(4).)
Glass appealed and raised a sentencing issue concerning the
section 12022.53, subdivision (e) firearm enhancements, among
other claims. We struck the firearm enhancements for the home
1All further statutory references are to the Penal Code
unless stated otherwise.
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invasion robbery counts and affirmed the judgment as modified.
(People v. Glass (June 3, 2021, B303432) [nonpub. opn.].)
The Department of Corrections and Rehabilitation
(Department) then notified the trial court that it had erroneously
sentenced Glass for simple assault instead of assault on a police
officer. On August 30, 2021, the court resentenced Glass to a
slightly reduced sentence (eight months less) but still including
15-year parole eligibility periods for the home invasion robbery
counts (counts 1 & 2). (§ 186.22, subd. (b)(4).) The court
sentenced Glass in absentia without a signed waiver of presence.
Appointed counsel represented Glass during the resentencing
hearing. Counsel stated that he did not receive the completed
waiver form that he had sent Glass nor had he heard from Glass
in response to his letter.
Glass appeals and contends that: 1) the trial court erred by
resentencing him in absentia, and 2) newly enacted legislation
regarding criminal street gang enhancements is applicable and
requires reversal.
DISCUSSION
I.
Glass argues that the trial court violated his constitutional
right to be present at the resentencing hearing without a
knowingly and voluntarily signed waiver. He asserts that the
error violates his statutory rights and federal and state
constitutional rights to due process of law.
On June 23, 2021, in response to a letter from the
Department, the trial court held a hearing regarding
resentencing. Appointed counsel for Glass was present, but Glass
was not. The trial judge stated: “[Glass] was not ordered down
and I don’t think we can proceed with resentencing in his absence
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or without a waiver of his appearance which I would entertain
given the minimal nature of the changes.” The court then
questioned counsel whether he had been in contact with Glass.
Counsel responded that he was unsure of Glass’s location, but he
would write him and enclose a waiver of appearance at
resentencing once he learned of Glass’s present prison housing.
The court then directed counsel to review the Department’s
website to find Glass’s current location. The court indicated it
would then “order [Glass] down” for a resentencing hearing.
On August 27, 2021, a prison correctional officer was
instructed to ask Glass if he would attend the mandatory court
resentencing set for August 30, 2021. Glass replied: “No, I
already told him I wasn’t going.” The Department then informed
the trial court of Glass’s response. On August 30, 2021, the court
held a resentencing hearing. Appointed counsel for Glass was
present but Glass was not.
The trial judge stated that he had ordered Glass “down
from state prison for these proceedings [but] he has refused to
leave the state prison.” The court then referred to the monetary
costs involved in forcibly extracting and transporting Glass from
prison as well as the possibility of “extreme” violence, given
Glass’s prior behavior with law enforcement officers. The court
concluded that Glass has “voluntarily absented him[self] from
these proceedings” and it proceeded to resentence him.
A defendant has a constitutional right to be present at all
critical stages of a criminal proceeding, including sentencing and
resentencing. (Kentucky v. Stincer (1987) 482 U.S. 730, 745 [96
L.Ed.2d 631, 647]; People v. Cutting (2019) 42 Cal.App.5th 344,
347-348.) Section 977, subdivision (b)(1) provides that a
defendant charged with a felony shall be personally present
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“when evidence is taken before the trier of fact, and at the time of
the imposition of sentence.” Section 1043 provides that “the
defendant in a felony case shall be personally present at the
trial.” Nevertheless, a defendant may voluntarily absent himself
from a hearing. (Taylor v. United States (1973) 414 U.S. 17, 20
[38 L.Ed.2d 174, 178]; People v. Lewis (1983) 144 Cal.App.3d 267,
276.) Section 1193, subdivision (a) provides that upon being
convicted of a felony, the defendant shall be personally present
when judgment is pronounced against him or her unless “after
the exercise of reasonable diligence to procure the presence of the
defendant, the court shall find that it will be in the interest of
justice that judgment be pronounced in his or her absence.” The
decision to proceed in absentia is reviewed for an abuse of
discretion. (People v. Espinoza (2016) 1 Cal.5th 61, 75-76.)
The trial court did not abuse its discretion by proceeding in
Glass’s absence to correct a sentencing error pointed out by the
Department. The court could reasonably rely upon the
information provided by prison officials that Glass declared that
he would not attend the proceeding. (People v. Gutierrez (2003)
29 Cal.4th 1196, 1205-1206 [trial court may rely on reliable
information such as statements from jail personnel that a
defendant has waived the right to be present in court
proceedings].) Moreover, Glass’s counsel informed the court that
he had sent mail and an official waiver form for Glass to execute,
but that Glass had not responded.
The trial court’s decision was also reasonable and in the
interests of justice in view of Glass’s prior violent actions directed
against law enforcement officers. The court properly considered
the risk of violence occasioned by a forcible extraction from prison
and county jail in exercising its discretion to proceed. The same
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judge presided over the resentencing and the guilt phase of the
court trial, which included Glass’s convictions for assaults upon
police officers. Any error in not obtaining a signed waiver of
presence was harmless pursuant to any standard of review.
In view of our conclusion, we need not discuss whether
Glass received the effective assistance of counsel given counsel’s
failure to object to the resentencing in absentia.
II.
Glass asserts that the new requirements for criminal street
gang findings, Assembly Bill No. 333 (2021-2022 Reg. Sess.),
require reversal of the life sentences imposed for the two counts
of home invasion robbery, counts 1 and 2, and the gang
enhancements (stayed) for counts 5 and 6. (§ 186.22.) In
particular, Glass contends that the prosecutor did not present
evidence at trial satisfying the new and additional elements of
section 186.22, i.e., the predicate offenses commonly benefitted
the criminal street gang; the benefits derived from the offenses
were more than reputational; and the gang members collectively
engaged in a pattern of gang activity. (Id., subds. (e), (f) & (g).)
Glass points out that the evidence offered at trial pursuant
to former section 186.22 consisted of a minute order reflecting a
gang member’s conviction for residential burglary in 2014, and a
second minute order reflecting another gang member’s conviction
for unlawful possession of firearm in 2015. The gang expert
witness did not opine whether the gang received a common
benefit from these crimes; whether the benefits were reputational
or otherwise; or whether the gang members collectively engaged
in a pattern of gang activity.
The Attorney General agrees with Glass that he is entitled
to the ameliorative benefits of Assembly Bill No. 333 to section
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186.22. We agree because Glass’s judgment is not final. (People
v. Tran (2022) 13 Cal.5th 1169, 1206-1207; In re Estrada (1965)
63 Cal.2d 740, 744-745.)
Here the trial occurred prior to the amendments of section
186.22 and the trial court did not make the factual
determinations now required by the amendments. Nevertheless
the Attorney General argues remand is not required because
overwhelming evidence supports the gang allegation.
On this record, we are not prepared to say with certainty
that the trial court would have found sufficient evidence of the
requisite elements. (People v. Lopez (2021) 73 Cal.App.5th 327,
346.)
“The [appellate] court may reverse, affirm, or modify a
judgment or order appealed from, or reduce the degree of the
offense or attempted offense or the punishment imposed, and
may set aside, affirm, or modify any or all of the proceedings
subsequent to, or dependent upon, such judgment or order, and
may, if proper, order a new trial and may, if proper, remand the
cause to the trial court for such further proceedings as may be
just under the circumstances.” (§ 1260.)
We remand this matter to permit the prosecution to retry
the enhancement and meet its burden of proof pursuant to the
new requirements of Assembly Bill No. 333.
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DISPOSITION
We vacate the criminal street gang enhancement findings
of section 186.22, and remand for further proceedings. We
otherwise affirm.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Henry J. Hall, Judge
Superior Court County of Los Angeles
______________________________
Jason M. Howell, 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, Scott A. Taryle and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
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