People v. Morgan CA4/1

California Court of Appeal · D063442 · 2013-11-01 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCD132068
Trial judge: David J. Danielsen
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Cynthia Aaron (author), Alex C. McDonald, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:48Z · confidence high

The trial court denied Morgan's petition to recall his sentence under Penal Code section 1170.126, determining he was ineligible for resentencing due to a prior conviction for rape in concert with force and violence. The Court of Appeal affirmed the denial, finding no reasonably arguable error on independent review.

Ruling reviewed	Standard	The court	The model
Denial of petition for recall of sentence under Penal Code section 1170.126 “The trial court denied the petition on the ground that Morgan had suffered a conviction for rape in concert with force and violence (§ 264.1), and thus was not eligible for resentencing pursuant to section 1170.126, subdivision (e)(3).”	de novo	correct	agree with court The appellate court correctly applied the statutory text of Penal Code section 1170.126, subdivision (e)(3), which explicitly excludes individuals with prior convictions for sexually violent offenses (including those under Welfare and Institutions Code section 6600, subdivision (b), which lists Penal Code section 264.1) from eligibility for resentencing. Since Morgan had a prior conviction for rape in concert with force and violence, the trial court was correct to deny the petition as a matter of law.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the standard for appointed appellate counsel to conduct an independent review of the record for error when no arguable issues are presented.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to identify potentially meritorious issues and file a brief even when no arguable issues exist, allowing the court to conduct an independent review.
relied: People v. Leggett (2013) 219 Cal.App.4th 846 — Holds that an order denying a petition for recall of sentence under section 1170.126 is appealable because it affects the substantial rights of the party.

The appellate opinion: sound — The opinion is sound because it correctly applies the statutory eligibility requirements of Penal Code section 1170.126, subdivision (e)(3), which clearly disqualifies Morgan based on his prior conviction for a sexually violent offense. The court appropriately relied on People v. Leggett to establish the appealability of the order and conducted the required independent review under Wende and Anders.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The San Diego Superior Court denied Kenneth Morgan's Penal Code section 1170.126 petition to recall his 25-years-to-life Three Strikes sentence, finding him ineligible under subdivision (e)(3) because of a 1989 prior conviction for rape in concert with force and violence (§ 264.1), a 'sexually violent offense' under Welfare and Institutions Code section 6600(b). On appeal, appointed counsel filed a Wende brief, Morgan filed a supplemental brief arguing he poses no current danger, and the Court of Appeal, after holding the order appealable under Leggett and independently reviewing the record, found no arguable issue and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of section 1170.126 petition for recall of sentence on the ground that Morgan's prior section 264.1 conviction (rape in concert with force and violence) is a sexually violent offense that renders him ineligible for resentencing under subdivision (e)(3). “The trial court denied the petition on the ground that Morgan was ineligible for resentencing under section 1170.126, subdivision (e)(3) because he had suffered a conviction for rape in concert with force and violence (§ 264.1).”	unclear	correct	agree with court The court did not articulate a standard of review, instead conducting independent Wende/Anders review of the record. The statutory chain is straightforward and quoted in the opinion: section 1170.126(e)(3) disqualifies inmates with a prior conviction listed in section 1170.12(c)(2)(C)(iv), clause (I) of which incorporates 'sexually violent offenses' under Welfare and Institutions Code section 6600(b), and that section expressly lists a felony violation of section 264.1 committed by force or violence. The 1998 jury found the section 264.1 strike true, so the ineligibility finding follows directly from the statutory text.
Rejection of Morgan's supplemental-brief contention that he was entitled to resentencing because his commitment offense was non-serious and non-violent and he poses no current threat to public safety. “it was not within the trial court's discretion to resentence him, regardless of whether he currently poses a threat to public safety.”	unclear	correct	agree with court Section 1170.126 distinguishes between inmates authorized to file a petition under subdivision (b) and the narrower subclass eligible for resentencing under subdivision (e); the dangerousness inquiry in subdivision (f) arises only for eligible petitioners. Because Morgan was categorically excluded by subdivision (e)(3), the trial court had no discretion to reach dangerousness, and the court's reading of the statute's structure (explained in footnote 4) is correct.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error before affirming.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and file a brief identifying anything in the record that might arguably support the appeal.
relied: People v. Leggett (2013) 219 Cal.App.4th 846 — An order denying a section 1170.126 petition filed by an inmate authorized to petition under subdivision (b) affects a substantial right and is appealable under section 1237, subdivision (b).

The appellate opinion: sound — The opinion correctly traces the statutory path from section 1170.126(e)(3) through section 1170.12(c)(2)(C)(iv)(I) to Welfare and Institutions Code section 6600(b), which expressly names section 264.1, and properly explains why the dangerousness inquiry never arises for a categorically ineligible petitioner. It also sensibly addressed the then-unsettled appealability question by following Leggett while acknowledging the pending Supreme Court review in Teal and Hurtado, and it complied with Wende and Anders by considering both counsel's and Morgan's suggested issues.

How this analysis was made · dispute it

Opinion

Filed 11/1/13 P. v. Morgan CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063442

Plaintiff and Respondent, v. (Super. Ct. No. SCD132068)

KENNETH MORGAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent. I.

INTRODUCTION

Kenneth Morgan filed a petition for a recall of his sentence in the trial court, pursuant to Penal Code section 1170.126.1 Section 1170.126, subdivision (b) provides that a person serving an indeterminate term of life imprisonment under the "Three Strikes" law for a conviction based on "a felony or felonies that are not defined as serious and/or violent felonies . . . may file a petition for a recall of sentence . . . ."

The trial court denied the petition on the ground that Morgan had suffered a conviction for rape in concert with force and violence (§ 264.1), and thus was not eligible for resentencing pursuant to section 1170.126, subdivision (e)(3).2 1 Unless otherwise specified, all subsequent statutory references are to the Penal Code. Morgan referred to his petition as a "Motion for sentence reduction pursuant to Proposition 36." Section 1170.126 was enacted as part of Proposition 36, the Three Strikes Reform Act of 2012. (Prop. 36, § 6, approved Nov. 6, 2012, eff. Nov. 7, 2012).

2 Section 1170.126, subdivision (e) provides in relevant part: "An inmate is eligible for resentencing if: [¶] . . . [¶] (3) The inmate has no prior convictions for any of the offenses appearing in . . . clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12." Section 1170.12, subdivision (c)(2)(C)(iv)(I) provides: "A 'sexually violent offense' as defined by subdivision (b) of Section 6600 of the Welfare and Institutions Code." Welfare and Institutions Code section 6600, subdivision (b) provides in relevant part: " 'Sexually violent offense' means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, . . . and result in a conviction . . . : a felony violation of Section . . . 264.1."

2 Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Morgan filed a supplemental brief seeking reversal.

After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, a jury found Morgan guilty of selling a narcotic substance (Health & Saf.

Code, § 11352, subd. (a)) (count 1) and possession of marijuana (Health & Saf. Code, § 11357, subd. (b) (count 2). The jury also found true that Morgan had suffered three prior strike convictions, including a 1989 conviction for rape in concert with force and violence (§ 264.1). The trial court sentenced Morgan under the Three Strikes law to a term of 25 years to life in prison.

In December 2012, Morgan filed a petition pursuant to section 1170.126 to recall his sentence. The trial court denied the petition on the ground that Morgan was ineligible for resentencing under section 1170.126, subdivision (e)(3) because he had suffered a conviction for rape in concert with force and violence (§ 264.1).

Morgan appeals.3 3 "The Supreme Court has granted review in cases that concern the appealability of the trial court's order on a postjudgment petition pursuant to section 1170.126. (See, e.g., Teal v. Superior Court (2013) 158 Cal.Rptr.3d 446, review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, 3 III.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.

Pursuant to Anders, supra, 386 U.S. 738, counsel identified as possible, but not arguable, issues:

"Whether the superior court's finding that appellant has a prior conviction for rape in concert with force and violence in violation of . . . section 264.1 is correct. . . .

"Whether appellant's prior conviction for rape in concert with force and violence in violation of . . . section 264.1 disqualifies him from S212017 [review granted with hold pending consideration of Teal].)" (People v. Leggett (2013) 219 Cal.App.4th 846, 849, fn. 2 (Leggett).) As noted by the Leggett court, section 1170.126, subdivision (b) permits those "individuals serving indeterminate sentences under the [T]hree [S]trikes law whose current conviction is not based on a serious or violent felony" (Leggett, supra, 219 Cal.App.4th at p. 851) to file a petition for a recall of sentence. We agree with the Leggett court that the statute creates a substantial right in such individuals, and that such individuals may properly appeal from an order denying such a petition. (Id. at p. 853; see § 1237, subd. (b) [providing criminal defendant may take an appeal "[f]rom any order made after judgment, affecting the substantial rights of the party"].) Because Morgan was serving an indeterminate life sentence under the Three Strikes law and his current conviction is not a serious or violent felony, he was authorized to file a petition for a recall of sentence, and to appeal from the denial of his petition. (Leggett, supra, at p. 853.) We need not decide in this appeal whether individuals who are not authorized to file a petition for recall of sentence under section 1170.126, subdivision (b) may nevertheless appeal a denial of their petitions. (See People v. Wortham (2013) ___Cal.App.4th ___[2013 Cal.App. LEXIS 859 at *7] [concluding that petitioner who was not authorized to file a petition for recall of sentence because his commitment offense was a serious felony could nevertheless appeal a denial of his petition because the "trial court's initial eligibility determination . . . implicates a petitioner's substantial rights"].) 4 relief under . . . section 1170.126 because it is a sexually violent offense. . . . "

After this court received counsel's brief, we gave Morgan an opportunity to file a supplemental brief. Morgan filed a supplemental brief in which he contends that he was entitled to a recall of his sentence under section 1170.126 because he was sentenced to an indeterminate life sentence for a non-serious and non-violent crime and he does not currently pose a threat to public safety. Morgan does not contend that the trial court erred in concluding that he is ineligible for resentencing pursuant to section 1170.126, subdivision (e)(3).4 In light of the fact that Morgan was ineligible for resentencing under section 1170.126, subdivision (e) because of his prior conviction for rape in concert with force and violence (§ 264.1) (see fn. 2, ante), it was not within the trial court's discretion to resentence him, regardless of whether he currently poses a threat to public safety.

A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel and by Morgan, has disclosed no reasonably arguable appellate issue. Morgan has been adequately represented by counsel on this appeal.

4 Although individuals serving indeterminate life sentences under the Three Strikes law whose current conviction is not based on a serious or violent felony may file a petition for recall under section 1170.126, subdivision (b)), only certain individuals who are authorized to file such petitions are also eligible for resentencing under section 1170.126, subdivision (e). Stated differently, the statute creates a class of persons authorized to file petitions for recall of sentence (id, subd. (b)) and a subclass of persons who are eligible for resentencing pursuant to such petitions (id., subd. (e)). 5 IV.

DISPOSITION

The order denying the petition to recall sentence is affirmed.

AARON, J.

WE CONCUR:

McDONALD, Acting P. J.

IRION, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12