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has not been certified for publication or ordered published for purposes of rule 8.1115.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 QUINTRELL 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 Code1

section 1170.95 and its amendments as reflected in Senate Bill 

No. 775.

Glen Quintrell Love appeals an order denying his petition 

for resentencing (§ 1170.95) of his first degree murder conviction. 

In 1999, he was convicted of second degree robbery (§ 211) and 

1 All statutory references are to the Penal Code.
2

first degree murder with a robbery-murder special circumstance 

finding (§§ 187, 189, 190.2, subd. (a)(17)(A)).

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

court issued an order to show cause on his section 1170.95 

petition and held an evidentiary hearing. It found Love was not 

entitled to resentencing 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 granted the petition 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.)

Reversals and remands are not necessarily a criticism of 

the trial court due to the continual changes and reinterpretations 

of the law involving resentencing under section 1170.95. We 

conclude, among other things, that: 1) Love is entitled to a new 

evidentiary hearing; 2) the burden is on the People to prove Love 

could be convicted 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 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.” Love 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. According to Thomas, he decided to 
3

drive them home because he was nervous about Salone having a 

gun.

When 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, 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.

DISCUSSION2

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 judicial 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.’ ” (People 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 made a prima facie showing that he or she

falls within the provisions for resentencing relief under the 

statute. (§ 1170.95, subd. (c).) If the petitioner has made such a 

showing, the trial court “shall issue an order to show cause.” 

(Ibid.) The trial court must then hold a hearing to determine 

whether to vacate the murder conviction and resentence the 

petitioner. (Id., subd. (d)(1).)

There are two stages involved in a section 1170.95 petition.

If a prima facie showing is made for relief in the first stage, the 

trial court proceeds to the second stage and issues an order to 

show cause and the case proceeds to an evidentiary hearing.

The Evidentiary Hearing

This case went to a second stage section 1170.95

evidentiary hearing.

At the time Love filed his petition for resentencing, the 

statute provided, “At the hearing to determine whether the 

petitioner 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 any 
5

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 decision 

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 reckless 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 Herschel Houston, ‘jacked’ 

Williams”; 3) Salone shot Williams when Williams resisted, and 

Love took money “from Williams’ pockets”; and 4) “Love had a 

motive to rob Williams because Williams had won money 

gambling that evening while Love had lost his bets.”

We also stated, “The jury could reasonably infer from this 

evidence that Love 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 scene 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., italics 

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. 

Salone left, approached the victim”; 2) “[Love] admitted when he 

returned to the car that he jacked the victim”; 3) “four 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 which 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 therefore entitled to a reversal and remand for a 

new hearing. The 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 was error because under the statute, at the 

hearing the People have the burden of proof to show that Love 

was ineligible for resentencing under current law beyond a 

reasonable doubt. (§ 1170.95, subd. (d)(3).) Love already made a 

prima facie showing that he 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 comply 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 of proof lies may 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. 513, 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 prove 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.)

Findings on the Current Standards for 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 human 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: “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 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?” (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 likelihood of killing are 

significant . . . .” (People v. Clark, supra, 63 Cal.4th at p. 621, 

italics 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 

victim 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 regarding relevant 

Banks factors, including, among other things, 1) whether Love 

“was aware that Salone was armed” when they were in the car; 2) 

whether Love “arrived at the scene of the shooting before the shot 

rang out”; and 3) whether Love “had any history 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 evidence on them 

to satisfy their initial burden of proof beyond a reasonable doubt. 

Because the record of conviction does not include facts on the 

Banks, Clark, and Scoggins factors, solely relying on that record 

was error.

DISPOSITION

The order denying the section 1170.95 petition is reversed. 

The case is remanded to the trial court 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, Attorneys 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.