Filed 12/21/21 P. v. Lowe CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARQUIS MELVIN LOWE,

Defendant and Appellant.

 B310638

 (Los Angeles County

 Super. Ct. No. NA027826)

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.

______________________________
2

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.
3

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.) 
4

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.
5

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 crossexamination 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.”
6

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.
7

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 
8

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 
9

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.
10

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