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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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).
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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an unpublished opinion.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
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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.
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_________________________
Humes, P. J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Langhorne Wilson, J.
People v. Lott A174539
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