Filed 12/21/21 P. v. Lowe CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B310638
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA027826)
v.
MARQUIS MELVIN LOWE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Laura L. Laesecke, Judge. Reversed and
remanded with directions.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In 1997, defendant and appellant Marquis Melvin Lowe
was convicted by a jury of first degree murder (Pen. Code, § 187),1
second degree burglary (§ 459), and three counts of second degree
robbery (§ 211). Allegations that a principal was armed with a
firearm were found true. (§ 12022, subd. (a)(1).) He was
sentenced to 26 years to life in state prison.
In 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. After appointing counsel to
represent defendant and considering briefing and argument by
both parties, the trial court denied defendant’s petition without
issuing an order to show cause and holding an evidentiary
hearing pursuant to section 1170.95, subdivision (d).
Defendant timely filed a notice of appeal. He argues that
because he established a prima facie case that he is potentially
eligible for resentencing relief, the trial court should have issued
an order to show cause and held an evidentiary hearing. The
People agree.
In accordance with the parties’ briefs, we reverse and
remand the matter for the trial court to issue an order to show
cause and to hold an evidentiary hearing pursuant to section
1170.95, subdivision (d).
FACTUAL BACKGROUND
“The evidence established that on the evening of
September 30, 1995, three boys entered the 25th Plaza Market in
Long Beach and took some drinks from the cooler. Instead of
paying for the items at the counter, one of the boys demanded
money at gunpoint from Omar Shalaby, the owner. The other
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
two grabbed Adam Osman, a market employee. Shalaby opened
the cash register. The gunman took money from the register and
the three robbers ran out. Osman was unable to identify any of
the defendants from corporeal lineups. However, [Pride]
Eldridge’s [Eldridge] and [defendant’s] fingerprints were lifted
from the countertop.” (People v. Eldridge (Jan. 12, 1999,
B113801) [nonpub. opn.], at pp. 2–3.)
“On October 6, 1995, as Steven Sea was seated at a desk at
his Long Beach travel agency, three young men entered the
business. Sea’s wife, Sophana, their three young daughters, aged
3, 4, and 5, and Yat Meuk, their daughters’ babysitter, were also
inside the business. One of the youths pushed Meuk, who was
seated near the door, to the floor, struck her with a gun when she
tried to look at his face, and took $400 from her pocket. The
other two demanded money from Steven Sea, who told them he
had no money, or no more money. Sophana Sea, who was inside
the bathroom at the time, heard voices repeating, ‘Give me your
money, man.’ Her husband yelled to her in Cambodian to remain
inside the bathroom. She then heard two gunshots. She ran out
of the bathroom and found her husband on the floor, with the
children standing near him. The robbers had fled. Steven Sea
died as a result of two bullet wounds to the forehead, inflicted at
point-blank range. The gold and diamond bracelet Sophana Sea
had given her husband as a gift was missing from his wrist.”
(People v. Eldridge, supra, B113801, at p. 2.)
One of the assailants in the second crime was identified as
Eldridge. (People v. Eldridge, supra, B113801, at pp. 3–4.) At
some point thereafter, defendant was arrested and told a
detective about his involvement in the crimes. (People v.
Eldridge, supra, B113801, at pp. 4–5.)
3
Defendant was charged with murder, burglary, and three
counts of robbery, and the matter proceeded to a jury trial.
Among other things, the jury was instructed on first degree
felony murder.2
The jury convicted defendant of first degree murder. The
verdict form provides, in relevant part, that the jury found
defendant guilty of murder and that the murder was committed
while defendant was engaged in the commission of robbery and
burglary. Defendant appealed, and on January 12, 1999, we
affirmed the judgment as modified. (People v. Eldridge, supra,
B113801, at p. 18.)
PROCEDURAL BACKGROUND
On January 2, 2019, defendant filed a petition to be
resentenced pursuant to section 1170.95. He averred that
because he had been convicted of murder under either a felony
murder theory or the natural and probable consequences
doctrine, he was entitled to resentencing relief. The trial court
appointed counsel and matter was briefed.
On December 16, 2020, the trial court entertained oral
argument on defendant’s petition. At the onset of the hearing, it
set forth a brief summary of the facts: “[M]y understanding is
that [defendant] was involved in an armed robbery about a little
less than two weeks before where the murder and the robbery
occur. He is with two partners. I actually honestly don’t know if
they’re the same two partners, but it’s a three-person robbery
2 According to defendant’s response to the People’s opposition
to his section 1170.95 petition, the jury was presented with two
theories of guilt: direct aiding and abetting and the natural and
probable consequences doctrine.
4
that is armed, and they go in at gunpoint and . . . rob two
employees there. They take money from the register. They run
out together.
“So, again, it’s sort of an aiding and abetting scenario. And
[defendant’s] fingerprints were found on the countertop inside of
the store. So there is confirmation that during that robbery he
was not standing outside. He was not the lookout. He was not
the getaway driver.
“He is inside, and it’s an armed robbery; so he would know
that the coparticipants have a gun or more than one gun. I’m not
clear on that. And then, as I mentioned, a little less than two
weeks later, the . . . murder/robbery at the travel agency occurs.
“The defendant admits . . . that he was trying to decide on a
place to commit a robbery, that he had purchased a black
stocking earlier that day. He goes into the travel agency. He is
the one that approaches the victim—who ultimately ends up
being the deceased—demanding money. He’s the one who looks
through a desk for more money. He’s the one who demands
jewelry from what ends up to be the decedent.
“He says that the decedent took a swing at him. The thing
that he doesn’t say is that he pulled the trigger. I realize there
are transcripts attached to [defendant’s] motion about the
triggerman. Those are not from the trial. It’s not the appellate
record. It’s not something that has been subject to cross-
examination by the D.A.”
At that point, defense counsel interjected that the
transcripts, which were from Eldridge’s parole hearings, were
“allowed to come in. Additional information is allowed under
1170.95.”
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After some discussion with defense counsel, including the
trial court’s acceptance that Eldridge, not defendant, was the
shooter, the trial court continued its recitation of the facts:
Defendant “was inside of the travel agency. He left the location
with money from the robbery. He originally told the police that
he was outside when the shots were fired, and then he amended
that and said he was inside when the shots were fired.
“I’m not saying that he was the shooter. But I am saying
that based on what I am reading here, he was a major participant
in this robbery. That he was aware that somebody in his group
had a gun. And that he traveled with them to the location,
according to the witness who saw an individual. . . .
“After the gunshots were fired, that same witness saw
three people running away from the travel agency quickly and
across the street to an alley. And the police officers found three
dark-colored nylon stockings in that alley and [defendant]
admitted [that one] had been his.” The trial court conclude that
this “behavior qualifies as a major participant, that he acted with
reckless disregard to human life because he was aware of an
armed robbery just the week before. That he was a major
participant in this particular robbery.”
Ultimately, the trial court determined: “We’re looking at
under these facts would the person qualify as a major participant
under [People v. Banks (2015) 61 Cal.4th 788 (Banks)] and
[People v. Clark (2016) 63 Cal.4th 522, 611 (Clark)]. What I am
looking at is—I think what the question is under today’s law,
under Banks and Clark, could this defendant still be convicted of
first-degree murder, and to me the answer is ‘yes’ based on what
we have already put here on the record.”
Defendant’s timely appeal ensued.
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DISCUSSION
I. Standard of Review
We review the trial court’s order de novo. (See Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018
[application of law to undisputed facts]; A.S. v. Miller (2019) 34
Cal.App.5th 284, 290 [statutory interpretation].)
II. Relevant Law
Section 1170.95 provides a mechanism whereby people
“who believe they were convicted of murder for an act that no
longer qualifies as murder following the crime’s redefinition in
2019[] may seek vacatur of their murder conviction and
resentencing by filing a petition in the trial court.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 973 (Drayton).)
In order to obtain resentencing relief, the petitioner must
file a facially sufficient section 1170.95 petition. (§ 1170.95,
subds. (a)(1)-(3), (b)(1)(A).) If a petitioner does so, then the trial
court proceeds to section 1170.95, subdivision (c), to assess
whether the petitioner has made a prima facia showing for relief,
thereby meriting an evidentiary hearing. (People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) When making this determination,
“the trial court should assume all facts stated in the section
1170.95 petition are true. [Citation.] The trial court should not
evaluate the credibility of the petition’s assertions, but it need
not credit factual assertions that are untrue as a matter of
law . . . . [I]f the record ‘contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.’ [Citation.]
However, this authority to make determinations without
conducting an evidentiary hearing . . . is limited to readily
ascertainable facts from the record (such as the crime of
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conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining
whether the petitioner showed reckless indifference to human life
in the commission of the crime).” (Drayton, supra, at p. 980; see
also Lewis, supra, 11 Cal.5th at pp. 970–971.) In other words, a
defendant is ineligible for relief only where the record
conclusively shows that the jury actually relied—and the
defendant’s murder conviction actually rests—upon a theory of
liability that is unaffected by section 1170.95.
If the trial court determines that the petitioner has made a
prima facie showing of entitlement to relief, it must issue an
order to show cause. (§ 1170.95, subd. (c).) “[U]nless the parties
waive the hearing or the petitioner’s entitlement to relief is
established as a matter of law by the record[,]” the trial court
then holds a hearing at which “the burden of proof . . . shift[s] to
the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Drayton, supra,
47 Cal.App.5th at p. 981; see also § 1170.95, subd. (d)(1)-(3).)
III. Defendant is entitled to an order to show cause evidentiary
hearing
As the parties agree, defendant made a prima facie
showing of eligibility. After all, he filed a section 1170.95 petition
averring that (1) an information had been filed against him
allowing the prosecution to proceed under a theory of murder
under the felony murder rule or the natural and probable
consequences doctrine; (2) he was convicted of first degree
murder; and (3) he could not now be convicted of murder
following the amendments to sections 188 and 189. And, nothing
in the record demonstrates that as a matter of law defendant is
not eligible for relief. In fact, the jury was instructed on felony
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murder and seemingly convicted defendant of felony murder.
Thus, it is not evident as a matter of law that defendant could be
convicted of murder under the recently amended statutes.
The trial court denied defendant’s petition on the grounds
that defendant was a major participant in the crimes. But to
have made that determination, the trial court had to have
engaged in some sort of “factfinding involving the weighing of
evidence or the exercise of discretion.” (Drayton, supra,
47 Cal.App.5th at p. 980.) That is not permitted at the prima
facie stage of the proceedings. (Ibid.) Under these
circumstances, an evidentiary hearing—where the People bear
the burden of proof beyond a reasonable doubt—is required.3
Because defendant satisfied the prima facie stage of section
1170.95, subdivision (c), the trial court was required to set the
matter for an order to show cause, with an evidentiary hearing.
In so holding, “[w]e express no opinion about [defendant’s]
ultimate entitlement to relief following the hearing. (§ 1170.95,
subd. (d)(2).)” (Drayton, supra, 47 Cal.App.5th at p. 983.)
3 As the People point out in their respondent’s brief, while
“the record at present overwhelmingly supports” the fact that
defendant is not entitled to be resentenced, that finding cannot
be made until after an evidentiary hearing.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed. On remand, the trial court is directed to issue an order
to show cause (§ 1170.95, subd. (c)) and to hold an evidentiary
hearing to determine whether to vacate defendant’s murder
conviction and resentence him (§ 1170.95, subd. (d)).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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