People v. Morgan CA2/3

Filed 3/5/21 P. v. Morgan CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE

THE PEOPLE, B301411

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA152037)
v.

DON CARLOS MORGAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Robert J. Perry, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
 In 2000, a jury convicted Don Carlos Morgan of first degree
murder and other crimes arising from a gang-related shooting.
After passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437), Morgan petitioned for resentencing pursuant
to Penal Code section 1170.95.1 The trial court summarily denied
the petition, concluding that Morgan was ineligible for
resentencing because he was an actual killer, and because Senate
Bill 1437 and section 1170.95 were unconstitutional.
Morgan appeals, contending that the trial court erred by
summarily denying his petition without appointing counsel and
by relying on the record of conviction and its own notes regarding
the case. He also avers that Senate Bill 1437 and section 1170.95
are constitutional.
Because the jury instructions show as a matter of law that
Morgan was not tried or convicted under the felony-murder rule
or the natural and probable consequences doctrine, and the jury’s
verdicts demonstrate it found he was the actual killer who
intended the murder, we affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The murder
In March 1997, Glen J., a member of the Four-Trey
Gangster Crip criminal street gang (the “Four-Treys”) was beaten
up by members of a rival gang, the Marvin Street Gangster Crip

1
All further undesignated statutory references are to the
Penal Code.

2 At the People’s request, and over Morgan’s opposition, we
take judicial notice of this court’s records in his direct appeal,
No. B142609, including our prior opinion in the case. (Evid.
Code, §§ 451, 452, subd. (d), 459.) We derive the factual and
procedural background in part from our prior opinion.

2
gang (the Marvins). A day or two later, Marvins member Tyrone
Haywood was murdered. The Marvins apparently assumed the
Four-Treys were responsible. Morgan and codefendant Richard
Steve Hammond were both Marvins gang members.
On April 2, 1997, at approximately 5:00 p.m., Four-Trey
members Michael Blessitt, C.C., and T.T. were sitting in
Blessitt’s Buick Regal on East 43rd Street in Los Angeles. A
small turquoise car pulled up next to the Buick. One man leaned
out of the front passenger window, holding a rifle; another yelled,
“Fuck Four Tramp” (a derogatory name for the Four-Treys).
Gunfire erupted. All three occupants of the Buick were hit,
Blessitt fatally. Twenty to 30 bullets struck the Buick.
Later that evening, two police officers were driving in the
area and looking out for Four-Trey gang members, expecting
possible retaliation. The officers spotted Morgan walking along
the street. Morgan looked at the officers, pulled out a gun, and
pointed it at them. One of the officers drew his own firearm.
Morgan ran, and tossed his gun away. He was eventually
apprehended and his gun was recovered. A cartridge casing
discovered at the shooting scene had been fired from the gun
Morgan discarded.
At trial, C.C. testified that Morgan was the person leaning
out the car window holding a rifle, and Hammond was the
passenger who uttered a gang challenge. In a taped, pretrial
interview, a bystander told police that it sounded like the gunfire
came from two different weapons. A former U.S. Marine who had
stolen an M-16 rifle from a Marine Corps base testified that he
had given the stolen rifle to Hammond for safekeeping, but never
saw it again. One of the casings found at the shooting scene was
of a type typically fired from an M-16 military assault rifle.

3
 2. Morgan’s conviction and direct appeal
Morgan and Hammond were tried twice. At the first trial,
the jury convicted Morgan of possession of a firearm by a felon,
but was unable to reach a verdict on the other counts. The court
declared a mistrial on the remaining counts.
At Morgan’s second trial, as at his first, the People’s theory
was that both Morgan and Hammond shot at the victims and
were direct perpetrators. The jury was instructed on murder,
malice aforethought, deliberate and premeditated murder,
murder by means of shooting from a motor vehicle, and a drive-by
special circumstance allegation. It was not instructed on aiding
and abetting principles, nor was it instructed on the natural and
probable consequences doctrine or the felony-murder rule.
The jury found Morgan guilty of the first degree murder of
Blessitt (§ 187, subd. (a)), and found true the special
circumstance allegation that the murder was intentional and
perpetrated by means of discharging a firearm from a motor
vehicle, with the intent to inflict death. (§ 190.2, subd. (a)(21).)
It also found that Morgan personally used a firearm in
commission of the offense. (§ 12022.5, subd. (a)(1).) It further
convicted Morgan of the willful, deliberate, and premeditated
attempted murders of C.C. and T.T., with true findings on
personal firearm use allegations (§ 664, 187, subd. (a), 12022.5,
subd. (a)(1)), and two counts of assault with a firearm on a peace
officer (§ 245, subd (d)(2)).
As to Hammond, the jury indicated it was deadlocked. At
the prosecutor’s request, the court provided additional instruction
to the jury on aiding and abetting principles, and the prosecutor
and defense counsel were allowed to present additional
argument. The jury thereafter found Hammond guilty of first

4
degree murder, with a drive-by shooting special circumstance, as
well as the willful, deliberate, and premeditated attempted
murders of C.C. and T.T. It found the allegation that Hammond
personally used a firearm during the offenses not true.
The trial court sentenced Morgan to life in prison without
the possibility of parole, plus two life terms, plus 41 years 4
months. This court modified and affirmed Morgan’s judgment in
2002.3 (People v. Hammond (Sept. 16, 2002, B142609) [nonpub.
opn.].)
3. The section 1170.95 petition
On June 30, 2019, Morgan filed a section 1170.95 petition,
seeking resentencing on his murder conviction. Using a
preprinted form, he checked boxes stating that a charging
document had been filed against him allowing the prosecution to
proceed under the felony-murder rule or the natural and probable
consequences doctrine; he was convicted of first or second degree
murder under one of those theories; he could not now be
convicted of murder in light of changes to the law wrought by
Senate Bill 1437; he was not the actual killer, nor did he aid and
abet the actual killer with the intent to kill; and he was not a
major participant in the felony and did not act with reckless
indifference to human life. He also requested the appointment of
counsel.
The trial court summarily denied the petition. Morgan was
not present, and was not represented by counsel. In its written
order, the court described the facts of the case and concluded
“Morgan is ineligible for sentencing relief under Penal Code

3
The matter was remanded to the trial court to correct an
error in the abstract of judgment and for recalculation of
presentence custody credits.

5
§ 1170.95 because he was an actual killer. See Penal Code
§ 189(e)(1).” As a “second and independent ground” for denial of
the petition, the court ruled that Senate Bill 1437 and section
1170.95 were unconstitutional.
Morgan filed a timely notice of appeal. At his counsel’s
request, this court ordered the trial court to identify all
documents it reviewed in connection with its denial of the
petition. Thereafter, the trial court filed a declaration stating
that in preparing its ruling, it relied upon the Court of Appeal
opinion, its own notes summarizing both trials, and its own
recollection of the case.
DISCUSSION
1. Applicable legal principles
a. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v.
Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39
Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019,
S258234.)
Prior to Senate Bill 1437’s enactment, under the felony-
murder rule “a defendant who intended to commit a specified
felony could be convicted of murder for a killing during the felony,
or attempted felony, without further examination of his or her
mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241,
247–248 (Lamoureux); People v. Powell (2018) 5 Cal.5th 921,

6
942.) Similarly, under the natural and probable consequences
doctrine, a defendant was “liable for murder if he or she aided
and abetted the commission of a criminal act (a target offense),
and a principal in the target offense committed murder (a
nontarget offense) that, even if unintended, was a natural and
probable consequence of the target offense.” (Lamoureux, at
p. 248.)
Senate Bill 1437 amended the felony-murder rule by
adding section 189, subdivision (e), which provides that a
participant in the perpetration of qualifying felonies is liable for
felony murder only if the person: (1) was the actual killer; (2) was
not the actual killer but, with the intent to kill, acted as a direct
aider and abettor; or (3) the person was a major participant in
the underlying felony and acted with reckless indifference to
human life, as described in section 190.2, subdivision (d). (See
People v. Gentile, supra, 10 Cal.5th at p. 842.) It amended the
natural and probable consequences doctrine by adding
subdivision (a)(3) to section 188, which states that “[m]alice shall
not be imputed to a person based solely on his or her
participation in a crime.”
b. Section 1170.95’s petitioning procedure
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief under section
1170.95 if he meets three conditions: (1) he must have been
charged with murder by means of a charging document that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences

7
doctrine, (2) must have been convicted of first or second degree
murder, and (3) he could no longer be convicted of first or second
degree murder due to changes to sections 188 and 189 effectuated
by Senate Bill 1437. (§ 1170.95, subd. (a).)
Evaluation of a section 1170.95 petition requires a multi-
step process: an initial review to determine the petition’s facial
sufficiency; a prebriefing, “ ‘first prima facie review’ ” to
preliminarily determine whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has made
a prima facie case that he or she is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review
granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th
at pp. 327–330, rev.gr.)
When conducting the first prima facie review, the court
must determine, based upon its review of readily ascertainable
information in the record of conviction and the court file, whether
the petitioner is statutorily eligible for relief as a matter of law,
i.e., whether he or she was convicted of a qualifying crime,
pursuant to the natural and probable consequences doctrine or a
felony-murder theory. (Tarkington, supra, 49 Cal.App.5th at
pp. at pp. 897–898, rev.gr.; Verdugo, supra, 44 Cal.App.5th at
pp. 329–330, rev.gr.) If it is clear from the record of conviction
that the petitioner cannot establish eligibility as a matter of law,
the trial court may summarily deny the petition without
appointing counsel. (Tarkington, at pp. 898, 900–902; People v.
Torres (2020) 46 Cal.App.5th 1168, 1173, review granted June 24,
2020, S262011; Verdugo, at p. 332; People v. Lewis (2020) 43
Cal.App.5th 1128, 1139–1140, review granted Mar. 18, 2020,
S260598.)

8
 If, however, the petitioner’s ineligibility is not established
as a matter of law, the court must appoint counsel and permit
briefing to determine whether the petitioner has made a prima
facie showing he or she is entitled to relief. (Verdugo, supra, 44
Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49 Cal.App.5th
at p. 898, rev.gr.) If the petitioner makes such a showing, the
court must issue an order to show cause and conduct a hearing to
determine whether to vacate the murder conviction and
resentence the petitioner on any remaining counts. (§ 1170.95,
subds. (c), (d); People v. Nguyen (2020) 53 Cal.App.5th 1154,
1166.) At that hearing, the prosecution has the burden to prove,
beyond a reasonable doubt, that the defendant is ineligible for
resentencing. (§ 1170.95, subd. (d)(3).)
2. Contentions
Morgan challenges the trial court’s ruling on several
grounds. He argues that: (1) the trial court erred by concluding
Senate Bill 1437 was unconstitutional; (2) his petition stated a
prima facie case, and therefore he had a statutory, Sixth
Amendment, and due process right to the appointment of counsel;
and (3) the trial court improperly based its ruling on this
Division’s prior opinion in the case and materials outside the
record of conviction.
The People agree that Senate Bill 1437 is constitutional,
and they concede that the trial court apparently erred by making
factual findings based on the record. However, they aver that
denial of the petition was proper because Morgan was ineligible
for relief as a matter of law for several reasons: (1) based on the
instructions given, the jury must have concluded Morgan was the
actual killer; (2) the jury was not instructed on the natural and
probable consequences doctrine or the felony-murder rule; and

9
(3) the jury’s true finding on the drive-by murder special
circumstance demonstrates it found Morgan had the intent to
kill.
We agree with the People that the petition was properly
denied. Although the trial court incorrectly concluded that
Senate Bill 1437 is unconstitutional, and possibly based its
conclusion that Morgan was the actual killer on its own
evaluation of the facts, any error was manifestly harmless. The
jury instructions and the jury’s verdicts conclusively show, as a
matter of law, that Morgan was ineligible for relief. We “ ‘review
the ruling, not the court’s reasoning, and if the ruling was correct
on any ground, we affirm.’ ” (People v. Chism (2014) 58 Cal.4th
1266, 1295, fn. 12.)
3. Senate Bill 1437 is constitutional
As the parties agree, to the extent the court denied the
petition on the ground Senate Bill 1437 is unconstitutional, it
erred. Subsequent to the trial court’s ruling in this matter,
appellate courts have uniformly rejected challenges to Senate
Bill 1437’s constitutionality. (See, e.g., People v. Superior Court
(Gooden) (2019) 42 Cal.App.5th 270, 275, 286 [Sen. Bill 1437 did
not unconstitutionally amend Props. 7 or 115, because it neither
added to, nor took away from, those initiatives]; Lamoureux,
supra, 42 Cal.App.5th at pp. 246, 251–252, 256, 264 [Sen. Bill
1437 did not improperly amend Props. 7 or 115 or the Victims’
Bill of Rights Act of 2008 (Marsy’s Law), and does not violate
separation of powers principles by usurping the executive’s
clemency power or impairing the judiciary’s core functions];
People v. Solis (2020) 46 Cal.App.5th 762, 769, 779–780; People v.
Johns (2020) 50 Cal.App.5th 46, 54–55.) We agree with the

10
reasoning of these authorities. As the parties are also in
agreement, we need not further address the issue here.
4. Denial of the petition was proper because the record of
conviction shows Morgan was ineligible as a matter of law
To be eligible for resentencing, Morgan was required to
show that he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189” made by Senate
Bill 1437. (§ 1170.95, subd. (a)(3).) The record of conviction
conclusively demonstrates that Morgan cannot make such a
showing. “[P]otential relief under section 1170.95 extends only to
those convicted of murder by operation of the natural and
probable consequence doctrine or of felony murder. [Citation.]”
(People v. Soto (2020) 51 Cal.App.5th 1043, 1056 (Soto), review
granted Sept. 23, 2020, S263939; People v. Lee (2020) 49
Cal.App.5th 254, 263–265, review granted July 15, 2020,
S262459.) Morgan’s jury was not instructed on either the natural
and probable consequences doctrine or the felony-murder rule;
therefore, he could not have been convicted based on either of
these theories. (Soto, at p. 1055 [trial court may rely on jury
instructions when determining whether petitioner has made a
prima facie showing of entitlement to relief]; People v. Edwards
(2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020,
S262481 [where jury instructions showed petitioner was not
convicted under felony-murder rule or natural and probable
consequences theory, he could not meet the statutory
prerequisites for filing a § 1170.95 petition]; People v. Lewis,
supra, 43 Cal.App.5th at p. 1138, rev.gr. [where court file shows
petitioner was convicted of murder without instruction or
argument on the felony-murder rule or the natural and probable
consequences doctrine, summary denial would be appropriate].)

11
 Furthermore, Morgan’s jury was not instructed on direct
aiding and abetting principles. It convicted him of first degree
murder, and found true the drive-by special circumstance
allegation. Based on the instructions given, its verdicts
demonstrate it necessarily found Morgan guilty as the actual
killer, who intended the killing.4 Section 1170.95 does not
provide for relief for such persons. Senate Bill 1437 was enacted
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).)
Where the record shows, as a matter of law, that the petitioner

4
The jury was instructed that if it found “the killing was
preceded and accompanied by a clear, deliberate intent on the
part of the defendant to kill, which was the result of deliberation
and premeditation, so that it must have been formed upon pre-
existing reflection and not under a sudden heat of passion or
other condition precluding the idea of deliberation, it is murder of
the first degree.”

The instructions further provided that to find the drive-by
special circumstance true, the jury had to find the perpetrator
intentionally discharged the firearm with the intent to inflict
death.

CALJIC No. 8.25.1 provided: “Murder which is perpetrated
by means of discharging a firearm from a motor vehicle
intentionally at another person outside of the vehicle when the
perpetrator specifically intended to inflict death, is murder of the
first degree.”

12
was not tried under the natural and probable consequences
doctrine or the felony-murder rule, and was the actual killer, he
necessarily “was convicted on a theory that survives the changes
to sections 188 and 189” enacted by Senate Bill 1437.
(Tarkington, supra, 49 Cal.App.5th at p. 899, rev.gr.)
5. Morgan fails to demonstrate reversible error
Morgan makes several arguments in support of his view
that the trial court erred by denying his petition. We address
each in turn.
a. The trial court did not err by reviewing this court’s
opinion in Morgan’s direct appeal5
Morgan asserts that the trial court erred by relying on this
Division’s prior opinion and the court’s own case summary notes
as the basis for its denial of the petition.
Numerous Courts of Appeal have rejected the argument
that a trial court is limited to consideration of the allegations in
the petition when determining whether the petitioner has made a
prima facie showing of eligibility. To the contrary, a court may
consider readily ascertainable information in the record of
conviction and the court file, including a prior Court of Appeal
opinion. (See People v. Palacios (2020) 58 Cal.App.5th 845, 855–
856, review granted Feb. 24, 2021, S266701; People v. Gomez
(2020) 52 Cal.App.5th 1, 15–16, review granted Oct. 14, 2020,
S264033; People v. Soto, supra, 51 Cal.App.5th at pp. 1054–1055,

5
Our California Supreme court is currently reviewing
whether a trial court may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95. (People v.
Lewis, S260598.) Pending further guidance from our high court,
Morgan’s arguments do not persuade us to deviate from our prior
holdings that such reliance is proper.

13
rev.gr.; Tarkington, supra, 49 Cal.App.5th at pp. 899, & fn. 5,
909, rev.gr.; People v. Lee, supra, 49 Cal.App.5th at pp. 262–263,
rev.gr.; People v. Law (2020) 48 Cal.App.5th 811, 821, review
granted July 8, 2020, S262490; People v. Torres, supra, 46
Cal.App.5th at pp. 1173, 1178, rev.gr.; Verdugo, supra, 44
Cal.App.5th at pp. 329–330, 333, rev.gr.; People v. Lewis, supra,
43 Cal.App.5th at pp. 1136–1138 & fn. 7, rev.gr.)
Accordingly, the trial court did not err by considering this
Division’s prior opinion in Morgan’s direct appeal. It is not
altogether clear whether the court premised its ruling on the
prior opinion’s description of the verdicts, or on its own
evaluation of the evidence presented at trial. To the extent, if at
all, that its ruling was premised on the latter, it erred. While a
court must weigh the evidence after the issuance of an order to
show cause and a hearing, such factfinding is beyond the court’s
authority at the eligibility stage. (Verdugo, supra, 44
Cal.App.5th at p. 329, rev.gr. [“The court’s role at [the eligibility]
stage is simply to decide whether the petitioner is ineligible for
relief as a matter of law, making all factual inferences in favor of
the petitioner”]; People v. Perez (2020) 54 Cal.App.5th 896, 903–
904, review granted Dec. 9, 2020, S265254; People v. Drayton
(2020) 47 Cal.App.5th 965, 980 [court’s authority to make
determinations without conducting an evidentiary hearing is
limited to readily ascertainable facts from the record, rather than
factfinding involving the weighing of evidence].)6

6
Additionally, it is unclear whether the court relied on its
own case summary notes as a basis for denying the petition.
Certainly, a trial court does not err by reviewing its own notes or
case summaries to refresh its recollection about a matter. But

14
 Nonetheless, for the reasons we have explained ante, denial
of the petition was proper and the court’s missteps, if any, are of
no moment. (See People v. Edwards, supra, 48 Cal.App.5th at
p. 675, rev.gr. [any procedural errors “were harmless under any
standard of review [citations] and remand would be an idle act”
because defendant did not fall within the provisions of § 1170.95
as a matter of law].)
b. The trial court did not err or violate Morgan’s
rights by failing to appoint counsel
Nor are we persuaded that the trial court was required to
appoint counsel as soon as Morgan filed a facially sufficient
petition. We and other courts have held that a trial court may
summarily deny a petition without appointing counsel if the
record shows the defendant is ineligible as a matter of law.7

such notes or summaries are not part of the record, and therefore
are not a proper basis for denial at the eligibility stage.

7
Morgan argues that Verdugo, supra, 44 Cal.App.5th 320,
review granted, People v. Lewis, supra, 43 Cal.App.5th 1128,
review granted, and similar cases, were wrongly decided, and
instead People v. Cooper (2020) 54 Cal.App.5th 106, review
granted November 10, 2020, S264684, correctly states the law.
This Division’s majority opinion in Tarkington, supra, 49
Cal.App.5th 892, review granted, agreed with Verdugo. Cooper,
on the other hand, adopted the analysis set forth by our
dissenting colleague in Tarkington. To date, the majority of
appellate courts have agreed with Verdugo rather than Cooper.
Our Supreme Court is currently considering when the right to
counsel arises under section 1170.95, subdivision (c). (People v.
Lewis, S260598.) Until further guidance is issued by our high
court, we respectfully disagree with Cooper and maintain our
view that Verdugo is correctly reasoned.

15
(See Tarkington, supra, 49 Cal.App.5th at pp. 901–902,
rev.gr.; People v. Torres, supra, 46 Cal.App.5th at p. 1173,
rev.gr.; Verdugo, supra, 44 Cal.App.5th at pp. 332–333,
rev.gr.; People v. Lewis, supra, 43 Cal.App.5th at pp. 1139–1140,
rev.gr.; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review
granted Mar. 18, 2020, S260410; but see People v. Cooper, supra,
54 Cal.App.5th at p. 109, rev.gr.) Such was the case here.
Morgan argues that because his petition established a
prima facie case, section 1170.95 required that counsel be
appointed for him. We disagree. The statutory right to counsel is
not triggered merely by the filing of a petition that checks the
correct boxes, where the petition’s assertions are conclusively
refuted by the record. Morgan’s petition averred that he was
convicted of murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine. As we have seen,
this assertion is demonstrably incorrect. He also averred that he
was not the actual killer. Again, the record—i.e., the instructions
and the verdicts—belies this assertion as a matter of law. The
trial court was not obliged to credit averments in the petition
that are conclusively refuted by the record of conviction. (See,
e.g., People v. Drayton, supra, 47 Cal.App.5th at p. 968 [in
assessing whether a petitioner has established a prima facie case,
trial court “should accept the assertions in the petition as true
unless facts in the record conclusively refute them as a matter of
law”]; People v. Nguyen, supra, 53 Cal.App.5th at pp. 1165–
1166.)8

8
Morgan contends that it is unfair for the trial court to
resolve contested issues of fact relevant to a petition without the
appointment of counsel. We agree: as Verdugo explained, at the
eligibility stage, the court must make all factual inferences in the

16
 Morgan contends that he had a constitutional right to
counsel at the outset because the petitioning procedure under
section 1170.95 is a critical stage of a criminal proceeding. This
is so, he avers, because of the adversary nature of the petition
process, combined with the potential for significant prejudice.
Therefore, he contends, the trial court’s failure to appoint counsel
amounted to structural error, requiring per se reversal. We
disagree.
Under both the state and federal Constitutions, a
defendant has a right to counsel at all critical stages of a criminal
prosecution. (U.S. Const., 6th Amend.; Cal. Const., art I, § 15;
Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th
998, 1004, (Gardner); People v. Doolin (2009) 45 Cal.4th 390, 453;
People v. Rouse (2016) 245 Cal.App.4th 292, 296–297 (Rouse).)
Critical stages are those “events or proceedings in which the
accused is brought in confrontation with the state, where
potential substantial prejudice to the accused’s rights inheres in
the confrontation, and where counsel’s assistance can help to
avoid that prejudice.” (Gardner, at pp. 1004–1005; Rouse, at
p. 297 [“ ‘ “[T]he essence of a ‘critical stage’ is . . . the adversary
nature of the proceeding, combined with the possibility that a
defendant will be prejudiced in some significant way by the
absence of counsel.” [Citation.]’ [Citation.]”].) Thus,
arraignments, preliminary hearings, postindictment lineups and

petitioner’s favor. (Verdugo, supra, 44 Cal.App.5th at p. 329,
rev.gr.; Tarkington, supra, 49 Cal.App.5th at p. 898, rev.gr.) But
here, Morgan’s ineligibility is apparent as a matter of law, based
on the jury instructions and the verdicts, and does not turn on
the resolution of disputed facts.

17
interrogations, plea negotiations, and sentencing are all critical
stages. (Gardner, at p. 1005.)
On the other hand, where legislation gives inmates serving
otherwise final sentences the benefit of ameliorative changes to
applicable sentencing laws, the Sixth Amendment is not
necessarily implicated. (See People v. Perez (2018) 4 Cal.5th
1055, 1063–1064; People v. Howard (2020) 50 Cal.App.5th 727,
740 [“The retroactive relief provided by section 1170.95 reflects
an act of lenity by the Legislature” and does not implicate a
defendant’s Sixth Amendment rights]; People v. Anthony (2019)
32 Cal.App.5th 1102, 1156–1157 [“the retroactive relief . . .
afforded by Senate Bill 1437 is not subject to Sixth Amendment
analysis” and defendants had no right to a jury trial on petition].)
The first, prebriefing prima facie review of a petition under
section 1170.95 is not a critical stage of the proceedings. At that
point, the court is simply tasked with determining whether there
is a prima facie showing the petitioner falls within the provisions
of the statute as a matter of law, making all factual inferences in
his or her favor. (Verdugo, supra, 44 Cal.App.5th at p. 329,
rev.gr.; Tarkington, supra, 49 Cal.App.5th at p. 898, rev.gr.) This
initial prima facie review is not an adversarial proceeding.
Indeed, in the instant case it does not appear that the People
filed briefing or otherwise played any role in the trial court’s
denial of the petition. Adjudication of a section 1170.95 petition,
at the eligibility stage, is not akin to a sentencing hearing. The
court does not rule on disputed issues of fact; it must make all
factual inferences in favor of the petitioner. (Verdugo, at
p. 329; Tarkington, at p. 898.) And, the court is not called upon
to exercise its discretion in any respect. Nor do we detect the
possibility that counsel’s absence could prejudice a petitioner in a

18
significant way, or that counsel’s presence at this stage is
necessary to preserve his rights. Because the court’s ruling must
turn on undisputed facts that render a petitioner ineligible as a
matter of law, counsel’s representation could not meaningfully
impact this analysis.
Morgan points out that due process requires an
incarcerated defendant must be afforded the right to counsel in
various instances even where the Sixth Amendment does not.
“[I]f a postconviction petition by an incarcerated defendant
‘attacking the validity of a judgment states a prima facie case
leading to issuance of an order to show cause, the appointment of
counsel is demanded by due process concerns.’ [Citations.]”
(Rouse, supra, 245 Cal.App.4th at p. 300; People v. Fryhaat (2019)
35 Cal.App.5th 969, 980–981.) “That right is a limited one,
however, and only kicks in once the defendant makes a prima
facie showing of entitlement of postconviction relief.” (People v.
Cole (2020) 52 Cal.App.5th 1023, 1032, review granted Oct. 14.
2020, S264278.) Here, Morgan has not moved past the initial
eligibility stage; he has not made a prima facie case requiring
issuance of an order to show cause. Accordingly, he had no due
process right to counsel. And, because Morgan is categorically
ineligible for relief, he could have had no liberty interest in the
appointment of counsel. (See Tarkington, supra, 49 Cal.App.5th
at pp. 907–908, rev.gr.)

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 DISPOSITION
The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

I concur:

DHANIDINA, J.

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LAVIN, J., Dissenting:

For the reasons laid out in my dissent in People v.
Tarkington (2020) 49 Cal.App.5th 892, 917, review granted
August 12, 2020, S263219, and the holding and analysis in People
v. Cooper (2020) 54 Cal.App.5th 106, 109, review granted
November 10, 2020, S264684, I would reverse the order and
direct the trial court to conduct further proceedings in accordance
with Penal Code section 1170.95.

LAVIN, J.

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