People v. Morrow CA2/8

Filed 3/10/23 P. v. Morrow CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B319575

Plaintiff and Respondent, Los Angeles County Super. Ct. No. VA067516 v.

CLIFTON MORROW,

Defendant and Appellant.

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. ____________________

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