People v. Lowe CA2/1

P
Filed 4/23/21 P. v. Lowe 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   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,                                                      B305781

           Plaintiff and Respondent,                              (Los Angeles County
                                                                  Super. Ct. No. YA067322)

           v.

 ASHLEY SHAWNICE LOWE,

           Defendant and Appellant.



      APPEAL from an order of the Superior Court of
Los Angeles County, Edmund Willcox Clarke, Jr., Judge.
Reversed.
      Loyola Law School Juvenile Innocence & Fair Sentencing
Clinic, Christopher Hawthorne and Marisa Sacks for Defendant
and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.
                             ____________________________
       Defendant and appellant Ashley Shawnice Lowe challenges
the trial court’s denial of his1 petition under Penal Code2
section 1170.95 for resentencing on his murder conviction.
He argues that the trial court erred by finding that he had failed
to make a prima facie case that he was entitled to relief. The
Attorney General concedes Lowe is correct. We agree and reverse
because the record of Lowe’s conviction does not show as a matter
of law that he is ineligible for relief under the statute.

          FACTUAL AND PROCEDURAL SUMMARY
       In 2007, Lowe agreed to a plea bargain, under the terms
of which he pleaded guilty to one count of second degree murder
(§ 187, subd. (a)) and admitted an allegation that a principal
was armed during the commission of the offense. (§ 12022,
subd. (a)(1).) The trial court sentenced Lowe to 16 years to life
in prison. Lowe was 15 years old at the time of the murder but
was charged as an adult.
       In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases
of murder, and limited the application of the felony murder
doctrine. (See People v. Gentile (2020) 

10 Cal. 5th 830

, 842–843
(Gentile).) The legislation also enacted section 1170.95, which
established a procedure for vacating murder convictions for
defendants who could no longer be convicted of murder because

      1 Lowe was charged and sentenced as a woman but,
according to his attorneys, now identifies as a man. We therefore
refer to him using male pronouns.
      2Subsequent unspecified statutory references are to the
Penal Code.




                                2
of the changes in the law and resentencing those who were so
convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)
       Lowe filed a petition for resentencing on January 4, 2019.
The Los Angeles County District Attorney opposed the petition
on the grounds that Senate Bill No. 1437 is unconstitutional and
that Lowe was ineligible for resentencing because he was a major
participant who acted with reckless indifference to human life in
a felony murder. In support of this position, the District Attorney
attached a transcript of Lowe’s preliminary hearing, as well as a
transcript of a police interview with Lowe.
       In the interview, Lowe told police that his friend Rashaad
Hall gave him a ride on the back of his bike to a convenience
store. As they approached the store, Lowe and Hall saw the
victims, Carlos Keith and Carlos Martinez, standing outside.
One of the victims asked Lowe and Hall if they could buy
marijuana from them, and Hall told them they should give him
the money first. One of the victims showed Lowe and Hall that
he had money but did not give it to them. After Lowe bought
some food from the store, he saw that the victims had crossed to
another corner. Lowe suggested that they should rob the victims,
and Hall agreed. Lowe and Hall planned to lure the victims to an
alley by telling them that they could buy marijuana there. Once
there, Hall would pull out his gun and rob them. When Lowe
and Hall told the victims to follow them to the location to buy
the drugs, one of the victims said he needed to go get his money,
and they began to walk away. At that point, Hall fired his
gun approximately five times. The gunshots killed Keith and




                                3
wounded Martinez.3 Hall rode away on his bike, and Lowe fled
on foot.
       The trial court appointed counsel to represent Lowe.
After a hearing, the trial court denied the petition on the ground
that Lowe had not made a prima facie case that he was eligible
for relief under section 1170.95. The court reasoned that Lowe
“has not persuaded the court that [he] could not be convicted
as a direct aider and abettor . . . under the facts presented
to the jury. . . . And we don’t know what else the prosecution
might have presented or what would be presented now if they
contemplated a future trial.”

                          DISCUSSION
      A.    Background on Senate Bill No. 1437
       Senate Bill No. 1437 includes both prospective and
retrospective provisions. Prospectively, the law amended
section 188 to provide that “[e]xcept as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in
a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in
a crime.” (§ 188, subd. (a)(3).) The effect of this amendment is
to “eliminate[ ] natural and probable consequences liability for
first and second degree murder.” 

(Gentile, supra

, 10 Cal.5th at
p. 849.) In addition, Senate Bill No. 1437 enacted section 189,
subdivision (e), which restricted felony murder liability to cases
in which the defendant was the actual killer, acted with the


      3Lowe was charged with the attempted murder of
Martinez, but under the plea bargain pleaded guilty only to
the murder of Keith.




                                 4
intent to kill, or was a major participant in the underlying felony
and acted with reckless indifference to human life. (See 

Gentile,
supra

, at pp. 842–843.)
       The retroactive component of Senate Bill No. 1437 is
codified in section 1170.95. (See 

Gentile, supra

, 10 Cal.5th
at p. 853 [“the Legislature intended section 1170.95 to be
the exclusive avenue for retroactive relief under Senate Bill
[No.] 1437”].) This section allows a defendant “convicted
of felony murder or murder under a natural and probable
consequences theory [to] file a petition” for resentencing
under the new law. (§ 1170.95, subd. (a).) To be eligible for
resentencing, a defendant must show that he “could not be
convicted of first or second degree murder because of changes
to Section 188 or 189 made effective” as a part of Senate Bill
No. 1437. (§ 1170.95, subd. (a)(3).)
       The first step for a defendant to obtain relief under
section 1170.95 is to file a declaration affirming that he is
eligible for resentencing under the new law. (See § 1170.95,
subd. (b)(1).) The trial court reviews the petition, and if
the petition is incomplete, “the court may deny the petition
without prejudice to the filing of another petition and advise
the petitioner that the matter cannot be considered without
the missing information.” (§ 1170.95, subd. (b)(2).)
       If the defendant’s petition is facially sufficient, the trial
court must determine whether the defendant has made a prima
facie case for resentencing under section 1170.95, subdivision (c).
As we described in People v. Lewis (2020) 

43 Cal. App. 5th 1128

,
1139–1140, review granted Mar. 18, 2020, S260598 (Lewis), this
is a two-step process. First, the court “review[s] the petition and
determine[s] if the petitioner has made a prima facie showing




                                 5
that the petitioner falls within the provisions of this section.”
(§ 1170.95, subd. (c).) This is “a preliminary review of statutory
eligibility for resentencing,” akin to an initial review of a petition
for resentencing under Propositions 36 and 47. (People v.
Verdugo (2020) 

44 Cal. App. 5th 320

, 329, review granted
Mar. 18, 2020, S260493 (Verdugo).) “The court’s role at this
stage is simply to decide whether the petitioner is ineligible for
relief as a matter of law, making all factual inferences in favor
of the petitioner.” (Ibid.) In making this decision, the trial
court may consider the record of conviction, including any prior
appellate opinions in the case. 

(Lewis, supra

, at pp. 1137–1138;

Verdugo, supra

, at pp. 329–330.)
       If the trial court does not deny the petition at this point,
“the court shall appoint counsel to represent the petitioner”
(§ 1170.95, subd. (c)) for the second stage of prima facie review.
The prosecutor then files a response, and the petitioner may file
a reply. The review at this stage “is equivalent to the familiar
decision[-]making process before issuance of an order to show
cause in habeas corpus proceedings, which typically follows an
informal response to the habeas corpus petition by the Attorney
General and a reply to the informal response by the petitioner.”
(

Verdugo, supra

, 44 Cal.App.5th at p. 328, review granted.)
Under this standard, “[i]f the petitioner makes a prima facie
showing that he or she is entitled to relief, the court shall issue
an order to show cause.” (§ 1170.95, subd. (c).)
       If the court issues an order to show cause, it must hold
a hearing within 60 days to determine whether to vacate the
murder conviction. (§ 1170.95, subd. (d)(1).) At this third and
final stage of the proceeding, the prosecution has the burden




                                  6
of proving “beyond a reasonable doubt[ ] that the petitioner is
ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)

      B.    The Trial Court Erred by Finding that Lowe
            Failed to Make a Prima Facie Case
       Lowe contends that the trial court applied an incorrect
standard in finding that he failed to make a prima facie case
that he is entitled to relief under section 1170.95. The Attorney
General agrees, as do we.
       The trial court described the standard it applied in denying
Lowe’s petition. According to the trial court, in order to make
a prima facie case, Lowe “needs to convince me that, if I granted
a new trial, [the prosecution] could not convict [him] of murder”
as redefined by Senate Bill No. 1437. The court denied the
petition because Lowe “has not persuaded the court that [he]
could not be convicted as a direct aider and abettor . . . and that
[he] could not have been under the facts presented to the jury.”
Thus, in denying Lowe’s petition, the trial court implicitly
evaluated the facts in the record and placed the burden of proof
on Lowe to demonstrate that he was not a direct aider and
abettor of the murder. With its statement that “we don’t know
what else the prosecution might have presented or what would
be presented now if they contemplated a future trial,” the trial
court implied that Lowe must disprove the existence of any other
evidence that the prosecution might contemplate introducing
against him.
       This is not the standard we have applied at the prima facie
stage. Instead, when determining whether a petitioner has made
a prima facie case, the court must ordinarily “ ‘take[ ] petitioner’s
factual allegations as true.’ ” (

Verdugo, supra

, 44 Cal.App.5th at
p. 328, review granted.) A limited exception exists, in that the




                                  7
trial court “ ‘need not credit factual assertions that are untrue
as a matter of law—for example, a petitioner’s assertion that
a particular conviction is eligible for relief where the crime is
not listed in subdivision (a) of section 1170.95 as eligible for
resentencing. Just as in habeas corpus, if 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
pursuant to section 1170.95, subd. (d) is limited to readily
ascertainable facts from the record (such as the crime of
conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion.’ ” (People v. Nguyen (2020)

53 Cal. App. 5th 1154

, 1165–1166.)
       Under this standard, a denial at the prima facie stage
may be appropriate where, for example, the record shows that
the defendant was not convicted of murder (see People v. Larios
(2019) 

42 Cal. App. 5th 956

, 968–970, review granted Feb. 26,
2020, S259983), or that the jury found the defendant was the sole
perpetrator and actual killer (see People v. Tarkington (2020)

49 Cal. App. 5th 892

, 899, review granted Aug. 12, 2020, S263219),
or that the jury did not receive instructions on a theory of murder
affected by Senate Bill No. 1437 (see People v. Daniel (2020)

57 Cal. App. 5th 666

, 677–678, review granted Feb. 24, 2021,
S266336), or where a prior appellate opinion in the same case
established as a matter of law that the defendant was guilty
under a still-valid theory (see 

Lewis, supra

, 43 Cal.App.5th at
pp. 1138–1139, review granted).
       No such circumstance applies here. Nor can we say that
the error was harmless: Nothing in the record of conviction, as




                                8
that term has been construed in applying section 1170.95, shows
conclusively that Lowe directly aided and abetted the murder, or
that the crime was a felony murder in which Lowe was a major
participant who acted with reckless indifference to human life.
Thus, we must reverse the denial of the petition and order the
trial court to issue an order to show cause.

                         DISPOSITION
      The order denying Lowe’s petition for resentencing is
reversed. Upon remand, the trial court shall issue an order
to show cause and conduct a hearing in accordance with
section 1170.95, subdivision (d).
      NOT TO BE PUBLISHED.




                                     ROTHSCHILD, P. J.
We concur:




                  CHANEY, J.




                  FEDERMAN, J.*




      *Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.




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