P. v. Morrison

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Filed 3/9/20 P. v. Morrison CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CURTIS LEE MORRISON,
Defendant and Appellant.
A156981
(Contra Costa County
Super. Ct. No. 16154)
Enacted in 2018, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(SB 1437) amended the definition of murder in Penal Code sections 188 and
189 (Stats. 2018, ch. 1015, §§ 2–4) to reduce the scope of the felony-murder
rule and the natural and probable consequences doctrine. SB 1437 also
added Penal Code section 1170.951 to establish a procedure whereby persons
previously convicted of murder, who could not be convicted under the new
definitions, could petition to have their convictions vacated. Appellant Curtis
Lee Morrison contends that his hand-written petition made out a prima facie
showing for relief, so it was error for the trial court to summarily deny it
without a hearing. As he sees it, once a petitioner alleges that he satisfies
the statutory criteria, the trial court’s functions becomes purely ministerial:
1 Statutory references are to the Penal Code unless otherwise indicated.
Unlabeled references to subdivisions are to subdivisions of section 1170.95.

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the court must issue the order to show cause, must schedule a hearing and—
if requested by the petitioner—must appoint counsel to represent him at the
hearing. Moreover, according to Morrison, because the trial court cannot look
behind the allegations of the petition, it was error for the court here to
consult its own file to determine the veracity of the petition’s allegations. We
conclude that Morrison’s arguments are contrary to the language of
section 1170.95, to established practice, and to the efficient operation of the
courts. For these reasons, we affirm the summary denial.
BACKGROUND
SB 1437
One of the two purposes of SB 1437 was to redefine the concepts of
malice and accomplice liability. Commencing January 1, 2019, “Malice shall
not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3).) Murder convictions would henceforth be
restricted to those persons who (1) actually commit the murder, or (2) aid or
abet the actual killer, or (3) is a major participant who acts with reckless
indifference to human life. (§ 189, subd. (e).)
The other goal was to establish a mechanism for certain categories of
persons convicted under the former statutes to have their murder convictions
re-examined and set aside. “A person convicted of felony murder or murder
under a natural and probable consequences theory may file a petition with
the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of
the following conditions apply:
“(1) A complaint, 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.

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“(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.
“(3) The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective [by SB
1437].” (§ 1170.95, subd. (a).)
“The petition shall include . . . A declaration by the petitioner that he or
she is eligible for relief . . . based on all the requirements of subdivision (a).”
(§ 1170.95, subd. (b)(1)(A).)
If the petitioner makes a prima facie showing that he or she could not
now be convicted of first or second degree murder, the court is to issue an
order to show cause and hold a hearing at which “the burden of proof shall be
on the prosecution to prove, beyond a reasonable doubt, that the petitioner is
ineligible” for relief. Upon request, the court shall appoint counsel for the
petitioner. “If the prosecution fails to sustain its burden of proof, the prior
conviction . . . shall be vacated and the petitioner shall be resentenced” on
any remaining counts. (§ 1170.95, subd. (d)(3).)
SB 1437 has a major exception: it “does not apply to a defendant when
the victim is a peace officer who was killed while in the course of his or her
duties, where the defendant knew or reasonably should have known that the
victim was a peace officer engaged in the performance of his or her duties.”
(§ 189, subd. (f).)
As statutes go, section 1170.095 is fairly compact, logically structured,
and readily comprehended. Its provisions have been expertly analyzed by
Presiding Justice Perluss in People v. Verdugo (2020) 44 Cal.App.5th 320.
There is no point in our retracing or restating that analysis. Our

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examination of the statute is confined to that necessary to resolve the specific
arguments advanced by Morrison.
The Proceedings Below
On January 10, 2019, Morrison filed his eight-page, typewritten
“Motion requesting Resentencing Under . . . Senate Bill No. 1437.” The
petition recites the statutory language of subdivision (a), but has nothing in
the way of actual statements by Morrison that he satisfied the statutory
requirements.2
The petition then has four pages where Morrison sets out his view of
the evidence, including his own testimony, introduced at the trial (which
apparently occurred in 1974). Morrison states that the jury was instructed
with CALJIC No. 8.21 on felony-murder, but he then states he “was not
charged with robbery nor was he found guilty of robbery, therefore he could
not be held guilty of robbery when no robbery was charged or found by the
beyond the reasonable doubt standard with in [sic] that instruction, these
are the fact that make this petitioner eligible for relief under section 188 or
189.” The petition concludes with Morrison’s “request that his sentence be
recalled,” a request “made based on the complaint filed against this petitioner
that allowed the prosecution to proceed under a theory of first degree felong
[sic: felony] murder, according to Morrison V Estelle No. 92-15041 D.C.
CV-90-02858-TEH, Filed December 3rd 1992.” The words “natural and
probable consequences” are not present.
Morrison’s petition went to Judge John W. Kennedy, who has vast
experience with criminal law. Although Judge Kennedy concluded “The
2 Section 1170.95 also requires the petition to include “[t]he superior court
case number and the year of the petitioner’s conviction.” (§ 1170.95,
subd. (b)(1)(B).) Morrison’s petition did not include this information.

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petition is summarily denied,” the characterization is not entirely accurate.
The denial was in the form of a six-page order prepared by Judge Kennedy,
and was based on two grounds: (1) “it is clear that petitioner has not made a
prima facie showing that he falls within the provisions of section 1170.95,”
and (2) “for the independent reason that [Morrison’s] victim was . . . a
Martinez police officer who was in uniform and was carrying his service
revolver.”
Morrison perfected a timely appeal from the order, which we treat as
an appealable post-judgment order affecting his substantial rights. (§ 1237,
subd. (b); People v. Larios (2019) 42 Cal.App.5th 956, 961, review granted
February 26, 2020, S259983.)
DISCUSSION
Morrison’s Arguments
Appointed counsel has filed a lengthy brief that advances a single
essential point, namely, that Judge Kennedy was bound to accept the
allegations of Morrison’s petition as true until disproven at the hearing he
was obliged to hold. Lest there be any misunderstanding, we set out the
arguments in some detail.
Morrison begins by positing that “proceedings under section 1170.95
were created by statute, and thus are ‘special proceedings,’ ” requiring that
the terms and conditions of that statute must be strictly followed. He then
quotes from subdivision (c): “ ‘If the petitioner makes a prima facie showing
that he or she is entitled to relief, the court shall issue an order to show
cause.’ (Emphasis added.) (See also In re Taylor (2019) 34 Cal.App.5th 543,
562 [‘Upon receiving a petition that is supported by the petitioner’s
declaration that all three conditions are met and that makes a “prima facie
showing that the petitioner falls within the provisions[”] . . . the sentencing

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court must issue an order to show cause . . . [and] must then “hold a hearing
to determine whether to vacate the murder conviction and to recall the
sentence and resentence the petitioner on any remaining counts[”] ’].)
[¶] The court failed to follow this procedure because it made a determination
that the petition did not set forth a prima facie case,” thereby failing to
“follow established standards in determining whether a prima facie case had
been made,” specifically, “standards require[ed] the court to take the
petitioner’s factual allegations as true.”
Morrison then asserts that “although the court stated that appellant
‘has not made a prima facie showing that he falls within the provisions of
section 1170.95,’ in fact, it went beyond the factual assertions in the petition
to analyze the evidence as it was outlined in the Ninth Circuit Court of
Appeals opinion.[3] [Citation.] The court’s decision was on the merits, even
though the court described its finding that appellant had not made a prima
facie case for relief.” “The Superior Court’s only duty in reviewing the
petition at the initial stage of the proceeding was to determine whether the
petition made a prima facie showing that appellant ‘falls within the
provisions of this section.’ [¶] However, because the court went beyond that
determination and engaged in an analysis of the evidence presented at trial,
it exceeded its statutory authority.”
Morrison is quite candid in his position: if a petitioner frames
allegations which track the three elements specified in section 1170.95,
subdivision (a), the trial court must accept the truth of those allegations, and
has only the ministerial duty to issue the order to show cause and conduct “a
hearing to determine whether to vacate the murder conviction.” (§ 1170.95,
subd. (d)(1).) Or, as he puts it at another point, the court cannot inquire
3 Morrison v. Estelle (9th Cir. 1992) 981 F.2d 425.

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“beyond the face of the petition,” and is “not authorized” to seek out
information or consult materials that contradict the petition’s allegations.
Thus, according to Morrison, Judge Kennedy “not only erred by going beyond
[his] function to determine if the three required allegations had been made in
the petition, [he] further erred by engaging in an analysis of the evidence as
outlined in the Ninth Circuit opinion,” it being “well established that an
appellate opinion cannot be used to prove the circumstances of the crime.”
Judge Kennedy Did Not Err By Examining The File To Determine
Whether Morrison Had Made A Prima Facie Showing Of His
Entitlement To Relief Under Section 1170.95
There is no question that Judge Kennedy did not believe himself
restricted to the “face of the petition,” as Morrison puts it. Judge Kennedy
justified what he did by quoting from “a primer on SB 1437” written by
retired Judge J. Richard Couzens: “The court should conduct a preliminary
review of the petition to determine whether petitioner has met his burden to
make a prima facie showing for relief . . . . While the court must determine
whether a prima facie basis has been shown, the statute does not specify the
process for making that determination, other than the court is to consider
any response or reply filed by the parties. Nothing in the statute [i.e.,
§ 1170.95], however, limits the court’s consideration to the response and
reply, and nothing precludes the court from conducting its own review of other
readily available information, such as the court’s file. It would be a gross
misuse of judicial resources to require the issuance of an order to show cause
or even appointment of counsel based solely on the allegations of the petition,
which frequently are erroneous, when even a cursory review of the court file
would show as a matter of law that the petitioner is not eligible for relief. For
example, if the petition contains sufficient summary allegations which would
entitle the petitioner to relief, but a review of the court file shows the

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petitioner was convicted of attempted murder . . . [that does not meet the
criteria of SB 1437], it would be entirely appropriate to summarily deny the
petition based on petitioner’s failure to establish even a prima facie basis of
eligibility for resentencing.”4 (Italics added by Judge Kennedy.)
Judge Kennedy stated in his order that he had indeed “review[ed] the
court file.” This was not only proper, it appears entirely consistent with the
language and purpose of section 1170.95.
Subdivision (b)(1)(B) requires the petition to include “The superior
court case number and year of petitioner’s conviction.” Subdivision (b)(2)
provides: “If any of the information required by this subdivision is missing
from the petition and cannot be readily ascertained by the court, the court
may deny the petition without prejudice to the filing of another petition and
advise the petitioner that the matter cannot be considered without the
missing information.” The language we have italicized clearly
contemplates—indeed, authorizes—the court to conduct an independent
investigation to make good a correctible deficiency in the petition.
The first sentence of subdivision (c) provides: “The court shall review
the petition and determine if the petitioner has made a prima facie showing
that the petitioner falls within the provisions of this section.” This language
indicates that the trial court is not a rubber stamp, reduced to merely
checking to see if the petitioner’s allegations check the boxes listed in
subdivision (a). On the contrary, the court is given an independent role, to
“review the petition,” using “readily ascertain[able]” information, and then
4 The material by Judge Couzens, whom we recently recognized as one of “the
authors of the leading treatise on sentencing” (People v. Curry (2016)
1 Cal.App.5th 1073, 1082) was subsequently incorporated into that treatise.
(2 Couzens et al., Sentencing California Crimes (The Rutter Group 2019)
§ 23:51, pp. 23-150–23-151.)

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the court shall “determine [for itself] if the petitioner has made a prima facie
showing that the petitioner falls within the provisions” of section 1170.95.
Lastly, in terms of the actual hearing, subdivision (d)(2) provides: “If
there was a prior finding by a court or jury that the petitioner did not act
with reckless indifference to human life or was not a major participant in the
felony, the court shall vacate the petitioner’s conviction and resentence the
petitioner.” How is such a finding to be ascertained? What sort of
information will be “readily ascertain[able]” without the assistance of
counsel? Subdivision (d)(3) gives the obvious answer: “The prosecutor and
the petitioner may rely on the record of conviction . . . to meet their respective
burdens.” What if, as here, the conviction is decades old, when juries were
seldom asked to make recorded determinations as to the prominence of the
defendant’s conduct in the criminal act, or his or her mental state? But if the
court is making an eligibility determination, Morrison would deny the court
the power to consult the record of conviction, its own records, on its own,
when the petitioner merely parrots the language of subdivision (a). This
defies logic—and common sense.
The bedrock goal of statutory construction is to effectuate the purpose
of the statute. (E.g., People v. Pennington (2017) 3 Cal.5th 786, 795; People v.
Tran (2015) 61 Cal.4th 1160, 1166.) Attention is always given to the context
in which the words are used. (E.g., People v. Gonzalez (2014) 60 Cal.4th
533, 537; People v. Anderson (2010) 50 Cal.4th 19, 29.) “[O]ur task is to select
the construction that comports most closely with the Legislature’s . . . intent,
with a view to promoting rather than defeating the statute’s . . . purpose, and
to avoid a construction that would lead to unreasonable, impractical, or
arbitrary results.” (Imperial Merchant Services, Inc. v. Hunt (2009)

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47 Cal.4th 381, 388; Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th
1272, 1291.)
In the context of busy trial courts screening petitions to determine
whether a prima facie showing of entitlement to relief is made, we are certain
that “unreasonable, impractical, and arbitrary” would indeed describe the
results if, as Morrison urges, those courts could not consult the judgment of
conviction in their own case files and records.
It would be unreasonable because, in terms of speed, accessibility, and
efficiency, the court’s own records are obviously those most “readily
ascertained by the court.” It would be impractical to make the court
dependent upon whether, or what part, the parties choose to produce “the
record of conviction” at a full-blown hearing, when recourse to the court’s own
records could obviate the need for that hearing. And it would be arbitrary to
deprive the trial court of the power to most expeditiously—and reliably—
determine that no hearing is needed, thus sparing everyone time and
expense.
The two most obvious analogues to the statutory procedure here are the
prior sentence reduction measures commonly known as Propositions 36 and
47. Each of these measures give the trial court the authority to determine if
the petitioner was eligible for relief. (See §§ 1170.126, subd. (f) [Prop. 36:
“Upon receiving a petition for recall of sentence under this section, the court
shall determine whether the petitioner satisfies the criteria [for eligibility]”],
1170.18, subd. (b) [Prop. 47: “Upon receiving a petition [for recall of
sentence], the court shall determine whether the petitioner satisfies the
criteria [for eligibility]”].) In using that authority, trial courts have regularly
and routinely consulted the record of conviction in determining whether the
petitioning defendant has met his or her burden of showing eligibility for

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resentencing under both Proposition 36 (People v. Bradford (2014)
227 Cal.App.4th 1322) and Proposition 47 (People v. Johnson (2016)
1 Cal.App.5th 953.) Indeed, this is already what is happening in both trial
and appellate courts for section 1170.95. (E.g., People v. Verdugo, supra,
44 Cal.App.5th 320 [trial court used Court of Appeal opinion to determine
petitioner was ineligible for relief]; People v. Cornelius (2020) 44 Cal.App.5th
54 [same]; People v. Lewis (2020) 43 Cal.App.5th 1128 [same]; People v.
Ramirez (2019) 41 Cal.App.5th 923 [Court of Appeal used its prior opinion to
establish that a petitioner was eligible for relief].) Our Supreme Court has
indicated its approval of this approach in other post-appeal contexts. (See
In re Reno (2012) 55 Cal.4th 428, 484 [habeas corpus]; People v. Shipman
(1965) 62 Cal.2d 226, 230 [coram nobis].)
In sum and in short, there is nothing to indicate the Legislature
intended section 1170.95 to reward artful pleading that is easily shown to be
demonstrably false.
To illustrate, suppose a petitioner submits the declaration required by
subdivision (b)(1)(A) averring “that he or she is eligible for relief . . . based on
all the requirements of subdivision (a),” including that the petitioner “could
not [now] be convicted of first or second degree murder.” (§ 1170.95,
subd. (a)(3).) However, suppose further that this representation is untrue
because the petitioner “was the actual killer.” (§ 189, subd. (e)(1).) Or
suppose that the petitioner does not advise the court that the victim was an
on-duty police officer, another exception made by SB 1437. (Id., subd. (f).)
And, finally, suppose that these disqualifications for relief would be disclosed
by the unpublished Court of Appeal opinion affirming the petitioner’s murder
conviction.

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What purpose would be served by appointing counsel, compelling the
prosecutor to respond, and holding a hearing when the result is already
known? To require a hearing in these circumstances “would be to force resort
to an arid ritual of meaningless form.” (Staub v. City of Baxley (1958) 355
U.S. 313, 320.) It would also be an absurd result, which we are duty-bound to
avoid if possible. (E.g., People v. Mendoza (2000) 23 Cal.4th 896, 908;
Arntz v. Superior Court (2010) 187 Cal.App.4th 1082, 1094.)
In light of the foregoing, we reject Morrison’s construction of
section 1170.95 as precluding a trial court from making an independent
determination concerning the threshold issue of whether a petitioner is
eligible for relief. In connection with section 1170.126, which established a
similar procedure for Three Strike defendants, the Court of Appeal in
People v. Oehmigen (2014) 232 Cal.App.4th 1, 6–7, used language that is
equally applicable to section 1170.95: “The statute accords [the petitioner]
the right to a resentencing hearing only upon a showing that he is eligible. It
is not a right to a hearing on the issue of eligibility . . . . [¶] . . . [E]ligibility
is not a question of fact that requires the resolution of disputed issues. The
facts are limited to the record of conviction underlying a defendant’s
commitment offense . . . . What the trial court decides is a question of law:
whether the facts in the record of conviction . . . establish eligibility.” (Some
original italics omitted.)
Judge Kennedy Did Not Err By Summarily Denying Morrison’s
Petition Upon Concluding That He Had Not Made A Prima Facie
Showing And Was Ineligible For Relief Under Section 1170.95
Section 1170.95 does not define “record of conviction,” and our Supreme
Court has not formulated a comprehensive definition, but the term does have
a generally accepted meaning: the “record of conviction” includes
“only . . . those record documents reliably reflecting the facts of the offense for

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which the defendant was convicted.” (People v. Reed (1996) 13 Cal.4th
217, 223; accord, People v. Trujillo (2006) 40 Cal.4th 165, 179.) Morrison’s
construction would deny the trial court the power to consider a written
opinion from an appellate court, even though our Supreme Court has
determined that a postconviction opinion of an appellate court can indeed be
part of the record of conviction, and may be used to “help determine the . . .
nature of the defendant’s prior conviction.” (People v. Woodell (1998)
17 Cal.4th 448, 451; see People v. Trujillo, supra, at p. 180 [“an appellate
court decision . . . can be relied upon to determine the nature of a prior
conviction because it may disclose the facts upon which the conviction was
based”].) In fact, the Supreme Court called it “one of the most logical sources
to consider” for a number of reasons:
“An opinion that either affirms, reverses, or modifies a conviction is one
of the most logical sources to consider in determining the truth of the prior
conviction allegation. The trial court record alone might be incomplete
because it might not include a later reversal or modification. The appellate
opinion reflects what is in the trial record. Often, it will be more practical to
obtain the opinion than the trial record, especially when the conviction is
old . . . . The record, including transcripts, might be massive . . . .
Additionally, the record might have been destroyed during the many years
that sometimes elapse between the finality of a conviction and its [later]
use . . . . Obtaining the opinion, which reflects the trial record, might be easy,
while obtaining the actual trial record might be impractical or even
impossible.” (People v. Woodell, supra, 17 Cal.4th 448, 456–457.) The court
also stated: “If the appellate court did state the pertinent facts, a trier of fact
is entitled to find that those statements accurately reflect the trial record.”
(Id. at p. 457.)

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Morrison thinks it was improper for Judge Kennedy to have quoted a
Ninth Circuit opinion to establish the facts of the underlying murder. In the
abstract, he might have a point.5 But his petition virtually asked Judge
Kennedy to look at it, thus making it a textbook example of invited error.
Moreover, Morrison does not claim that the Ninth Circuit’s factual narrative
is inaccurate in any detail.
In any event, what was in the record of conviction and what Judge
Kennedy would have had full license to quote—and which, we suspect, was
the basis for the Ninth Circuit’s factual narrative—was this court’s 1976
opinion affirming Morrison’s conviction. (People v. Morrison (Jan. 6, 1976,
1 Crim. No. 13342) [nonpub. opn.].) With minor editorial modifications, we
quote it now:
“On April 21, 1973, Martinez Police Officer Thomas Tarantino stopped
by the side of Highway 4 at 2:35 p.m. to see if a Black male adult, later
identified as the defendant, lying under or near an old blue pickup truck
needed aid. Defendant testified that the driveshaft on his truck broke and he
was removing U-bolts in preparation for installing another driveshaft. A
succession of persons testified [as] to what then happened. [Witness 1] and
[Witness 2] saw the defendant lying on a hillside with the officer either
approaching or bending over him. [Witness 3] observed the defendant and
the officer standing and talking. [Witness 4] and [Witness 5] saw the officer
patting down defendant who was in a spread eagle position. [Witness 6] saw
5 Our Supreme Court’s most considered word on the subject is that the record
on appeal “includes appellate court documents at least up to finality of
judgment,” “but no further.” (People v. Woodell, supra, 17 Cal.4th 448,
455, 456; see People v. Trujillo, supra, 40 Cal.4th 165, 180 [“the court may
look to the entire record of the conviction, ‘but no further.’ ”]) The Ninth
Circuit opinion, Morrison v. Estelle, supra, 981 F.2d 425, affirmed the denial
of habeas corpus long after Morrison’s conviction became final in 1976.

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the officer and defendant struggling with one another. She and another
motorist then saw the officer thrown by the defendant onto the highway and
saw the defendant dragging the officer across the highway and kicking him,
while holding what appeared to be a police service revolver.
“[Witness 7] saw the defendant waving a gun in the air and then
pointing it at the officer’s head. [Witness 8] saw the two men struggling,
heard three shots, and saw the officer fall. [Witness 8] then saw the
defendant with a gun in his hand, saw the officer stand and again struggle
until he fell and another shot was fired. [Witness 9] saw the officer and the
defendant wrestling on the ground, then saw the officer on the ground, with
the defendant standing over him and heard a loud noise. [Witness 10] saw
the two wrestling on the ground and heard what sounded like firecrackers.
[Witness 11] saw the two men wrestling, then saw the defendant with gun in
hand get the officer down on his back and shoot him. None of the witnesses
saw anyone other than the two men at the scene, nor did they see any
motorcycles.
“Two California Highway patrol officers testified. Officer James
Leonard arrested defendant who said, ‘you got it all wrong.’ Officer Kalis
found Officer Tarantino lying on his back with wounds in his head and
stomach and with his holster empty. Officer Tarantino died at the hospital
that afternoon from gunshot wounds.
“[J. K.], defendant’s nephew, testified that he and defendant were
driving on Highway 4 in the pickup truck when the driveshaft dropped and
the coasted to a stop. Two Black males in a Chevrolet El Camino with a
motorcycle in the back stopped to ask directions to a Pittsburg motorcycle
rally and [J. K.] left with them to get help for the disabled truck. [Witness
12] testified that several times during the month, and on the day in question,

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he saw defendant with a small caliber handgun similar in size and shape to a
.22 revolver found in Officer Tarantino’s right front pants pocket. The gun
was wired together with wire similar to that found in defendant‘s truck. In
Tarantino’s shirt pocket was a driver’s license of defendant’s. Tarantino was
shown to have a consistent habit of putting in his right front pants pocket
any evidence taken by him from a person in custody and of putting the
driver’s license of such person in a shirt pocket. Tarantino’s service revolver
was found with blood on it on a hillside at the scene. It contained two unfired
bullets and four cartridge cases. A bullet from Officer Tarantino’s service
revolver was found embedded in the pavement where his head rested.
“Defendant’s story was that on the day in question he had drunk a
considerable quantity of beer and wine and Black Velvet [whiskey]. The
truck broke down and [J. K.] left for help. Sometime after that Officer
Tarantino stopped and asked Morrison what the trouble was. Just as Officer
Tarantino was leaving two Black men on a motorcycle stopped to ask
directions to Pittsburg and a ruckus started. Then the defendant heard
several shots and the two men drove off. The defendant came out from under
the truck and tried to pick up the injured officer. He then ran to the highway
to wave down a car. No one stopped until Officer Leonard arrived. He denied
ever struggling with or shooting Tarantino or holding his service revolver. A
sample of defendant’s blood corresponded to definite drunkenness. An expert
opinion was given that defendant could not have formed an intelligent, logical
or premeditated thought with malice to kill somebody; rather his conduct was
more like a rash impulse to fight. The expert opined that defendant’s story
about the two men on a motorcycle was a combination of ‘things he
remembered, and filling in the things he didn’t. . . . In fact, it is called

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confabulation,’ i.e., ‘[m]aking things up as one goes along to fill in a void in
one’s memory.’ ”
Our opinion throws several salient points into relief. First, although it
was not charged, the jury was instructed on felony murder, the prosecution
theory being that Morrison robbed or attempted to rob Officer Tarantino
prior to his murder.6 Second, Morrison was not an aider or abettor, but the
actual killer, thus putting him outside the reach of SB 1437. (See § 189,
subd. (e) [“A participant in the perpetration or attempted perpetration of a
felony . . .in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer”].) Third, even
allowing for the possible involvement of his nephew, Morrison “was a major
participant in the underlying felony and acted with reckless indifference to
human life.” (Id., subd. (e)(3).) Fourth, and most significant, the victim was
an on-duty peace officer. (Id., subd (f) [“Subdivision (e) does not apply to a
6 We stated in our opinion that “Morrison was indicted by the Contra Costa
County Grand Jury for murder (Pen. Code, § 187), assault with a deadly
weapon on a peace officer (Pen. Code, § 245, subd. (b)), and two counts of
possession of a firearm by a convicted felon (Pen. Code, § 12021). It was also
alleged that Morrison had suffered a prior conviction of voluntary
manslaughter. . . . [¶] . . . After a trial by jury defendant was found guilty of
first degree murder (count 1), of assault with a deadly weapon on a peace
officer (count 2) and of using a deadly weapon in the commission of these two
offenses. Defendant was also found guilty of two counts of possession of a
firearm by a convicted felon (counts 3 and 4) and the alleged prior conviction
was found to be true.”
The fact Morrison was not charged with robbery or attempted robbery did not
preclude liability for felony-murder. (See People v. Bernard (1994)
27 Cal.App.4th 458, 470 [“it was unnecessary for the underlying felonies to
have been charged in order for the prosecution to argue for felony-murder”];
People v. Davis (1995) 10 Cal.4th 463, 514 [“ ‘it is not necessary to separately
charge a defendant with either a felony-murder theory or the underlying
felony,’ ” quoting Bernard].)

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defendant when the victim is a peace officer who was killed while in the
course of his or her duties”].)7
The authorities cited by Morrison do not convince. Quinn v. City of Los
Angeles (2000) 84 Cal.App.4th 472 considered whether there was sufficient
evidence presented to avoid nonsuit; nothing was said about the force of
unchallenged allegations. The court in Gilmore v. Superior Court (1991) 230
Cal.App.3d 416, 418 did state “it would ordinarily be error” to use an
appellate opinion “to establish the truth” “of the facts surrounding the
homicide” (ditto for Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn.
7), but it said nothing about a statutory procedure that intends such opinions
be consulted for the truth of the underlying trial record. And Morrison
misreads In re Taylor, supra, 34 Cal.App.5th 543. There, Division One of this
District concluded that the petitioner was entitled to relief in habeas corpus
to vacate a special circumstance of his felony murder conviction. However, it
declined to vacate the murder conviction itself, concluding “the more efficient
course is for Taylor to seek to overturn his murder conviction by filing a
section 1170.95 petition in the superior court.” (Id. at p. 562.) It is true
Division One summarized the provisions of section 1170.95 with the words
quoted by Morrison, but that language does not amount to a formal
examination of that statute, still less an actual holding that a petitioner has
only to frame allegations for relief in order to achieve automatic entitlement
to counsel and a hearing.
7 To be fair, it is virtually—if implicitly—conceded by Morrison in his petition
that the victim was a police officer. The majority of his petition is devoted
two points from which he has never deviated: (1) Officer Tarantino was
killed by one or both of the motorcyclists, and (2) he received ineffective
assistance of counsel at the trial.

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Judge Kennedy identified two separate and independent grounds of
ineligibility: (1) Morrison was the actual killer, and (2) the victim was an
on-duty police officer. Our review has confirmed both grounds.
We close by again quoting Judge Couzens, because his words could
have been written with this case in mind: “It would be a gross misuse of
judicial resources to require the issuance of an order to show cause or even
appointment of counsel based solely on the allegations of the petition which
frequently are erroneous, when even a cursory review of the court file would
show as a matter of law that the petitioner is not eligible for relief.” We
cannot believe the Legislature intended to permit, still less mandate, such
pointless inefficiency and waste.
DISPOSITION
The order is affirmed.

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_________________________
Richman, Acting P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. Morrison (A156981)

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