Filed 11/18/21 P. v. Bitson CA2/1 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MORGAN BITSON,

Defendant and Appellant. B301565

(Los Angeles County Super. Ct. No. BA434959)

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 B ecerra and Rob Bonta , Attorney s 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.2 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 Code 1 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 Califo rnia 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 p p . 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, defen dants inflicted many additional wounds

1 Undesignated statutory citations are to the Penal Code.3

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 l ose 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, caus ed 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 indicati ve 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.4 “ 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

con tained 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 add itional ‘ 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 protru ded. 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, malnutritio n, 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
indicativ e 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 ’
sho wed 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 a5

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.” ( I bi d. )

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 th at 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 i nstructed 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 inte nded 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 , t he People must prove that: [¶]6

1. The defendant is guilty of child abuse likely to cau se 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 reasonab le 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 ju rors 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 disr egard 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
kill ing 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 the7

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

pro b ably 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 u nless 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 f

or Resentencing

Bi tson 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.8

5. Resentencing Trial Court Order
The trial court denied Bitson’s petition for resentencing.
The court concluded that Bits on 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. 1 015, § 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 consist s of the following three
elements:

“ (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed9

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 conv icted 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 i s briefed [ ,] and
the n 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 ‘factfind in g involving th e 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 proving10

“beyond a reasonable doubt[ ] that t he 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 petitio ner 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 .)
J urors necessarily concluded that Bitson committed an act that caused Woods’s death when they convicted her of child abuse
because u nder 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
mansla ughter 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, t he trial court instructed jurors: “In order to prove murder the People have the11

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 f

acts 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 s evering a child’s liver into two pieces does

not demonstrate conscious disregard for life. Bitson contends it is “impossible t o 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 argumen t 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 fai lure to appoint counsel for Bitson was harmless.

B. Bitson Fails to Demonstrate Her Remaining Arguments are Cognizable in This Appeal F rom 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
d oubt that a defendant was the direct perpetrator, and similar12

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 atte mpts 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 o f 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, no t 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 cor pus, 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

, sup ra , B275154 .)13 DISPOSITION

The trial court’s order is affirmed.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.