Filed 8/22/22 P. v. Lowe CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B311486
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA420534)
CURTIS LOWE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Terry A. Bork, Judge. Reversed and remanded.
Pensanti & Associates and Louisa Belle Pensanti for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Idan Ivri and Nikhil Cooper,
Deputy Attorneys General, for Plaintiff and Respondent.
In 2012, defendant and appellant Curtis Lowe (defendant)
took part in a gang melee that resulted in the fatal stabbing of
victim Patrick Lister (Lister). After trial, a jury found defendant
guilty of second degree murder. Several years later, in 2019,
defendant petitioned for resentencing under Penal Code section
1172.6 (former Penal Code section 1170.95).1 The trial court
appointed counsel for defendant and ultimately denied
defendant’s petition without issuing an order to show cause. We
are asked to decide whether the court correctly concluded
defendant was ineligible for relief as a matter of law because the
record of conviction—primarily the opinion affirming his
conviction on direct appeal (People v. Lowe (Apr. 19, 2016,
B260127) [nonpub. opn.] (Lowe I))—establishes he was Lister’s
actual killer.
I. BACKGROUND
A. The Murder
John Armstrong (Armstrong) and Sedric Scott (Scott) were
members of the Swans criminal street gang. In May 2012, they
approached Lister outside a market and asked where he was
from. Lister did not respond and entered the market.
Armstrong and Scott followed Lister inside, and Scott tore
a gold chain from Lister’s neck. As Scott ran out of the market,
Lister gave chase. Armstrong, Scott, and other members of the
Swans gang then attacked Lister and defendant ran from across
the street and joined in the group assaulting Lister. When the
attack stopped, Lister’s chest was covered in blood and he died
1
Undesignated statutory references that follow are to the
Penal Code.
2
days later from a six-inch-deep stab wound that pierced his heart.
(Lowe I, supra, B260127.)
The market’s surveillance camera, which captured portions
of the attack, showed defendant walk toward the market from the
direction of the fight, move something from his left hand to his
right hand, and put it in his pocket. Later, the video showed
defendant open his right palm and look down at it. (Lowe I,
supra, B260127.) Another Swans gang member, Mitchell
Johnson (Johnson), was interviewed by police after the murder.
Johnson claimed defendant stabbed Lister, but conceded he had
not seen the actual act of stabbing himself. Johnson did say
defendant showed him a five-plus-inch knife on the day of the
murder. (Lowe I, supra, B260127.)
B. The Charges and Trial
In April 2014, defendant, Nathaniel Willard (Willard),
Scott, and Armstrong were charged with Lister’s murder. The
information alleged the murder was committed while the
defendants were engaged in the commission of a robbery and was
committed for the benefit of, at the direction of, and in
association with a criminal street gang.
During trial, the trial court granted Willard’s request for
dismissal of the case against him. The court then granted the
prosecution’s motion to call Willard as a witness. While
testifying, Willard denied making recorded statements to a
confidential informant. The court then granted the prosecution’s
request to admit the recorded conversation in evidence. During
the conversation, Willard stated he saw the fight between Scott
and Lister and Willard identified defendant as the person who
stabbed Lister. (Lowe I, supra, B260127.)
3
During the defense case, defendant testified he had not
been involved with the Swans since 1990. He denied knowing
Lister, Willard, Scott, or Armstrong; denied fighting with Lister
or seeing the fight; and denied killing Lister. Defendant testified
the item that could be seen in his hand in the surveillance video
footage was his cell phone. (Lowe I, supra, B260127.)
The jury was instructed that defendant and his accomplices
were being prosecuted under three theories: (1) malice murder,
(2) felony murder, and (3) murder pursuant to the natural and
probable consequences doctrine. The natural and probable
consequences instruction enumerated the facts the prosecution
had to prove in order to “prove that the defendant is guilty of
murder under a theory of aiding and abetting . . . .” The felony
murder instruction advised the jury that if it found him “guilty of
murder under a felony murder theory, he is guilty of murder in
the first degree.” During its deliberations, the jury submitted a
question asking, “for 403, Natural and Probable Consequences,
No. 2, does ‘during the commission of battery or assault’ mean
that the defendant has to be doing the act while the crime of
murder is occurring?”
The jury ultimately convicted defendant of second degree
murder. The jury found true an allegation that the murder was
committed for the benefit of, at the direction of, or in association
with a street gang, but the jury found not true an allegation that
the murder occurred during the commission of a robbery. The
trial court sentenced defendant to 15 years to life in prison.
C. Defendant’s Direct Appeal
On appeal from the judgment of conviction, defendant
presented seven assignments of error. As pertinent for our
4
purposes, a prior panel of this court held “[t]he trial court did not
err by failing to sua sponte instruct on involuntary manslaughter
under the natural and probable consequences theory, because
there was no substantial evidence to support the offense.” (Lowe
I, supra, B260127.) In so holding, this court also characterized
the evidence presented at trial and the theories upon which the
parties relied, stating, for instance, that “neither party relied on,
or presented evidence in support of, the natural and probable
consequences theory as applied to [defendant].” (Lowe I, supra,
B260127.) The opinion also states, when discussing other
arguments presented for decision, that defendant “fatally stabbed
Lister” and “inflicted the fatal stab wound.” (Lowe I, supra,
B260127.)
D. The 1172.6 Petition and Proceedings
In February 2019, defendant filed a form petition for
resentencing under section 1172.6. Defendant checked the
pertinent boxes to assert (1) a complaint or information was filed
against him that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine, (2) defendant was convicted of
first or second degree murder pursuant to one of those theories at
trial, and (3) defendant could not now be convicted of first or
second degree murder because of changes to sections 188 and
189. Defendant also requested appointment of counsel.
The People opposed the petition. The People argued
defendant does not qualify for resentencing under section 1172.6
because he was convicted of second degree murder based on his
act of killing by an intentional act with the intent to kill, and
thus he could still be convicted of murder under current law.
5
The trial court appointed counsel for defendant, held a
hearing without first issuing an order to show cause pursuant to
section 1172.6, subdivision (c), and found defendant ineligible for
relief. In the trial court’s view, defendant was ineligible for relief
as a matter of law because the record of conviction—Lowe I in
particular—established he was Lister’s actual killer. The court
believed the jury did not rely on the natural and probable
consequences doctrine to find defendant guilty because the
People at trial argued defendant was the actual killer and neither
side relied on, or presented evidence in support of, the natural
and probable consequences theory as applied to defendant. As for
felony murder, the court reasoned the jury must not have relied
on that theory of liability either because it could only have
resulted in a conviction for murder in the first degree, and
defendant was convicted of murder in the second degree.
II. DISCUSSION
The record of conviction does not demonstrate defendant is
ineligible for relief as a matter of law. There are statements in
Lowe I indicating defendant was the person who stabbed Lister,
but those were made in a different procedural context, one in
which a Court of Appeal generally views the evidence in the light
most favorable to the criminal judgment. (People v. Flinner
(2020) 10 Cal.5th 686, 748; People v. Coleman (2007) 146
Cal.App.4th 1363, 1366.) There are also statements regarding
theories of guilt pursued at trial, but those are not part of the
opinion’s holding. Thus, put in terms of the argument made by
the Attorney General, denial of defendant’s section 1172.6
petition is not required by law of the case principles. Instead, an
order to show cause must issue at which time defendant will not
6
be bound by the record of conviction and can submit new
evidence, if he is able to muster any, that bears on his eligibility
for relief. (§ 1172.6, subd. (d)(3).) It may turn out that the record
at a section 1172.6, subdivision (d) hearing looks much the same
as it does now (in which case denial of the petition may again be
warranted), but the trial court’s order denying defendant’s
petition at the prima facie consideration stage was procedurally
premature.
A. Section 1172.6
“Effective January 1, 2019, the Legislature passed Senate
Bill 1437 ‘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.’ (Stats. 2018, ch. 1015, § 1,
subd. (f).) In addition to substantively amending sections 188
and 189 of the Penal Code, Senate Bill 1437 added [former]
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.]” (People v. Lewis (2021) 11
Cal.5th 952, 959 (Lewis).)
In determining whether a petitioner may be entitled to
relief under the statute, a trial court’s inquiry is appropriately
informed by the record of conviction, which aids in distinguishing
“petitions with potential merit from those that are clearly
meritless.” (Lewis, supra, 11 Cal.5th at 971.) “If the petitioner
makes a prima facie showing that the petitioner is entitled to
7
relief, the court shall issue an order to show cause.” (§ 1172.6,
subd. (c).)
As recently explained by our Supreme Court in Lewis,
supra, 11 Cal.5th 952, the prima facie inquiry under section
1172.6 is analogous to the inquiry undertaken in habeas corpus
proceedings: a “‘“court takes [a] 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.”’” (Id. at 971; see also id. at 972 [“[T]he ‘prima facie
bar was intentionally and correctly set very low’”].)
Lewis recognized that appellate opinions “are generally
considered to be part of the record of conviction . . . . [but] the
probative value of an appellate opinion is case-specific, and ‘it is
certainly correct that an appellate opinion might not supply all
answers.’” (Lewis, supra, 11 Cal.5th at 972.) Recent
amendments to section 1172.6, which took effect January 1, 2022,
further specify that a trial court “may . . . consider the procedural
history of the case recited in any prior appellate opinion” at a
“hearing to determine whether the petitioner is entitled to relief”
that is held after issuance of an order to show cause. (§ 1172.6,
subd. (d)(3); see also § 1172.6, subds. (c), (d)(1).)
B. Defendant Stated a Prima Facie Case Requiring
Issuance of an Order to Show Cause
Defendant contends the trial court erred by failing to find
he made a prima facie showing of entitlement to relief under
section 1172.6. This is a question of law we review de novo.
(Lewis, supra, 11 Cal.5th at 961.)
8
Defendant filed a petition that makes the required
averments under section 1172.6, subdivision (a). The record
supports defendant’s representation that the information filed
against him allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine. The record also reflects defendant’s trial
jury was instructed on both the felony murder rule and natural
and probable consequences doctrine. To be sure, the jury’s
decision to convict defendant of second degree murder, not first
degree murder, establishes it did not convict him under a felony
murder theory. But nothing in the record of conviction
establishes as a matter of law that defendant was not convicted of
murder under the natural and probable consequences doctrine.2
As a result, the trial court erred in finding defendant failed to
make a prima facie case for relief.
The Attorney General protests, however, that Lowe I
establishes defendant’s murder conviction was necessarily based
on a malice theory of murder (not natural and probable
consequences aiding and abetting) such that defendant is
ineligible for relief as a matter of law. The Attorney General
points to the opinion’s holding that the court in defendant’s jury
trial did not err by declining to give (sua sponte) a lesser included
offense instruction on involuntary manslaughter under the
natural and probable consequences doctrine, the opinion’s
statement that “neither party relied on, or presented evidence in
support of, the natural and probable consequences theory as
2
Indeed, the question asked by the jury during deliberations
indicates it was actively considering the applicability of the
natural and probable consequences doctrine.
9
applied to” defendant, and the opinion’s summary of the
pertinent background facts. The Attorney General believes these
features of the opinion are law of the case that preclude any
possibility of section 1172.6 relief for defendant.
That stretches the law of the case doctrine too far. Under
that doctrine, “a principle or rule that a reviewing court states in
an opinion and that is necessary to the reviewing court’s decision
must be applied throughout all later proceedings in the same
case, both in the trial court and on a later appeal.” (People v.
Jurado (2006) 38 Cal.4th 72, 94.) The doctrine, however, does
not apply to dicta. (Anne H. v. Michael B. (2016) 1 Cal.App.5th
488, 499 [“‘The discussion or determination of a point not
necessary to the disposition of a question that is decisive of the
appeal is generally regarded as obiter dictum and not as the law
of the case’”].) Rather, “it ‘applie[s] only to the principles of
law laid down by the court as applicable to a retrial of fact,’ and
‘does not embrace the facts themselves . . . .’ [Citation.]” (People
v. Barragan (2004) 32 Cal.4th 236, 246; see also Investors Equity
Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1377
[“‘As its name suggests, the [law of the case] doctrine applies only
to an appellate court’s decision on a question of law; it does not
apply to questions of fact’”].)
Contrary to the Attorney General’s characterization, the
statements in Lowe I regarding the evidence and theories
presented at trial did not constitute a principle of law or a
holding. The question before this court in Lowe I was whether
substantial evidence required giving a lesser included instruction
on involuntary manslaughter under the natural and probable
consequences doctrine. The court was not presented with the
question of whether defendant’s conviction was based on a theory
10
of malice or whether there was substantial evidence to support a
conviction for murder under a natural and probable consequences
theory. Any statements the court made that might bear on an
answer to these latter, unasked questions were not necessary to
resolving the question actually presented and are accordingly
nonbinding. Furthermore, the analysis in Lowe I was necessarily
limited to the then-existing appellate record in a way that the
question of defendant’s entitlement to section 1172.6 relief is not;
section 1172.6, subdivision (d)(3) permits defendant and the
People to offer “new or additional evidence to meet their
respective burdens” under the statute.
Much the same can be said of the instances in which Lowe I
characterized defendant as Lister’s actual killer. Those
statements were made in the context of reviewing a trial court
ruling for abuse of discretion and a jury finding for substantial
evidence; they were, perforce, made when viewing the evidence in
the light most favorable to those decisions based on the then-
existing record. (People v. Edwards (2013) 57 Cal.4th 658, 711,
715.) Lowe I therefore does not at this stage compel a conclusion
that the jury necessarily convicted defendant under a malice
murder theory rather than under the natural and probable
consequences doctrine.3
3
In his respondent’s brief, the Attorney General also relied
on a Fourth District Court of Appeal decision that concluded
holdings in a prior appellate opinion were law of the case that
established the defendant there was ineligible for relief as a
matter of law. The Fourth District Court of Appeal, however,
later granted rehearing in the case and disavowed its earlier law
of the case analysis. (People v. Harden (2022) 81 Cal.App.5th 45,
11
DISPOSITION
The order denying defendant’s section 1172.6 petition is
reversed and the cause is remanded with directions to issue an
order to show cause under section 1172.6, subdivision (c) and to
thereafter proceed as required by section 1172.6, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
50.) Here, for the reasons we have already given, Lowe I does not
establish defendant is ineligible for relief as a matter of law.
12