People v. Morrow CA2/8 ( 2023 )

Filed 3/10/23 P. v. Morrow CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B319575
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA067516
v.
CLIFTON MORROW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, LaRonda J. McCoy, Judge. Reversed and
remanded with instructions.
Edward H. Schulman, 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, Senior
Assistant Attorney General, Daniel C. Chang, Deputy Attorney
General, and Shezad H. Thakor, Deputy Attorney General, for
Plaintiff and Respondent.
____________________
A jury convicted Clifton Morrow of one count of
premeditated and deliberate murder and four counts of
premeditated and deliberate attempted murder. Morrow
petitioned for resentencing on the murder charge under the
procedure laid out in Senate Bill No. 1437, effective January 1,
2019 (2017–2018 Reg. Sess.) (SB 1437). The trial court denied
his petition. Morrow appealed, and we affirmed.
After Senate Bill No. 775, effective January 1, 2022 (2020-
2021 Reg. Sess.) (SB 775), clarified petitioners could seek
resentencing for attempted murder charges as well, Morrow filed
a second petition. The trial court dismissed Morrow’s second
petition as precluded by our opinion affirming the dismissal of his
first petition. The prosecutor concedes the trial court should not
have dismissed Morrow’s petition as to the attempted murder
charges. We agree. We remand for the trial court to appoint
counsel and make a prima facie determination of Morrow’s
eligibility for resentencing on his attempted murder charges
pursuant to section 1172.6, subdivisions (b)(3) and (c).
Undesignated statutory citations are to the Penal Code.
The Legislature enacted SB 1437 to narrow the scope of
murder liability to exclude those persons who are not the actual
killer and did not intend to kill. (People v. Strong (2022) 13
Cal.5th 698, 707-708.) The bill also created a mechanism to
provide retroactive relief to persons previously convicted who
could not be convicted under the new laws. (Id. at 708; § 1172.6.)
Upon the filing of a facially sufficient petition requesting
appointment of counsel, a trial court must appoint counsel and
hold a hearing to determine whether the petitioner has made a
prima facie showing of eligibility for relief. (§ 1172.6, subds.
(b)(3) & (c).) If the petitioner makes this showing, the court must
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hold an evidentiary hearing to determine whether relief is
warranted. (§ 1172.6, subd. (d).)
Morrow sought such retroactive relief under SB 1437, filing
a petition to be resentenced on his murder charge. After an
evidentiary hearing, the trial court found Morrow was a direct
aider and abettor and denied the petition. Morrow appealed the
trial court’s ruling, and we affirmed. (People v. Morrow (Sept. 23,
2021, B307003, 2021 WL 4316737 [nonpub. opn.] (Morrow).)
The California legislature later passed SB 775. This bill
clarified that the procedures to seek resentencing also applied to
attempted murder charges. (§ 1172.6, subd. (a)(2).) Morrow then
filed a second petition seeking resentencing on his four attempted
murder charges and requesting appointment of counsel.
Without appointing counsel, the trial court summarily
dismissed Morrow’s petition, finding our opinion denying the
appeal of his first petition precluded a second petition. Morrow
appeals.
Morrow argues the trial court erred by dismissing his
petition as to both the attempted murder and murder
charges. He asks that we remand for the trial court to hold an
evidentiary hearing pursuant to section 1172.6, subdivision
(d). The prosecutor concedes the trial court erred by dismissing
the petition as to the attempted murder charges. The prosecutor
asks that we remand the matter for the trial court to make a
prima facie eligibility determination pursuant to section 1172.6,
subdivision (c). We agree the trial court erred by dismissing the
petition as to the attempted murder charges only and remand for
the trial court to appoint counsel and make a prima facie
eligibility finding pursuant to section 1172.6, subdivision (c).
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Morrow’s second petition addressed a topic not included in
his first: his attempted murder charges. He filed the second
petition after a change in the law made clear the protection
afforded by SB 1437 also applied to those charges. Thus his
second petition was not successive, and he was entitled to a
prima facie eligibility determination by the trial court. (People v.
Farfan (2021) 71 Cal.App.5th 942, 951 [second petition not
barred as successive because based on new authority].)
Morrow asks us to hold that the trial court must grant him
a jury trial on both his murder and attempted murder
charges. As the prosecutor urges, the law of the case doctrine
precludes this argument. (People v. Jurado (2006) 38 Cal.4th 72,
94.) We have already determined the protections offered by SB
1437 are an act of lenity and do not implicate the constitutional
rights for which Morrow argues. (Morrow, supra, at p. *5.) We
see no reason to revisit this holding.
We similarly see no reason to revisit our holding rejecting
Morrow’s claim that the “harmless error” standard from
Chapman v. California (1967) 386 U.S. 18, 24, applies in the
section 1172.6 context. (Morrow, supra, at p. *5.) Although the
Supreme Court later vacated and deemed not citable the case we
cited in support of our holding, that remand did not involve this
point and the case’s reasoning remains persuasive. (See People v.
Rodriguez (Dec. 7, 2020) B303099, review granted Mar. 10, 2021,
judg. vacated and cause remanded for further consideration in
light of Sen. Bill 775, S266652.)
Although both parties agree remand as to the attempted
murder charges is appropriate, they disagree about at which step
in the section 1172.6 process we should instruct the trial court to
resume. The prosecutor asks that we remand for the trial court
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to make a prima facie eligibility determination under subdivision
(c). Morrow argues this is unnecessary. He contends he has
already established his eligibility because, as the prosecutor
concedes, at his trial the court instructed the jury on the natural
and probable consequences doctrine as to all four attempted
murder charges. Morrow further argues the prima facie
eligibility determination is made as a matter of law and reviewed
de novo, so this Court may make the determination in the first
instance. Thus, Morrow asks that we direct the trial court on
remand to hold an evidentiary hearing under subdivision (d).
We decline to do so. SB 775 confirmed that petitioners are
entitled to counsel at the prima facie eligibility determination
stage. (§ 1172.6, subd. (b)(3); see also People v. Lewis (2021) 11
Cal.5th 952, 957, 962-963.) Although the court makes this
determination as a matter of law, we see no reason to usurp the
trial court’s role to do so in the first place, especially where the
legislature has provided the determination should be made with
the benefit of briefing from counsel on the issue.
Because review of the records in Morrow’s direct appeal
and appeal of the denial of his first petition is unnecessary to our
decision, we deny his request for judicial notice.
///
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DISPOSITION
We reverse the order denying Morrow’s petition and
remand for the trial court to appoint counsel and make a prima
facie eligibility determination pursuant to section 1172.6,
subdivisions (b)(3) and (c).
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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