People v. Lott CA1/1

Opinion

Filed 9/10/26 P. v. Lott CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A174539 v. MARQUES LOTT, (Alameda County Super. Ct. No. 131482) Defendant and Appellant.

MEMORANDUM OPINION1 Marques Lott appealed after the trial court denied his resentencing petition (Pen. Code, § 1172.6, all statutory references are to the Penal Code). Respondent agrees that the trial court erred in denying the petition at the prima facie stage and that the matter should be remanded for further proceedings. We agree and reverse. Lott was charged with first degree murder (§ 187) for the 1997 killing of a woman during a robbery near the Rockridge BART station in Oakland.

1 We resolve this case by memorandum opinion (Cal. Stds. Jud. Admin., § 8.1) and recite only those facts necessary to resolve the limited issue before us (People v. Garcia (2002) 97 Cal.App.4th 847, 851).

1 The jury that tried Lott was given a felony murder instruction (CALJIC 8.10). Specifically, they were told that “[e]very person who unlawfully kills a human being during the commission or attempted commission of robbery, is guilty of the crime of murder,” and in order to provide this crime the prosecution must show (1) a human being was killed, (2) the killing was unlawful, and (3) the “killing occurred during the commission or attempted commission of robbery.” Jurors were further instructed (CALJIC 8.21) that “[t]he unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery is murder of the first degree when the perpetrator had the specific intent to commit that crime.” The jury was also provided with a definition of the specific intent that must be shown to prove Lott was guilty of robbery (CALJIC 9.40 & 9.40.2). A jury convicted Lott of first degree murder, and the trial court sentenced him to life without the possibility of parole. This court affirmed in an unpublished opinion. (People v. Lott (Mar. 27, 2007, A111881).) Around 20 year later, Lott filed the resentencing petition that is the subject of this appeal (§ 1172.6). At a brief hearing on the petition, the trial court denied the petition for failure to state a prima facie case. It found that “based on the record of conviction, the defendant could still be prosecuted under a valid murder-theory today. There were no instructions relevant to natural and probable consequences or felony-murder theory or other forms of imputation of liability.” Lott appealed. In his opening brief, Lott argued that because the record in fact establishes that the jury was instructed on felony murder (CALJIC 8.21, 8.27), the trial court erred in denying his petition at the prima facie stage. (§ 1172.6, subd. (a) [person convicted of felony murder may file a petition to 2 have murder conviction vacated and to be resentenced]; People v. Lewis (2021) 11 Cal.5th 952, 972 [Legislature set “ ‘prima facie bar . . . intentionally and correctly . . . very low’ ”].) Respondent agrees that because “the record of conviction does not preclude the possibility that the jury could have improperly imputed malice,” the trial court erred in denying Lott’s petition at the prima facie stage. We accept the concession, reverse the order denying Lott’s petition, and remand the matter for an evidentiary hearing. (§ 1172.6, subd. (d) [hearing to determine whether to vacate murder conviction and resentence petitioner].) As respondent notes, just because Lott “has made a prima facia case for relief does not mean that he has satisfied the requirements for resentencing. The prosecution still will have the opportunity . . . at an evidentiary hearing to present evidence to satisfy the elements of section 189, thus precluding resentencing.” The order denying Lott’s resentencing petition is reversed, and the matter is remanded to the trial court for further proceedings.

3 _________________________ Humes, P. J.

WE CONCUR:

_________________________ Banke, J.

_________________________ Langhorne Wilson, J.

People v. Lott A174539