People v. Towner CA6

Filed 8/30/21 P. v. Towner CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048667
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. S908162)

v.

JEREMY MICHAEL TOWNER,

Defendant and Appellant.

In 2001, defendant Jeremy Michael Towner pleaded no contest to second degree
murder (Pen. Code, § 187)1 and robbery (§ 211), and admitted that he had personally
used a deadly weapon (§ 12022, subd. (b)(1)) during the robbery. The trial court
sentenced defendant to a prison term of 15 years to life for the murder, consecutive to the
upper term of six years for the robbery, and stayed the term for the personal use
enhancement. Defendant appealed, raising sentencing claims, and this court affirmed.
(People v. Towner (Jan. 10, 2003, H023638) [nonpub. opn.].)
In April 2020, defendant filed a petition for resentencing pursuant to
section 1170.95. In July 2020, the superior court issued an order to show cause and
ordered an evidentiary hearing. In December 2020, the prosecution moved for
reconsideration. The superior court thereafter granted reconsideration and vacated the
order to show cause. It entered a new order denying the section 1170.95 petition based
on its finding that defendant had failed to state a prima facie case for relief.

1
All further statutory references are to the Penal Code unless otherwise indicated.
 Defendant appeals, arguing that the superior court erred and that he stated a prima
facie case, entitling him to issuance of an order to show cause and an evidentiary hearing.
The Attorney General concedes that defendant made a prima facie showing of eligibility.
We agree with the parties and reverse the order denying the section 1170.95 petition.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. Offense and Direct Appeal
In November 1998, defendant and his friend, Micah Joe Russell, met the victim
and the victim’s girlfriend, Anna, in Santa Cruz. Defendant and Russell asked for a ride
to a house in the Santa Cruz Mountains. They offered to let the victim and Anna stay at
the house. On the drive, the victim mentioned that he had a gun, “which he wished to sell
for $25.00 or trade for heroin.”
Kimberley LaBore and James Dotson were at the house when the group arrived.
Russell went to sleep in one of the bedrooms. LaBore woke him up at some point and
asked if he would “watch her back,” explaining that things “might get messy.” Russell
went back to sleep but was awakened by Anna, who said she thought that the victim was
getting beaten. Russell heard sounds of people wrestling in the other bedroom. He called
out, asking if things were okay. Defendant came out and assured Russell that everything
was okay. Defendant said that LaBore and Dotson were wrestling.
In the morning, the victim was gone. Dotson said that the victim had walked into
town to try to buy heroin. Defendant later told Russell, “We killed him.” Defendant said
that he and Dotson had beaten the victim with a bat and a club. Defendant said that

2
The factual background of the crime is taken from our prior opinion in this case.
As explained in greater detail below, defendant disputes key portions of this factual
recitation, which he asserts were “circuitously taken from the probation report, which
were in turn taken, in part, from the prosecutor’s sentencing memorandum.” In turn,
“[t]he prosecutor’s facts were (presumably) drawn from the grand jury testimony and
police reports, one-sided presentations intended to establish probable cause to arrest and
charge.” Our prior opinion acknowledged that the facts were taken from the probation
report, and we repeat them here with the same acknowledgment.

2
LaBore had cut the victim’s throat. “The reason for the murder was to get [the victim’s]
gun.” Defendant said that he, Dotson, and LaBore dragged the victim’s body outside
while he made gurgling sounds. Defendant then dropped a large cinder block on the
victim’s head, crushing it, while saying, “good night.”
The victim’s body was recovered near a roadside six to eight weeks later. His
skull was smashed into multiple pieces and crushed into a triangular shape consistent
with a cinder block. Although the body was decomposed, his clothing indicated that he
had been stabbed in the neck.
Defendant was later arrested. He confessed and provided further details of the
offenses. Defendant said that Dotson wanted the victim’s gun and planned to beat him or
kill him. Defendant was sent to bring the victim to the bedroom where Dotson and
LaBore were waiting. In the bedroom, the victim pulled out his gun. Dotson began to
strike the victim with a bat. The victim fell down, still holding the gun. Defendant then
put a knife to the victim’s throat and ordered him to drop the gun. The victim begged for
help. Dotson and LaBore then cut his throat. Defendant told the police that Dotson
dropped the cinder block on the victim’s head.
Defendant was charged, by grand jury indictment, with murder and robbery, with
the special circumstance allegation that the murder was committed during a robbery
(§ 190.2, subd. (a)(17)(A)) and the allegation that defendant personally used a deadly
weapon during both crimes.3
Defendant initially pleaded not guilty and denied the special circumstance and
deadly weapon allegations. He subsequently changed his plea. He pleaded no contest to
second degree murder and robbery, and admitted that he had personally used a deadly

3
After the indictment was filed, the trial court found that defendant had been
under the age of 18 on the date of the offense. Therefore, it suspended the criminal
proceedings and certified the matter to juvenile court. After a subsequent fitness hearing
(Welf. & Inst. Code, § 707), the juvenile court found defendant should be tried as an
adult, and the criminal case reopened.

3
weapon during the robbery. The remaining personal use and special circumstance
allegations were stricken.
At sentencing, the trial court imposed the upper term of six years for the robbery
with a consecutive term of 15 years to life for the murder. The court stayed the term for
the personal use enhancement.
B. Petition for Resentencing
Defendant filed a petition for resentencing, with the assistance of counsel, in
which he averred that after recent changes to the Penal Code, he could no longer be
convicted of murder and was eligible for resentencing. Attached to the petition was a
declaration that disputed certain statements attributed to him. Among others, he asserted
that following the crime he told Russell, “ ‘They killed him,’ meaning Dotson and
LaBore, not ‘We killed him,’ as Russell claimed.” According to defendant, he “did not
hit [the victim] during the crime.” He also claimed he “did not tell Russell that ‘he
picked up a large cinder block and dropped it on [the victim’s] head.’ ” “Rather, as
[defendant] told police, Dotson dropped the cinder block on [the victim’s] head.”
Defendant noted some “confusion” over Russell’s grand jury testimony. Although
Russell testified that the reason for killing the victim was that “ ‘[Dotson] wanted the gun
that [the victim] had,’ ” he also admitted to “not knowing the reason for the killing.”
“He testified that LaBore said she had clubbed [the victim].”
Defendant also noted the grand jury testimony of Brenton McQueen, who
“testified that he ran into Dotson at a café following the murder.” “Dotson said that a
man staying at the house tried to rape or otherwise harm LaBore.” “Dotson told
McQueen that he walked in on the assault and attacked the man with a bat,” saying
“ ‘I kept hitting him and I could not stop.’ ” “Dotson told McQueen that [defendant] had
seen the man on the floor and got scared, so Dotson deliberately made him an accessory
by forcing him to use LaBore’s knife to cut the man.” “McQueen testified that Dotson
showed him a gun and said he took it and some drugs from the [victim].”

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 The petition also noted that “[i]n a letter written by Dotson to LaBore found in
Dotson’s jail cell, Dotson admitted killing [the victim] in LaBore’s presence. The letter
did not mention [defendant] at all.”
Defendant “dispute[d] other alleged facts.” “[Defendant] told officers he did not
know that Dotson intended to kill [the victim],” but rather believed he only intended “to
take his gun by force.” Defendant disputed that he ever held a knife to the victim’s throat
or ordered him to drop the gun. Finally he alleged that “[a]fter Dotson and LaBore had
beaten and stabbed [the victim], Dotson threatened [defendant] and told him he had to
participate in the crime. [Defendant] feared for his life, so he took the knife and
pretended to cut or superficially cut [the victim’s] throat.”
Defendant noted that “[a] forensic pathologist testified to the grand jury that the
cause of [the victim’s] death was head trauma; his skull was crushed.” It also “appeared
that a narrow bar was used to hit the side of his head . . . .” While the victim’s collar
showed evidence of cuts, “due to the state of decomposition of [the] body, no
determination could be made as to whether he had been stabbed.”
Defendant submitted as an exhibit LaBore’s “commutation application to the
Governor (which was granted),” in which she described aspects of the crime. She
described going to sleep and waking up to someone touching her stomach. She saw that
it was the victim and “ ‘began kicking at him.’ ” The victim “ ‘stumbled out of the bed,
and Dotson was at the bedroom door. Dotson picked up a bat that was at the front door
and began beating [the victim] with it.’ ” Dotson gave LaBore the bat and she stuck the
victim. She handed the bat back to Dotson who continued to beat the victim with the bat.
LaBore picked up a blade and “ ‘cut [the victim’s] neck.’ ” LaBore believed the victim
was dead. She then noticed defendant at the door. Dotson handed a knife to him and
“told him he was either with us or he could join [the victim. Defendant] took the knife
and made a few cuts on [the victim’s] body.” Defendant asserted that “LaBore offered a
similar version of the facts” at her 2019 parole hearing.

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 Based on the factual record, defendant asserted that he could no longer be
convicted of felony murder. Specifically, he asserted that he was not a major participant,
and that he did not act with reckless indifference to human life.
C. Superior Court’s Ruling
The superior court held an initial hearing on the petition in July 2020, at which
defendant was represented by counsel. The court noted defendant’s statements, which
tended to show he was not the actual killer or a major participant acting with reckless
indifference. The court also noted that there was record evidence tending to show the
opposite, which meant “there are some conflicts in this evidence in terms of what we
have.” The court observed that because the case resolved with a plea, “we don’t have a
full type of record.” However, the court concluded that “at this point . . . I can’t say that
as a matter of law [that] this record meets the allegations of the petition.” Therefore, the
court issued an order to show cause, scheduled briefing, and set a tentative hearing date.
At a subsequent hearing in November 2020, the superior court indicated that it
believed it had not “issued any sort of [order to show cause] regarding an evidentiary
hearing.” After the parties stated that the court had issued an order to show cause, the
court elaborated that it had “been doing some research regarding the issue . . . . And I do
have some strong concerns based on cases that have come out more recently regarding
pleas where the record comes from a plea rather than a jury trial.” The court continued:
“[T]he way I see what’s being presented to me is the Defense claiming that he’s
essentially guilty of nothing that he was under duress at all. And I don’t think that’s what
the statute was made to do”—it “was not to completely exonerate him.” Based on the
court’s statements, the prosecution indicated it would file a motion for reconsideration.
At the next hearing in December 2020, the superior court considered the petition
for resentencing in light of the prosecution’s motion for reconsideration. According to
the court, the operative question was “whether [defendant] could have been convicted of
murder in light of changes to the felony murder rule.” In other words, “if there was

6
evidence that he was a participant in this robbery, but not a major participant who acted
with reckless indifference to human life and was not the actual killer, this would be an
appropriate case for considering resentencing.” The court noted that the prosecution
maintained that defendant was the actual killer, whereas defendant “has . . . said . . . he
not only [was] not the actual killer but anything he did he essentially did under duress.”
The court indicated it had some difficulty in concluding that there is “some theory . . .
or some factual basis for [defendant] to say that he participated in the robbery but wasn’t
a major participant who acted with reckless disregard for human life. When he’s
claiming he basically did everything under duress.”
Defendant emphasized that there was contested evidence as to the level of
defendant’s participation, and the superior court at this stage “should not be in [the]
position of . . . reweighing that type of evidence.” Defendant argued that the “duress
[was] speak[ing] directly to his subjective intent, which is clearly part of the . . . analysis
as to whether he acted with reckless indifference to human life.”
The court indicated that, in its view, defendant’s claims were “something that
should have been brought up in a habeas petition. And he never should have pled
because he’s not guilty at all of anything . . . [because] he didn’t do anything other than
acting under duress the entire time.” In sum, the court concluded that it was defendant’s
burden “to show that [he] could not still be convicted of murder under these theories,”
and that is not “the same thing as saying that he shouldn’t have been convicted of murder
at all.” Thus, the court granted the motion for reconsideration, vacated its order to show
cause, determined “that no prima facie case has been made in this matter sufficient to
issue an [order to show cause],” and denied the petition.
Defendant timely appealed from the order denying his petition for resentencing.
II. DISCUSSION
Defendant contends that the superior court erred in denying his petition without
issuing an order to show cause and holding an evidentiary hearing. The Attorney General

7
agrees that petitioner established a prima facie case for relief, and therefore the matter
should be remanded to the superior court.
A. Legal Background
“Effective January 1, 2019, the Legislature passed [Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015, § 4)] ‘to amend the
felony murder rule and the natural and probable consequences doctrine, as it relates to
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.’ [Citation.]” (People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis).) “In addition to substantively amending sections 188
and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a
procedure for convicted murderers who could not be convicted under the law as amended
to retroactively seek relief. [Citation.]” (Ibid.)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
degree murder because of changes to [s]ection 188 or 189 made effective January 1,
2019.’ (§ 1170.95, subds. (a)(1)-(3); see also § 1170.95[,] subd. (b)(1)(A).)
Additionally, the petition shall state ‘[w]hether the petitioner requests the appointment of
counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with
subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of
another petition.’ (§ 1170.95, subd. (b)(2).)” (Lewis, supra, 11 Cal.5th at pp. 959-960.)
“Where the petition complies with subdivision (b)’s three requirements, then the court

8
proceeds to subdivision (c) to assess whether the petitioner has made ‘a prima facie
showing’ for relief. (§ 1170.95, subd. (c).)” (Id. at p. 960.)
“If the trial court determines that a prima facie showing for relief has been made,
the trial court issues an order to show cause, and then must hold a hearing ‘to determine
whether to vacate the murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the petitioner had not . . .
previously been sentenced, provided that the new sentence, if any, is not greater than the
initial sentence.’ (§ 1170.95, subd. (d)(1).) ‘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).) At the hearing stage, ‘the burden of proof shall be
on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.’ (§ 1170.95, subd. (d)(3).)” (Lewis, supra, 11 Cal.5th at p. 960.)
B. Prima Facie Showing
In determining whether the petition has made a prima facie showing, after counsel
has been appointed, the trial court may examine the record of conviction “to distinguish
petitions with potential merit from those that are clearly meritless.” (Lewis, supra, 11
Cal.5th at p. 971.) “While the trial court may look at the record of conviction after the
appointment of counsel to determine whether a petitioner has made a prima facie case for
section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings, ‘ “the court takes
petitioner’s factual allegations as true and makes a preliminary assessment regarding
whether the petitioner would be entitled to relief if his or her factual allegations were
proved. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A] court
should not reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citations.] ‘However, if the record, including the
court’s own documents, “contain[s] facts refuting the allegations made in the petition,”

9
then “the court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (Ibid.)
Our high court has emphasized that “the ‘prima facie bar was intentionally and
correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) Thus, “[i]n reviewing any
part of the record of conviction at this preliminary juncture, a trial court should not
engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’
[Citation.]” (Ibid.)
C. Section 1170.95 Petition
The parties agree that under the applicable standard, defendant established a prima
facie showing he is entitled to relief such that the court was required to issue an order to
show cause. (§ 1170.95, subd. (c).) We also agree. As required, defendant’s petition
alleged that a complaint, information, or indictment was filed against him that allowed
the prosecution to proceed under a theory of felony murder or the natural and probable
consequences doctrine; that he accepted a plea offer in lieu of a trial at which he could be
convicted for first or second degree murder; and that he could not be convicted of first or
second degree murder because of changes to section 188 or 189 made effective January
1, 2019. (§ 1170.95, subd. (a).) In his declaration, defendant denied that he was a major
participant in the subject offenses and denied that he acted with reckless indifference to
human life, both of which must now be found to be convicted of felony murder. We
must assume the truth of these allegations. (Lewis, supra, 11 Cal.5th at p. 971.)
In the face of defendant’s allegations, our review of the record does not rebut
defendant’s allegations as a matter of law. We recognize that there are facts in the record
that vary significantly from defendant’s allegations, indeed, some that suggest defendant
was the actual killer or a major participant. However, other grand jury testimony
suggests defendant had a more diminished role, and defendant denied in his confession to
police that he was the actual killer. Notwithstanding the contested evidence, at the prima

10
facie stage “a trial court should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ [Citation.]”4 (Lewis, supra, 11 Cal.5th at p. 972.)
Accordingly, we reverse the superior court’s order determining that defendant
failed to establish a prima facie case of entitlement to relief under section 1170.95.
We remand the matter for the issuance of an order to show cause and a hearing on
defendant’s section 1170.95 petition. (§ 1170.95, subds. (c), (d).) We express no opinion
regarding defendant’s entitlement to relief following the hearing.
III. DISPOSITION
The superior court’s order denying defendant’s section 1170.95 petition is
reversed. The matter is remanded to the superior court with directions to issue an order
to show cause (§ 1170.95, subd. (c)) and hold a hearing on the petition (§ 1170.95,
subd. (d)).

4
In its motion for reconsideration before the superior court, the prosecution relied
on People v. Garcia (2020) 57 Cal.App.5th 100, review granted February 10, 2021,
S265692. In that case, Division Six of the Second District Court of Appeal held that the
relevant standard for assessing whether a petitioner has made a prima facie showing
under section 1170.95 required the superior court to weigh the evidence: “[W]here, as
here, the record of conviction contains substantial evidence based on which a reasonable
trier of fact could find the petitioner guilty of murder beyond a reasonable doubt under
current law despite the changes made by Senate Bill 1437, the petitioner has failed to
carry his burden of making a prima facie showing that he could not presently be
convicted of murder because of changes made by Senate Bill 1437.” (Garcia, supra, at
p. 106.) The Santa Cruz County District Attorney’s Office, as amicus curiae, takes the
same position at this court. In our view, this standard is incompatible with the California
Supreme Court’s more recent statements in Lewis, and therefore we decline to follow
Garcia. (See also People v. Lopez (2020) 56 Cal.App.5th 936, 951, review granted
February 10, 2021, S265974 [concluding that the substantial evidence standard is not the
standard for assessing a petitioner’s eligibility for relief under section 1170.95,
subd. (a)(3)].)

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 _________________________________
ELIA, J.

WE CONCUR:

_______________________________
GREENWOOD, P.J.

_______________________________
DANNER, J.

People v. Towner
H048667