Filed 9/23/21 P. v. Morrow CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

CLIFTON DAWAYNE MORROW,

Defendant and Appellant.

 B307003

 (Los Angeles County

 Super. Ct. No. VA067516)

APPEAL from an order of the Superior Court of 

Los Angeles County, Raul Anthony Sahagun, Judge. Affirmed.

Edward H. Schulman, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Charles S. Lee and Amanda V. 

Lopez, Deputy Attorneys General, for Plaintiff and Respondent.

____________________
2

Clifton Dawayne Morrow challenges the trial court’s denial 

of his Penal Code section 1170.95 petition. Morrow contends the 

trial court applied the wrong standard of proof and should have 

given him an evidentiary hearing. He also argues a jury should 

have decided the matter. We affirm. Undesignated statutory 

citations are to the Penal Code.

I

In 2003, a jury convicted Morrow of one count of 

premeditated and deliberate murder (§ 187, subd. (a)), four 

counts of attempted premeditated and deliberate murder (§§ 664, 

187, subd. (a)), and three counts of assault with a machine gun 

(§ 245, subd. (a)(3)). The jury found gang enhancements true 

with respect to each charge. (§ 186.22, subd. (b)(1).) Regarding 

the murder charge, the jury found true an allegation that Morrow 

had personally used and discharged a firearm causing death. 

(§ 12022.53, subds. (b)–(d).) The jury also found true the 

allegation that Morrow personally used and intentionally 

discharged a firearm in connection with the four attempted 

murder charges (§ 12022.53, subds. (b)–(c)) and that he 

personally used a firearm in connection with the charges of 

assault with a machine gun (§ 12022.5). The trial court 

sentenced Morrow to a term of 50 years to life for the murder and 

related firearm enhancement. For the attempted murders and 

firearm enhancements, the court sentenced him to two 

consecutive terms of 15 years to life plus 20 years, one concurrent 

term of 15 years to life plus 20 years, and one concurrent term of

20 years to life plus 20 years. The court stayed sentences for the 

assaults and gang enhancements.
3

The jury heard about two shooting episodes: one on August 

11, 2001, and another on August 22, 2001. The earlier shooting 

resulted in a death; the later one did not.

The shooting on August 11, 2001, involved the following 

events. Members of a rival gang, the Florencia, had shot at 

Morrow and fellow Crips members earlier that day. That

evening, Morrow and another gang member went looking for 

payback. They spotted two young Hispanic men in an 

alley. Morrow and his companion got out of their car and shot at 

the two men. Bullets killed one. The other escaped. Neither was 

a gang member.

Morrow gave different accounts of this shooting. He first 

admitted to being one of the shooters, but claimed he shot only 

once before his gun jammed and the bullet hit a pole. Police 

returned to the scene and found a metal fence pole with a bullet’s 

indentation. Morrow later claimed he was not at the shooting, 

but fellow gang members told him to take responsibility and 

provided him information about it to convince the police.

At the trial, with regard to the murder charge, the court 

instructed the jury on direct aider and abettor liability as well as 

liability under the natural and probable consequences 

doctrine. The prosecutor emphasized in her closing argument 

that Morrow could be convicted of murder if the jury found he 

aided and abetted the crime of assault with a deadly weapon and 

the natural and probable consequence of that crime was 

murder. We affirmed Morrow’s convictions in an unpublished 

opinion: People v. Morrow (Oct. 29, 2004, B167384). 

On April 17, 2019, Morrow filed a petition for resentencing 

under section 1170.95 using a form petition. He checked boxes 

stating that he had been convicted of first or second degree 
4

murder pursuant to the felony murder rule or the natural and 

probable consequences doctrine and that he could not now be 

convicted of first or second degree murder because of changes 

made to sections 188 and 189.

The trial court appointed counsel for Morrow. The 

prosecution filed a response to the petition. The trial court 

scheduled a hearing to set a date for an evidentiary hearing. The 

prosecution filed a brief asking the court to reconsider finding a 

prima facie case. At a later hearing, both sides argued whether 

Morrow had made a prima facie showing. At the conclusion of 

the hearing, the trial court reaffirmed it would find a prima facie 

case and set an evidentiary hearing. The trial court told counsel 

it did not think it needed additional evidence, “but that does not 

preclude you from presenting evidence.” Neither side submitted 

additional evidence. Morrow submitted an eligibility brief.

The trial court opened the next hearing by saying, “The 

matter is set for an [evidentiary hearing] re an 1170.95 

petition.” The trial court noted it had reviewed all of the papers 

and the entire file. After argument from counsel, the trial court 

summarized the evidence: “Well, what concerns me is he drives 

where he’s in a car with two other people, he tells the police that 

he had been shot at that day or the day before and he went over 

there for pay-back. [¶] He and the other guy see two Latinos 

presumably from—presumably they think they’re from 

Florencia. They both jump out and they both open fire. I don’t 

think that’s in dispute. They both open fire, one of the guys is hit 

and killed. . . . How is he not a direct aider and abettor of killing 

that person?”

After discussion with counsel, the trial court noted, “I’m not 

quite sure about [what to do with certain evidence], but I don’t 
5

think I have to get there because we know they’re gang members, 

we know there is a war going on between 89th Crips and 

Florencia.” The trial court continued to summarize what “we 

know” from the evidence and Morrow’s admissions, before 

concluding, “So I think that he went there with the intent to 

kill . . . . [¶] [A]t least two people jump—are in the car, both 

jump out and they shoot and empty their guns at the fleeing 

victims shooting and killing one of them, and I think that makes 

him a direct aider and abettor and I think that he could be 

convicted of that charge of murder beyond a reasonable doubt 

under the present law.”

Based on this finding, the trial court denied Morrow’s 

petition. Morrow appealed this order.

II

Morrow argues he did not receive an evidentiary hearing 

and the trial court applied the wrong standard of proof. He also 

maintains he was entitled to a jury. These arguments are 

incorrect.

Before tackling these arguments, we lay the groundwork.

The Legislature enacted Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (SB 1437), effective January 1, 2019, “to amend the 

felony murder rule and the natural and probable consequences 

doctrine, as it relates to murder, to ensure that murder liability is 

not imposed on a person who is not the actual killer, did not act 

with the intent to kill, or was not a major participant in the 

underlying felony who acted with reckless indifference to human 

life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Section 1170.95 

allows persons convicted of felony murder or under a natural and 

probable consequences theory to petition the court to have their 

convictions vacated and to be resentenced. (§ 1170.95, subd. (a).)
6

To seek relief under section 1170.95, the petitioner must 

file a petition averring: (1) an accusatory pleading allowed the 

prosecution to proceed under a felony-murder or natural and 

probable consequences theory; (2) a jury convicted the petitioner 

of first or second degree murder at trial, or the petitioner 

accepted a plea offer instead of a trial at which the jury could 

have convicted the petitioner of first or second degree murder; 

and (3) the petitioner could not now be convicted of first or second 

degree murder because of the amendments to sections 188 and 

189. (§ 1170.95, subd. (a)(1)–(3).)

The Supreme Court recently clarified that, once a facially 

sufficient petition has been filed, the trial court must appoint 

counsel if so requested. (People v. Lewis (2021) 11 Cal.5th 952, 

962–963 (Lewis).) The trial court then, after receiving briefing, is 

to determine whether the petitioner has made a prima facie 

showing she or he is eligible for relief. (§ 1170.95, subd. (c).) If 

the petitioner makes such a showing, the trial court issues an 

order to show cause and sets an evidentiary hearing to determine 

whether to vacate the conviction, recall the sentence, and 

resentence the petitioner. (§ 1170.95, subd. (d)(1); Lewis, at p.

960.)

A

Morrow first argues the trial court erred in not finding a 

prima facie case and setting an evidentiary hearing under section 

1170.95, subdivision (d)(3). This argument is puzzling. The trial 

court did just that. 

The trial court found a prima facie case and scheduled a 

hearing to set an evidentiary hearing: multiple minute orders 

reflect this. After these orders, the prosecution filed a brief 

asking the trial court to reconsider its finding that Morrow had 
7

made a prima facie showing. At a later hearing, the trial court 

heard argument from both sides before rejecting the prosecution’s 

request. As Morrow acknowledges, at the end of that hearing, 

the trial court reiterated it was finding a prima facie case. The 

court set an evidentiary hearing. The trial court told counsel it 

did not think it needed additional evidence, but “that does not 

preclude you from presenting evidence.” At the start of the next 

hearing, the trial court again stated, “The matter is set for an 

[evidentiary hearing] re an 1170.95 petition.”

Morrow’s argument that the trial court improperly relied 

on only the pleadings and the record of conviction is 

incorrect. The trial court explicitly invited Morrow to provide 

additional evidence. He declined. Nor does Morrow now identify 

evidence he would have presented. Either party may introduce 

new evidence at the evidentiary hearing, but the statute does not 

demand it. (See § 1170.95, subd. (d)(3) [“The prosecutor and the 

petitioner may rely on the record of conviction or offer new or 

additional evidence to meet their respective burdens.”].) 

Morrow filed a supplemental brief addressing the Supreme 

Court’s recent Lewis decision. Morrow argues Lewis clarified how 

a trial court may use a record of conviction and the standard of 

proof to be applied in determining whether a prima facie case has 

been made. This point is accurate and irrelevant, because the 

trial court found a prima facie case. 

Morrow’s claim the trial court applied the wrong standard 

of review fails because, as we next determine, the trial court 

applied the correct standard. And this point does not relate to 

whether the trial court denied him an evidentiary hearing.
8

B

Morrow next argues the trial court improperly applied a 

substantial evidence standard. Morrow alternatively advocates 

for a reasonable doubt standard and a harmless error standard 

based on Chapman v. California (1967) 386 U.S. 18, 24 

(Chapman). 

The prosecution initially argued the substantial evidence 

standard is the correct one, but later filed a supplemental brief 

changing their position. The prosecution now contends, correctly, 

that the trial court properly applied the reasonable doubt 

standard. 

We first consider the substantial evidence standard and the 

reasonable doubt standard. There is a split of authority in the 

Courts of Appeal about this. Our colleagues in Division One 

adopted a test akin to the substantial evidence standard. (People 

v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 

2021, S265309.) The Sixth Appellate District found the 

reasonable doubt standard applied. (People v. Lopez (2020) 56 

Cal.App.5th 936, 949 (Lopez), review granted Feb. 10, 2021, 

S265974.) Under this view, section 1170.95 requires the 

prosecutor to prove each element of first or second degree murder 

under the current law beyond a reasonable doubt. (Ibid.) Our 

colleagues in Division Seven agreed and further held the trial 

court must act as an independent fact finder in applying that 

standard. (People v. Rodriguez (2020) 58 Cal.App.5th 227, 243–

244 (Rodriguez), review granted Mar. 10, 2021, S266652.) The 

question is currently before the Supreme Court. Until we receive 

further guidance, we continue to follow the persuasive reasoning 

of Lopez and Rodriguez. 
9

In People v. Clements (2021) 60 Cal.App.5th 597 (Clements), 

review granted April 28, 2021, S267624, Division Two of the 

Fourth Appellate District followed Lopez and Rodriguez, but 

added its own gloss: section 1170.95 does not require the trial 

court to hold an entire new trial; rather, the parties and court 

may properly focus on evidence relevant to the changes to 

sections 188 and 189. (Clements, at p. 618.) The prosecution 

urges us to adopt this approach. We do not read Clements as 

contradicting Lopez and Rodriguez, but rather as recognizing the 

practical reality that only certain elements may be in dispute 

during a subdivision (d)(3) evidentiary hearing and that the 

parties and trial court will focus on those elements. Clements

does not preclude consideration of evidence relevant to any 

element of the murder charge. Rather, it acknowledges the 

parties and trial court may not explicitly discuss undisputed 

elements. 

Morrow’s argument against the Clements approach appears 

to be based on the misconception that Clements endorsed an 

independent fact finder role only as to new evidence and a 

substantial evidence review role for the cold record. Clements, 

however, did not so rule, nor does the prosecution here advocate 

such an approach. 

Having determined Lopez, Rodriguez, and Clements require 

the trial court to act as an independent fact finder and to 

determine whether the prosecution has established the petitioner 

could be convicted of first or second degree murder under the 

current law, we turn to analyzing what the trial court did here.

Morrow asserts the trial court applied a substantial

evidence standard rather than requiring the prosecution to prove 

its case beyond a reasonable doubt. The record is to the 
10

contrary. When the trial court stated its conclusion, it found 

that, based on its review of the evidence, Morrow “could be 

convicted of that charge of murder beyond a reasonable doubt 

under the present law.” Moreover, the record includes no 

mention of the sufficiency of the evidence. (See Lopez, supra, 56 

Cal.App.5th at p. 952, review granted [that court “never used the 

words ‘substantial evidence,’ ‘sufficient evidence,’ or made any 

other indication that it was applying a sufficiency of the evidence 

standard” supported finding that court correctly applied beyond a 

reasonable doubt standard].) The trial court distinguished a case 

Morrow cited on the ground that it was a direct appeal and 

therefore “the analysis was whether the evidence was sufficient 

to sustain the conviction.”

Morrow’s argument the trial court did not act as an 

independent fact finder is based on the trial court’s phrasing: “I 

think that makes him a direct aider and abettor and I think that 

he could be convicted of that charge of murder beyond a 

reasonable double under the present law.” (Emphasis 

added.) This focus on the “he could be” language is 

misplaced. As the Lopez court found, that a trial court uses 

“could” does not support the idea the court misapplied the law 

because that court is merely using the statutory 

language. (Lopez, supra, 56 Cal.App.5th at p. 951, review 

granted; § 1170.95, subd. (a)(3).)

Viewed in its entirety, the transcript of the evidentiary 

hearing shows the court engaged in appropriate and independent 

factfinding. It had “read all of the papers and reviewed the entire 

file.” After counsel gave statements, the court recited what it 

knew based on the evidence. The court did not refer to what the 

jury found or what a hypothetical jury could find, but instead 
11

made its own determinations. The court’s statements reflect 

this:

“I think it’s clear they’re trying to kill them”; “I think that 

he went there with the intent to kill”; “We know through his own 

admission that he had been shot at the day before or that day”; 

and “I’m not quite sure about [what to do with certain evidence], 

but I don’t think I have to get there . . . .” The court’s conclusion 

similarly reveals an independent determination. 

The court did misspeak when it asked, “[T]o get relief, what 

does the petitioner have to show? Doesn’t he have to show that 

he could not be convicted of first or second degree murder based 

on the laws as they are now?” Defense counsel responded in the 

affirmative. However, the prosecutor later clarified, “[I]t’s my 

burden to show that he could be convicted, which I think that’s 

what the court found.” The trial court responded, “Yes, that’s 

correct.”

Taken as a whole, the record shows the trial court 

appropriately acted as an independent fact finder and applied the 

proper reasonable doubt standard. (See People v. Carrington

(2009) 47 Cal.4th 145, 201 [looking at entirety of court’s ruling to 

determine court applied correct standard, even if it misspoke in 

one instance].)

Although Morrow acknowledges the reasonable doubt 

standard adopted by the Lopez and Rodriguez courts reflects the 

statutory language, he contends that standard does not go far 

enough. Instead, he argues the Chapman “harmless beyond a 

reasonable doubt” standard applicable on direct appeal must also 

be applied in the section 1170.95 context. (See Chapman, supra, 

386 U.S. at p. 24.) We follow the Rodriguez decision, which 
12

addressed and rejected this argument. (See Rodriguez, supra, 58 

Cal.App.5th at pp. 239–240, review granted.)

C

Morrow’s third argument is that judicial factfinding by the 

trial court or by this court violates his constitutional rights to due 

process and to a jury. SB 1437 is an act of lenity and does not 

implicate Morrow’s constitutional rights. (See People v. Falcon 

(2020) 57 Cal.App.5th 272, 279, review granted Jan. 27, 2021, 

S266041; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [SB 

1437 is “an act of lenity that does not implicate defendants’ Sixth 

Amendment rights”].) Morrow’s citation to Apprendi v. New 

Jersey (2000) 530 U.S. 466 and its progeny is inapposite as SB 

1437 can only shorten a sentence. It cannot lengthen it. (See 

Lopez, supra, 56 Cal.App.5th at p. 958, review granted [because 

factual findings under section 1170.5 cannot increase penalty, 

Apprendi concerns are not implicated]; Dillon v. United States

(2010) 560 U.S. 817, 828 [no right to jury in limited resentencing 

proceeding based on downward modification].) 

DISPOSITION

We affirm the order. 

WILEY, J.

We concur: 

GRIMES, Acting P. J. OHTA, J.

 Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.