People v. Morman CA2/5

Opinion

Filed 8/21/26 P. v. Morman CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B346490

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA030296) v.

WADE ANTHONY MORMAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Hector M. Guzman, Judge. Affirmed.

Jennifer Peabody and Richard B. Lennon, under appointments by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jonathan M. Krauss and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

****** In 1997, Wade Anthony Morman (defendant) was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2)),1 robbery (§ 211), forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)), penetration by a foreign object (§ 289, subd. (a)), and being a felon in possession of a firearm (former § 12021, subd. (a)). He was sentenced to 116 years and 8 months in prison, which was later reduced to 100 years and 4 months. In 2025, the trial court conducted a full resentencing pursuant to section 1172.75,2 struck the one-year prior prison term enhancement (§ 667.5, subd. (b)), and otherwise reimposed a sentence of 99 years and 4 months, which included five counts based on a high-term base sentence. On appeal, defendant argues that the court erred in imposing those high-term base sentences without a jury finding or admission to aggravating factors. Because those high-term base sentences were all previously imposed, we conclude there was no error and affirm.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Effective June 30, 2022, section 1171.1 was renumbered to section 1172.75, with no substantive change. (Stats. 2022, ch. 58, § 12; People v. Burgess (2022) 86 Cal.App.5th 375, 378, fn. 2.) For simplicity, we refer to the section by its current numbering.

2 FACTS AND PROCEDURAL BACKGROUND I. Underlying Crimes In September 1996, Amy B. arrived home from work to an empty apartment in Redondo Beach. Before Amy got home, defendant had climbed a tree to enter the apartment; he brought a knife, a gun, and petroleum jelly. Defendant grabbed Amy from behind and threatened to kill her with the weapons he brought. He demanded money. Then he threw her to the ground, fondled her and kissed her. He moved her to the bedroom, where he removed her clothing, orally copulated her, digitally penetrated her and then raped her. Amy escaped out the window when defendant diverted his attention to rummaging through her purse. Amy alerted neighbors, who saw defendant leaving the apartment. Defendant tried to fire his gun at them, but it did not go off. The neighbors wrestled defendant to the ground, pinning him until the police arrived. II. Charges, Conviction and Sentencing As pertinent here, the People charged defendant with (1) first degree robbery (§ 211); (2) forcible oral copulation (§ 288a, subd. (c)); (3) penetration by a foreign object (§ 289, subd. (a)); (4) two counts of forcible rape (§ 261, subd. (a)(2)); (5) two counts of assault with a firearm (as against the neighbors) (§ 245, subd. (a)(2)); and (6) being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The People further alleged that defendant’s 1992 conviction for first degree burglary (§ 459) constituted a “strike” within the meaning of our Three Strikes Law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)), a prior serious felony (§ 667, subd. (a)), and a conviction for which he served a prior prison term (§ 667.5, subd. (b)). The People additionally alleged that defendant personally used a firearm or deadly weapon as to 3 all counts but the felon in possession count (§§ 12022.3, subd. (b), 12022.5, subd. (a)). A jury convicted defendant of all counts, found all enhancements true (except for the personal use of a firearm enhancement as to the robbery count), and found all prior convictions true. The trial court sentenced defendant to an aggregate term of 116 years and 8 months. III. Direct Appeal On direct appeal from the judgment, this court affirmed the convictions but modified defendant’s sentence to impose 100 years and 4 months (because the trial court had incorrectly doubled the sentences for the firearm enhancements). (People v. Morman (May 7, 1999, B120749) [nonpub. opn.].) As corrected, the total sentence rested on the following calculations: -- For one of the assault with a firearm counts, the court imposed a prison sentence of 18 years, comprised of a base term of eight years (a high-end term of four years, doubled due to the prior strike), plus 10 years for the firearm enhancement. -- For the other assault with a firearm court, the court imposed a consecutive sentence of three years and four months, comprised of a base term of two years (calculated as one-third of the midterm sentence of three years, doubled due to the prior strike) plus one year and four months for the firearm enhancement (calculated as one-third of the midterm sentence of four years). -- For the robbery count, the court imposed a consecutive sentence of two years and eight months, comprised of a base term calculated as one-third of the midterm sentence of four years, doubled due to the prior strike.

4 -- For the felon in possession count, the court imposed a consecutive sentence of one year and four months, comprised of a base term calculated as one-third of the midterm sentence of two years, doubled due to the prior strike. -- For one of the rape counts, the court invoked the One Strike Law (§ 667.61) to impose a consecutive prison sentence of 21 years, comprised of a base term of 16 years (a high-end term of eight years, doubled due to the prior strike), plus five years for the firearm enhancement. -- For the forcible oral copulation count, the court invoked the One Strike Law to impose a consecutive prison sentence of 16 years, comprised of a base term calculated as a high-term of eight years, doubled due to the prior strike. (The court stayed the firearm enhancement.) -- For the penetration count, the court invoked the One Strike Law to impose a consecutive prison sentence of 16 years, comprised of a base term calculated as a high-term of eight years, double due to the prior strike. (The court stayed the firearm enhancement.) -- For the second rape count, the court invoked the One Strike Law to impose a consecutive prison sentence of 16 years, comprised of a base term calculated as a high-term of eight years, double due to the prior strike. (The court stayed the firearm enhancement.) -- The court imposed a consecutive five-year enhancement for the prior serious felony conviction. -- The court imposed a consecutive one-year enhancement for having served a prior prison term.

5 IV. The Resentencing Proceedings In late 2023, the California Department of Corrections and Rehabilitation (CDCR) identified defendant as an individual potentially eligible for resentencing.3 On December 14, 2023, the trial court convened a hearing, at which it struck the one-year prior prison term enhancement but put the matter over for a full resentencing. In October 2024, defendant, through counsel, filed a petition requesting a full resentencing on several grounds pursuant to section 1172.75, including requests, as pertinent here, (1) to impose only mid-term sentences because there were no jury findings or admissions by the defendant to support any aggravating factors, (2) to strike some or all of the sentencing enhancements under section 1385, and (3) to run the robbery and felon-in-possession counts concurrently (rather than consecutively). In December 2024, the People filed an opposition to any further change in sentence beyond the striking of the one-year prior prison term enhancement. On March 26, 2025, the trial court convened a resentencing hearing. The victim appeared to give an impact statement. The court noted that it was “difficult . . . to imagine a more aggravated, more callous, and/or more serious offense than what was portrayed during the trial itself” and that defendant “is a dangerous individual” whose crimes against the victim “deserve 3 Although the record on appeal does not include any document from the CDCR, we infer the CDCR’s action from the undisputed presence of enhancements eligible for dismissal under section 1172.75 as well as the trial court’s unbidden setting of the matter for “judicial action” and appointment of counsel.

6 the most significant of punishments.” The court proceeded to reimpose the same sentence as before less the one-year prior prison term enhancement—yielding a sentence of 99 years and 4 months; the sentence was based on the calculations set forth above. V. Appeal Defendant timely appealed from his resentencing. DISCUSSION Enacted as part of Senate Bill No. 483, section 1172.75 declares “legally invalid” all one-year sentencing enhancements for serving a prior prison term except when the prior prison term was served for a “sexually violent offense.” (§ 1172.75, subd. (a); Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.) Once CDCR identifies a defendant as eligible for relief under this provision (§ 1172.75, subd. (b)), that defendant is entitled to a full resentencing at which time the court can reconsider all sentencing decisions under the law in effect at the time of resentencing. (§ 1172.75, subd. (d)(1)-(2); see also People v. Espino (2024) 104 Cal.App.5th 188, 193, 195, review granted Oct. 23, 2024, S286987; People v. Green (2024) 104 Cal.App.5th 365, 373.) We generally review sentencing decisions for an abuse of discretion (People v. Moseley (2024) 105 Cal.App.5th 870, 874), but review subsidiary factual findings for substantial evidence (People v. Jones (2002) 103 Cal.App.4th 1139, 1143), and subsidiary questions of statutory interpretation de novo (People v. Terwilligar (2025) 109 Cal.App.5th 585, 595). In this appeal, defendant confines his attack on the resentencing to the claim that the trial court erred in re-imposing the high-term sentences (rather than the mid-term sentences) on 7 one of the assault with a firearm counts, the two rape counts, the oral copulation count, and the penetration count. Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b), to make the middle term the presumptive determinate sentence. (People v. Lynch (2024) 16 Cal.5th 730, 742.) Section 1172.75 acknowledges that, during a resentencing pursuant to its provisions, a “court may not impose a sentence exceeding the middle term unless” the “circumstances in aggravation that justify the imposition” of the upper term are either “stipulated to by the defendant” or “found true beyond a reasonable doubt . . . by the jury.” (§ 1172.75, subd. (d)(4).) However, section 1172.75 explicitly declines to apply this rule when “the [trial] court originally imposed the upper term.” (§ 1172.75, subd. (d)(4); People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 466-467; People v. Mathis (2025) 111 Cal.App.5th 359, 371-374, review granted Aug. 13, 2025, S291628; but see People v. Gonzalez (2024) 107 Cal.App.5th 312, 328-329 [disagreeing with Brannon-Thompson].) Although the viability of Brannon-Thompson and its progeny is currently pending before our Supreme Court (see People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903), we in the interim find it to be persuasive. Defendant urges that he is entitled to relief regardless of what happens in Eaton because the trial court here did not cite or rely upon section 1172.75, subdivision (d)(4) to justify its high- end sentences, and instead seemed to rely on the People’s recitation of aggravating factors. Because we are reviewing the court’s ruling and not its reasoning, and because the trial court’s comments at the resentencing hearing in no way alter the fact that the court was imposing the previously imposed upper term 8 sentence, the court did not run afoul of section 1172.75, subdivision (d)(4). DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, P. J. HOFFSTADT We concur:

_________________________, J. BAKER _________________________, J. MOOR