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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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,

Plaintiff and Respondent,

v.

CURTIS LOWE,

Defendant and Appellant.

 B311486

 (Los Angeles County

 Super. Ct. No. 

BA420534)

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.
2

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.
3

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.)
4

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 
5

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.
6

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 
7

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 
8

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.)
9

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.
10

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 
11

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 thenexisting 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,
12

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.