P. v. Bitson

Filed 9/25/20 P. v. Bitson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MORGAN BITSON,
Defendant and Appellant.
B301565
(Los Angeles County
Super. Ct. No. BA434959)
APPEAL from an order of the Superior Court of
Los Angeles County, James R. Dabney, Judge. Affirmed.
Stephen Temko, 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 David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.

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Penal Code1 section 1170.95 creates a procedure permitting
defendants who previously were convicted of murder, but who no
longer could be convicted because of recent changes in the law, to
petition the trial court to vacate the murder conviction and to be
resentenced. (People v. Galvan (2020) 52 Cal.App.5th 1134,
1137.) To be eligible for resentencing under section 1170.95, a
petitioner must present a prima facie case that, among other
things, the petitioner could no longer be convicted of murder
under the new law. (Ibid.) Under the new law, a murder
conviction cannot stand on the natural and probable
consequences doctrine. (People v. Lewis (2020) 43 Cal.App.5th
1128, 1135, review granted July 15, 2020, S262459.) Instead,
malice must be proven. (Ibid.) The mental state for express
malice is intent to kill. (People v. Soto (2018) 4 Cal.5th 968, 974.)
The mental state for implied malice occurs when a defendant
knows his conduct endangers another and acts with conscious
disregard for life. (Ibid.)
In this case, Morgan Bitson and her boyfriend Tristan
Bennett killed Bitson’s four-year-old son. Jurors convicted Bitson
of multiple crimes including second degree murder. This court
previously affirmed the judgment. In June 2019, Bitson filed a
petition under section 1170.95 to vacate her murder conviction.
The trial court found that she failed to demonstrate a prima facie
case entitling her to relief and denied her petition. Bitson
appeals from the order denying her petition for resentencing on
her murder conviction under section 1170.95.
We agree that Bitson failed to demonstrate a prima facie
case of eligibility for relief. The record demonstrates as a matter
1 Undesignated statutory citations are to the Penal Code.

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of law, that Bitson acted with malice. We reject Bitson’s
remaining arguments because they are beyond the scope of the
current appeal, which is limited to her petition for resentencing
pursuant to section 1170.95. We affirm the trial court’s order
denying Bitson’s section 1170.95 petition.
BACKGROUND
1. Bitson and Bennett Kill Bitson’s Four-Year-Old Son
The following background is taken from this court’s
decision following Bitson’s appeal from the judgment of
conviction.
“Defendants Morgan Bitson and her boyfriend Tristian
Bennett killed Bitson’s four-year-old son Major Woods. The fatal
blow severed Woods’s liver in two, causing him to bleed profusely.
Prior to that time, defendants inflicted many additional wounds
on Woods. While in their care, Woods suffered broken ribs, burn
marks, bruises, a broken arm, and the loss of vision. Defendants
restricted Woods’s food, causing him to suffer from hunger and
chronic stress and to lose muscle tissue. Although the evidence
did not show if Bitson or Bennett inflicted the fatal blow, the
overwhelming evidence demonstrated that both abused him; one
or both inflicted the fatal wound; and both lied about the events
causing Woods’s death.” (People v. Bitson (Dec. 20, 2018,
B275154, B280417) [nonpub. opn.].)
Bitson and Bennett were the only persons responsible for
Woods’s care. “Forensic pathologist James Ribe performed an
autopsy and testified at length about Woods’s injuries, finding
them ‘too numerous to count.’ Ribe’s undisputed testimony
indicated that within hours of his death, Woods had suffered
blunt force trauma to his abdominal cavity inflicted by an adult,

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which severed his liver in two. The trauma also bruised Woods’s
diaphragm, caused a blood clot in Woods’s back, and affected his
inferior vena cava. Ribe opined that Woods’s death was not
accidental but was a homicide.
“Ribe described some of Woods’s external injuries at the
time of his death. The front and back of Woods’s upper body were
bruised. His left shoulder was bruised. He had two abrasions on
the backside of his ribcage. The abrasions on Woods’s ribcage
were indicative of blunt force trauma. Underneath the abrasions,
there was bruising and hemorrhaging, also indicative of blunt
force trauma. Woods’s ninth and tenth ribs were fractured. The
fractures were ‘complex,’ suggesting that some were partially
healed and others were new. The new fractures occurred minutes
or hours before Woods’s death. Woods’s left arm was fractured.
The fracture occurred by someone twisting or wrenching the arm.
“Woods’s neck contained marks from someone’s nails. The
marks were under Woods’s jawline and along his windpipe.
Woods’s arms, legs, neck, torso, left hip, and right thigh
contained white scars. The white marks were from burns that
appeared to be from a hot object or hot water. Ribe opined that
the burn marks were weeks or months old.
“A red mark on Woods’s forearm was from a recent injury.
His arms and legs contained additional ‘linear marks’ that had
started to scab. The back of Woods’s neck and left shoulder had
loop marks, indicating that someone hit Woods with a cord.
“Woods’s abdomen was ‘intensely distended.’ He appeared
thin and emaciated. Woods’s ribs protruded. His arms and legs
were thin. His tissue was ‘wasting,’ i.e., lacking muscle tissue
and fat. At the time of his death, Woods was malnourished. His
body weight was far below normal for his age. Woods’s thymus

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gland was abnormally small. The shrinkage of the thymus gland
was caused by pain, fear, malnutrition, or emotional stress over a
period of weeks or months.
“The inside of Woods’s lip was lacerated. His back was
scarred. His right knee and right ankle were bruised, his left
ankle was injured. The inside of his left leg contained abrasions
indicative of a small, sharp object. Woods’s head was bruised
indicating ‘blunt force impact to the right side of the head above
the ear.’ This injury occurred minutes to hours before Woods’s
death. The ‘bright red bleeding in the tissue that appeared fresh’
showed that the wound occurred shortly before Woods’s death.
“In addition to the head injury, Woods suffered numerous
injuries within a few days of his death. A laceration inside the
mucous membrane in Woods’s lip had not healed. A red cut
inside Woods’s left arm was recent. Linear abrasions caused by a
small sharp object on Woods’s left leg were recent. Shortly before
his death, Woods’s ribs had been broken and Woods’s left arm
had been fractured just above his elbow. Ribe determined the
fracture was within one day of death by dissecting the arm and
arm bone and finding fresh bleeding under the skin.” (People v.
Bitson, supra, B275154, B280417 [nonpub. opn.].)
In undisputed testimony, a child abuse pediatrician opined
that “the cause of Woods’s death was ‘severe protruding blunt
force trauma to the abdomen which caused a complete breaking
of the liver into two pieces.’ ‘It’s caused by a very forceful, kick,
stomp, or punch into the abdomen.’ ” (People v. Bitson, supra,
B275154, B280417 [nonpub. opn.].) “Bitson, Bennett, and Woods
were in their bedroom when the fatal blow was inflicted.” (Id.)

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2. Jury Instructions
During Bitson’s jury trial, the trial court instructed jurors:
“A person may be guilty of a crime in two ways. One, he or she
may have directly committed the crime. I will call that person
the perpetrator. Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime. [¶] A person is
guilty of a crime whether he or she committed it personally or
aided and abetted the perpetrator.”
The trial court instructed jurors on natural and probable
consequences as follows: “A defendant may be found guilty of as
an aider and abettor not only of the crimes they intend to aid and
abet but also of any crimes committed by the perpetrator that are
the natural and probable consequences of the target crime. [¶]
The People are alleging that the defendant originally intended to
aid and abet child abuse likely to cause death or great bodily
injury. [¶] To prove that the defendant is guilty of second
degree murder under this theory, the People must prove that: [¶]
1. The defendant is guilty of child abuse likely to cause death or
great bodily injury; [¶] 2. During the commission of child abuse
likely to cause death or great bodily injury a coparticipant in that
crime committed the crime of second degree murder; [¶] AND [¶]
3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of
the second degree [murder] was a natural and probable
consequence of the commission of the abuse likely to produce
death or great bodily injury.”
The trial court instructed jurors on the definition of
murder, defining malice. The court also instructed jurors on
involuntary manslaughter as follows: “When a person commits
an unlawful killing but does not intend to kill and does not act

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with conscious disregard for human life, then the crime is
involuntary manslaughter.” “An unlawful killing resulting from
a willful act committed without intent to kill and without
conscious disregard of the risk to human life is involuntary
manslaughter.” As relevant to the current appeal, the court
further instructed jurors: “In order to prove murder the People
have the burden of proving beyond a reasonable doubt that the
defendant acted with intent to kill or with conscious disregard for
human life. If the People have not met either of these burdens,
you must find the defendant not guilty of murder.”
In addition to instructing jurors on murder, the court
instructed jurors on killing a child under eight in violation of
section 273ab, subdivision (a). The elements included that
“defendant did an act that by its nature would directly and
probably result in the application of force to the child” and “[t]he
defendant’s act caused the child’s death.” Jurors could not find
that the act caused the death unless they concluded that “[t]he
death would not have happened without the act.”
3. Conviction and Sentence
Jurors found Bitson guilty of murder. Jurors also found
Bitson guilty of assault on a child causing death. The trial court
sentenced Bitson to prison for 25 years to life on the assault
causing death of a child conviction and stayed a 15-year-to-life
sentence on the murder conviction.
4. Petition for Resentencing
Bitson filed a petition for resentencing under section
1170.95. In her petition, she checked a box stating, “At trial, I
was convicted of 1st or 2nd degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine.”

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Bitson checked boxes concerning first degree felony murder, of
which she was not convicted. Bitson also checked a box
indicating that there was a prior determination that she was not
a major participant and did not act with reckless indifference to
human life. There was no such prior determination (and Bitson
does not argue otherwise). Bitson requested the appointment of
counsel.
5. Trial Court Order
The trial court denied Bitson’s petition for resentencing.
The court concluded that Bitson was ineligible for relief under
section 1170.95. The trial court did not appoint counsel or hold a
hearing. Bitson timely appealed from the order denying her
petition under section 1170.95.
DISCUSSION
The Legislature recently amended sections 188 and 189.
“[T]hose changes eliminated the natural and probable
consequences doctrine as a basis for murder liability, and added a
requirement for felony murder that a defendant must have been
at least a major participant in the underlying felony and have
acted with reckless indifference to human life.” (People v.
Galvan, supra, 52 Cal.App.5th at p. 1140.) “Prior to Senate Bill
1437’s enactment, a person who knowingly aided and abetted a
crime, the natural and probable consequence of which was
murder or attempted murder, could be convicted of not only the
target crime but also of the resulting murder or attempted
murder. [Citations.] ‘This was true irrespective of whether the
defendant harbored malice aforethought. Liability was imposed
“ ‘for the criminal harms [the defendant] . . . naturally, probably,
and foreseeably put in motion.’ [Citations.]” [Citation.]’

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[Citation.] Aider and abettor liability under the natural and
probable consequences doctrine was thus ‘vicarious in nature.’ ”
(People v. Munoz (2019) 39 Cal.App.5th 738, 749, review granted
Nov. 26, 2019, S258234.) With one exception not relevant here,
under the new law, a defendant must act with malice to be
convicted of murder.2 (People v. Lee (2020) 49 Cal.App.5th 254,
260, review granted July 15, 2020, S262459.) Malice can no
longer be imputed based only on a defendant’s participation in a
crime. (People v. Munoz, supra, at p. 749.)
As noted, section 1170.95 establishes a procedure for
defendants convicted of murder based on the natural and
probable consequences doctrine to petition the court to vacate the
murder conviction and resentence the defendant. (Section
1170.95; see also People v. Lee, supra, 49 Cal.App.5th at p. 257,
review granted.) “Upon receipt of a petition [under section
1170.95], the trial court reviews it to determine whether the
petitioner has made a prima facie case for relief. (People v.
Galvan, supra, 52 Cal.App.5th at p. 1140.) “ ‘A prima facie
showing is one that is sufficient to support the position of the
party in question.’ ” (People v. Lewis, supra, 43 Cal.App.5th at
p. 1137.) The trial court is not required to accept the assertions
in the petition if the record of conviction conclusively refutes
them as a matter of law. (People v. Drayton (2020)
47 Cal.App.5th 965, 979–980.)
A person is eligible for relief under section 1170.95 only if
the following conditions are established: “(1) A complaint,
2 A defendant may be convicted of murder absent malice if
the defendant commits felony murder as described in section 189,
subdivision (e). (People v. Lee, supra, 49 Cal.App.5th at p. 262,
review granted.)

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information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder[;] [¶] [and] (3) The petitioner
could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a)(1)–(3).) Those changes affected the mental
state requirement for murder under the felony murder rule and
the natural and probable consequences doctrine. (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 262.)
A petitioner is ineligible for relief under section 1170.95
as a matter of law if the petitioner “was convicted on a
ground that remains valid notwithstanding Senate Bill
[No.] 1437’s amendments to [Penal Code] sections 188 and 189.”
(People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review
granted Mar. 18, 2020, S260493.) “[I]f the petitioner’s
ineligibility for resentencing under section 1170.95 is not
established as a matter of law by the record of conviction, the
court must direct the prosecutor to file a response to the petition,
permit the petitioner (through appointed counsel if requested) to
file a reply and then determine, with the benefit of the parties’
briefing and analysis, whether the petitioner has made a prima
facie showing he or she is entitled to relief.” (Ibid.)
A. The Record of Conviction Establishes as a Matter of
Law that Bitson is Ineligible for Resentencing
Bitson argues that she set forth a prima facie case for relief
because jurors may have relied on the natural and probable

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consequences theory in convicting her of murder. According to
Bitson, “[t]here is nothing in the record that shows the jury relied
on the valid theory that appellant was a direct aider and abettor.”
Bitson’s argument ignores the record of conviction,
including the jury instructions given at trial.3 (People v. Soto
(2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020,
S263939 [“jury instructions are “part of the record of conviction,
in assessing the prima facie showings under section 1170.95(c).”])
Woods died of a blow to his liver that severed his liver into two
pieces. “Bitson, Bennett, and Woods were in their bedroom when
the fatal blow was inflicted.” (People v. Bitson, supra, B275154,
B280417 [nonpub. opn.].) Jurors necessarily concluded that
Bitson committed an act that caused Woods’s death when they
convicted her of child abuse because under the instructions given,
jurors could convict Bitson of child abuse only if they concluded
that Bitson’s act caused Woods’s death. Additionally, under the
instructions given, jurors could not have found that the act
caused the death unless they concluded that “[t]he death would
not have happened without the act.”
Additionally, when the jury rejected the involuntary
manslaughter instruction, it necessarily concluded that Bitson
acted either with the intent to kill or with the conscious disregard
to the risk to human life. The trial court instructed jurors: “In
order to prove murder the People have the burden of proving
beyond a reasonable doubt that the defendant acted with intent
to kill or with conscious disregard for human life. If the People
3 The record of conviction includes a reviewing court’s
opinion. (People v. Lewis, supra, 43 Cal.App.5th at p. 1136, fn. 7,
review granted.)

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have not met either of these burdens, you must find the
defendant not guilty of murder.”
Even though jurors were instructed on the natural and
probable consequence doctrine, by convicting Bitson of murder,
rather than involuntary manslaughter, jurors necessarily
concluded that Bitson acted either with the express intent to kill
or with conscious disregard for human life. In other words, the
jury necessarily concluded Bitson acted with express or implied
malice, both of which are sufficient to support murder. (People v.
Knoller (2007) 41 Cal.4th 139, 152; People v. Soto, supra,
4 Cal.5th at p. 974.) Because jurors necessarily concluded Bitson
acted with malice, the changes to the definition of murder in
sections 188 and 189 do not apply to her.
Most of Bitson’s remaining arguments depend on her
demonstration of a prima facie case of eligibility for relief under
section 1170.95. For example, Bitson argues that she was
entitled to the appointment of counsel. The appointment of
counsel is not required when, as here, the petitioner fails to make
a prima facie showing of eligibility for resentencing. (People v.
Lewis, supra, 43 Cal.App.5th at p.1140, review granted [“trial
court’s duty to appoint counsel does not arise unless and until the
court makes the threshold determination that petitioner ‘falls
within the provisions’ of the statute.”]; People v. Verdugo, supra,
44 Cal.App.5th at p. 332, review granted [same].) Bitson also
argues that the trial court was required to issue an order to show
cause and hold a hearing. As she acknowledges, those procedures
are not triggered unless the petitioner established a prima facie
case of eligibility for resentencing. (People v. Verdugo, supra,
at pp. 328–330.) Because Bitson cannot demonstrate a prima

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facie case of eligibility for resentencing, she has not triggered the
additional procedures codified in section 1170.95.
B. Bitson Fails to Demonstrate Her Remaining
Arguments are Cognizable in This Appeal from an
Order Denying Her Section 1170.95 Petition
During Bitson’s trial, the trial court instructed jurors: “You
need not unanimously agree, nor individually determine, whether
a defendant is an aider or abettor or a direct perpetrator. The
individual jurors themselves need not choose among the theories
so long as each is convinced of guilt. There may be a reasonable
doubt that a defendant was the direct perpetrator, and similar
doubt th[at] he or she was the aider and abettor, but no such
doubt that he or she was one or the other.” In her direct appeal,
Bitson unsuccessfully challenged that instruction.
Bitson attempts to renew her challenge to the same
instruction in the current appeal. Bitson did not raise this
challenge in the trial court in this case and fails to argue or show
that she can raise it for the first time on appeal. Bitson also fails
to demonstrate that alleged instructional error is cognizable as
part of a petition for resentencing. The procedure described in
section 1170.95—the only basis for Bitson’s postconviction motion
for resentencing—does not encompass raising claims of alleged
instructional error.
Finally, Bitson argues that she is entitled to bring a
petition for writ of habeas corpus because her conviction was not
final at the time the Legislature amended sections 188 and 189,
codifying the new changes to the murder law. Given that this
case involves an appeal from the order denying Bitson’s
section 1170.95 petition, not a petition for writ of habeas corpus,
we need not consider whether Bitson could bring a habeas

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petition. To the extent Bitson is requesting this court deem her
appeal to be a petition for writ of habeas corpus, we deny that
request.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.

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