P. v. Morgan
Filed 1/14/13 P.
v. Morgan CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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,
Plaintiff and Respondent,
v.
CARL GREEN
MORGAN,
Defendant and Appellant.
D061751
(Super. Ct. No.
SCD237774)
APPEAL
from a judgment of the Superior Court of
County, Peter L. Gallagher, Judge. Affirmed.
Carl
Green Morgan entered a negotiated guilty plea to one count of
Saf. Code, § 11377, subd. (a)) and admitted having one prior serious/violent
felony or strike conviction (Pen. Code,
§ 667, subds. (b)-(i)). As part of
the plea bargain, the prosecution agreed to dismiss 10 other felony counts,
four misdemeanor counts and two allegations of serving a prior prison term
(§ 667.5,
subd. (b).
Morgan, who represented himself below, and the prosecution also agreed
to a stipulated sentence of 32 months in prison. The trial court sentenced Morgan in
accordance with the plea bargain─the middle term of 16 months
doubled under the "Three Strikes" law. The trial court awarded Morgan 186 days of
custody credit.
title="">[2]
FACTS
On
November 26,
2011, Morgan had a useable amount of
methamphetamine in his possession.
DISCUSSION
Appointed
appellate counsel has filed a brief setting forth evidence in the superior
court. Counsel presents no argument for
reversal, but asks that this court review the record for error as mandated by
v. Wende (1979) 25 Cal.3d 436 (Wende). Appellant counsel has not referred to any
arguable issues pursuant to Anders v.
California (1967) 386 U.S. 738.
We granted Morgan permission to file
a brief on his own behalf. He has
responded, claiming he was improperly sentenced under the Three Strikes law and
his appointed appellate counsel provided ineffective
assistance of counsel.
Pointing out that in his prior
conviction for residential burglary (People
v. Morgan (Super. Ct. San Diego County, 2003, No. 173979).), he was
granted probation with a condition of jail custody,
Morgan contends the prior conviction was a wobbler (see § 17), and,
therefore, the trial court improperly doubled his sentence for methamphetamine
possession under the Three Strikes law in this case. The contention is without
merit.
Burglary of an inhabited residence
is first degree burglary. (§ 460,
subd. (a).) First degree burglary is a
straight felony; it is not a wobbler.
(§ 461, subd. (a) (
Cal.App.4th 1092, 1096, disapproved on another ground in In re Manzy W. (1997) 14 Cal.4th 1199, 1207, fn. 5.) Because residential burglary is a straight
felony—and is not a wobbler—it cannot be reduced under section 17, subdivison
(b), to a misdemeanor. (
812-813.) Morgan's attempt to recast his
residential burglary conviction as a wobbler because the court granted him
probation on condition he serve one year in jail is unavailing. Not only does Morgan ignore that the one-year
term was a condition of probation, which can be imposed for a straight felony,
he wants us to rewrite the statutory scheme, which we cannot do. His reliance on the provisions of subdivision
(b) of section 17 is misplaced because those portions of the statute apply only
to wobblers.
Moreover, the Three Strikes law
provides that "[t]he determination of whether a prior conviction is a
prior felony conviction for purposes of [the Three Strikes law] shall be made
upon the date of that prior conviction and is not affected by the sentence
imposed unless the sentence automatically,
upon the initial sentencing, converts the felony to a
misdemeanor." (§§ 667, subd.
(d)(1), 1170.12, subd. (b)(1), italics added.)
Therefore,
the fact that a disposition results in "[t]he suspension of imposition of
judgment or sentence" does not affect the conviction's validity as a
strike. (§§ 667, subd. (d)(1)(A),
1170.12, subd. (b)(1)(A).)
Morgan
is also precluded from challenging the doubling of his sentence for
methamphetamine possession under the Three Strikes law because in this case he
waived the right to appeal any "issues related to strike
priors." Also, because the trial
court denied Morgan's request for a certificate of probable cause, section 1237.5
precludes him from appealing the validity of the plea, including the admission
of the strike allegation. (See
83-84.)
In
sum, Morgan has not demonstrated that he was improperly sentenced under the
Three Strikes law or that he received an unauthorized sentence.
Morgan
contends he received ineffective assistance of counsel from his appointed
appellant counsel because counsel filed a Wende
brief. The contention is without merit.
An
indigent defendant has the right to effective assistance of counsel on
appeal. (In re Spears (1984) 157 Cal.App.3d 1203, 1210.) "The duties which appointed appellate
counsel must fulfill to meet his or her obligations as a competent advocate
include the duty to 'argue all issues that are arguable.' " (Ibid.) "[F]or an issue to be an arguable issue
on appeal it must be reasonably arguable that there is prejudicial error
justifying reversal or modification of judgment." (Id.
at p. 1211.) "[I]t is not the
duty of appellate counsel to 'contrive arguable issues.' " (Ibid.) Here, appellate counsel appropriately found
no arguable issues.
At
the very least, appellate counsel has the duty to prepare a brief containing
citations to the appellate record and appropriate authority. (People
v. Feggans (1967) 67 Cal.2d 444, 447.)
Counsel must set forth all arguable issues and cannot argue the case
against his or her client. (
These requirements were reiterated in Wende, supra, 25 Cal.3d
at p. 436.)
Failure
of "appellate counsel to raise crucial assignments of error, which
arguably might have resulted in a reversal" deprives an appellant of
effective assistance of appellate counsel.
(In re Smith (1970)
3 Cal.3d 192, 202-203.) However,
the fact that appellate counsel followed the procedure set forth in
show appellate counsel has been ineffective.
We
have undertaken an examination of the entire record pursuant to
that would result in a disposition more favorable to defendant. Accordingly, defendant has also failed to
meet his burden of proof on the issue of ineffective assistance of appellate
counsel. Appellate counsel has complied
fully with counsel's responsibilities. and the filing of a Wende brief was not
unprofessional. (Smith v. Robbins (2000) 528 U.S. 259, 278–284; Wende, supra, 25 Cal.3d
at p. 443.) Competent counsel
has represented Morgan on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] Further statutory
references are to the Penal Code.
name="_ftn2" title="">[2] In a post-judgment
motion, appointed appellate counsel successfully moved to correct Morgan's
presentence custody credits. The trial
court awarded Morgan an additional 62 days of custody credits for a total of
248 days of presentence custody credit.
