People v. Bitson CA2/1 ( 2021 )


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  • Filed 11/18/21 P. v. Bitson CA2/1
    Opinion following transfer from Supreme Court
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
    THE PEOPLE,                                                      B301565
    Plaintiff and Respondent,                              (Los Angeles County
    Super. Ct. No. BA434959)
    v.
    MORGAN BITSON,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of
    Los Angeles County, James R. Dabney, Judge. Affirmed.
    Stephen Temko, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Xavier Becerra and Rob Bonta, Attorneys General,
    Lance E. Winters, Chief Assistant Attorney General, Susan
    Sullivan Pithey, Assistant Attorney General, Charles S. Lee and
    David A. Wildman, Deputy Attorneys General, for Plaintiff and
    Respondent.
    Morgan Bitson and her boyfriend Tristan Bennett killed
    Bitson’s four-year-old son. Jurors convicted Bitson of multiple
    crimes including second degree murder. This court previously
    affirmed the judgment. In June 2019, Bitson filed a petition
    under Penal Code1 section 1170.95 to vacate her murder
    conviction. The trial court found that she failed to demonstrate a
    prima facie case entitling her to relief and denied her petition. In
    a nonpublished opinion, this court affirmed the trial court’s order.
    The California Supreme Court granted defendant’s petition
    for review and ordered us to reconsider the case in light of
    People v. Lewis (2021) 
    11 Cal.5th 952
     (Lewis).) Under Lewis, the
    trial court erred in failing to appoint counsel for Bitson. (Lewis,
    at p. 957.) The error, however, was harmless because, as a
    matter of law, Bitson cannot establish a prima facie case for
    resentencing. (See 
    id.
     at pp. 957–958 [error in failing to appoint
    counsel should be evaluated for prejudice under standard
    articulated in People v. Watson (1956) 
    46 Cal.2d 818
    ].) We thus
    affirm the trial court’s denial of Bitson’s section 1170.95 petition
    for resentencing notwithstanding the failure to appoint counsel.
    BACKGROUND
    1.    Bitson and Bennett Kill Bitson’s Four-Year-Old Son
    The following background is taken from this court’s opinion
    following Bitson’s appeal from the judgment of conviction.
    “Defendants Morgan Bitson and her boyfriend Tristian
    Bennett killed Bitson’s four-year-old son Major Woods. The fatal
    blow severed Woods’s liver in two, causing him to bleed profusely.
    Prior to that time, defendants inflicted many additional wounds
    1   Undesignated statutory citations are to the Penal Code.
    2
    on Woods. While in their care, Woods suffered broken ribs, burn
    marks, bruises, a broken arm, and the loss of vision. Defendants
    restricted Woods’s food, causing him to suffer from hunger and
    chronic stress and to lose muscle tissue. Although the evidence
    did not show if Bitson or Bennett inflicted the fatal blow, the
    overwhelming evidence demonstrated that both abused him; one
    or both inflicted the fatal wound; and both lied about the events
    causing Woods’s death.” (People v. Bitson (Dec. 20, 2018,
    B275154) [nonpub. opn.].)
    Bitson and Bennett were the only persons responsible for
    Woods’s care. “Forensic pathologist James Ribe performed an
    autopsy and testified at length about Woods’s injuries, finding
    them ‘too numerous to count.’ Ribe’s undisputed testimony
    indicated that within hours of his death, Woods had suffered
    blunt force trauma to his abdominal cavity inflicted by an adult,
    which severed his liver in two. The trauma also bruised Woods’s
    diaphragm, caused a blood clot in Woods’s back, and affected his
    inferior vena cava. Ribe opined that Woods’s death was not
    accidental but was a homicide.
    “Ribe described some of Woods’s external injuries at the
    time of his death. The front and back of Woods’s upper body were
    bruised. His left shoulder was bruised. He had two abrasions on
    the backside of his ribcage. The abrasions on Woods’s ribcage
    were indicative of blunt force trauma. Underneath the abrasions,
    there was bruising and hemorrhaging, also indicative of blunt
    force trauma. Woods’s ninth and tenth ribs were fractured. The
    fractures were ‘complex,’ suggesting that some were partially
    healed and others were new. The new fractures occurred minutes
    or hours before Woods’s death. Woods’s left arm was fractured.
    The fracture occurred by someone twisting or wrenching the arm.
    3
    “Woods’s neck contained marks from someone’s nails. The
    marks were under Woods’s jawline and along his windpipe.
    Woods’s arms, legs, neck, torso, left hip, and right thigh
    contained white scars. The white marks were from burns that
    appeared to be from a hot object or hot water. Ribe opined that
    the burn marks were weeks or months old.
    “A red mark on Woods’s forearm was from a recent injury.
    His arms and legs contained additional ‘linear marks’ that had
    started to scab. The back of Woods’s neck and left shoulder had
    loop marks, indicating that someone hit Woods with a cord.
    “Woods’s abdomen was ‘intensely distended.’ He appeared
    thin and emaciated. Woods’s ribs protruded. His arms and legs
    were thin. His tissue was ‘wasting,’ i.e., lacking muscle tissue
    and fat. At the time of his death, Woods was malnourished. His
    body weight was far below normal for his age. Woods’s thymus
    gland was abnormally small. The shrinkage of the thymus gland
    was caused by pain, fear, malnutrition, or emotional stress over a
    period of weeks or months.
    “The inside of Woods’s lip was lacerated. His back was
    scarred. His right knee and right ankle were bruised, his left
    ankle was injured. The inside of his left leg contained abrasions
    indicative of a small, sharp object. Woods’s head was bruised
    indicating ‘blunt force impact to the right side of the head above
    the ear.’ This injury occurred minutes to hours before Woods’s
    death. The ‘bright red bleeding in the tissue that appeared fresh’
    showed that the wound occurred shortly before Woods’s death.
    “In addition to the head injury, Woods suffered numerous
    injuries within a few days of his death. A laceration inside the
    mucous membrane in Woods’s lip had not healed. A red cut
    inside Woods’s left arm was recent. Linear abrasions caused by a
    4
    small sharp object on Woods’s left leg were recent. Shortly before
    his death, Woods’s ribs had been broken and Woods’s left arm
    had been fractured just above his elbow. Ribe determined the
    fracture was within one day of death by dissecting the arm and
    arm bone and finding fresh bleeding under the skin.” (People v.
    Bitson, supra, B275154.)
    In undisputed testimony, a child abuse pediatrician opined
    that “the cause of Woods’s death was ‘severe protruding blunt
    force trauma to the abdomen which caused a complete breaking
    of the liver into two pieces.’ ‘It’s caused by a very forceful, kick,
    stomp, or punch into the abdomen.’ ” (People v. Bitson, supra,
    B275154.) “Bitson, Bennett, and Woods were in their bedroom
    when the fatal blow was inflicted.” (Ibid.)
    2.    Jury Instructions
    During Bitson’s jury trial, the trial court instructed jurors:
    “A person may be guilty of a crime in two ways. One, he or she
    may have directly committed the crime. I will call that person
    the perpetrator. Two, he or she may have aided and abetted a
    perpetrator, who directly committed the crime. [¶] A person is
    guilty of a crime whether he or she committed it personally or
    aided and abetted the perpetrator.”
    The trial court instructed jurors on natural and probable
    consequences as follows: “A defendant may be found guilty of as
    an aider and abettor not only of the crimes they intend to aid and
    abet but also of any crimes committed by the perpetrator that are
    the natural and probable consequences of the target crime. [¶]
    The People are alleging that the defendant originally intended to
    aid and abet child abuse likely to cause death or great bodily
    injury. [¶] To prove that the defendant is guilty of second
    degree murder under this theory, the People must prove that: [¶]
    5
    1. The defendant is guilty of child abuse likely to cause death or
    great bodily injury; [¶] 2. During the commission of child abuse
    likely to cause death or great bodily injury a coparticipant in that
    crime committed the crime of second degree murder; [¶] AND [¶]
    3. Under all of the circumstances, a reasonable person in the
    defendant’s position would have known that the commission of
    the second degree [murder] was a natural and probable
    consequence of the commission of the abuse likely to produce
    death or great bodily injury.”
    The trial court instructed jurors on the definition of second
    degree murder, including defining malice. The court defined
    express malice as having the intent to kill. The court instructed
    the jury that implied malice included acting deliberately or
    failing to act with conscious disregard for human life. The court
    further instructed the jury that “[a]n act causes death if the
    death is the direct, natural, and probable consequence of the act
    and the death would not have happened without the act. A
    natural and probable consequence is one that a reasonable person
    would know is likely to happen if nothing unusual intervenes.”
    The court also instructed jurors on involuntary
    manslaughter as follows: “When a person commits an unlawful
    killing but does not intend to kill and does not act with conscious
    disregard for human life, then the crime is involuntary
    manslaughter.” “An unlawful killing resulting from a willful act
    committed without intent to kill and without conscious disregard
    of the risk to human life is involuntary manslaughter.” As
    relevant to the current appeal, the court further instructed
    jurors: “In order to prove murder the People have the burden of
    proving beyond a reasonable doubt that the defendant acted with
    intent to kill or with conscious disregard for human life. If the
    6
    People have not met either of these burdens, you must find the
    defendant not guilty of murder.”
    In addition to instructing jurors on murder, the court
    instructed jurors on killing a child under eight in violation of
    section 273ab, subdivision (a). The elements included that
    “defendant did an act that by its nature would directly and
    probably result in the application of force to the child” and “[t]he
    defendant’s act caused the child’s death.” Jurors could not find
    that the act caused the death unless they concluded that “[t]he
    death would not have happened without the act.”
    3.    Conviction and Sentence
    Jurors found Bitson guilty of second degree murder. Jurors
    also found Bitson guilty of assault on a child causing death. The
    trial court sentenced Bitson to prison for 25 years to life on the
    assault causing death of a child conviction and stayed a 15-year-
    to-life sentence on the murder conviction.
    4.    Petition for Resentencing
    Bitson filed a petition for resentencing under section
    1170.95. In her petition, she checked a box stating, “At trial, I
    was convicted of 1st or 2nd degree murder pursuant to the felony
    murder rule or the natural and probable consequences doctrine.”
    Bitson checked boxes concerning first degree felony murder, of
    which she was not convicted. Bitson also checked a box
    indicating that there was a prior determination that she was not
    a major participant and did not act with reckless indifference to
    human life. There was no such prior determination and on
    appeal, Bitson does not argue otherwise. Bitson requested the
    appointment of counsel.
    7
    5.    Resentencing Trial Court Order
    The trial court denied Bitson’s petition for resentencing.
    The court concluded that Bitson was ineligible for relief under
    section 1170.95. The trial court did not appoint counsel or hold a
    hearing. Bitson timely appealed from the order denying her
    petition under section 1170.95.
    DISCUSSION
    Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
    No. 1437) amended section 188 to provide that “[e]xcept as stated
    in subdivision (e) of Section 189, in order to be convicted of
    murder, a principal in a crime shall act with malice aforethought.
    Malice shall not be imputed to a person based solely on his or her
    participation in a crime.” (Stats. 2018, ch. 1015, § 2.) The
    amendment effectively “eliminates natural and probable
    consequences liability for first and second degree murder.”
    (People v. Gentile (2020) 
    10 Cal.5th 830
    , 849.) In addition,
    Senate Bill No. 1437 enacted section 189, subdivision (e), which
    restricted felony murder liability to cases in which the defendant
    was the actual killer, acted with the intent to kill, or was a major
    participant in the underlying felony and acted with reckless
    indifference to human life. (Stats. 2018, ch. 1015, § 3; see
    Gentile, at pp. 842–843.)
    A person convicted of murder under a felony murder or
    natural and probable consequence theory may petition to have
    the murder conviction vacated. (§ 1170.95, subd. (a).) The
    petitioner’s prima facie case consists of the following three
    elements:
    “(1) A complaint, information, or indictment was filed
    against the petitioner that allowed the prosecution to proceed
    8
    under a theory of felony murder or murder under the natural and
    probable consequences doctrine.
    “(2) The petitioner was convicted of first degree or second
    degree murder following a trial or accepted a plea offer in lieu of
    a trial at which the petitioner could be convicted for first degree
    or second degree murder.
    “(3) The petitioner could not be convicted of first or second
    degree murder because of changes to Section 188 or 189 made
    effective January 1, 2019.” (§ 1170.95, subd. (a).)
    When a petitioner files a “complying petition,” the court
    must appoint counsel if requested, “the issue is briefed[,] and
    then the court makes one (not two) prima facie determination.”
    (Lewis, supra, 11 Cal.5th at p. 966.) “[T]he prima facie
    inquiry . . . is limited. Like the analogous prima facie inquiry in
    habeas corpus proceedings, ‘ “the court takes petitioner’s factual
    allegations as true and makes a preliminary assessment
    regarding whether the petitioner would be entitled to relief if his
    or her factual allegations were proved. If so, the court must issue
    an order to show cause.” ’ [Citation.] ‘[A] court should not reject
    the petitioner’s factual allegations on credibility grounds without
    first conducting an evidentiary hearing.’ [Citation.]” (Id. at
    p. 971.) At the prima facie stage, the trial court “should not
    engage in ‘factfinding involving the weighing of evidence or the
    exercise of discretion.’ [Citation.]” (Id. at p. 972.)
    “If the petitioner makes a prima facie showing that he or
    she is entitled to relief, the court shall issue an order to show
    cause.” (§ 1170.95, subd. (c).) In that event, the court must hold
    a hearing within 60 days to determine whether to vacate the
    murder conviction. (Id., subd. (d)(1).) At this third and final
    stage of the proceeding, the prosecution has the burden of proving
    9
    “beyond a reasonable doubt[ ] that the petitioner is ineligible for
    resentencing.” (Id., subd. (d)(3).) Either party may present “new
    or additional” evidence. (Ibid.)
    A.    The Record of Conviction Establishes as a Matter of
    Law that Bitson is Ineligible for Resentencing
    Bitson argues she set forth a prima facie case for relief
    because jurors may have relied on the natural and probable
    consequences theory in convicting her of murder. According to
    Bitson, “[t]here is nothing in the record that shows the jury relied
    on the valid theory that appellant was a direct aider and abettor.”
    The record of conviction, however, shows as a matter of law
    Bitson is ineligible for relief. (Lewis, supra, 11 Cal.5th at p. 972
    [court may consider record of conviction in assessing whether
    petitioner established a prima facie case for resentencing].)
    Woods died of a blow to his liver that severed his liver into two
    pieces. “Bitson, Bennett, and Woods were in their bedroom when
    the fatal blow was inflicted.” (People v. Bitson, supra, B275154.)
    Jurors necessarily concluded that Bitson committed an act that
    caused Woods’s death when they convicted her of child abuse
    because under the instructions given, jurors could convict Bitson
    of child abuse only if they concluded that Bitson’s act caused
    Woods’s death. Additionally, under the instructions given, jurors
    could not have found that the act caused the death unless they
    concluded that “[t]he death would not have happened without the
    act.”
    Additionally, when the jury rejected the involuntary
    manslaughter instruction, it necessarily concluded that Bitson
    acted either with the intent to kill or with the conscious disregard
    to the risk to human life. As set forth above, the trial court
    instructed jurors: “In order to prove murder the People have the
    10
    burden of proving beyond a reasonable doubt that the defendant
    acted with intent to kill or with conscious disregard for human
    life. If the People have not met either of these burdens, you must
    find the defendant not guilty of murder.”
    The undisputed facts further confirm that Bitson acted
    with conscious disregard for human life. The autopsy revealed
    that Wood’s injuries were “ ‘too numerous to count.’ ” (People v.
    Bitson, supra, B275154.) Woods suffered from starvation. Woods
    died when his liver was severed into two pieces. Bitson offers no
    theory under which severing a child’s liver into two pieces does
    not demonstrate conscious disregard for life.
    Bitson contends it is “impossible to determine whether or
    not the jury relied on the natural and probable consequences
    theory in finding [her] guilty of second degree murder.” As set
    forth above, Bitson’s argument ignores the import of the trial
    court’s instructions and the jury’s verdict clearly rejecting a
    natural and probable consequences theory of murder.
    In sum, because the record of conviction establishes as a
    matter of law the absence of a prima facie case of eligibility for
    resentencing under section 1170.95, the trial court’s failure to
    appoint counsel for Bitson was harmless.
    B.    Bitson Fails to Demonstrate Her Remaining
    Arguments are Cognizable in This Appeal From an
    Order Denying Her Section 1170.95 Petition
    During Bitson’s trial, the trial court instructed jurors: “You
    need not unanimously agree, nor individually determine, whether
    a defendant is an aider or abettor or a direct perpetrator. The
    individual jurors themselves need not choose among the theories
    so long as each is convinced of guilt. There may be a reasonable
    doubt that a defendant was the direct perpetrator, and similar
    11
    doubt th[at] he or she was the aider and abettor, but no such
    doubt that he or she was one or the other.” In her direct appeal,
    Bitson unsuccessfully challenged that instruction.
    Bitson attempts to renew her challenge to the same
    instruction in the current appeal. Bitson did not raise this
    challenge in the trial court considering her resentencing petition
    and fails to argue that she can now raise it for the first time on
    appeal of the denial of her section 1170.95 petition. Bitson also
    fails to demonstrate that alleged instructional error is cognizable
    as part of a petition for resentencing. The procedure described in
    section 1170.95—the only basis for Bitson’s postconviction motion
    for resentencing—does not encompass raising claims of alleged
    instructional error, let alone claims that we rejected upon
    Bitson’s appeal of her judgment of convictions.2
    Finally, Bitson argues that she is entitled to bring a
    petition for writ of habeas corpus because her conviction was not
    final at the time the Legislature amended sections 188 and 189,
    codifying the amendments to the murder law. Given that this
    case involves an appeal from the order denying Bitson’s
    section 1170.95 petition, not a petition for writ of habeas corpus,
    we need not consider whether Bitson could bring a habeas
    petition, or the merits of such a hypothetical petition. To the
    extent Bitson is requesting this court deem her appeal to be a
    petition for writ of habeas corpus, we deny that request.
    2  In that opinion, we rejected the same challenge to the
    trial court’s instruction both on the merits and because any
    purported error was harmless beyond a reasonable doubt.
    (People v. Bitson, supra, B275154.)
    12
    DISPOSITION
    The trial court’s order is affirmed.
    NOT TO BE PUBLISHED.
    BENDIX, J.
    We concur:
    ROTHSCHILD, P. J.
    CHANEY, J.
    13
    

Document Info

Docket Number: B301565A

Filed Date: 11/18/2021

Precedential Status: Non-Precedential

Modified Date: 11/18/2021