Filed 12 / 15 / 21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,

v. GLEN QU INTRELL LOVE , Defendant and Appellant. 2d Crim. No. B302725 (Super. Ct. No. YA040317 ) (Los Angeles County)

Glen Quintrell Love appeals an order denying his petit ion for resentencing (Pen. Code , 1 § 1170.95) of his first degree murder conviction. I n 1999 , he was convicted of se cond degree robbery ( § 211) and first degree murder with a robbery

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

1 All statutory references are to the Penal Code.2 In 2019, Love filed a petition for resentencing. The
trial co urt issue d an orde r to show cause on his section 1170.95 petition and held an 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

. We conclude, among other things, that Love has not shown that the trial court

err ed by denying his petition

. We affirm. 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 Haw thorne. Several other men were there, including Lamar Salone and
Williams. Salone showed Thomas a semiautomatic pistol and said he was “strapped.” Love participated i n the dice game and lost money. Williams won his bets that evening and boasted
about h is 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 drive them home because he was nervous about Salone having a gu n.

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 and3

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 refuse d.

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 sh ooting. Love said that he had “jacked” Williams and that Wil liams had been shot in the head; Salone had fired the gun afte r Williams made a “funny” move.

Love was convicted of second degree robbery and first degree murder with a robbery

- murde r special ci rcumstance finding. We affirmed his conviction. We ruled that the evidence was sufficient to support the robbery

- murder special circumstance finding and that Love was a major participant in the robbery and he acted with reckl ess indifference to human lif e.4 On January 4, 2019, Love filed a petition for

rese ntencing under section 1170.95. The trial court issued an
order to show ca use for an evidentiary hearing. At the hearing the court found Love was ineligible for resentencing under section
1170.95. It found Love was “a major participant and acted with
reckl ess indifference” to human life. 2 DISCUSSION Denying the Section 1170.95 Petition
Love contends th e trial court erred by denying his

se ction 1170.95 petition

. We dis agree.

The origin of section 11 70.95 was the Governor’s signing of Senate Bill No. 1437 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 murder, to ensure that murder liabilit y 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. 5 th 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. ( P eople v. Gutierrez

2 We grant respondent’s request for judicial notice.5

Salazar , supra , 38 Cal.App. 5th at p. 417.) “A trial court receiving a petition under section 1170.95 ‘shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisio ns of this section. ’ (§ 1170.95, subd (c).) ” ( Ibid .) “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 convict ion and resentence the petitioner. ( Ibid .)

Consequently , there 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 sho w cause and the case proceeds to an evidentiary hearing

. Where the prima facie showing is not made in the first stage, the court may deny the petition.

The Evidentiary Hearing
T his case went to a second stage section 117 0.95 evidentiary hearing and we wi ll review the trial court’s findings
from the record of that proceeding.

“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 any6

allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charg es. The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens .” (§ 1170.95, subd. (d) (3), italics added.)

At the hearing, after the presentati on of new
evidence or the re cord of conviction, the trial court will weigh the evidence, draw inferences , and make credibility assessments. ( People v. Duchine (2021) 60 Cal.App. 5th 798, 816.) “ ‘[I]f the record, includ ing the court’s own documents, “ contain[s] facts refuting the al l egations made in the petition,” then “ the court is justified in making a credibility determination adverse to the petitioner. ” ’ ” ( People v. Lewis (2021) 11 Cal. 5th 952, 971.) We apply the substantial evidence standard of review on appeals from second stage section 1170.95 hearings. ( People v. Lopez (2020) 56 Cal.App. 5th 936, 954, review granted Feb. 10, 2021, S265974

. )
Senate Bill No. 1437 does no t provide resentencing relief for a defenda nt convicted of murder who was “ ‘ a major participant in the underlying felony who acted with reckless indifference to human life. ’ ” ( People v. Gutierrez

- Salazar , supra , 38 Cal.App. 5th at p. 417.) Here the trial court found Love was a major participant who acted with reckless i ndifference to human7

life. The P eop le contend these findings are sup ported by the
record. After the trial court issued the order to show cause, the People elected to rely on the “record of conviction.” (§ 1170.95, subd. (d) (3).) They attached the appellate decision that affirmed Love’s c onviction and they relied on the statement of facts in that decision.

Love responded by filing a 43

- page set of points a nd authorities and a copy of a 2014 declaration by defendant Salone which had been prepared for a prior proceeding. In that
declaratio n , Salone stated in conclusory terms, “Glen Love had nothing to do with the rob bery or murder. I acted alone.” This
was not new evidence. The trial court had previously rejected
claims based on that 2014 declaration

. The court said, “I’m not going to r etry that.” Moreover, t he cr edibility of that declaration
i s a matter exclusively decided by the trial court at the section 1170.95 evidentiary hearing

. ( People v. Lewis , supra , 11 Cal. 5th at p. 971 ; People v. Duchine , supra , 60 Cal.App. 5th at p. 816.)

At the hearing Love appeared with counsel. He had the opportunity to present new evidence to show his eligibility for
section 1170.95 rel ief. (§ 1170.95, subd. (d) (3). ) But Love did not testify

. He did not summit a declaration. He did not call any
wi tnesses. He did not present any evidence

. His counsel simply made oral arguments. Most of those arguments related to facts8

in the record of convic tion found in the decision that affirmed Love’s conviction

.

In that 2001 decision , we affirmed the specia l circumstances findings. 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 cited facts from the record of conviction to show why these claims lacked merit. 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 William s resisted, and Love to ok 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 L ove acted with reckless indifference to human life when he and an armed cohort approached Williams to rob him at gunpoint. ” (Italics added.) We said the jury “could further
infer that Love was a major participant in the robbery based on,” 1) “his prese nce at the scene of the robbery and shooting,” 2) “his
admission that he had ‘jacked’ Williams ,” and 3) “his removal of the money from Wil liams’ pocket.” (Italics added.)9 At the end of the second stage section 1170.95 hearing , the trial court made the fo llowing findings: 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 guns hots 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” wit h “knowledge that Mr. Salone had fired the gun.” These findings are supported by the
record. Love contends there are inferences that may be drawn to support his section 1170.95 petition. But he did not take advantage of his opportunity to present eviden ce to support such inferences. Because the facts in the record support the trial court’s findings, Love may not claim that the court should have
drawn different inferen ces based on claims that are not

sup ported by evidence

. The trial court may not draw i nferences based on speculation.

Love claims the trial court’s findings and the jury’s prior spe cial circumstances findings are not consistent with current legal standards involving findings involving major participants acting with reckless indifference to human life, and10

they consequently cannot be con sidered in denying a section 1170.95 petition. We disagree.

H ere there are unfavorable Scoggins , Banks , and Clark factors for Love. Love had a motive to rob the victim. He was physically present at the cr ime scene. He approached the
victim with the killer. He had the opportunity to help the victim,
but elected not to. ( In re Scoggins (2020) 9 Cal. 5th 667, 677.)
Under People v. Clark (2016) 63 Cal. 4th 522, 621, Love failed to take “ [ e ] fforts to [ m ] inimi ze the [ r ] isks of the [ v ] iolence [ d ] uring
the [ f ] elony.” (Italics omitted.) A relevant factor under People v.
Banks (2015) 61 Cal. 4th 788, 803, is “ [ w ] hat did the defendant do after lethal force was used?” Here Love took advantage of the injured victim and profited from the crime. Later he met with the killer and they all “agreed on a story” they c ould tell.

The People also claim Love makes the claim that he

was not a “ major ” participant by omitting consideration of the six factors showing his active p articipation , including that Love : 1) “rode in [ the ] car with Thomas and Salone,” 2) “left the car with Salone,” 3) “approached Williams,” 4) “admitted” he “ ‘ jacked ’
Williams , ” 5) “took money from Williams’ pockets ,” and 6) “had a
motive to rob Williams .”

In addition to these six factors the People highlight, Love also made the incriminating admission , “ we had to knock11

him off.” ( Italics added .) The word “we” supports a finding of his joint participation in the crime.

The People also cite People v. Douglas (2020) 56 Cal.App. 5th 1 and claim it refutes Love’s claims that he did not act with reckless indifference to human life. In Douglas , after a
victim was shot , the court noted that the defendant “displayed no interest in moderating violence or in ai ding his bloody and suffering victim. Rather, [defendant] picked his pocket .” ( Id. at

p. 10, italics added.) T his descri bes Love’s conduct. Love did not stop to help Williams ; instead Love, like the defendant in Douglas , “picked his pocket.”

Trial Cou rt’s Reliance o n Inadmissible Evidence? Love contends the facts in the appellate decision that affirmed his conviction are inadmissible at a second stage section
1170.95 evidentiary hearing. He claims the trial court erred by citing those f

acts. But our Supreme Court has rejected this
claim. ( People v. Lewis , supra , 11 Cal. 5th at p. 971 .)

Moreover, during that hearing th e trial court asked Love’s counsel, “[T] he court is allowed to consider the record of conviction and the record of conviction contain s the record of facts that the court of appeals relies on, does it not? ” Love’s counsel: “It does.”
The statu t e provides , “The prosecutor and the petitioner may rely on the record of conviction

. . . to meet their12

respective burdens.” (§ 1170.95, subd. (d) (3), italics added.) “ ‘A court of appeal opinio n .

. . is part of the appellant’s record of conviction.” ( People v. Garcia (2020) 57 Cal.App. 5th 100, 111 , review granted Feb. 10, 2021, S265692 ; see also People v. Woodell (1998) 17 Cal. 4th 448, 455.)

Love contends the trial court erred by relying on the facts in a petition for review to the California Supreme Court.

But the People correctly note that Love forfeited this claim because he “failed to lodge an objection in the trial court.” ( People v. Brimmer (2014) 230 Cal.App. 4th 782, 799

- 800.) And o n the merits , the result does not change.

The trial court mentioned that it had “look ed at” the petition for review. But in making its findings it referred to the
record of conviction. It said it cons idered what the Court of Appeal had “summarized ” as the “evidence at trial.” The trial court’s statement that it had considered other documents does not show reversible error where its findings show it relied on
admissible evidence. ( People v. Lopez , sup ra , 56 Cal.App. 5th at

p. 954.) We have reviewed Love’s remaining contentions and we conclude he has not shown grounds for reversal.13 D ISPOSITION
The order denying the section 1170.95 petition is affirmed. NOT TO BE PUBLISHED.

GILBERT, P. J. We co ncur:

YEGAN, J.

PERREN, J.14 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, Attor neys 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.