Filed 3/10/23 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 MORROW,

Defendant and Appellant.

 B319575

 Los Angeles County

 Super. Ct. No. VA067516

APPEAL from an order of the Superior Court of 

Los Angeles County, LaRonda J. McCoy, Judge. Reversed and 

remanded with instructions.

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, Daniel C. Chang, Deputy Attorney 

General, and Shezad H. Thakor, Deputy Attorney General, for 

Plaintiff and Respondent.

____________________
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A jury convicted Clifton Morrow of one count of 

premeditated and deliberate murder and four counts of 

premeditated and deliberate attempted murder. Morrow 

petitioned for resentencing on the murder charge under the 

procedure laid out in Senate Bill No. 1437, effective January 1, 

2019 (2017–2018 Reg. Sess.) (SB 1437). The trial court denied 

his petition. Morrow appealed, and we affirmed.

After Senate Bill No. 775, effective January 1, 2022 (2020-

2021 Reg. Sess.) (SB 775), clarified petitioners could seek 

resentencing for attempted murder charges as well, Morrow filed 

a second petition. The trial court dismissed Morrow’s second 

petition as precluded by our opinion affirming the dismissal of his 

first petition. The prosecutor concedes the trial court should not 

have dismissed Morrow’s petition as to the attempted murder 

charges. We agree. We remand for the trial court to appoint 

counsel and make a prima facie determination of Morrow’s 

eligibility for resentencing on his attempted murder charges 

pursuant to section 1172.6, subdivisions (b)(3) and (c). 

Undesignated statutory citations are to the Penal Code. 

The Legislature enacted SB 1437 to narrow the scope of 

murder liability to exclude those persons who are not the actual 

killer and did not intend to kill. (People v. Strong (2022) 13 

Cal.5th 698, 707-708.) The bill also created a mechanism to 

provide retroactive relief to persons previously convicted who 

could not be convicted under the new laws. (Id. at 708; § 1172.6.) 

Upon the filing of a facially sufficient petition requesting 

appointment of counsel, a trial court must appoint counsel and 

hold a hearing to determine whether the petitioner has made a 

prima facie showing of eligibility for relief. (§ 1172.6, subds. 

(b)(3) & (c).) If the petitioner makes this showing, the court must 
3

hold an evidentiary hearing to determine whether relief is 

warranted. (§ 1172.6, subd. (d).) 

Morrow sought such retroactive relief under SB 1437, filing 

a petition to be resentenced on his murder charge. After an 

evidentiary hearing, the trial court found Morrow was a direct 

aider and abettor and denied the petition. Morrow appealed the 

trial court’s ruling, and we affirmed. (People v. Morrow (Sept. 23, 

2021, B307003, 2021 WL 4316737 [nonpub. opn.] (Morrow).) 

The California legislature later passed SB 775. This bill 

clarified that the procedures to seek resentencing also applied to 

attempted murder charges. (§ 1172.6, subd. (a)(2).) Morrow then 

filed a second petition seeking resentencing on his four attempted 

murder charges and requesting appointment of counsel.

Without appointing counsel, the trial court summarily 

dismissed Morrow’s petition, finding our opinion denying the 

appeal of his first petition precluded a second petition. Morrow 

appeals.

Morrow argues the trial court erred by dismissing his 

petition as to both the attempted murder and murder 

charges. He asks that we remand for the trial court to hold an 

evidentiary hearing pursuant to section 1172.6, subdivision 

(d). The prosecutor concedes the trial court erred by dismissing 

the petition as to the attempted murder charges. The prosecutor 

asks that we remand the matter for the trial court to make a 

prima facie eligibility determination pursuant to section 1172.6, 

subdivision (c). We agree the trial court erred by dismissing the 

petition as to the attempted murder charges only and remand for 

the trial court to appoint counsel and make a prima facie 

eligibility finding pursuant to section 1172.6, subdivision (c). 
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Morrow’s second petition addressed a topic not included in 

his first: his attempted murder charges. He filed the second 

petition after a change in the law made clear the protection 

afforded by SB 1437 also applied to those charges. Thus his 

second petition was not successive, and he was entitled to a 

prima facie eligibility determination by the trial court. (People v. 

Farfan (2021) 71 Cal.App.5th 942, 951 [second petition not 

barred as successive because based on new authority].) 

Morrow asks us to hold that the trial court must grant him 

a jury trial on both his murder and attempted murder 

charges. As the prosecutor urges, the law of the case doctrine 

precludes this argument. (People v. Jurado (2006) 38 Cal.4th 72, 

94.) We have already determined the protections offered by SB 

1437 are an act of lenity and do not implicate the constitutional 

rights for which Morrow argues. (Morrow, supra, at p. *5.) We 

see no reason to revisit this holding.

We similarly see no reason to revisit our holding rejecting 

Morrow’s claim that the “harmless error” standard from 

Chapman v. California (1967) 386 U.S. 18, 24, applies in the 

section 1172.6 context. (Morrow, supra, at p. *5.) Although the 

Supreme Court later vacated and deemed not citable the case we 

cited in support of our holding, that remand did not involve this 

point and the case’s reasoning remains persuasive. (See People v. 

Rodriguez (Dec. 7, 2020) B303099, review granted Mar. 10, 2021, 

judg. vacated and cause remanded for further consideration in

light of Sen. Bill 775, S266652.)

Although both parties agree remand as to the attempted 

murder charges is appropriate, they disagree about at which step 

in the section 1172.6 process we should instruct the trial court to 

resume. The prosecutor asks that we remand for the trial court 
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to make a prima facie eligibility determination under subdivision 

(c). Morrow argues this is unnecessary. He contends he has 

already established his eligibility because, as the prosecutor 

concedes, at his trial the court instructed the jury on the natural 

and probable consequences doctrine as to all four attempted 

murder charges. Morrow further argues the prima facie 

eligibility determination is made as a matter of law and reviewed 

de novo, so this Court may make the determination in the first 

instance. Thus, Morrow asks that we direct the trial court on 

remand to hold an evidentiary hearing under subdivision (d).

We decline to do so. SB 775 confirmed that petitioners are 

entitled to counsel at the prima facie eligibility determination 

stage. (§ 1172.6, subd. (b)(3); see also People v. Lewis (2021) 11 

Cal.5th 952, 957, 962-963.) Although the court makes this 

determination as a matter of law, we see no reason to usurp the 

trial court’s role to do so in the first place, especially where the 

legislature has provided the determination should be made with 

the benefit of briefing from counsel on the issue. 

Because review of the records in Morrow’s direct appeal 

and appeal of the denial of his first petition is unnecessary to our 

decision, we deny his request for judicial notice.

///
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DISPOSITION

We reverse the order denying Morrow’s petition and 

remand for the trial court to appoint counsel and make a prima 

facie eligibility determination pursuant to section 1172.6, 

subdivisions (b)(3) and (c). 

WILEY, J.

We concur: 

GRIMES, Acting P. J. 

VIRAMONTES, J.