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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

GLEN QUINT RELL LOVE

,
Defendant and Appellant. 2d Crim. No. B302725 (Super. Ct. No. YA040317 ) (Los Angeles County)

OPINION FOLLOWING REHEARING

Here we remand so that the trial court may conduct a hearing that complies with the requirements of Penal Code 1

se ction 1170.95 and its amendments as reflected in Senate Bill
No. 775

. Glen Quintrell Love appeals an order denying his petit ion for resentencing ( § 1170.95) of his first degree murder conviction.
In 1999

, he was convicted of se cond degree robbery ( § 211 ) and

1 All statutory references are to the Penal Code.2

first degree murder with a robbery

- murder spe cial circumstance finding (§§ 187, 189, 190.2, subd. (a) (17) (A) )

. In 2019, Love filed a petition for resentencing. The trial

co urt issue d an order to show cause on his section 1170.95 petition and held a n evidentiary hearing. I t found Love was not
entitled to res entencing 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 gran ted the peti tion 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.)
R eversals and remands are not necessarily a criticism of
the trial court due to the continual chang es and reinterpretations of the law involving resentencing under section 1170.95

. We conclude, among other things, that : 1 ) Love is entitl ed to a new evidentiary hearing; 2) the burden is on the People to prove Love
could be convic ted 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 Apri l 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 mone y. 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 dec ided to3

drive them home because he was nervous about Salone having a

gun. Whe n 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

, Thom as a nd 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 th at he had a conversation with Love. Love described the robbery and shooting. Love said he had “jacked” Williams
and that Wil liams had been shot in the head; Salone had fired the gun after Williams made a “funny” move.
DISCUSSION 2 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 judic ial notice.4

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

. ’ ” ( Peopl e 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 m ade a prima facie showing that he or she
falls within the provisions for resentencing relief unde r the

statute. (§ 1170.95, subd

. (c).) If the petitioner has made s uch a showing, the trial court “ shall issue an ord er to show cause. ” ( Ibid. ) The trial court must then hold a hearing to determine
whether to vacate the murder conviction and resentence the petitioner. ( I

d

. , subd. (d)(1). )
T here a re two stages involved in a section 11 70.95 petition.
If a prima facie showing is made fo r relief in the first stage

, the trial court proceeds to the second stage and issues an order to
show cause and the cas e proceeds to an evidentiary hearing

.

The Evidentiary Hearing
T his case went to a second stage section 117 0.95 evidentiary hearing. At the time Love filed his petition for resentencing

, the statute provided

, “At the hearing to determine whether the
pet itioner 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 any5

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 d ecision 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 reckl ess 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 Hers chel Houston, ‘jacked’
Williams ” ; 3) Salone shot Williams when Williams resisted, and
Love to ok money “ from Williams’ pockets ” ; and 4) “Love had a motive to rob Williams because Williams had won money gambli ng that evening while Love had lost his bets.”
We also stated , “The jury could reasonably infer from this
evidence that L ove 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 sc ene of the robbery and shooting ” ; 2) “his admission that he had ‘jacked’ Williams” ; and 3)6

“his removal of the money from Williams’ pocket.” ( Ibid. , i talics 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.
Sal one left, approached the victim ” ; 2) “[ Love ] admitted when he
returned to th e car that he jacked the victim ” ; 3) “f our 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 wh ich 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 theref

ore entitled to a reversal and remand for a new hearing. T he 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.”7 But this wa s error because under the statute

, at the hearing the People have the burden of proof to show that Love was ineligible for re sentencing under current law beyond a
reasonable doubt. (§ 1170.95, subd. (d) (3).) Love already made a prima facie showing that h e 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 comp ly 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 o f proof lies m ay 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. 51 3, 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 pro ve 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.)
Fin dings on the Current Stan dards f or 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 huma n life. We agree.8 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: “ Wha t 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 th e 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 r ole 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 likeli hood of killing are significant

. . . .” ( People v. Clark

, supra , 63 Cal. 4th at p. 621,
i talics 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
victi m 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.)9 During the hearing

, Love’s counsel said the record of conviction did not answer critical questions r egarding relevant
Banks factors, including , among other things, 1) w hether Love
“was aware that Salone was a rmed” when they were in the car; 2)
whether Love “ arrived at the scene of the sh ooting before the shot
rang out ” ; and 3) whether Love “had any histo ry 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 evid ence on them to satisfy their initial burden of proof beyond a reasonable doubt.
Because the record of conviction does no t include facts on th e Banks

, Clark

, and Scoggins factors , solely relying on that record

was error. D ISPOSITION
The order denying th e section 1170.95 petition is reverse d

. The case is remanded to the trial cour t 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.10 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, Attorney s 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.