People v. Glass

Filed 4/22/25

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D084008

Plaintiff and Respondent,

v. (Super. Ct. No. SCN348199)

CALVIN GLASS, JR.,

Defendant and Appellant.

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

Michael J. Popkins, Judge. Conditionally affirmed and remanded with

directions.

Rachel Varnell, 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, Melissa

Mandel and Seth M. Friedman, for Plaintiff and Respondent.

Calvin Glass, Jr. pled guilty to (1) the voluntary manslaughter of

Jordan Luis with admitted personal use of a firearm (Pen. Code, §§ 192,

subd. (a), 12022.5, subd. (a)); and (2) the attempted murder of Julius L.

(§§ 187, subd. (a), 664). The trial court sentenced Glass to 21 years in state

prison. Glass later filed a barebones petition for resentencing under

section 1172.6. After appointing Glass counsel, the court denied the petition

for failure to state a prima facie case for relief.

On appeal, Glass argues the trial court prejudicially erred because

(1) his generic guilty plea could not rule out imputed malice as a basis for his

convictions; and (2) it considered matters outside the record of conviction.

The People counter Glass is ineligible for relief because his sworn

statements in the change of plea form and at the plea hearing establish he

committed the homicide and attempted murder to which he pled guilty.

Following People v. Patton (2025) 17 Cal.5th 549 (Patton), the People argue

Glass’s reliance on similarly conclusory allegations to establish a facially

valid petition—when the record of conviction shows liability under a

still-valid theory—is insufficient even at the prima facie stage.

We agree with the People that Glass’s record of conviction currently

indicates he is ineligible for relief under section 1172.6. But out of an

abundance of caution we grant Glass’s request to remand the matter to the

superior court with directions to consider any “additional facts” should Glass,

within 30 days of remand, seek to supplement his petition. We otherwise

conditionally affirm the order denying his resentencing petition (See Patton,

supra, 17 Cal.5th at pp. 569–570.)

I.

A.

The People charged Glass with the murder of Luis, the attempted

murder of Julius, and shooting at an inhabited dwelling. On the murder and

attempted murder counts, the complaint further alleged Glass personally

used a firearm.

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In 2016, Glass pled guilty to (1) the lesser included offense of voluntary

manslaughter, admitting he personally used a firearm in the commission of

that offense; and (2) attempted murder. As a factual basis for the plea, Glass

admitted under penalty of perjury: (1) “I . . . [d]id unlawfully kill a human

being without malice upon a sudden quarrel [in the] heat of passion,” and

“did specifically use a firearm in the commission of this offense”; and (2) “[d]id

unlawfully attempt to murder a human being.”

At the plea hearing, the trial court questioned Glass about his guilty

plea. The court asked Glass whether it was true he was pleading guilty

because (1) “you did unlawfully kill a human being” and “you did personally

use a firearm in the commission of this offense;” and (2) “you also did

unlawfully attempt to murder another separate human being.” Under oath,

Glass responded, “Yes, sir.”

The trial court accepted the plea and granted the People’s motion to

dismiss the balance of the complaint.

B.

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

(2017–2018 Reg. Sess.), which abolished liability for murder based on the

natural and probable consequences doctrine or imputed malice predicated

solely on one’s participation in a crime. (Stats. 2018, ch. 1015, § 4; People v.

Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill No. 775 (2021–2022

Reg. Sess.) clarified that relief under what is now section 1172.6 extends to

persons convicted of attempted murder or manslaughter. (Stats. 2021,

ch. 551, § 2; People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18.)

Senate Bill No. 1437 also created a procedure for persons convicted of

qualifying offenses under the former homicide laws to seek resentencing if

they could no longer be convicted under the amended law. (Lewis, supra,

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11 Cal.5th at p. 959.) As relevant here, a petitioner convicted of voluntary

manslaughter or attempted murder initiates the resentencing process by

filing a petition averring (1) a charging document “was filed against the

petitioner that allowed the prosecution to proceed under a theory of . . .

murder under the natural and probable consequences doctrine or other

theory under which malice is imputed to a person based solely on that

person’s participation in a crime, or attempted murder under the natural and

probable consequences doctrine”; (2) “[t]he petitioner was convicted of . . .

attempted murder, or manslaughter following a trial or accepted a plea offer

in lieu of a trial”; and (3) “[t]he petitioner could not presently be convicted of

murder or attempted murder” following changes to sections 188 or 189.

(§ 1172.6, subd. (a)(1)–(3).)

At the prima facie review stage, a petitioner’s factual allegations

“should be accepted as true, and the court should not make credibility

determinations or engage in ‘factfinding involving the weighing of evidence or

the exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 974.) But “ ‘if the

record [of conviction], 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.)

When, as here, “the petitioner’s conviction resulted from a guilty plea

rather than a trial, the record of conviction includes the facts ‘the defendant

admitted as the factual basis for a guilty plea.’ ” (People v. Gaillard (2024)

99 Cal.App.5th 1206, 1211–1212 (Gaillard), quoting People v. Gallardo (2017)

4 Cal.5th 120, 136.) It also includes the petitioner’s “express admissions at

the plea colloquy.” (People v. Fisher (2023) 95 Cal.App.5th 1022, 1029

(Fisher).)

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C.

In 2023, Glass filed a section 1172.6 petition. He offered no specific

facts in support of his conclusory allegation that his convictions for voluntary

manslaughter and attempted murder were purportedly based on the natural

and probable consequences doctrine. Glass also requested appointment of

counsel.

The trial court found Glass’s petition facially valid, appointed him

counsel, and set a hearing for the prima facie inquiry.

In response, the People argued Glass was ineligible for relief under

section 1172.6 because his record of conviction showed he was the “actual

killer” of Luis and the direct perpetrator of the attempted murder of Julius.

In reply, Glass argued the petition’s facial sufficiency (§ 1172.6,

subd. (a)(1)–(3)) satisfied the prima facie inquiry (id., subd. (c)), and thus the

court was required to issue an order to show cause and conduct an

evidentiary hearing to determine whether to vacate the voluntary

manslaughter or attempted murder convictions and resentence him (id.,

subd. (d)).

At the prima facie hearing, the trial court ruled Glass was ineligible for

resentencing because his sworn statements in the plea form, including his

admission to personally using a firearm in the commission of the homicide,

“make[] it clear that he was the killer.” The court also relied on our prior

opinion affirming Glass’s judgment (People v. Glass (Jun. 16, 2017, D070491)

[nonpub. opn.]) to “corroborate” the statements in the change of plea form,

but it noted the plea was “in and of itself . . . sufficient to deny this petition.”

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II.

We address how the record of conviction precludes Glass from

resentencing relief under section 1172.6 before considering Patton’s impact on

this appeal.

A.

On appeal, Glass contends the trial court erred in finding he was

ineligible for resentencing because his statements in the change of plea form

and at the plea hearing do not rule out liability under the natural and

probable consequences doctrine. We disagree.

The amended homicide laws eliminated liability “if the defendant

neither killed nor intended to kill and was not ‘a major participant in the

underlying felony [who] acted with reckless indifference to human life.’ ”

(People v. Strong (2022) 13 Cal.5th 698, 703, quoting § 189, subd. (e)(3).) The

change “applied to accomplices” and “did not affect actual killer theories.”

(People v. Mares (2024) 99 Cal.App.5th 1158, 1166.) Thus, “[a]s a matter of

law, resentencing relief under section 1172.6 is not available to an ‘actual

killer.’ ” (People v. Garcia (2022) 82 Cal.App.5th 956, 973.)

Our Supreme Court has explained the “record of conviction will

necessarily inform the trial court’s prima facie inquiry under section [1172.6],

allowing the court to distinguish petitions with potential merit from those

that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)

Here, Glass admitted he personally used a firearm when he “unlawfully

kill[ed] a human being” and also “unlawfully attempt[ed] to murder” another.

At the plea hearing, Glass agreed it was “true” he was pleading guilty

because he (1) “did unlawfully kill a human being”—Luis—and “did

personally use a firearm in the commission of this” killing; and (2) “also did

unlawfully attempt to murder another separate human being”—Julius.

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The trial court properly considered Glass’s guilty plea as part of the

record of conviction. (Gaillard, supra, 99 Cal.App.5th at pp. 1211–1212.) We

conclude the record of conviction, including Glass’s sworn statements in the

plea form and at the plea hearing, establish he could presently be convicted

of homicide and attempted murder, rendering him ineligible for relief under

section 1172.6. (Fisher, supra, 95 Cal.App.5th at p. 1029.)

Glass argues his admission to personally using a firearm does not

render him ineligible at the prima facie stage, citing People v. Offley (2020)

48 Cal.App.5th 588 (Offley). Unlike Glass, however, neither petitioner in

Offley admitted to being the perpetrator of the murder and attempted murder

of the victims, nor did the evidence in the record of conviction establish either

was the direct perpetrator. Instead, the evidence in Offley showed three of

the five defendants—including the petitioners—fired shots into an occupied

vehicle. After being instructed on the natural and probable consequences

doctrine, the jury convicted the petitioners and found the firearm

enhancements true. (Id. at pp. 592–593.) Given these distinguishable facts,

Offley does not assist Glass.

Finally, Glass argues the trial court improperly considered the

“substantive facts” from our prior opinion. Although the trial court may

consider the “procedural history” of a prior appellate opinion at the

evidentiary hearing (§ 1172.6, subd. (d)(3)), it cannot consider the factual

summary of a prior appellate opinion at any stage of the section 1172.6

petition process (People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1237–

1238).

The trial court here stated it was not “relying” on our prior opinion to

deny Glass’s petition, but instead was merely using it to “corroborate” the

sworn change of plea form that it found sufficient “in and of itself” to deny

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relief. Even if the court erred in considering the facts from the opinion,

however, we conclude doing so was harmless. (See Lewis, supra, 11 Cal.5th

at p. 974.) If a petitioner is ineligible for section 1172.6 relief, we shall affirm

the court’s denial of a petition regardless of its reasoning. (People v. Eynon

(2021) 68 Cal.App.5th 967, 976.) Such is the case here.

B.

The Supreme Court decided Patton after the parties had completed

briefing in this case, so we sought supplemental briefing regarding its

impact, if any, on the issues here. Patton supports our conclusion Glass is

ineligible for section 1172.6 relief, yet it also prompts us to give Glass an

opportunity to plead “additional facts” to rebut the record of conviction.

In Patton, the petitioner pled no contest to attempted murder and

admitted he personally and intentionally discharged a firearm in the crime’s

commission. (Patton, supra, 17 Cal.5th at p. 557; § 12022.53, subd. (c).) The

petitioner sought resentencing under section 1172.6 by submitting a

checkbox-form petition. The People in response argued testimony from the

petitioner’s preliminary hearing showed he was the direct perpetrator of the

attempted murder. (Patton, at p. 560.) The petitioner offered no reply.

(Ibid.) The trial court relied on the unrebutted preliminary hearing

transcript to deny relief at the prima facie review stage, and the Court of

Appeal affirmed. (Id. at p. 570.)

Patton concluded a trial court conducting a prima facie review could

rely on “unchallenged, relief-foreclosing facts” from a preliminary hearing

transcript to refute the petition’s “conclusory, checkbox allegations.” (Patton,

supra, 17 Cal.5th at p. 564.) “[A] section 1172.6 petitioner who, despite

having access to counsel upon submission of a facially sufficient petition,

offers only conclusory allegations of entitlement to relief, in response to a

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record of conviction that demonstrates the petitioner’s conviction was under a

still-valid theory, has not . . . made a prima facie showing.” (Id. at p. 565.)

As a result, when the record of conviction shows relief under

section 1172.6 is unavailable at the prima facie stage—whether it be a

preliminary hearing as in Patton or sworn statements in a guilty plea form or

a plea hearing as in the instant case—petitioners “have the burden of coming

forward with nonconclusory allegations to alert the prosecution and the court

to what issues an evidentiary hearing would entail.” (Patton, supra,

17 Cal.5th at p. 567.) Because the petitioner offered only conclusory

allegations in response to such a record, Patton concluded he failed to satisfy

his burden to make a prima facie case for relief. (Id. at p. 569.) Similarly,

here Glass did not include any facts in his reply to the People’s response to

the petition to support his conclusory allegation his convictions were based on

a natural and probable consequences theory.

Even so, “out of an abundance of caution,” Patton remanded to allow

the petitioner, within 30 days of remand, to plead “additional facts” in

support of his “amended petition.” (Patton, supra, 17 Cal.5th at pp. 569–570,

citing § 1172.6, subd. (c) [petitioner has 30 days to reply to the People’s

response to a facially valid petition].) Glass requests the same opportunity

should we conditionally affirm. As he did not have the benefit of Patton’s

guidance during the prima facie stage before the trial court, we grant Glass’s

request.

III.

We remand this matter to the superior court with directions to consider

any “additional facts” should Glass, within 30 days of that remand, seek to

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supplement his petition. (Patton, supra, 17 Cal.5th at p. 570.) We otherwise

conditionally affirm the order denying his resentencing petition.

CASTILLO, J.

WE CONCUR:

IRION, Acting P. J.

DATO, J.

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