P. v. Morgan
Filed 3/21/13 P. v. Morgan CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
TODD SHELDON MORGAN,
Defendant and
Appellant.
H038394
(Monterey
County
Super. Ct.
No. SS091860)
INTRODUCTION
After a
jury trial, defendant Todd Sheldon Morgan was found guilty of committing
prisoner with malice aforethought (Pen. Code, § 4500)
on a victim 70 years of age or older (§ 12022.7, subd. (c)). He admitted the allegations that he had six
prior violent or serious felony convictions that also qualified as strikes
within the meaning of the Three Strikes law (§ 1170.12,
subd. (c)(2)). The trial court
imposed a sentence of 27 years to life plus a consecutive three-year term.
Defendant
filed a timely notice of appeal, and
we appointed counsel to represent him in this court. Appointed counsel has filed an
facts but raises no issue. We notified
defendant of his right to submit written argument on his own behalf within 30
days. The 30-day period has elapsed and
we have received no response from defendant.
Pursuant to
People v. Wende (1979) 25 Cal.3d 436
and People v. Kelly (2006)
40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s
direction in People v. Kelly, supra,
at page 110, we provide “a brief description of the facts and procedural
history of the case, the crimes of which the defendant was convicted, and the
punishment imposed.â€
FACTUAL AND PROCEDURAL BACKGROUND
Background
Our summary
of the facts is taken from the testimony given at the jury trial. In April 2009, defendant was incarcerated at
Salinas Valley State Prison where he was serving a life sentence. An incident involving defendant occurred at
approximately 2:00 p.m. on April 12, 2009.
At that
time, correctional officer Curtis L. Befort was monitoring the prison exercise
yard from his position in the “gun booth.â€
He saw three inmates, including defendant, leaning against a table in
the yard. One of the three inmates stood
up and ran towards the basketball courts.
Befort then saw defendant turn and attack the third inmate, Dennis
Miller. Defendant was making striking
motions towards Miller’s head and torso with his left hand while Miller tried
to cover and protect himself. On his
institutional radio, Befort announced that a fight was occurring. He also told the other prisoners in the yard
to lie down.
Two other
correctional officers, Carlos Martinez
and Eric M. Schmidt, were in the yard.
After hearing on the institutional radio that a fight was occurring near
the table, Martinez and Schmidt looked over and saw that defendant was on top
of inmate Miller and making stabbing motions with an object in his right
hand. Miller was curling his legs up in
a fetal position on the table while trying to protect his head. Martinez yelled at defendant and Miller to
stop, but defendant looked at him while continuing to make stabbing motions
towards Miller. When Martinez was about
20 yards away, he saw defendant drop an object and then lie flat on the
ground. Miller was on the table with
blood dripping from gashes on his face, upper torso, and hands.
Martinez
then handcuffed defendant and, after putting on latex gloves, took possession
of the bloody object that defendant had dropped. Martinez wrapped the object in a latex glove
and put it in his pocket before placing it in an evidence bag in the evidence
locker. He later determined that the
object was an inmate-manufactured weapon, made of a piece of wood approximately
nine and one-half inches long and three and one-half inches wide, sharpened to
a point on one end with cloth wrapped around the other end to form a handle.
Miller was
treated at Santa Clara Valley Medical Center by John Sherck, M.D., a trauma
surgeon. Dr. Sherck determined that
Miller, who was born in 1934, was seriously injured. His injuries included skin avulsions;
puncture wounds to his hands; multiple lacerations on his face; cuts to his
ears and back; and stab wounds to the neck, shoulder and chest. The stab wound to the chest broke one of
Miller’s ribs and punctured his lung. In
Dr. Sherck’s opinion, Miller’s injuries were very significant and would have
caused his death without medical intervention.
B. Procedural
Background
An amended
complaint was filed on September 25, 2009, that charged defendant with
committing assault with a deadly weapon by a life prisoner with malice
aforethought (§ 4500; count 1) on victim Dennis Miller. The complaint specially alleged that
defendant had personally inflicted great bodily injury on a victim 70 years of
age or older who was not an accomplice to the offense. (§ 12022.7, subd. (c).) The special allegations also stated that
defendant had six prior violent or serious felony convictions that qualified as
strikes within the meaning of the Three Strikes law (§ 1170.12,
subd. (c)(2)), including five prior convictions for burglary in the first
degree (§§ 459, 460.1) in 1987 and 1988 and one prior conviction for
robbery in the second degree (§§ 211, 212.5, subd. (c)) in 2001.
At the
conclusion of the preliminary hearing held on September 25, 2009, defendant was
held to answer on count 1, including the special allegation that defendant had
inflicted great bodily injury
on a victim 70 years of age or older. A
third amended information was filed on February 9, 2011, that included a second
count for assault with a deadly weapon (§ 245, subd. (a)(1); count 2) with the
special allegation that defendant had personally inflicted great bodily injury
on a victim 70 years of age or older who was not an accomplice to the offense
(§ 12022.7, subd. (c)).
In April
2011, defendant filed a motion pursuant to People
v. Superior Court (Romero) (1996)
13 Cal.4th 497 in which defendant requested that the court dismiss his
prior strike convictions in the interest of justice. The trial court denied the motion after a
hearing held on April 13, 2011.
The matter
proceeded to a jury trial on April 16, 2012.
On the same day, defendant admitted the allegations that he had six
prior violent or serious felony convictions that also qualified as strikes
within the meaning of the Three Strikes law (§ 1170.12, subd.
(c)(2)). On April 18, 2012, the parties
stipulated that the victim had died and the jurors would be instructed not to
speculate about his death or consider it any way.
On April
19, 2012, the trial court heard and granted the prosecution’s request
to amend count 2 to allege the lesser included charge of a violation of
section 4501 (assault with a deadly weapon by a prisoner) instead of a
violation of section 245, subdivision (a)(1). Defendant’s request that the jury be
instructed on the lesser included offense of “simple assault†was denied.
The jurors
returned their verdict on count 1 on April 19, 2012, finding defendant guilty
of committing assault with a deadly weapon by a life prisoner with malice
aforethought (§ 4500) and also finding that in the commission of the
offense defendant personally inflicted great bodily injury on a victim 70 years
of age or older within the meaning of section 12022.7 subdivision (c).
During the
sentencing hearing held on May 30, 2012, the trial court imposed a sentence of
27 years to life pursuant to section 1170.12, subdivision (c)(2)(A), plus a
consecutive term of three years pursuant to section 12022.7, subdivision (c).
The trial
court ordered defendant to pay a $3,000 restitution fine (§ 1202.4,
subd. (b)) and suspended the imposition of a $3,000 parole revocation
restitution fine (§ 1202.45). The
court also ordered payment of a court operations assessment fee of $40 (§
1465.8, subd. (a)(1)) and a court facilities assessment fee of $30 (Gov. Code,
§ 70373). Additionally, defendant
was ordered to pay an unspecified amount of victim restitution to the family of
the victim for all out-of-pocket and economic losses. The court reserved jurisdiction over the
amount of the losses, which were to be collected and determined by the
The
abstract of judgment was filed on June 20, 2012 and an amended abstract of
judgment was filed on October 19, 2012.
C. Appeal
Defendant
filed a timely notice of appeal on May 30, 2012. Having carefully reviewed the entire record,
we conclude that there are no arguable issues on appeal. (People
v. Wende, supra, 25 Cal.3d at pp.
441-443.)
We observe,
however, that the trial court imposed a consecutive term of
subdivision (c), although section 12022.7, subdivision (c) provides: “Any person who personally inflicts great
bodily injury on a person who is 70 years of age or older, other than an
accomplice, in the commission of a felony or attempted felony shall be punished
by an additional and consecutive term of imprisonment in the state prison for
ordering the abstract of judgment modified to state that the consecutive term pursuant
to section 12022.7, subdivision (c) is five years.
III. DISPOSITION
The
abstract of judgment is ordered modified to state that the consecutive term
pursuant to Penal Code section 12022.7, subdivision (c) is five years.
As so modified, the judgment is affirmed. The clerk of the superior court is directed
to prepare an amended abstract of judgment and to forward it to the Department
of Corrections and Rehabilitation.
____________________________________
Bamattre-Manoukian, J.
WE CONCUR:
_________________________________
ELIA, ACTING P.J.
_________________________________
Márquez, J.
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All further statutory references are to the Penal Code unless otherwise
indicated.
