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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

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 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. 
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 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. 
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 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. 
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 

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 
5

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: [¶] 
6

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 
7

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-yearto-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. 
8

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 
9

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 
10

“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 
11

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 
12

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.) 
13

DISPOSITION

The trial court’s order is affirmed. 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.