People v. Morrow CA2/8 ( 2021 )

Filed 9/23/21 P. v. Morrow CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307003
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA067516)
v.
CLIFTON DAWAYNE MORROW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Raul Anthony Sahagun, Judge. Affirmed.
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, Charles S. Lee and Amanda V.
Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Clifton Dawayne Morrow challenges the trial court’s denial
of his Penal Code section 1170.95 petition. Morrow contends the
trial court applied the wrong standard of proof and should have
given him an evidentiary hearing. He also argues a jury should
have decided the matter. We affirm. Undesignated statutory
citations are to the Penal Code.
I
In 2003, a jury convicted Morrow of one count of
premeditated and deliberate murder (§ 187, subd. (a)), four
counts of attempted premeditated and deliberate murder (§§ 664,
187, subd. (a)), and three counts of assault with a machine gun
(§ 245, subd. (a)(3)). The jury found gang enhancements true
with respect to each charge. (§ 186.22, subd. (b)(1).) Regarding
the murder charge, the jury found true an allegation that Morrow
had personally used and discharged a firearm causing death.
(§ 12022.53, subds. (b)–(d).) The jury also found true the
allegation that Morrow personally used and intentionally
discharged a firearm in connection with the four attempted
murder charges (§ 12022.53, subds. (b)–(c)) and that he
personally used a firearm in connection with the charges of
assault with a machine gun (§ 12022.5). The trial court
sentenced Morrow to a term of 50 years to life for the murder and
related firearm enhancement. For the attempted murders and
firearm enhancements, the court sentenced him to two
consecutive terms of 15 years to life plus 20 years, one concurrent
term of 15 years to life plus 20 years, and one concurrent term of
20 years to life plus 20 years. The court stayed sentences for the
assaults and gang enhancements.
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The jury heard about two shooting episodes: one on August
11, 2001, and another on August 22, 2001. The earlier shooting
resulted in a death; the later one did not.
The shooting on August 11, 2001, involved the following
events. Members of a rival gang, the Florencia, had shot at
Morrow and fellow Crips members earlier that day. That
evening, Morrow and another gang member went looking for
payback. They spotted two young Hispanic men in an
alley. Morrow and his companion got out of their car and shot at
the two men. Bullets killed one. The other escaped. Neither was
a gang member.
Morrow gave different accounts of this shooting. He first
admitted to being one of the shooters, but claimed he shot only
once before his gun jammed and the bullet hit a pole. Police
returned to the scene and found a metal fence pole with a bullet’s
indentation. Morrow later claimed he was not at the shooting,
but fellow gang members told him to take responsibility and
provided him information about it to convince the police.
At the trial, with regard to the murder charge, the court
instructed the jury on direct aider and abettor liability as well as
liability under the natural and probable consequences
doctrine. The prosecutor emphasized in her closing argument
that Morrow could be convicted of murder if the jury found he
aided and abetted the crime of assault with a deadly weapon and
the natural and probable consequence of that crime was
murder. We affirmed Morrow’s convictions in an unpublished
opinion: People v. Morrow (Oct. 29, 2004, B167384).
On April 17, 2019, Morrow filed a petition for resentencing
under section 1170.95 using a form petition. He checked boxes
stating that he had been convicted of first or second degree
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murder pursuant to the felony murder rule or the natural and
probable consequences doctrine and that he could not now be
convicted of first or second degree murder because of changes
made to sections 188 and 189.
The trial court appointed counsel for Morrow. The
prosecution filed a response to the petition. The trial court
scheduled a hearing to set a date for an evidentiary hearing. The
prosecution filed a brief asking the court to reconsider finding a
prima facie case. At a later hearing, both sides argued whether
Morrow had made a prima facie showing. At the conclusion of
the hearing, the trial court reaffirmed it would find a prima facie
case and set an evidentiary hearing. The trial court told counsel
it did not think it needed additional evidence, “but that does not
preclude you from presenting evidence.” Neither side submitted
additional evidence. Morrow submitted an eligibility brief.
The trial court opened the next hearing by saying, “The
matter is set for an [evidentiary hearing] re an 1170.95
petition.” The trial court noted it had reviewed all of the papers
and the entire file. After argument from counsel, the trial court
summarized the evidence: “Well, what concerns me is he drives
where he’s in a car with two other people, he tells the police that
he had been shot at that day or the day before and he went over
there for pay-back. [¶] He and the other guy see two Latinos
presumably from—presumably they think they’re from
Florencia. They both jump out and they both open fire. I don’t
think that’s in dispute. They both open fire, one of the guys is hit
and killed. . . . How is he not a direct aider and abettor of killing
that person?”
After discussion with counsel, the trial court noted, “I’m not
quite sure about [what to do with certain evidence], but I don’t
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think I have to get there because we know they’re gang members,
we know there is a war going on between 89th Crips and
Florencia.” The trial court continued to summarize what “we
know” from the evidence and Morrow’s admissions, before
concluding, “So I think that he went there with the intent to
kill . . . . [¶] [A]t least two people jump—are in the car, both
jump out and they shoot and empty their guns at the fleeing
victims shooting and killing one of them, and I think that makes
him a direct aider and abettor and I think that he could be
convicted of that charge of murder beyond a reasonable doubt
under the present law.”
Based on this finding, the trial court denied Morrow’s
petition. Morrow appealed this order.
II
Morrow argues he did not receive an evidentiary hearing
and the trial court applied the wrong standard of proof. He also
maintains he was entitled to a jury. These arguments are
incorrect.
Before tackling these arguments, we lay the groundwork.
The Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) (SB 1437), effective January 1, 2019, “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).) Section 1170.95
allows persons convicted of felony murder or under a natural and
probable consequences theory to petition the court to have their
convictions vacated and to be resentenced. (§ 1170.95, subd. (a).)
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To seek relief under section 1170.95, the petitioner must
file a petition averring: (1) an accusatory pleading allowed the
prosecution to proceed under a felony-murder or natural and
probable consequences theory; (2) a jury convicted the petitioner
of first or second degree murder at trial, or the petitioner
accepted a plea offer instead of a trial at which the jury could
have convicted the petitioner of first or second degree murder;
and (3) the petitioner could not now be convicted of first or second
degree murder because of the amendments to sections 188 and
189. (§ 1170.95, subd. (a)(1)–(3).)
The Supreme Court recently clarified that, once a facially
sufficient petition has been filed, the trial court must appoint
counsel if so requested. (People v. Lewis (2021) 11 Cal.5th 952,
962–963 (Lewis).) The trial court then, after receiving briefing, is
to determine whether the petitioner has made a prima facie
showing she or he is eligible for relief. (§ 1170.95, subd. (c).) If
the petitioner makes such a showing, the trial court issues an
order to show cause and sets an evidentiary hearing to determine
whether to vacate the conviction, recall the sentence, and
resentence the petitioner. (§ 1170.95, subd. (d)(1); Lewis, at p.
960.)
A
Morrow first argues the trial court erred in not finding a
prima facie case and setting an evidentiary hearing under section
1170.95, subdivision (d)(3). This argument is puzzling. The trial
court did just that.
The trial court found a prima facie case and scheduled a
hearing to set an evidentiary hearing: multiple minute orders
reflect this. After these orders, the prosecution filed a brief
asking the trial court to reconsider its finding that Morrow had
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made a prima facie showing. At a later hearing, the trial court
heard argument from both sides before rejecting the prosecution’s
request. As Morrow acknowledges, at the end of that hearing,
the trial court reiterated it was finding a prima facie case. The
court set an evidentiary hearing. The trial court told counsel it
did not think it needed additional evidence, but “that does not
preclude you from presenting evidence.” At the start of the next
hearing, the trial court again stated, “The matter is set for an
[evidentiary hearing] re an 1170.95 petition.”
Morrow’s argument that the trial court improperly relied
on only the pleadings and the record of conviction is
incorrect. The trial court explicitly invited Morrow to provide
additional evidence. He declined. Nor does Morrow now identify
evidence he would have presented. Either party may introduce
new evidence at the evidentiary hearing, but the statute does not
demand it. (See § 1170.95, subd. (d)(3) [“The prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.”].)
Morrow filed a supplemental brief addressing the Supreme
Court’s recent Lewis decision. Morrow argues Lewis clarified how
a trial court may use a record of conviction and the standard of
proof to be applied in determining whether a prima facie case has
been made. This point is accurate and irrelevant, because the
trial court found a prima facie case.
Morrow’s claim the trial court applied the wrong standard
of review fails because, as we next determine, the trial court
applied the correct standard. And this point does not relate to
whether the trial court denied him an evidentiary hearing.
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B
Morrow next argues the trial court improperly applied a
substantial evidence standard. Morrow alternatively advocates
for a reasonable doubt standard and a harmless error standard
based on Chapman v. California (1967) 386 U.S. 18, 24
(Chapman).
The prosecution initially argued the substantial evidence
standard is the correct one, but later filed a supplemental brief
changing their position. The prosecution now contends, correctly,
that the trial court properly applied the reasonable doubt
standard.
We first consider the substantial evidence standard and the
reasonable doubt standard. There is a split of authority in the
Courts of Appeal about this. Our colleagues in Division One
adopted a test akin to the substantial evidence standard. (People
v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13,
2021, S265309.) The Sixth Appellate District found the
reasonable doubt standard applied. (People v. Lopez (2020) 56
Cal.App.5th 936, 949 (Lopez), review granted Feb. 10, 2021,
S265974.) Under this view, section 1170.95 requires the
prosecutor to prove each element of first or second degree murder
under the current law beyond a reasonable doubt. (Ibid.) Our
colleagues in Division Seven agreed and further held the trial
court must act as an independent fact finder in applying that
standard. (People v. Rodriguez (2020) 58 Cal.App.5th 227, 243–
244 (Rodriguez), review granted Mar. 10, 2021, S266652.) The
question is currently before the Supreme Court. Until we receive
further guidance, we continue to follow the persuasive reasoning
of Lopez and Rodriguez.
8
In People v. Clements (2021) 60 Cal.App.5th 597 (Clements),
review granted April 28, 2021, S267624, Division Two of the
Fourth Appellate District followed Lopez and Rodriguez, but
added its own gloss: section 1170.95 does not require the trial
court to hold an entire new trial; rather, the parties and court
may properly focus on evidence relevant to the changes to
sections 188 and 189. (Clements, at p. 618.) The prosecution
urges us to adopt this approach. We do not read Clements as
contradicting Lopez and Rodriguez, but rather as recognizing the
practical reality that only certain elements may be in dispute
during a subdivision (d)(3) evidentiary hearing and that the
parties and trial court will focus on those elements. Clements
does not preclude consideration of evidence relevant to any
element of the murder charge. Rather, it acknowledges the
parties and trial court may not explicitly discuss undisputed
elements.
Morrow’s argument against the Clements approach appears
to be based on the misconception that Clements endorsed an
independent fact finder role only as to new evidence and a
substantial evidence review role for the cold record. Clements,
however, did not so rule, nor does the prosecution here advocate
such an approach.
Having determined Lopez, Rodriguez, and Clements require
the trial court to act as an independent fact finder and to
determine whether the prosecution has established the petitioner
could be convicted of first or second degree murder under the
current law, we turn to analyzing what the trial court did here.
Morrow asserts the trial court applied a substantial
evidence standard rather than requiring the prosecution to prove
its case beyond a reasonable doubt. The record is to the
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contrary. When the trial court stated its conclusion, it found
that, based on its review of the evidence, Morrow “could be
convicted of that charge of murder beyond a reasonable doubt
under the present law.” Moreover, the record includes no
mention of the sufficiency of the evidence. (See Lopez, supra, 56
Cal.App.5th at p. 952, review granted [that court “never used the
words ‘substantial evidence,’ ‘sufficient evidence,’ or made any
other indication that it was applying a sufficiency of the evidence
standard” supported finding that court correctly applied beyond a
reasonable doubt standard].) The trial court distinguished a case
Morrow cited on the ground that it was a direct appeal and
therefore “the analysis was whether the evidence was sufficient
to sustain the conviction.”
Morrow’s argument the trial court did not act as an
independent fact finder is based on the trial court’s phrasing: “I
think that makes him a direct aider and abettor and I think that
he could be convicted of that charge of murder beyond a
reasonable double under the present law.” (Emphasis
added.) This focus on the “he could be” language is
misplaced. As the Lopez court found, that a trial court uses
“could” does not support the idea the court misapplied the law
because that court is merely using the statutory
language. (Lopez, supra, 56 Cal.App.5th at p. 951, review
granted; § 1170.95, subd. (a)(3).)
Viewed in its entirety, the transcript of the evidentiary
hearing shows the court engaged in appropriate and independent
factfinding. It had “read all of the papers and reviewed the entire
file.” After counsel gave statements, the court recited what it
knew based on the evidence. The court did not refer to what the
jury found or what a hypothetical jury could find, but instead
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made its own determinations. The court’s statements reflect
this:
“I think it’s clear they’re trying to kill them”; “I think that
he went there with the intent to kill”; “We know through his own
admission that he had been shot at the day before or that day”;
and “I’m not quite sure about [what to do with certain evidence],
but I don’t think I have to get there . . . .” The court’s conclusion
similarly reveals an independent determination.
The court did misspeak when it asked, “[T]o get relief, what
does the petitioner have to show? Doesn’t he have to show that
he could not be convicted of first or second degree murder based
on the laws as they are now?” Defense counsel responded in the
affirmative. However, the prosecutor later clarified, “[I]t’s my
burden to show that he could be convicted, which I think that’s
what the court found.” The trial court responded, “Yes, that’s
correct.”
Taken as a whole, the record shows the trial court
appropriately acted as an independent fact finder and applied the
proper reasonable doubt standard. (See People v. Carrington
(2009) 47 Cal.4th 145, 201 [looking at entirety of court’s ruling to
determine court applied correct standard, even if it misspoke in
one instance].)
Although Morrow acknowledges the reasonable doubt
standard adopted by the Lopez and Rodriguez courts reflects the
statutory language, he contends that standard does not go far
enough. Instead, he argues the Chapman “harmless beyond a
reasonable doubt” standard applicable on direct appeal must also
be applied in the section 1170.95 context. (See Chapman, supra,
386 U.S. at p. 24.) We follow the Rodriguez decision, which
11
addressed and rejected this argument. (See Rodriguez, supra, 58
Cal.App.5th at pp. 239–240, review granted.)
C
Morrow’s third argument is that judicial factfinding by the
trial court or by this court violates his constitutional rights to due
process and to a jury. SB 1437 is an act of lenity and does not
implicate Morrow’s constitutional rights. (See People v. Falcon
(2020) 57 Cal.App.5th 272, 279, review granted Jan. 27, 2021,
S266041; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [SB
1437 is “an act of lenity that does not implicate defendants’ Sixth
Amendment rights”].) Morrow’s citation to Apprendi v. New
Jersey (2000) 530 U.S. 466 and its progeny is inapposite as SB
1437 can only shorten a sentence. It cannot lengthen it. (See
Lopez, supra, 56 Cal.App.5th at p. 958, review granted [because
factual findings under section 1170.5 cannot increase penalty,
Apprendi concerns are not implicated]; Dillon v. United States
(2010) 560 U.S. 817, 828 [no right to jury in limited resentencing
proceeding based on downward modification].)
DISPOSITION
We affirm the order.
WILEY, J.
We concur:
GRIMES, Acting P. J. OHTA, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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