P. v. Morton

Filed 3/2/21 P. v. Morton CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
BRUCE MORTON,
Defendant and Appellant.
G059414
(Super. Ct. No. 99CF2224)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Cheri T.
Pham, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
* * *

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In 2002, defendant Bruce Morton was convicted of assault with force likely
to produce great bodily injury resulting in death of child under eight years old (count one;
Pen. Code, § 273ab),1 and murder (count two; § 187).
The trial court sentenced defendant to 25 years to life on count one, and the
sentence on count two was stayed under section 654. Defendant appealed, and this court
affirmed. (People v. Morton (Oct. 7, 2003, G030535) [nonpub. opn.].)
We need not delve deeply into the facts of the case; suffice to say that
defendant was the actual killer of the five-year-old victim, who died of blunt force trauma
to the head. The only other persons present at the time were defendant’s 10-month-old
daughter and an 11-year-old child. (People v. Morton, supra, G030535.)
In August 2020, Morton filed a petition for resentencing under section
1170.95. The petition requested appointment of counsel and stated that “the prosecution
in [Morton’s] case proceeded under the theory of felony murder or under the natural and
probable consequence doctrine, and he could not now be convicted of second degree
murder and/or child assault causing death because of the retroactive changes made to
Penal Code sections 188 and 189.”
The court summarily denied the petition, stating: “The petition does not set
forth a prima face case for relief under the statute. A review of court records indicates
defendant is not eligible for relief under the statute because the defendant does not stand
convicted of murder or defendant’s murder conviction(s) is not based on felony-murder
or on a natural and probable consequences theory of vicarious liability for aiders and
abettors.”
Defendant filed a notice of appeal, and appointed counsel filed a brief
summarizing the case with citations to the record, but counsel raised no arguable issues
1 Subsequent statutory references are to the Penal Code.

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on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental
brief on his own behalf.
Because this is not defendant’s first appeal as a matter of right, we are not
required to independently review the record, but we may conduct such a review in the
interests of justice. (People v. Flores (2020) 54 Cal.App.5th 266, 268.) Here, we have
conducted an independent review of the record and we have found no arguable issues that
require briefing or argument.
The Legislature adopted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB
1437) “to amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f), italics added; see § 189, subd. (e).) SB 1437
therefore amended sections 188 and 189 to limit the natural and probable causes doctrine
and the felony murder rule. (See §§ 188, 189, subd. (e).)
Additionally, SB 1437 enacted section 1170.95. Under subdivision (a) of
section 1170.95, a person convicted of first or second degree murder may petition a trial
court for resentencing “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. [¶] (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 January 1, 2019.”
Defendant’s supplemental brief states that he is eligible for relief because
the jury was instructed on a natural and probable consequences theory of murder. While

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the jury was so instructed, defendant misapprehends the scope of section 1170.95. It
applies only to aiders and abettors, not those who actually committed the murder.
(People v. Cornelius (2020) 44 Cal.App.5th 54, 58.) Based on the record, there is no
doubt that defendant was convicted as the actual killer, not an aider or abettor. Therefore,
he is not entitled to relief under section 1170.95, and the trial court’s decision was correct
as a matter of law.
The judgment is affirmed.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.

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