People v. Lowe CA2/4 ( 2021 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).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, B302993
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A975989
v.
ROBERT ULMER LOWE,
Defendant and Appellant.
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.
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.
2
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.
3
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).
4
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
5
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
6
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.)
7
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.)
8
DISCUSSION
I. Governing Principles
A. SB 1437’s Limitation of Accomplice Liability for
Murder
The Legislature enacted SB 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).) 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).)
9
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.)
10
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,
11
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-
12
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,
13
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
14
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.
15
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.]”
16
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.
17
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.
18