People v. Morgans CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD132068
- Trial judge
- Lisa R. Rodriguez
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Michele M. Castillo
Analysis
The trial court summarily denied Morgans' petition for resentencing under Penal Code sections 1172.7, 1172.75, and 1172.1, finding he was not eligible for relief under Senate Bill 483 and that the court lacked jurisdiction to act on a direct petition under section 1172.1. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after an independent review of the record pursuant to People v. Wende.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code sections 1172.7 and 1172.75 (Senate Bill 483)“It appears defendant does not qualify for relief under Senate Bill 483, as the sentence in the . . . case[ ] is not currently enhanced by an eligible prison prior pursuant to Penal Code [section] 667.5(b) or an eligible prior drug conviction pursuant to Health & Safety Code [section] 11370.2 and is summarily denied.” | de novo | correct | agree with court The trial court correctly determined that Morgans was ineligible for resentencing under Senate Bill 483 because his sentence was not currently enhanced by an eligible prior. The appellate court affirmed this determination, finding no error in the trial court's application of the statute to the record. |
Denial of petition for resentencing under Penal Code section 1172.1“Penal Code [section] 1172.1 permits the court to recall and resentence a defendant upon the recommendation of the California Department of Corrections and Rehabilitation (CDCR) or the Prosecution. There is nothing in the statute that permits the Defendant to petition the court directly.” | de novo | correct | agree with court The trial court correctly held that it lacked jurisdiction to grant resentencing under section 1172.1 because the statute requires a recommendation from CDCR or the prosecution, and does not allow for a direct petition by the defendant. The appellate court affirmed this ruling. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by the appellate court when appointed counsel files a brief stating no arguable issues for reversal.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to identify any arguable issues and provide the court with a brief when they believe the appeal is frivolous.
The appellate opinion: sound — The opinion is sound because it correctly applies the Wende/Anders framework to review the record for error and affirms the trial court's correct application of the statutory requirements for resentencing under SB 483 and section 1172.1. The court properly identifies that the defendant was ineligible for relief under the cited statutes based on the record.
How this analysis was made · dispute it
unusual dispositionThe trial court summarily denied, without appointing counsel, Kenneth Morgans's 2023 petition for resentencing under Penal Code sections 1172.7, 1172.75, and 1172.1, finding his 25-years-to-life sentence was not currently enhanced by a section 667.5(b) prison prior or Health and Safety Code section 11370.2 prior (the prison priors having been stricken on direct appeal in 2000), that CDCR had not identified him for Senate Bill 483 relief, and that a defendant cannot directly petition under section 1172.1. On appeal, counsel filed a Wende/Anders brief, Morgans 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 |
|---|---|---|---|
Summary denial of petition for resentencing under Penal Code sections 1172.7 and 1172.75 (Senate Bill 483) on the ground the sentence contains no eligible prison prior or drug prior and CDCR did not identify defendant“It appears defendant does not qualify for relief under Senate Bill 483, as the sentence in the . . . case[ ] is not currently enhanced by an eligible prison prior pursuant to Penal Code [section] 667.5(b) or an eligible prior drug conviction pursuant to Health & Safety Code [section] 11370.2” | unclear | correct | agree with court The opinion itself recites that this court in 2000 ordered the stayed section 667.5(b) prison priors stricken, so the current sentence carries no enhancement that Senate Bill 483 invalidates; section 1172.75 relief also runs through CDCR identification rather than a defendant-initiated petition, and published authority (People v. Burgess) holds a trial court lacks jurisdiction over such a freestanding motion. Denial was correct on either ground. |
Summary denial of request for recall and resentencing under Penal Code section 1172.1 for lack of jurisdiction because a defendant cannot petition directly and more than 120 days had passed since sentencing“There is nothing in the statute that permits the Defendant to petition the court directly. As such, this court has no jurisdiction to take any action as more than 120 days have passed since the original sentencing.” | unclear | correct | agree with court Section 1172.1 authorizes recall on the court's own motion within 120 days or on recommendation of CDCR, the Board of Parole Hearings, the district attorney, or the Attorney General; it confers no right on a defendant to initiate the process, consistent with People v. Loper's treatment of the predecessor statute. With the 120-day window long expired in a 1999 case and no agency recommendation, the trial court correctly found it lacked authority to act. |
Summary denial of the petition without appointing counsel“The trial court summarily denied the petition without appointing counsel. The court found Morgans was not eligible for resentencing on this record.” | unclear | correct | agree with court Unlike section 1172.6, neither section 1172.75 nor section 1172.1 creates a defendant-initiated petition procedure with a right to appointed counsel at the threshold stage; where the court lacks jurisdiction over the request and ineligibility is apparent from the record, no counsel is required and any omission could not be prejudicial. The appellate court's implicit approval is defensible, though the opinion does not discuss the point. |
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 error in a first appeal of right.
- 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, to assist the court's independent review.
- missed: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders independent review is not constitutionally required in appeals from postconviction orders such as denials of resentencing petitions; the court must notify the defendant of the right to file a supplemental brief and that the appeal may be dismissed as abandoned if none is filed, but retains discretion to conduct an independent review.
- missed: People v. Burgess (2022) 86 Cal.App.5th 375 — Section 1172.75 does not authorize a defendant to file a freestanding petition for resentencing; relief is triggered by CDCR identification, and the trial court lacks jurisdiction over a defendant's own motion.
The appellate opinion: sound with gaps — The affirmance is plainly right: the stayed prison priors were stricken on direct appeal in 2000, so no Senate Bill 483 enhancement remains, and section 1172.1 gives a defendant no standing to seek recall. But the court conducted a full Wende review of a postconviction order without acknowledging People v. Delgadillo, which holds that procedure is not required in this setting and governs how such appeals should be handled when no supplemental brief is filed, and it did not cite the published authority on defendant-initiated section 1172.75 motions.
Opinion
Filed 10/25/23 P. v. Morgans 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, D082100
Plaintiff and Respondent, v. (Super. Ct. No. SCD132068)
KENNETH MORGANS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 1999, Kenneth Morgans was sentenced to 25 years to life in prison following his conviction for sale of a controlled substance (Health and Saf. Code, § 11352, subd. (a)) with two true findings for strike priors (Pen. Code, § 667, subds. (b)-(i)). Morgans appealed and this court affirmed the conviction but ordered the trial court to strike the stayed prison priors (§ 667.5, subd. (b)). (People v. Morgans (Mar. 10, 2000, D032805).) In 2023, Morgans filed a petition for resentencing under sections 1172.7 and 1172.75. The trial court summarily denied the petition without appointing counsel. The court found Morgans was not eligible for resentencing on this record. The court’s written order stated: “On March 27, 2023, Defendant filed a petition for resentencing pursuant to Penal Code [sections] 1172.7/1172.75 (Senate Bill 483). It appears defendant does not qualify for relief under Senate Bill 483, as the sentence in the . . . case[ ] is not currently enhanced by an eligible prison prior pursuant to Penal Code [section] 667.5(b) or an eligible prior drug conviction pursuant to Health & Safety Code [section] 11370.2 and is summarily denied. . . .
“The court also notes there is no mechanism for the defendant to apply directly for relief, nor for the court to take action on its motion pursuant to Senate Bill 483. Penal Code [sections] 1172.7 and 1172.75 permit resentencing if the California Department of Corrections Rehabilitation (CDCR) identified a person in their custody as currently serving a prison term that includes an eligible prior. CDCR did not identify Defendant as such a person.
“Defendant also seeks resentencing pursuant to Penal Code [section] 1172.1. The request for resentencing on those grounds is also summarily denied. Penal Code [section] 1172.1 permits the court to recall and resentence a defendant upon the recommendation of the California Department of Corrections and Rehabilitation (CDCR) or the Prosecution. There is nothing in the statute that permits the Defendant to petition the court directly. As such, this court has no jurisdiction to take any action as more than 120 days have passed since the original sentencing.
2 “Based on the above, the request for resentencing is summarily denied. . . .”
Morgan filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to independently review the record for error as required by Wende. We offered Morgans the opportunity to file his own brief on appeal, but he has not responded. We discussed the facts of the underlying offense in our earlier opinion. We will not repeat that discussion here. (People v. Morgans, supra, D032805.) DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified two possible issues that were considered in evaluating the potential merits of this appeal: 1. Whether Morgans’ petition stated grounds for relief. 2. Whether the trial court’s decision to deny the petition constituted prejudicial error. We have reviewed the record for error consistent with the directions in Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Morgans on this appeal.
3 DISPOSITION The order denying Morgans’ petition for resentencing is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
CASTILLO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12