Filed 7/12/24 P. v. Sinaiko CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

GLEN DYLAN SINAIKO,

Defendant and Appellant.

 D081762

 (Super. Ct. No. CRN17124)

APPEAL from an order of the Superior Court of San Diego County, 

David G. Brown, Judge. Reversed and remanded with directions.

Alex Kreit, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Robin 

Urbanski, Felicity A. Senoski, and Juliet W. Park, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

Glen Dylan Sinaiko appeals from an order summarily denying his 

petition for resentencing under Penal Code1 section 1170.95, renumbered 

and now section 1172.6.2 We conclude that the trial court incorrectly 

determined, at the prima facie stage, that Sinaiko was ineligible for relief. 

We accordingly reverse the order denying the petition for resentencing and 

remand.

I

FACTUAL AND PROCEDURAL BACKGROUND

In 1990, the People charged Sinaiko with murder, in violation of 

section 187, subdivision (a), and alleged that Sinaiko personally used a

firearm in the offense, in violation of section 12022.5, subdivision (a). A

codefendant was charged separately with murder. 

Sinaiko pled guilty to second degree murder and admitted the firearm 

allegation. The factual basis of the plea, as stated on the plea agreement 

form, was: “unlawfully killed another human being with malice 

aforethought, said killing being committed by means of use of a shotgun.” 

The court sentenced Sinaiko to a total indeterminate term of 17 years to life. 

In March 2022, Sinaiko filed a petition for resentencing pursuant to 

section 1172.6. In his petition, Sinaiko declared that he had been convicted of 

murder and “could not presently be convicted of murder or attempted murder 

because of changes made to Penal Code §§ 188 and 189, effective 

January 1, 2019.”

1 Further undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, section 1170.95 was renumbered to 

section 1172.6 without substantive change. (See Stats. 2022, ch. 58, § 10.) 

We refer to the subject statute by its current renumbered form.
3

The People filed a response. They argued that Sinaiko had “fail[ed] to 

make the necessary prima facie showing and his petition should be denied.” 

In support of their position, the People attached Sinaiko’s plea agreement 

form, the abstract of judgment, the information, and the transcript from his 

preliminary hearing. 

The People relied on the preliminary hearing transcript for a statement 

of facts, which the People cautioned was “provided for information purposes 

only and is not intended for the court to form a factual basis at the prima 

facie hearing.” The People’s description was as follows:

“When officers arrived, they found the victim, later identified as 

William Franklin Odam, lying on his back in the riverbed with 

his intestines exposed and piled on his stomach. [Citation.] The 

victim was airlifted to the hospital, where he died. [Citation.] 

Odam’s cause of death was a gunshot wound to the abdomen. 

[Citation.]

“Detective Ahrens interviewed [Sinaiko] on January 6, 1990, 

when [he] turned himself in. [Citation.] During the interview, 

[Sinaiko] admitted participation in the shooting incident that 

occurred on September 8, 1998. [Citation.] [Sinaiko] appeared 

privy to facts that had not previously been disclosed. [Citation.]

[Sinaiko] was able to describe the exact location where Odam’s 

body was found. [Citation.] [Sinaiko] explained exactly where on 

Odam’s body [Sinaiko] fired a shot into his body. [Citation.] He 

also described the correct caliber or gauge of the shotgun that he 

used to shoot Odam.”

The People argued that Sinaiko failed to state a prima facie case 

because the record of conviction established that he was the sole, actual, and 

direct perpetrator of the murder. Specifically, they argued that Sinaiko “pled 

guilty to murder and admitted that he personally used a shotgun in the 

commission of the murder. [Sinaiko] is the sole perpetrator charged with 

murder in this case. [Citation.] Therefore, as the actual direct perpetrator of 
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the murder, [Sinaiko] is ineligible for the relief he seeks and the petition 

should be denied.” 

In January 2023, the trial court held a prima facie hearing. The People 

reiterated that Sinaiko was ineligible for relief because he was convicted as 

the actual killer, as demonstrated by his specific admissions in support of the 

factual basis for his guilty plea. Defense counsel argued that Sinaiko’s 

petition was “sufficient on its face” and asked for an evidentiary hearing on 

Sinaiko’s eligibility for resentencing “to give both sides the opportunity to 

look at this matter in more detail.”

The trial court denied the petition on the ground that Sinaiko had not 

made a prima facie showing of eligibility for relief. The court explained that

Sinaiko “was the actual killer in this regard and that was a result of his plea 

of guilty and in fact pled guilty of that—pled guilty to that particular charge 

and, as a result, this petition is denied.” It also noted that it “should include 

that it is clear in the pleadings that petitioner was the sole participant in the 

murder. And as such, I’m rejecting his factual allegations.” 

II.

DISCUSSION

A. Applicable Legal Standards

Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 

(2017–2018 Reg. Sess.), which limited accomplice liability under the felony

murder rule, eliminated the natural and probable consequences doctrine as it 

relates to murder, and eliminated convictions for murder based on imputing 

malice based solely on a person’s participation in a crime. (See People v. 

Lewis (2021) 11 Cal.5th 952, 959 (Lewis); Stats. 2018, ch. 1015, § 1, subd. (f).) 

As amended by Senate Bill No. 775 (2021–2022 Reg. Sess.), effective 

January 1, 2022, the ameliorative changes to the law were made expressly 
5

applicable to attempted murder and manslaughter. (See People v. Birdsall

(2022) 77 Cal.App.5th 859, 865 & fn. 18.) Under section 1172.6, a person 

serving a sentence for murder, attempted murder, or manslaughter under 

theories that have since been eliminated or narrowed may file a petition to 

have the conviction vacated and to be resentenced. (§ 1172.6, subd. (a).) 

After appointing counsel if a petitioner makes such a request (§ 1172.6, 

subd. (b)(3)), the first step for a trial court in evaluating the petition is to 

determine whether the petitioner has made a prima facie case for relief and, 

if so, to issue an order to show cause. (§ 1172.6, subd. (c).) “[T]he parties can, 

and should, use the record of conviction to aid the trial court in reliably 

assessing whether a petitioner has made a prima facie case for relief.” 

(Lewis, supra, 11 Cal.5th at p. 972.) “While the trial court may look at the 

record of conviction after the appointment of counsel to determine whether a 

petitioner has made a prima facie case . . . , the prima facie inquiry . . . is 

limited. Like the analogous prima facie inquiry in habeas corpus 

proceedings, ‘ “the court takes petitioner’s factual allegations as true and 

makes a preliminary assessment regarding whether the petitioner would be 

entitled to relief if his or her factual allegations were proved.” ’ ” “ ‘However, 

if the record, including the court’s own documents, “contain[s] facts refuting 

the allegations made in the petition,” then “the court is justified in making a 

credibility determination adverse to the petitioner.” ’ ” (Id. at p. 971.) 

At the prima facie stage, “ ‘[i]f the petition and record in the case 

establish conclusively that the defendant is ineligible for relief, the trial court 

may dismiss the petition.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 460.) 

“We review de novo an order denying a section 1172.6 petition at the prima 

facie review stage.” (People v. Flores (2023) 96 Cal.App.5th 1164, 1170.)
6

B. The Record of Conviction Does Not Establish that Sinaiko Was

Ineligible for Relief

The trial court found, and the People argued below, that Sinaiko had 

not made a prima facie showing for relief because the record conclusively 

established that he “was the sole participant in the murder.” The trial court’s 

conclusion is contradicted by evidence in the appellate record that another 

man was separately charged with murder as a “codefendant” in this case and 

by the procedural history in an unpublished opinion of this Court in the 

codefendant’s case. (In re Schlappi (Jul. 20, 2009, D053434) [nonpub. opn.];

cf. § 1172.6, subd. (d)(3) [“The court may also consider the procedural history 

of the case recited in any prior appellate opinion.”].) On appeal, the People 

concede that “prosecutors elected to charge [Sinaiko] and his codefendant . . .

separately in this case.” The People further concede that “the mere fact that 

[Sinaiko] was charged alone is not sufficient to conclude that he was the sole 

participant of the murder.” 

The People nevertheless argue on appeal that “the factual basis for his 

guilty plea eliminates the possibility that he was convicted as an aider and 

abettor under the natural consequences doctrine or any other theory of 

imputed malice.” We disagree. Because the record of conviction does not 

conclusively refute the allegations in Sinaiko’s petition, he has made a prima 

facie showing of eligibility for relief and is entitled to an order to show cause 

and an evidentiary hearing. (People v. Flores (2022) 76 Cal.App.5th 974, 991

(Flores) [“Only where the record of conviction contains facts conclusively 

refuting the allegations in the petition may the court make credibility 

determinations adverse to the petitioner.”].) The factual basis for his plea is 

particularly ambiguous because it was generic and essentially identical to 

“murder” as set forth in section 187, subdivision (a) (except for his admission 

in passive voice that the killing was “committed by means of use of a 
7

shotgun”), the record does not contain the transcript of his plea colloquy, the 

preliminary hearing transcript appears to be incomplete and was merely 

provided for “informational purposes,” and there is no evidence Sinaiko 

stipulated to the preliminary hearing transcript (or anything else) as a 

factual basis for his plea.

The opinion in People v. Rivera (2021) 62 Cal.App.5th 217 (Rivera), is 

instructive. In Rivera, as in this case, the defendant was charged with 

murder and entered a plea to second degree murder. (Id. at pp. 225–226.) 

There, the defendant pleaded no contest to allegations that he “did willfully, 

unlawfully[,] and with malice aforethought murder” the victim in a case in 

which there was a codefendant. (Id. at p. 225, brackets in original.) The 

People argued that Rivera’s guilty plea established his ineligibility for 

resentencing as a matter of law because the indictment, plea, and grand jury 

transcript made no reference to felony murder or any other legal theory that 

would qualify for resentencing. (Id. at pp. 232–235.) The Court of Appeal 

disagreed, finding that “[t]he generic manner in which murder was charged 

here did not limit the People to prosecuting Rivera on any particular

theories.” (Id. at p. 233.) Nor did Rivera’s guilty plea conclusively establish 

his ineligibility because he “made no admissions related to the murder other 

than pleading no contest to the count as charged.” (Id. at p. 234; see also 

Flores, supra, 76 Cal.App.5th at pp. 991–992 [finding petitioner who had 

pleaded no contest to murder in a case with a codefendant had made a prima 

facie showing of eligibility for resentencing where “[t]o find petitioner 

ineligible for resentencing on this record would require judicial factfinding, 

which is impermissible at the prima facie stage”]; People v. Eynon (2021) 

68 Cal.App.5th 967, 978 [“Then-existing law did not require him to act with 
8

malice in order to be liable for murder, so his plea and factual admissions did 

not encompass an admission that he acted with malice.”].)

Similarly, in this case, neither the generic charge that Sinaiko “did 

willfully, unlawfully murder” the victim nor his generic plea admission that 

he “unlawfully killed another human being with malice aforethought, said 

killing being committed by means of use of a shotgun” conclusively 

establishes that “he acted with actual malice, not just that the element of 

malice was satisfied.” (Rivera, supra, 62 Cal.App.5th at p. 234.) Nor does 

Sinaiko’s admission to having personally used a shotgun within the meaning 

of section 12022.5, subdivision (a) conclusively establish his ineligibility, 

since it does not necessarily show that he was the actual killer. (See People v. 

Wardell (2008) 162 Cal.App.4th 1484, 1492 [“ ‘Although the use of a firearm 

connotes something more than a bare potential for use, there need not be 

conduct which actually produces harm but only conduct which produces a 

fear of harm or force by means or display of a firearm in aiding the 

commission of one of the specified felonies.’ ”].) In this case, the only factual 

basis for Sinaiko’s plea revealed by the record is the one-sentence admission 

on the plea agreement form. 

The People argue that this case is “nearly indistinguishable” from 

People v. Pickett (2023) 93 Cal.App.5th 982, review granted October 11, 2023, 

S281643. There, the court upheld the denial of a resentencing petition at the 

prima facie stage where there was “no allegation or evidence of an accomplice 

in the killing” of the victim and “the uncontradicted evidence shows that [the 

petitioner] acted alone.” (Id. at p. 993; see also id. at p. 990 [“Although there 

is no testimony from anyone who saw Pickett fire the fatal shot, there is 

nothing to suggest that any other person was involved in the incident. The 

inference that Pickett acted alone and was the actual killer is uncontradicted 
9

and compelling.”].) Unlike in Pickett, the record in this case reveals that 

another person was separately charged in connection with the killing and 

that this codefendant may have fired a shot at the victim. This precludes a 

finding at the prima facie stage that the record conclusively establishes that 

Sinaiko acted alone or that he was the actual killer.

The People also contend that People v. Saavedra (2023) 96 Cal.App.5th 

444 is “squarely on point,” but the plea admission there was more specific 

than here. Sinaiko’s guilty plea was that he “unlawfully killed another 

human being with malice aforethought, said killing being committed by 

means of use of a shotgun.” In Saavedra, the defendant admitted that he had 

committed the attempted murder “ ‘by personally discharging a firearm’ ”—

this was an unambiguous admission that he was “the actual shooter; that is, 

he actually attempted to murder the victims by shooting at their vehicle.” 

(Id. at p. 448.) By contrast, the factual basis in Sinaiko’s plea agreement—

“said killing being committed by means of use of a shotgun”—is stated in the 

passive voice, which proves little in a shooting involving multiple defendants 

as the identity of the person who fired the fatal shot is not specified. As a 

result, it does not “conclusively establish as a matter of law that petitioner 

was the actual killer” because it does not preclude the possibility that the 

fatal shot was fired by the codefendant and that Sinaiko’s liability was 

vicarious. (Flores, supra, 76 Cal.App.5th at p. 991.)

Finally, this case is also distinguishable from People v. Harden (2022) 

81 Cal.App.5th 45, which involved a jury trial. There, the Court of Appeal 

“focus[ed] on . . . [the] jury instructions given and the verdicts returned based 

on them.” (Id. at p. 50.) In that case, the prosecutor decided against asking 

for aiding and abetting instructions, noting “there’s no evidence that there 

was anyone in the house other than this one intruder [Harden], not two 
10

people.” (Id. at p. 53.) Thus, because the jury was not given an aiding and 

abetting instruction, the defendant there could not have been convicted on 

that now-defunct theory of liability. Here, by contrast, Sinaiko pled guilty in 

a generic plea to a generic charge, there was a codefendant who may also 

have fired the shotgun at the victim, and there were no jury instructions that 

would help determine which legal theory was used to convict him.

III.

DISPOSITION

The order is reversed, and the case is remanded with directions for the 

trial court to issue an order to show cause and to conduct an evidentiary 

hearing.

McCONNELL, P. J.

WE CONCUR:

DATO, J.

CASTILLO, J.