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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Plaintiff and Respondent,

v.

D ON CARLOS MORGAN,

Defendant and Appellant. B301411

(Los Angeles County

Super. Ct. No. BA152037 )

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 Pl aintiff and Respondent.

________________________2 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 11 70.95 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 Bi ll 1437 and section 1170.95

are constitutional.

Because the jury instructions show as a matter of law that

Morgan was not trie d 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 BACKGROUND 2

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 o pposition , 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 prio r opinion

.3

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., a nd T.T. were sitting in

Blessit t ’s Buick Regal on East 43rd Street in Los Angeles. A

small turq uoise 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 fata lly. Twenty to 30 bullets struck the Buick.

Later that evening, two police officers were driving in the

area and looking ou t for Four

- Trey gang members, expecting

possible retaliation . The officers s potted Morgan walking along

the street. Morgan loo k ed at the officers, pulled out a gun, and

pointed it at them. One of the officers drew his own firearm

.

Mor g an ran , and tossed his gun away . He wa s eventually

apprehended and his gun was recovered. A cartridge casing

discovered at the shooting scene ha d 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 uttere d a gang challenge. In a taped, pretrial

interview, a bystander told polic e that it sounded like the gunfire

came from two different weapons. A former U.S. Marine who had

stole n 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 cas ings found at the shooting scene was

of a type typically fired from an M

- 16 military assault rifle.4 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 w as unable to reach a verdict on the other counts. T he 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 an d 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 abettin g 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 i n

commission of the offense

. (§ 12022.5, subd. (a)(1).) It further

convicted Morgan of the willful, deliberate, and premeditated

att empted murders of C.C. and T.T.

, with true findings on

personal firearm use allegations (§ 664, 187, subd. (a), 12022.5,

s ubd. (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 first5

degree murder, with a drive

- by shooting special circumstance , as

well as the willful, deliberate, and premedi tated 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 J une 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

proc eed 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 kil ler, 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 reck less

indifference to human life. He also requested the appointment of

counsel.

The trial court summarily den ied the petition. Morgan was

not present, and was not r epresented 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 judg ment and for recalculation of

presentence custody credits.6

§ 1170.95 becaus e he was an actual ki ller. 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 C our t of A ppeal

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, rev iew 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 furth er 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 921,7

942.) Similarly, under the natural and probable consequences

doctrine, a defendant was “liable for mur der 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 1 90.2, 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 cons equences

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 consequences8

doctrine, (2) must have been convicted of first or second degree

murder, and (3) he could no longe r 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 r eview to determine the peti tion’ s facia l

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 petitio ner 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 fir st 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 sh e 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.)9 If, however, the petitioner’s in eligibility 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 th at: (1) the trial court erred by concluding

Senate Bill 1437 was unconstitutional ; (2) his pet ition stated a

prima facie case

, and t herefore he had a statutory

, Sixth

Amendment

, and due process righ t to the appointment of counsel;

and (3) the trial court improperly based its ruling on this

D ivision’s prior opinion in the case and materials outside the

record of conviction

. The People agree that Sen ate Bill 1437 is constitutional,

and they concede that the trial court apparently erred by making

fac tual 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; and10

(3) the jury’s true finding on the drive

- by murder special

circu mstance 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 . T he

jury instructions and the jury’s verdict s 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 deni ed 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, 26 4 [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 the11

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 m urder 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, revie w 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 [tria l 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 petit ioner was not

convicted under felony

- murder rule or natural an d 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].)12 Furthermore, Morgan’s jury was not instructed on direct

aiding and abetting principles. I t 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 pr emeditation, 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 th e 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 vehi cle

intentionally at another person outside of the vehicle when the

perpetrator specifically intended to inflict death, is murder of the

first degree. ”13

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 chan ges

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 appeal 5

Morgan asserts that the trial court erred by relying on this

D ivision’s prior opinion and the court’s ow n case summary notes

as the basis for its denial of the petition.

Numerous C ourts of A ppeal 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

pr ima 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 C ourt of A ppeal

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. 1 054

– 1 055,

5 Our California Supreme court is currently review ing

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 dev iate from our prior

holdings that such reliance is proper.14

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. 113 6

– 1138 & fn. 7, rev.gr.)

Accordingly, the trial court did not err by considering this

D ivision’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 verdict s

, 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 petition e r”]; People v. Perez (2020) 54 Ca l.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, ra ther 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. But15 Nonetheless, for the reasons we have explained ante, denial

of the petiti on was proper and the court’s misst eps, if any, are of

no moment. (S ee 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 Morga n filed a facially sufficient

petition. We and other courts have held that a tr ial 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 gra nted, 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 D ivision’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 t he 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 d isagree with Cooper and maintain our

view that Verdugo is correctly reasoned.16

(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

, supr a

, 54 Cal.App.5th at p. 109 , rev .gr. ) Such wa s 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. T he statutory right to counsel is

not triggered m erely by the filing of a petition that checks the

corre ct boxes, w here the petition’s assertions are concl usively

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 demo nstrably 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 exp lained, at the

eligibility stage, the court must make all factual inferences in the17 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 t o 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 co nfrontation, 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

def endant 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.18

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

– 106 4 ; People v. Howard (2020) 50 Cal.App.5th 727,

740 [ “ The retroactive relief provided by section 1170.95 reflects

an a ct 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 subj ect 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

sec tion 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 inf erences 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 a ny 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 dete ct the

possibility that counsel’ s absence could prejudice a petitioner in a19

significant way, or that counsel’ s presence at this stage is

necessary to preserve his rights. Because th e court’ s ruling must

turn on undisputed facts that render a petitioner ineligi ble 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 affo rded 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 ca use, 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 pri ma 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 Tarkin gton

, supra

, 49 Cal.App.5th

at pp. 907

– 908, rev.gr.)20 DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

EDMON, P. J.

I concur :

DHANIDINA

, J.1

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.