People v. Morgan CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF28153, JCF31091
- Trial judges
- William D. Lehman; L. Brooks Anderholt
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court convicted Anthony Ray Morgan of burglary and vehicle theft, sentencing him to six years in prison and a concurrent three-year term. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to People v. Wende, finding no reasonably arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of judgment following Wende review“We have reviewed the entire record and have not discovered any reasonably arguable issues for reversal on appeal.” | de novo | not reached | agree with court The court applied the standard Wende review, examining the entire record for any reasonably arguable issues. It found none, leading to the affirmance. |
Rejection of Morgan's supplemental brief arguments“Unfortunately, there is nothing in the record that would permit us to review his contentions. These issues were not developed in the trial court and Morgan has not cited us to anything in the record.” | unclear | not reached | agree with court The court declined to address Morgan's claims of ineffective assistance and witness untruthfulness because they were not developed in the trial record and he failed to cite specific record evidence. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to identify any reasonably arguable issues and, if none exist, to request the court to review the record independently.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from a case where no arguable issues exist, requiring a brief identifying potential issues and a court review.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Indicates that claims of ineffective assistance of counsel or witness untruthfulness not developed in the trial record may be raised via a petition for habeas corpus.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing a case where counsel finds no arguable issues. It appropriately directs the appellant to habeas corpus for claims not developed in the record, citing the correct authority.
How this analysis was made · dispute it
unusual dispositionIn two Imperial County cases, a jury convicted Anthony Ray Morgan of burglary (Pen. Code, § 459) and he pleaded guilty to felony vehicle taking (Veh. Code, § 10851, subd. (a)); the trial court imposed six years in prison on the burglary and a concurrent three-year term on the vehicle case, with a $550 restitution order. On appeal, appointed counsel filed a Wende/Anders brief identifying three possible issues, Morgan filed a supplemental letter brief alleging ineffective assistance, untruthful witnesses and prosecutorial misconduct, and the Court of Appeal independently reviewed the record, found no arguable issue, directed Morgan to habeas corpus for his record-dependent claims, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction and sentence in both cases (jury verdict for burglary; guilty plea to vehicle taking; six-year term with concurrent three-year term), reviewed under independent Wende review“We have reviewed the entire record and have not discovered any reasonably arguable issues for reversal on appeal.” | unclear | correct | agree with court Where appointed counsel files a no-issue brief, Wende requires the appellate court to independently review the entire record for arguable issues; the court states it did so and found none. Nothing in the recited facts (a victim who recanted identification and reported pressure not to testify) shows legal error on its face, and the court properly recited the facts and the issues considered. The opinion gives no detail, so agreement rests on the court's representation that it reviewed the whole record. |
Admission, without objection, of Officer Magana's testimony that he was very familiar with Morgan from prior police contacts (Anders issue 1)“1. Whether it was error for Officer Magana to testify, without objection, that he was very familiar with Morgan due to prior police contacts?” | unclear | correct | unsure The court listed this as a possible but not arguable issue and did not analyze it. Because no objection was made, any evidentiary claim is forfeited under Evidence Code section 353, and testimony of familiarity with a defendant is commonly admitted as foundation for identification. Without the testimony's content or context in the opinion, I cannot independently confirm there was no prejudicial error. |
Admission, without objection, of the victim's testimony that several people came to his house urging him not to testify (Anders issue 2)“2. Whether it was error to allow the victim to testify, without objection, that several people came to his house to encourage him not to testify in this case?” | unclear | correct | unsure The court identified but did not discuss this issue. The failure to object forfeits the claim, and evidence that a witness was pressured or fears testifying is generally relevant to the witness's credibility, particularly where, as here, the victim recanted his identification at trial. The opinion's lack of analysis leaves me unable to fully verify, so my view is tentative. |
Imposition, without objection, of a $550 restitution order in the vehicle theft case, D065020 (Anders issue 3)“3. Whether in the vehicle theft case, D065020, the court erred in imposing, without objection, a $550 restitution order?” | unclear | correct | unsure The court listed this issue but offered no analysis of the restitution order's basis or amount. Restitution amounts are reviewed for abuse of discretion and an unobjected-to order is generally forfeited absent an unauthorized sentence; the opinion does not state whether this is a restitution fine or victim restitution or how it was computed, so I cannot independently assess it. |
Morgan's supplemental-brief claims of ineffective assistance of counsel, untruthful witnesses, and prosecutorial misconduct by presenting false testimony“It appears that Morgan's remedy, if any, is to file a petition for habeas corpus in the Imperial County Superior Court.” | unclear | not reached | agree with court The court correctly observed that these claims depend on matters outside the appellate record and were not developed below, and correctly cited People v. Mendoza Tello for the rule that ineffective-assistance and similar claims requiring facts outside the record are more appropriately raised by habeas corpus. Witness credibility is for the jury and cannot be reweighed on appeal. The court adequately noted the contentions and why they fail on direct appeal. |
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 arguable issues before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should file a brief referring to anything in the record that might arguably support the appeal, so the court can conduct its own review.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Claims of ineffective assistance of counsel that depend on matters outside the appellate record are more appropriately raised by petition for writ of habeas corpus rather than on direct appeal.
The appellate opinion: sound with gaps — The opinion follows the Wende procedure: it recites the facts, lists the Anders issues identified by counsel, addresses the defendant's supplemental brief, cites the correct authority for routing record-dependent claims to habeas, and states that the full record was independently reviewed. It offers no reasoning on the three identified evidentiary and restitution issues, which is typical of Wende affirmances but leaves gaps a reader cannot independently check.
Opinion
Filed 9/19/14 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, D065020, D065197
Plaintiff and Respondent, v. (Super. Ct. No. JCF28153, JCF31091) ANTHONY RAY MORGAN, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, L. Brooks Anderholt and William D. Lehman, Judges. Affirmed.
Amanda Fates, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Anthony Ray Morgan of burglary (Pen. Code, § 459) in case No.
D065197. In case No. D065020, Morgan entered a guilty plea to felony taking of a vehicle (Veh. Code, § 10851, subd. (a)). The court sentenced Morgan to six years in prison in case No. D065197 and to a concurrent three-year term for case No. D065020. Morgan filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating she is unable to present a reasonably arguable issue for reversal on appeal and asks this court to review the record for error as required by Wende. As required by Anders v. California (1967) 386 U.S. 738 (Anders) counsel has indentified three possible, but not reasonably arguable issues for our consideration.
We offered Morgan the opportunity to file his own brief on appeal and he has responded with a letter brief. We will address Morgan's brief separately below.
STATEMENT OF FACTS
In the burglary case, D065197, the victim came home on March 30, 2013, and discovered his home had been entered. He saw a woman outside and a man inside.
When he approached, the man and the woman fled.
That evening the victim gave a description of the male suspect. About one month later the victim was arrested and found himself in custody with Morgan. The victim was afraid. After he was released from custody the victim was visited by several people who urged him not to testify.
The victim testified he was under the influence of drugs at the time of the burglary. He testified he thought Morgan was not the burglar.
2 DISCUSSION
As we have noted appellate counsel has indicated she is unable to discover any reasonably arguable issue for reversal on appeal. Thus, counsel asks this court to review the record as required by Wende, supra, 25 Cal.3d 436. In accordance with Anders, supra, 386 U.S. 738, counsel has identified the following possible, but not arguable issues for our consideration:
1. Whether it was error for Officer Magana to testify, without objection, that he was very familiar with Morgan due to prior police contacts?
2. Whether it was error to allow the victim to testify, without objection, that several people came to his house to encourage him not to testify in this case?
3. Whether in the vehicle theft case, D065020, the court erred in imposing, without objection, a $550 restitution order?
As we have noted, Morgan has filed his own supplemental brief. In that brief Morgan essentially argues his counsel was ineffective, the witnesses were not truthful, and the prosecutor committed misconduct by presenting false testimony. Unfortunately, there is nothing in the record that would permit us to review his contentions. These issues were not developed in the trial court and Morgan has not cited us to anything in the record.
It appears that Morgan's remedy, if any, is to file a petition for habeas corpus in the Imperial County Superior Court. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
3 We have reviewed the entire record and have not discovered any reasonably arguable issues for reversal on appeal. Morgan has been represented by competent counsel on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
Cites, in this corpus
- People v. Mendoza Tello S055184 · 1997-04-17
- People v. Wende Crim. 20851 · 1979-10-12