People v. Love CA2/1

Filed 10/15/20 P. v. Love CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B304859

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA017343) v.

MICHAEL ELLIS LOVE, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Richard H. Kirschner, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Following a jury trial, on April 11, 1995, Michael Ellis Love, Jr. was convicted of second degree murder of another man with enhancement for personal use of a deadly and dangerous weapon, a knife, and was also convicted of burglary. He was sentenced to a term of 15 years to life. This court affirmed the conviction in an unpublished opinion. (People v. Love (May 22, 1996, B093197).) As our summary of the facts in the opinion reveals, Love stabbed the victim eight times with a knife, causing the victim’s death. On March 21, 2019, Love filed a petition for resentencing under Penal Code section 1170.95.1 In this petition Love stated under penalty of perjury that he had been convicted of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and that he could not now be so convicted because of changes to sections 188 and 189. The petition was assigned to Hon. Richard H. Kirschner, who directed that counsel be appointed for Love. The People opposed the petition on the ground, among others, that Love was not eligible for relief under section 1170.95 because he was a direct perpetrator of the murder. Love’s counsel replied to the People’s opposition, but offered no facts to dispute the People’s assertion that Love was the actual killer. The trial court heard the matter on December 17, 2019, and denied the petition on the grounds that Love “was a direct perpetrator of second degree murder” and, therefore, had not made a prima facie showing of eligibility. This appeal followed.