Filed 10/3/12 P. v. Morgan CA5
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IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LAWRENCE BUFORD MORGAN, JR.,
Defendant and
Appellant.
F062529
(Super.
Ct. No. 1255077)
THE
COURT
title="">*
APPEAL from a judgment of the
Superior Court of
County. John D. Freeland, Judge.
Donn Ginoza, under appointment by
the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney
General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo
Appellant,
Lawrence Buford Morgan, Jr., pled no contest to
1/Pen. Code, §§ 664 & 187, subd. (a)),
subd. (a)), and assault with a deadly weapon on a peace officer (count 5/§ 245,
subd. (c)). Morgan also admitted a prior
prison term enhancement (§ 667.5, subd. (b)), a serious felony enhancement (§
667, subd. (a)), an allegation in count 1 that the attempted murder was
premeditated, and allegations that he had a prior conviction within the meaning
of the three strikes law (§ 667, subds. (b)-(i)).
On April
26, 2011, the trial court sentenced Morgan to a “total commitment,
[determinate] and [indeterminate], [of] 25 years, four months to life.â€
On December 5, 2011, Morgan’s
appellate counsel filed a brief which raised no issues and asked this court to
independently review the record. (
Morgan did not respond to this court’s invitation to submit additional
briefing. However, on July 9, 2012,
Morgan’s appellate attorney filed a supplemental brief in response to a letter
from this court authorizing the parties to file a brief addressing the sentencing
issues discussed below and several apparent errors in Morgan’s abstracts of
judgment.
Following independent review of the
record, we will remand the matter to the trial court for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
On December
24, 2008, Dennis Jenkins went to Beard Brook Park in Modesto looking for a
sexual encounter with another man and saw Morgan having sex with a man. After Morgan and the man were finished,
Morgan walked by Jenkins and asked him if he had a place to go. Jenkins replied that he did and drove Morgan
to his house.
After the men had sex, Morgan said
he was going to get a beer from his backpack.
Instead, Morgan got a pistol from the backpack and demanded that Jenkins
give him his money. Jenkins told Morgan
he had only $13 in his jean pocket and that he could take it. Morgan then made Jenkins get on the floor and
tied his hands behind his back with some ribbon. Morgan placed the gun to the right side of
Jenkins’s head and pulled the trigger.
Jenkins, however, moved his head and the bullet struck him above the
temple over his right ear, causing him to bleed. Morgan walked around the house asking where
the money was before going back to Jenkins and again aiming the gun at
him. By then, Jenkins was able to get
his hands loose. When Morgan attempted
to shoot Jenkins a second time, Jenkins grabbed Morgan’s legs causing him to
fire several errant shots. Jenkins
struggled with Morgan for the gun and grabbed the barrel causing the gun to
discharge again. Eventually, Morgan
attempted to leave the house through the back but was unable to get through a
locked security door. Meanwhile, Jenkins
ran out of the house through the front door and saw Modesto Police Officer Eric
Pena and a sheriff’s deputy. Jenkins
told the officers that he had been shot and was being robbed.
Officer Pena saw Morgan run out of
the front of Jenkins’s house. Pena
ordered Morgan to stop but Morgan got into a car that was parked in the
driveway. Pena pointed his firearm at
Morgan as Morgan drove the car at him.
Pena fired several shots at the car and Morgan lost control and struck a
tree. Morgan fled but he was subdued and
taken into custody after a short foot chase.
On August 7, 2009, the district
attorney filed an information charging Morgan with attempted first degree
murder (count 1), first degree robbery (count 2), false imprisonment (count 3/§
236), vehicle theft (count 4/Veh. Code, § 10851, subd. (a)), assault on a
police officer (count 5), and being a felon in possession of a firearm (count
6/§ 12022, subd. (a)(1)). Count 1 alleged
that the attempted murder was premeditated.
Counts 1 and 2 each alleged arming enhancements pursuant to sections
12022, subdivision (a), 12022.5, subdivision (a), and section 12022.53,
subdivisions (c) and (d) and a great bodily injury enhancement (§ 12022.7,
subd. (a)). Count 3 alleged arming
enhancements pursuant to sections 12022.5, subdivision (a) and 12022,
subdivision (a) and a great bodily injury enhancement. Counts 4 and 5 each alleged an arming
enhancement pursuant to section 12022, subdivision (a). The information also alleged a serious felony
enhancement, seven prior prison term enhancements, and that Morgan had a prior
conviction within the meaning of the three strikes law.
On January 14, 2010, Morgan entered
a plea of not guilty by reason of insanity.
On April 1, 2010, the court ordered
that Morgan be evaluated by two court-appointed psychiatrists.
On February 25, 2011, as part of a
negotiated plea, Morgan pled no contest to attempted murder, first degree
robbery, and assault on a police officer.
He also admitted the serious felony enhancement, a prior prison term
enhancement,
title="">[2] that the attempted murder offense was
premeditated, and that he had a prior strike conviction and he waived his right
to appeal. In exchange for his plea, the
prosecutor dismissed the remaining counts and enhancements and Morgan was to
receive a stipulated term of 25 years 4 months to life.
On April 26, 2011, the court
purported to sentence Morgan to an indeterminate term of 25 years 4 months to
life as follows: 14 years to life on his attempted murder conviction in count 1
(seven years to life, doubled to 14 years to life because of Morgan’s prior
strike conviction), a term of 2 years 8 months on his robbery conviction in
count 2 (one-third the middle term, doubled because of Morgan’s prior strike
conviction), a term of 2 years 8 months on his assault on a police officer
conviction in count 5 (one-third the middle term, doubled because of Morgan’s
prior strike conviction), a five-year serious felony enhancement, and a
one-year prior prison term enhancement.
DISCUSSION
Sentencing Issues
Our review of the record disclosed
that the court imposed an unauthorized sentence because: (1) it failed to
calculate the determinate component of Morgan’s sentence pursuant to section
1170.1 and separately from the indeterminate term it imposed on Morgan’s
attempted murder conviction; and (2) it did not impose Morgan’s serious felony
and prior prison term enhancements separately on the indeterminate term it
imposed and the aggregate, determinate component of Morgan’s sentence that it
should have calculated.
“[T]wo different sentencing
schemes coexist today: one determinate, the other indeterminate. ‘Every person who commits a public offense,
for which any specification of three time periods of imprisonment in any
prescribed by law or for which only a single term of imprisonment in state
prison is specified,’ i.e., for any determinate term, ‘shall ... be sentenced
pursuant to’ the [Determinate Sentencing Act], section 1170 et seq. (§ 1168,
subd. (a) [determinate sentencing].)
‘For any person not sentenced under such provision, but who is sentenced
to be imprisoned in the state prison, including imprisonment not exceeding one
year and one day, the court imposing the sentence shall not fix the term or
duration of the period of imprisonment.’
(§ 1168, subd. (b) [indeterminate sentencing].)
“Under the [Determinate
Sentencing Act], if a defendant is convicted of more than one offense carrying
a determinate term, and the trial court imposes consecutive sentences, the term
with the longest sentence is the ‘principal term’; any term consecutive to the
principal term is a ‘subordinate term.’
(§ 1170.1, subd. (a).) The court
imposes the full term, either lower, middle, or upper, for the principal
term. However, in general (there are
exceptions), the court imposes only ‘one-third of the middle term’ for
subordinate terms. [Citation.]†(People
v. Felix (2000) 22 Cal.4th 651, 654-655.)
The consecutive sentencing scheme
of section 1170.1, however, does not apply to indeterminate sentences. (People
v. Williams (2004) 34 Cal.4th 397, 403 (Williams);
accord People v. Nguyen (1999) 21
Cal.4th 197, 205 (Nguyen); see also
Cal. Rules of Court, rule 4.451.)
In People v. Neely (2009) 176
Cal.App.4th 787 (Neely), the court
explained how a defendant’s aggregate sentence is calculated when the defendant
is sentenced to both determinate and indeterminate terms:
“Section 1170.1 sets forth the
sentencing protocol for felony offenses for which a determinate low, middle or
upper term of incarceration is imposed.
It also sets forth the rules for imposing a consecutive sentence through
the designation of ‘principal’ and ‘subordinate’ terms. First, the trial court is required to select
a base term—either the statutory low, middle or upper term—for each of the
crimes. (§ 1170; Cal. Rules of
Court, rule 4.405(2).) Second, if the
court determines that a consecutive sentence is merited, it must designate the
crime with the ‘greatest’ selected base term as the principal term and the
other crimes as subordinate terms.
(§ 1170.1, subd. (a).)
Third, the court sentences the defendant to the full base term it selected
for the principal term crime and one-third of the middle term for any crimes
for which the sentence is ordered to run consecutively. (Ibid.;
see People v. Felix (2000) 22 Cal.4th
651, 655.) A subordinate term is
one-third of the middle term even if
the trial court had initially selected the lower or upper term as the base
term.
“Further guidance for
determinate sentencing is provided in division 5 of title 4 of the California
Rules of Court. Rules 4.420 through
4.425 specifically address the methodology for selection of a term of imprisonment,
determination of whether sentences will run concurrently or consecutively, and
the decision to impose a consecutive sentence.
“Offenses for which an
indeterminate sentence of life imprisonment or death can be imposed are not
subject to section 1170.1. Consequently
there are no principal and subordinate terms to be selected. (§ 1168, subd. (b).) The court simply imposes the statutory term
of imprisonment for the indeterminate sentence crime ….
“Once the court determines what
sentence is to be imposed for the indeterminate term offenses and the
determinate term offenses, it combines the two to reach an aggregate total
sentence. Nothing in the sentencing for
the determinate term crimes is affected by the sentence for the indeterminate
term crime.
“Such sentencing has been
conceptualized as sentencing in separate boxes.
[Citation.]†(
The trial court, here, erroneously applied the principal term/subordinate
term methodology set forth in section 1170.1 to all of the offenses because by
imposing consecutive one-third of the middle term sentences for the robbery and
assault offenses, the court, in effect, designated the indeterminate term
imposed on Morgan’s attempted murder as the principal term under section
1170.1.
Additionally, as noted earlier, in
clear that section 1170.1 did not apply to indeterminate sentences. Quoting from an earlier decision, the court
stated, “‘[t]he consecutive sentencing scheme of section 1170.1
and therefore it has no application to sentencing calculations for three
strikes defendants.’ [Citations.]†(Williams,
supra, 34 Cal.4th at p. 402, italics
added.) The court went on to calculate
the appropriate sentence under the three strikes law. It observed that “the Three Strikes law
provides that the indeterminate life sentence ‘shall be served consecutive to
any other term of imprisonment for which a consecutive term may be imposed by
law’ (§§ 667, subd. (e)(2)(B), 1170.12, subd. (c)(2)(B)) and shall be ‘in
addition to any other enhancement or punishment provisions which may apply’ (§§
667, subd. (e), 1170.12, subd. (c)).†(
sentencing scheme of the three strikes law, the five-year enhancement for a
prior serious felony conviction was to be applied “individually to each count
of a third strike sentence.†(
v. Misa (2006) 140 Cal.App.4th 837 (Misa),
the defendant was convicted of torture and assault. He had suffered a prior serious felony
conviction, thus bringing him within the sentencing scheme of the three strikes
law. The trial court sentenced the
defendant to a life term on the torture count and a determinate term on the
assault count. In addition, it added a
five-year term pursuant to section 667, subdivision (a) to each count. The
observing that although the defendant was not subjected to an indeterminate
sentence under the three strikes law as in Williams,
he did receive an indeterminate life sentence on the torture count. The court noted the language in
apply to indeterminate sentences and concluded that “a
the Williams analysis in
require the imposition
of the prior
second strike offense (
notwithstanding that
also imposed as
a status enhancement
relating to the
determinate term on
the assault count.â€
(Misa, at p.
846.)
The holdings of
felony and prior prison term enhancements.
As in Williams and
received an indeterminate sentence, which is not governed by section
1170.1. Moreover, adding these
enhancements to a defendant’s indeterminate sentence in a second strike
sentence is “consistent with the logic of the Three Strikes law,†which “uses a
defendant’s status as a recidivist to separately
increase the punishment for each new
felony conviction.†(
Here, although Morgan admitted two prior conviction enhancements, a
serious felony enhancement and a prior prison term enhancement, the trial court
did not impose them separately on the determinate component of Morgan’s
sentence that it should have calculated and on the indeterminate term it
imposed. This was clearly error under
title="">[3]
Morgan contends that the Supreme Court’s holding in Williams and Nguyen, that
section 1170.1 does not apply to indeterminate sentences, is not controlling
here because in each of those cases multiple indeterminate sentences were
imposed, whereas, here, only one indeterminate sentence was imposed. We reject Morgan’s attempt to distinguish
the number of indeterminate sentences imposed.
(Williams,
Morgan also proffers several other arguments why section 1170.1 applies to
an indeterminate sentence when only one indeterminate sentence is imposed. He further contends that since section 1170.1
applies to an indeterminate sentence when only one such sentence is imposed,
they are at odds with the Supreme Court’s holding that section 1170.1 does not
apply to indeterminate sentences.
Morgan’s Abstracts of Judgment
The court prepared an abstract of judgment for determinate sentences
(Judicial Council Form CR-290) and an abstract of judgment for indeterminate
sentences (Judicial Council Form CR-292).
In addition to the above errors that made Morgan’s sentence
unauthorized, the court erred in preparing these abstracts of judgments.
strike defendant to 2 years 8 months on his robbery and assault convictions,
Morgan’s abstract of judgment for determinate sentences at section 1 indicates
that he received a sentence of 1 year 4 months on each of these convictions. Section 1, however, should have listed the
actual sentence imposed on each determinate count (in the instant case a
doubled term because of Morgan’s prior strike conviction) so that it was
consistent with section 4, which indicates that Morgan was sentenced as a
second strike defendant, and so the terms listed in that section and in
sections 2 and 3 for enhancements equaled the total time listed in section 8.
Similarly, Morgan’s abstract of judgment for indeterminate sentences
indicates at section 6c that he was sentenced to an indeterminate term of only
seven years to life. However, that
section should have listed a term of 14 years to life so that it reflected the
actual sentence imposed on Morgan’s attempted murder conviction and so that it
was consistent with section 8, which states that Morgan was sentenced pursuant
to the three strikes law.
Additionally, Morgan’s abstract of judgment for determinate sentences
fails to indicate at section 7 that Morgan was sentenced to an indeterminate
term. Further, both abstracts of
judgment erroneously state in section 11 that the determinate sentences imposed
on counts 2 and 5 were to run consecutive to the indeterminate sentence imposed
in count 1. (People v. Garza (2003) 107 Cal.App.4th 1081, 1094 [“‘When a
defendant is sentenced to both a determinate and an indeterminate sentence, the
determinate sentence is served first’â€].)
In view of the foregoing, we will
remand the matter to the trial court for further proceedings consistent with
this opinion. Further, following an
independent review of the record, we find that, with the exception of the
sentencing issues and the errors in Morgan’s abstracts of judgment discussed
above, no other reasonably arguable factual or legal issues exist.
DISPOSITION
The
judgment is vacated and the matter is remanded to the trial court for
resentencing in accord with the principles discussed above. If the court is able to sentence Morgan
within the parameters of his plea bargain, the judgment of conviction is
reinstated and the court is directed to issue amended abstracts of judgment
that correct the errors noted above and to forward certified copies to the
within the parameters of his plea bargain, the court shall allow him to
withdraw his plea (People v. Mancheno
(1982) 32 Cal.3d 855, 860-861) in which case the dismissed counts and
allegations shall be reinstated and the court shall proceed on the underlying
information in a manner authorized by law.
unless otherwise indicated.
