People v. Morgan

THE PEOPLE, Plaintiff and Respondent, v. DON CARLOS MORGAN, Defendant and Appellant.

B301411

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

March 5, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(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 Plaintiff and Respondent.

____________________ 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 1170.95 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 Bill 1437 and section 1170.95 are constitutional.

Because the jury instructions show as a matter of law that Morgan was not tried 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 BACKGROUND²

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 Cripgang (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., and T.T. were sitting in Blessitt's Buick Regal on East 43rd Street in Los Angeles. A small turquoise 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 fatally. Twenty to 30 bullets struck the Buick.

Later that evening, two police officers were driving in the area and looking out for Four-Trey gang members, expecting possible retaliation. The officers spotted Morgan walking along the street. Morgan looked at the officers, pulled out a gun, and pointed it at them. One of the officers drew his own firearm. Morgan ran, and tossed his gun away. He was eventually apprehended and his gun was recovered. A cartridge casing discovered at the shooting scene had 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 uttered a gang challenge. In a taped, pretrial interview, a bystander told police that it sounded like the gunfire came from two different weapons. A former U.S. Marine who had stolen 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 casings found at the shooting scene was of a type typically fired from an M-16 military assault rifle.

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 was unable to reach a verdict on the other counts. The 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 and 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 abetting 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 in commission of the offense. (§ 12022.5, subd. (a)(1).) It further convicted Morgan of the willful, deliberate, and premeditated attempted murders of C.C. and T.T., with true findings on personal firearm use allegations (§ 664, 187, subd. (a), 12022.5, subd. (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 firstdegree murder, with a drive-by shooting special circumstance, as well as the willful, deliberate, and premeditated 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 June 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 proceed 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 killer, 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 reckless indifference to human life. He also requested the appointment of counsel.

The trial court summarily denied the petition. Morgan was not present, and was not represented 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§ 1170.95 because he was an actual killer. 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 Court of Appeal 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, review 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 further 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 921,942.) Similarly, under the natural and probable consequences doctrine, a defendant was "liable for murder 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 190.2, 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...