People v. Morgan CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN169417
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Alex C. McDonald (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court granted Morgan's petition for resentencing under the Three Strikes Reform Act of 2012, recalling his 25-years-to-life sentence and imposing a new eight-year term based on the upper term of the underlying conviction. The Court of Appeal affirmed the judgment after a Wende review found no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Resentencing to the upper term of the underlying conviction (doubled under the Three Strikes Law) rather than the middle term.“the trial court relied when it rejected his argument in favor of imposing the middle term for the underlying offense and instead selected the upper term as the basis for the new sentence.” | abuse of discretion | not reached | agree with court agree with court |
Failure to dismiss all prior strike convictions.“Counsel identifies, as possible issues, whether the trial court abused its discretion by failing to dismiss all of Morgan's prior strike convictions.” | abuse of discretion | not reached | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by the appellate court when appointed counsel files a Wende brief identifying no issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and the court to review the record for error.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record when counsel identifies no issues. However, it is a 'sound with gaps' opinion because it fails to address the specific legal arguments regarding the selection of the upper term or the dismissal of strikes, relying solely on the absence of a brief.
How this analysis was made · dispute it
unusual dispositionThe trial court granted Morgan's Penal Code section 1170.126 petition, recalled his 25-years-to-life sentence, and resentenced him to the upper term doubled under the three strikes law for a total of eight years, declining to dismiss all of his prior strike convictions. On appeal, appointed counsel filed a Wende brief, Morgan filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Resentencing under section 1170.126 to the upper term, doubled under the three strikes law, without dismissing all prior strike convictions“Counsel identifies, as possible issues, whether the trial court abused its discretion by failing to dismiss all of Morgan's prior strike convictions.” | abuse of discretion | correct | unsure The opinion notes the trial court relied on Morgan's lengthy criminal history to select the upper term and to retain at least one strike for doubling; a Wende review found no arguable issue. Given the sparse recitation, the result appears defensible, but the opinion provides too little of the record to independently verify the exercise of discretion. |
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.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may file a brief referring to anything in the record that might arguably support the appeal, and the court must then review the record.
The appellate opinion: sound with gaps — The court followed the required Wende/Anders procedure, invited a supplemental brief, and independently reviewed the record before affirming, which is the correct disposition when no arguable issue exists. The opinion is brief and does not discuss the substance of the strike-dismissal or upper-term issue, leaving the reader unable to evaluate the trial court's reasoning in detail.
How this analysis was made · dispute it
record incompleteOpinion
Filed 3/18/16 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, D068799
Plaintiff and Respondent, v. (Super. Ct. No. SCN169417)
LEONAN MORGAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2004, Leonan Morgan was convicted in San Diego County case No. SCN169417 of inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a))1 and, based on true findings on numerous prior strike convictions within the meaning of section 1170.12, he was sentenced to 25 years to life.
Morgan petitioned for resentencing under section 1170.126. The court granted the petition, recalled Morgan's sentence, and decided to resentence Morgan to the upper term for his conviction, which it doubled under the three strikes law, for a total term of eight years.
Morgan filed a notice of appeal. We affirm the judgment.
FACTS
Morgan had a lengthy criminal history before committing the instant offense, on which the trial court relied when it rejected his argument in favor of imposing the middle term for the underlying offense and instead selected the upper term as the basis for the new sentence.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel identifies, as possible issues, whether the trial court abused its discretion by failing to dismiss all of Morgan's prior strike convictions.
1 Statutory references are to the Penal Code unless otherwise specified.
2 We granted Morgan permission to file a supplemental brief on his own behalf, but he has not responded. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Morgan has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12