Filed 6/7/21 P. v. Lowe CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This 

opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ULMER LOWE,

Defendant and Appellant.

B302993

Los Angeles County

Super. Ct. No. A975989

APPEAL from an order of the Superior Court of Los 

Angeles County, Curtis B. Rappe, Judge. Affirmed. 

Kiana Sloan-Hillier, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Attorney General, Charles S. Lee and David W. Williams, Deputy 

Attorneys General, for Plaintiff and Respondent. 
2

INTRODUCTION

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), 

effective January 1, 2019, amended the felony-murder rule and 

eliminated the natural and probable consequences doctrine as it 

relates to murder. Under Penal Code section 1170.95,1 a person 

who was convicted under theories of felony murder or murder 

under the natural and probable consequences doctrine, and who 

could not be convicted of murder following the enactment of SB 

1437, may petition the sentencing court to vacate the conviction 

and resentence on any remaining counts.

In 1991, a jury convicted defendant and appellant Robert 

Ulmer Lowe of second-degree murder. In 2019, Lowe filed a 

petition for recall and resentencing under section 1170.95. After 

holding an evidentiary hearing under section 1170.95, 

subdivision (d), the trial court denied the petition, concluding the 

prosecution had proven beyond a reasonable doubt Lowe was a 

direct aider and abettor in the murder who harbored the intent to 

kill.

On appeal, Lowe contends the trial court erred in denying 

his petition, arguing there was insufficient evidence that he 

harbored the intent to kill. We reject Lowe’s contention and 

affirm the denial of his petition.

PROCEDURAL BACKGROUND

In 1991, a jury convicted Lowe of second-degree murder 

(§ 187, subd. (a); count one) and aggravated kidnapping (§ 209, 

subd. (a); count two). Three codefendants were also convicted of 

1 All undesignated statutory references are to the Penal 

Code.
3

the same counts.2 The trial court sentenced Lowe to life without 

parole (LWOP) for count two (aggravated kidnapping), and a 

concurrent term of 15 years to life in prison for count one

(murder). In 1997, this court affirmed the convictions, but stayed 

Lowe’s sentence on the murder conviction. In 2019, Lowe filed a 

petition for resentencing under section 1170.95 through private 

counsel. The trial court issued an order to show cause under 

section 1170.95, subdivision (c), and scheduled an evidentiary 

hearing. After holding the evidentiary hearing, the court denied 

Lowe’s petition in a written opinion. The court recited the facts of 

the case, and found Lowe “intended to aid and abet [two 

codefendants to] murder Roy Radin.” It also found the evidence 

was “[m]ore than sufficient to support a finding of implied 

malice,” and that Lowe “acted as a direct aider and abettor who 

acted with malice.” The court thus denied the petition, concluding 

the prosecution had “proven beyond a reasonable doubt that 

petitioner is ineligible for resentencing because he could be 

convicted of first or second degree murder under the current law 

after Senate Bill 1437 went into effect . . . .” 

Lowe timely appealed the denial of his petition.

2 The jury found count one to be murder in the first degree as 

to two codefendants (William Mentzer and Alex Marti). As to the 

third codefendant (Karen Greenberger), the jury found count one 

to be murder in the second degree, as it also did for Lowe. 
4

FACTUAL BACKGROUND3

“The prosecution presented evidence to support its theory 

that defendant Greenberger hired defendants Mentzer, Marti and 

Lowe to kidnap and murder Roy Radin because Radin had cut 

her out of a Hollywood movie deal and had been involved in the 

theft of cocaine and money from her house.” (Greenberger, supra, 

58 Cal.App.4th at p. 316.)

“On April 18, 1983, someone stole 10 kilograms of cocaine 

and $275,000 in cash from Greenberger’s home in Sherman Oaks. 

Greenberger suspected that Tally Rogers, who had disappeared, 

had committed this theft. She had received the cocaine from 

Milan Bellachasses and was afraid that she would be held 

responsible by Bellachases for the loss of the cocaine and money. 

Bellachasses was a major cocaine distributor in Miami and 

Greenberger’s supplier. Upon discovery of the theft Greenberger 

hired Mentzer as a bodyguard. Marc Fogel had introduced her to 

Mentzer. Greenberger had supplied cocaine to Fogel in the past.”

(Greenberger, supra, 58 Cal.App.4th at pp. 316-317.)

“Greenberger called Radin in New York in late April and 

told him she was looking for Rogers because he had stolen the 

money and cocaine from her house. She accused Radin of 

knowing where Rogers was and of being involved in Rogers’s 

disappearance. Radin became angry and hung up.” (Greenberger,

supra, 58 Cal.App.4th at p. 317.)

“On May 13 Mentzer obtained the use of a limousine and 

another car with the assistance of Marc Fogel. On that same day 

3 The following is a shortened recitation of the facts in our 

opinion resolving Lowe’s direct appeal, People v. Greenberger

(1997) 58 Cal.App.4th 298 (Greenberger).
5

a meeting occurred at Mentzer’s apartment in Los Angeles. 

Mentzer, Lowe, Marti, Carl John Plzak and Raja Korban were 

present. Korban and Plzak first met Mentzer, Marti and Lowe 

when they all worked at an agency that performed vehicle 

repossessions and private detective services. Plzak worked for 

Mentzer in April 1983 providing security and surveillance for 

Greenberger . . . .

“While driving to this meeting Marti told Korban that the 

‘fat scumbag’ who owed money to a woman was going to be killed.

At the meeting Mentzer, in the presence of Lowe and Marti, 

described the plan to kidnap Radin. Both Plzak and Korban 

testified at trial under a grant of immunity. They testified that 

the plan called for Plzak and Korban to wait for Jonathan 

Lawson, Radin’s personal assistant, to leave the hotel as 

Greenberger met with Radin that night. Lawson was expected to 

go to Greenberger’s car which was parked near an apartment 

Greenberger rented in Beverly Hills. Plzak and Korban were to 

kidnap Lawson who was to be used as leverage to get information 

from Radin about the location of the money and cocaine. They 

were to communicate with the others by walkie-talkie about their 

progress with Lawson.

“The plan further called for Lowe to chauffeur Greenberger 

and Radin in the limousine Mentzer had obtained the previous 

day. They were to drive from Radin’s hotel to a restaurant in 

Beverly Hills. The plan called for Greenberger to get out of the 

limousine at some point en route to Beverly Hills and for Mentzer 

and Marti to get in and force Radin to the floor at gunpoint.

“Korban testified that Mentzer told the group that Lowe, 

Mentzer and Marti would drive Radin to the desert, and they 

would try to get information from Radin regarding the money 
6

owed Greenberger. Once in the desert the plan was to shoot 

Radin and blow up his face so his corpse could not be identified.

“Marti had a gym bag containing a handgun during this 

meeting. Mentzer had a bag with handcuffs, gloves and small 

explosives. Mentzer, who said he was being paid a ‘lot of money’ 

by Greenberger for the job, gave Korban an envelope containing 

$500 and a similar envelope and a walkie-talkie to Plzak.” 

(Greenberger, supra, 58 Cal.App.4th at pp. 317-318.)

“Plzak went to Mentzer’s apartment in the early morning of 

May 14 at Mentzer’s request and met with Mentzer and Lowe. 

Mentzer described to Plzak the events of the previous night. He 

described how he and Marti had entered the limousine. Mentzer 

said they thought the police were following them, and they were 

about to be stopped. He stated that he jammed the gun into ‘the 

producer’s’ mouth and forced him to the floor. Mentzer stated 

Lowe then drove them to the desert where Mentzer and Marti 

shot Radin 27 times. They had taken Radin’s Rolex watch and 

gun. Lowe stated to Plzak that he had to walk away from the 

shooting because he could not watch. Lowe also said that he 

cleaned the interior of the limousine after the shooting.

“Lowe and Plzak then left to return the limousine to the 

rental office from which it had been obtained. Lowe told Plzak 

that Radin said that he did not know where the money was. Both 

Lowe and Mentzer described Radin as ‘the fat pig’ or ‘fat pig 

producer.’” (Greenberger, supra, 58 Cal.App.4th at pp. 319-320.)

“Radin was reported missing by his friends in mid-May. A 

badly decomposed body was discovered June 10, 1983, in Caswell 

Canyon, a remote area in northern Los Angeles County. The 

circumstances of the discovery of the body were unconnected to 

Radin’s disappearance. The body was identified as Roy Radin by 
7

dental records and fingerprints. There was no jewelry or 

identification on the body.

“Forensic pathological examination of the body disclosed 

that Radin had been shot numerous times in the head with .22-

caliber bullets. The face had been damaged in a manner

consistent with an explosive device having been placed in his 

mouth. The condition of the body was consistent with death 

having occurred on May 13, 1983.” (Greenberger, supra, 58 

Cal.App.4th at p. 320.)

“The police investigation included searches of the 

residences of Mentzer and Marti and a search of storage lockers 

used by Mentzer. The police located and interviewed Plzak and 

Korban and used undercover operative William Rider to obtain 

tape-recorded incriminatory statements from Mentzer and Lowe 

in 1988. Rider was an acquaintance of Mentzer, Marti and Lowe. 

Rider had spoken to Marti and Mentzer in 1983, and each had 

admitted involvement in the Radin murder. Rider testified for the 

prosecution about the 1983 admissions, and tape recordings of 

the 1988 conversations with Mentzer and Lowe were played to 

the jury.” (Greenberger, supra, 58 Cal.App.4th at p. 320.)4

“Marti also made certain admissions to Estanislau 

Kreutzer whom Marti employed in 1986-1987 to help him in the 

distribution of cocaine. Kreutzer was a friend of Marti from 

Argentina. [Footnote omitted.] Kreutzer testified that Marti 

warned him on numerous occasions in 1986 and 1987 not to steal 

from him. Marti made veiled references to the murder of Radin 

by saying that he had been involved in the shooting of a ‘poor guy’ 

4 The contents of these conversations are set forth in our 

opinion resolving Lowe’s direct appeal. (Greenberger, supra, 58 

Cal.App.4th at pp. 382-388.)
8

who had stolen $300,000 and 10 kilograms of cocaine, but that he 

had not been in charge of the murder. Kreutzer observed a 

photograph on a desk in Marti’s house. The photograph depicted 

Marti holding a gun and standing next to Mentzer. Marti told 

Kreutzer that the location where the photograph was taken was 

near Magic Mountain (in the vicinity where Radin’s body was 

discovered) and that he needed to find a new place to dump 

bodies because that place was full.

“Mentzer, Marti, and Greenberger were arrested on 

October 2, 1988. Lowe was arrested on October 3, 1988.” 

(Greenberger, supra, 58 Cal.App.4th at p. 321.)

“The day before the [murder] Lowe was present at the 

meeting in Mentzer’s apartment during which the plan to kidnap 

Radin was discussed. Mentzer stated he was being paid a ‘lot of 

money’ by Greenberger for the job. Lowe was described by 

Mentzer in the meeting as the person who would drive Radin and 

Greenberger in the limousine to a location where he would permit 

Mentzer and Marti to enter and Greenberger to exit, and would 

then drive the forcibly detained Radin to the desert where 

Mentzer and Marti would try to extract information regarding 

the stolen drugs and money from him. Mentzer and Marti were to 

be armed with guns and explosives, which were plainly visible 

during the meeting. The scheme was executed as planned. 

Thereafter, Lowe received payment of money and a car.” 

(Greenberger, supra, 58 Cal.App.4th at p. 372.)
9

DISCUSSION

I. Governing Principles

A. SB 1437’s Limitation of Accomplice Liability for 

Murder

The Legislature enacted SB 1437 “to amend the felonymurder 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).) SB 1437 amended 

section 189 to provide that a participant in qualifying felonies 

during which death occurs generally will not be liable for murder 

unless the person was (1) “the actual killer,” (2) a direct aider and 

abettor in first degree murder, or (3) “a major participant in the 

underlying felony [who] acted with reckless indifference to 

human life[.]” (§ 189, subd. (e).)5

SB 1437 also “added a crucial limitation to section 188’s 

definition of malice for purposes of the crime of murder.” (People 

v. Verdugo (2020) 44 Cal.App.5th 320, 326, fn. omitted, rev. 

granted, S260493, Mar. 18, 2020 (Verdugo).) Under new section 

188, subdivision (a)(3), “‘[m]alice shall not be imputed to a person 

5 This limitation does not apply “when the victim is a peace 

officer who was killed while in the course of the peace officer’s 

duties, where the defendant knew or reasonably should have 

known that the victim was a peace officer engaged in the 

performance of the peace officer’s duties.” (§ 189, subd. (f).)
10

based solely on his or her participation in a crime.’ [Citations.]” 

(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, fn. omitted

(Lewis), rev. granted, S260598, Mar. 18, 2020.)6 “As a result, the 

natural and probable consequences doctrine can no longer be 

used to support a murder conviction.” (Ibid.)

B. Petitions to Vacate Prior Convictions

SB 1437 also added section 1170.95 to the Penal Code. This 

section permits individuals who were convicted of felony murder 

or murder under a natural and probable consequences theory, but

who could not be convicted of murder following SB 1437’s changes 

to sections 188 and 189, to petition the sentencing court to vacate 

the conviction and resentence on any remaining counts.

(§ 1170.95, subd. (a).) A petition for relief under section 1170.95 

must include: “(A) A declaration by the petitioner that he or she 

is eligible for relief under this section, based on all the 

requirements of subdivision (a). [¶] (B) The superior court case 

number and year of the petitioner’s conviction. [¶] (C) Whether 

the petitioner requests the appointment of counsel.” (§ 1170.95, 

6 The review order in People v. Lewis states: “The issues to be 

briefed and argued are limited to the following: (1) May superior 

courts consider the record of conviction in determining whether a 

defendant has made a prima facie showing of eligibility for relief 

under Penal Code section 1170.95? (2) When does the right to 

appointed counsel arise under Penal Code section 1170.95, 

subdivision (c).” (Lewis, S260598, Supreme Court Mins. Mar. 18, 

2020.) The review order in Verdugo states: “Further action in this 

matter is deferred pending consideration and disposition of a 

related issue in People v. Lewis, S260598 (see Cal. Rules of Court, 

rule 8.512(d)(2)), or pending further order of the court.” (Verdugo, 

S260493, Supreme Court Mins., Mar. 18, 2020.)
11

subd. (b)(1).) If any of the information is missing “and cannot be 

readily ascertained by the court, 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 petition contains the required information, section 

1170.95, subdivision (c), prescribes “a two-step process” for the 

court to determine if it should issue an order to show cause. 

(Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must 

“review the petition and determine if the petitioner has made a 

prima facie showing that the petitioner falls within the provisions 

of this section.” (§ 1170.95, subd. (c).) If the petitioner has made 

this initial prima facie showing, and has requested that counsel 

be appointed, he or she is then entitled to appointed counsel.

(Ibid.; Lewis, supra, 43 Cal.App.5th at p. 1140 [“trial court’s duty 

to appoint counsel does not arise unless and until the court 

makes the threshold determination that petitioner ‘falls within 

the provisions’ of the statute.”].) The court then reviews the 

petition a second time. If, in light of the parties’ briefing, it 

concludes the petitioner has made a prima facie showing that he 

or she is entitled to relief, it must issue an order to show cause. 

(§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.)

“Once the order to show cause issues, the court 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.” (Verdugo, supra, 44 Cal.App.5th at p. 327, 

citing § 1170.95, subd. (d)(1).) At the hearing, the parties may 

rely on the record of conviction or present “new or additional 

evidence” to support their positions, and “the burden of proof 

shall be on the prosecution to prove, beyond a reasonable doubt, 
12

that the petitioner is ineligible for resentencing.” (§ 1170.95, 

subd. (d)(3).)

II. Substantial evidence supports the trial court’s

finding that Lowe was ineligible for resentencing 

On appeal, Lowe contends the trial court’s finding that he 

was ineligible for section 1170.95 relief is not supported by 

substantial evidence. As mentioned above, after holding an 

evidentiary hearing under section 1170.95, subdivision (d), the 

trial court denied the petition, concluding the prosecution had 

sustained its burden of proving beyond a reasonable doubt Lowe

was a direct aider and abettor who harbored the intent to kill. 

Before reaching the merits of Lowe’s sufficiency argument, 

we first address a preliminary matter. There is currently a split 

in authority on what legal standard a trial court should apply at 

an 1170.95, subdivision (d) hearing. In People v. Duke (2020) 55 

Cal.App.5th 113, 123 (Duke), review granted January 13, 2021, 

S265309, Division One of the Second Appellate District concluded 

the applicable standard is akin to substantial evidence review, 

and as such, the trial court’s inquiry is whether a reasonable jury 

could find the defendant guilty of murder beyond a reasonable 

doubt under a currently valid theory. The Sixth Appellate 

District recently disagreed with the holding of Duke, instead 

concluding “section 1170.95 requires the prosecutor to prove 

beyond a reasonable doubt each element of first or second degree 

murder under current law in order to establish ineligibility” for 

relief. (People v. Lopez (2020) 56 Cal.App.5th 936, 942, 949 

(Lopez), review granted February 10, 2021, S265974; see also 

People v. Rodriguez (2020) 58 Cal.App.5th 227, 230-231, 241, 243-
13

244 (Rodriguez), review granted March 10, 2021, S266652

[rejecting the standard articulated in Duke and approving 

Lopez].) We agree with the standard articulated in Lopez.

Although he does not raise the argument in his opening 

brief, in his reply brief, Lowe contends the trial court used the 

incorrect legal standard when it concluded he was ineligible for 

relief. Lowe has forfeited his argument by failing to raise it in his 

opening brief. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 

(Duff).) Even assuming he had not forfeited the argument, we 

reject it. The trial court correctly applied the legal standard 

articulated in Lopez and approved in Rodriguez, concluding the 

prosecution had “proven beyond a reasonable doubt that 

petitioner is ineligible for resentencing because he could be 

convicted of first or second degree murder under the current law 

after Senate Bill 1437 went into effect . . . .” 

We now turn to whether the trial court’s finding is 

supported by substantial evidence. We conclude that it is.

Intent to kill for purposes of murder, also known as express 

malice, is shown when the assailant either desires the victim’s 

death or knows to a substantial certainty that death will occur. 

(People v. Smith (2005) 37 Cal.4th 733, 739 (Smith); In re M.S.

(2019) 32 Cal.App.5th 1177, 1185; see § 188, subd. (a)(1).) 

Evidence of motive, although not required to establish intent to 

kill, is often probative of intent to kill. (Smith, supra, 37 Cal.4th 

at pp. 740-741.) Intent to kill may be inferred from the 

defendant’s acts and the circumstances of the crime. (Ibid.) Guilt 

as a direct aider and abettor requires: (1) knowledge of the direct 

perpetrator’s intent to commit the crime; (2) intent to assist in 

committing the crime; and (3) conduct that in fact assists in 

committing the crime. (People v. Perez (2005) 35 Cal.4th 1219, 
14

1225 (Perez).) The defendant must not only know the direct 

perpetrator’s intent, he must share that intent. (People v. Beeman

(1984) 35 Cal.3d 547, 560.) Senate Bill No. 1437 “did not . . . alter 

the law regarding the criminal liability of direct aiders and 

abettors of murder because such persons necessarily ‘know and 

share the murderous intent of the actual perpetrator.’

[Citations.]” (Lewis, supra, 43 Cal.App.5th at p. 1135.) “One who 

directly aids and abets another who commits murder is thus 

liable for murder under the new law just as he or she was liable 

under the old law.” (Ibid.)

Applying these principles, we conclude substantial evidence 

supports the trial court’s finding that Lowe was a direct aider 

and abettor who harbored the intent to kill. As stated in our 1997 

opinion, “The day before the [murder] Lowe was present at the 

meeting in Mentzer’s apartment during which the plan to kidnap 

Radin was discussed. Mentzer stated he was being paid a ‘lot of 

money’ by Greenberger for the job. Lowe was described by 

Mentzer in the meeting as the person who would drive Radin and 

Greenberger in the limousine to a location where he would permit 

Mentzer and Marti to enter and Greenberger to exit, and would 

then drive the forcibly detained Radin to the desert where 

Mentzer and Marti would try to extract information regarding 

the stolen drugs and money from him. Mentzer and Marti were to 

be armed with guns and explosives, which were plainly visible 

during the meeting. The scheme was executed as planned. 

Thereafter, Lowe received payment of money and a car.” 

(Greenberger, supra, 58 Cal.App.4th 298, 372.) As the trial court

similarly explained in denying the petition, Lowe “was present 

when Mentzer stated they would kidnap Radin, try to get 

information regarding [Greenberger’s] money, then take him to 
15

the desert where they would shoot Radin and blow up his face to 

prevent his identification.”7 Knowing what they had planned, 

Lowe decided to help Mentzer and Marti. He drove the limousine 

used for the kidnapping and murder. In sum, the evidence 

showed Lowe participated in the murder, driving the limousine 

while knowing Radin would be shot and killed. Based on these 

facts, we conclude the trial court’s findings are supported by 

substantial evidence. (See Perez, supra, 35 Cal.4th at p. 1225; 

Smith, supra, 37 Cal.4th at p. 739.)

Lowe argues that, because some of the evidence admitted 

at his original trial should have been excluded, the trial court’s 

1170.95 ineligibility determination is unsupported by substantial 

evidence. Lowe raises this argument specifically in relation to 

statements made by codefendant William Mentzer in a tape 

recorded conversation with undercover operative William Rider. 

Lowe appears to argue that, because the trial court erred by 

admitting these statements, which included Mentzer telling 

Rider that Lowe drove the limousine on the night of the murder, 

the trial court should have disregarded them during the 1170.95 

hearing. In support of this contention, Lowe notes that the 

United States Supreme Court’s plurality decision in Lilly v. 

Virginia (1999) 527 U.S. 116 [119 S.Ct. 1887, 144 L.Ed.2d 117] 

may have cast doubt on this court’s conclusion in Greenberger

7 Lowe claims the testimony about this planning 

conversation should be disregarded because it came from 

unreliable sources, namely Korban and Plzak. We reject this 

contention. “[I]t is the exclusive province of the trial judge or jury 

to determine the credibility of a witness[.]” (People v. Jones (1990) 

51 Cal.3d 294, 314.) It is not our role to second guess the trial 

court’s decision to take Korban and Plzak’s testimony and the 

other evidence contained in the record of conviction at face value. 
16

that the trial court did not err by admitting the tape recordings 

at the original trial.8 We reject this contention for several 

reasons. 

First, Lowe admitted to driving the limousine on the night 

of the murder during his own separate taped conversation with 

Rider. These statements were admissible as declarations against 

penal interest. (See Evid. Code, § 1230.) Thus, even if the trial

court had completely disregarded Mentzer’s conversation with 

Rider, this would have had no impact on its determination that 

Lowe was ineligible for section 1170.95 relief, because Lowe’s 

admissible conversation with Rider separately provided the 

inculpatory evidence. 

Second, as the Attorney General points out, this court 

already found the recordings were properly admitted. (See 

Greenberger, supra, 58 Cal.App.4th at pp. 330-331.) The “‘“law of 

the case . . . must be adhered to throughout [the case’s] 

subsequent progress, both in the lower court and upon 

subsequent appeal.[ ]”’ [Citation.]” (People v. Barragan (2004) 32 

Cal.4th 236, 246.) “Absent an applicable exception, the doctrine 

‘requir[es] both trial and appellate courts to follow the rules laid 

8 Lowe cites to People v. Schmaus (2003) 109 Cal.App.4th 

846, 857, which, in dictum, noted: “The plurality’s decision in 

Lilly, supra, 527 U.S. 116, does cast doubt on the continuing 

validity of aspects of People v. Greenberger (1997) 58 Cal.App.4th 

298, 330-331 [ ], in which the Court of Appeal held that 

‘admission of a statement possessing sufficient indicia of 

reliability to fall within the hearsay exception of a declaration 

against penal interest does not deny a defendant the right of 

confrontation guaranteed by the United States Constitution’ and 

that the determination of whether a statement is trustworthy is 

entrusted to the discretion of the trial court to be reviewed under 

an abuse of discretion standard. [Citations.]”
17

down upon a former appeal whether such rules are right or 

wrong.’ [Citation.]” (Ibid.) Lowe, in his reply brief, has not refuted 

the Attorney General’s contention that the law of the case 

doctrine applies, nor has he argued his case falls within an 

exception to that doctrine. He has therefore provided this court 

no basis for rejecting the Attorney General’s position.

Lowe also argues “the constitutional minimum was not 

satisfied” concerning whether he was a major participant who 

acted with reckless indifference to human life. Lowe’s argument 

is puzzling. The trial court did not deny Lowe’s petition on the 

basis that he was a major participant in the kidnapping who 

acted with reckless indifference to human life. It denied it based 

on the conclusion that he directly aided and abetted the murder 

while harboring the intent to kill. Because the trial court did not 

deny Lowe’s petition on the basis he now challenges, we need not 

resolve his argument.

We likewise address another tangential point raised by 

Lowe. In his opening brief, Lowe asserts: “Under the law as it is 

today, [a]ppellant’s second degree murder conviction and the 

aggravated kidnaping [sic] conviction would not stand, as both 

were based on the natural and probable consequences doctrine, 

which is no longer good law.” (Italics added.) Similarly, in his 

reply, Lowe contends that “because the murder and kidnapping 

were pleaded and argued by the prosecution as one course of 

conduct, if appellant did not aid and abet murder, the section 209 

kidnapping conviction must also be vacated.” Although he does 

not say so explicitly, Lowe appears to be asserting section 

1170.95 renders him eligible for resentencing on his kidnapping

conviction. This is incorrect because, as discussed above, section 

1170.95 applies only to certain murder convictions. 
18

Lastly, the Attorney General argues even if the trial court 

did err in denying the petition, Senate Bill No. 1437 and section 

1170.95 could never afford Lowe any meaningful relief. In 

support of this contention, the Attorney General points out

Lowe’s sentence for his murder conviction was stayed, and he is 

serving an LWOP sentence for the kidnapping conviction. 

Because we conclude the trial court’s ineligibility finding is 

supported by substantial evidence, we need not reach the 

Attorney General’s point. 

DISPOSITION

The order denying Lowe’s section 1170.95 petition is 

affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J. 

We concur: 

MANELLA, P.J. 

WILLHITE, J.