Opinion
C090392
04-26-2021
THE PEOPLE, Plaintiff and Respondent, v. JASON EVAN-EUGEN MORRISON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE022253)
Appointed counsel for defendant Jason Evan-Eugen Morrison filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the entire record, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)
FACTUAL AND PROCEDURAL BACKGROUND
During a meeting with his parole officer, defendant was found in possession of a stolen car, which he did not have permission to drive. Surveillance footage showed defendant driving the car away from the service department at a car dealership. When defendant was detained, keys to another stolen car were found in his possession. In an amended information, defendant was charged with unlawfully driving and taking a vehicle, a 2018 Honda Accord (Veh. Code, § 10851, subd. (a); count one), unlawfully buying or receiving a stolen vehicle, a 2018 Honda Accord (Pen. Code, § 496d, subd. (a); count two), unlawfully driving and taking a vehicle, a 2015 Dodge Challenger (Veh. Code, § 10851, subd. (a); count three), and unlawfully buying or receiving a stolen vehicle, a 2015 Dodge Challenger (§ 496d, subd. (a); count four). As to all four counts, it was further alleged that defendant was previously convicted of a violation of Vehicle Code section 10851, subdivision (a) within the meaning of section 666.5, subdivision (a). It further was alleged that defendant was not eligible to be sentenced to county jail pursuant to section 1170, subdivision (h) because he had a prior or current serious or violent felony conviction or because he was required to register as a sex offender. The final allegation indicated a prior strike conviction for voluntary manslaughter falling within the provisions of sections 667, subdivisions (b)-(i) and 1170.12. Defendant filed a motion for substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118, which the court heard and denied.
Undesignated statutory references are to the Penal Code --------
Defendant pleaded no contest to counts one and three and admitted that he was previously convicted of a violation of Vehicle Code section 10851, subdivision (a) within the meaning of section 666.5, subdivision (a). Defendant further admitted that he had a prior conviction for voluntary manslaughter in violation of section 192, subdivision (a), for which he served a prior prison term. He disputed the designation of this conviction as a strike prior and the court advised him that at sentencing there would be a hearing to determine whether the prior was a serious or violent felony. He agreed to the plea in exchange for a maximum sentence "lid" of 10 years and the dismissal of the remaining counts.
Defendant filed a motion to withdraw the plea or, in the alternative, to strike the prior strike in the interest of justice. Defendant asserted that when he entered his plea to the prior strike conviction in 2006, he was "specifically told" that the plea conviction for violating section 192, subdivision (a) and his admission to the section 12022.5 gun enhancement would not be deemed a strike prior and that this alleged agreement was not honored. During the subsequent hearing on defendant's motion, the prosecutor in defendant's 2006 case who negotiated the plea agreement testified that, under the law, and based on her understanding, defendant's conviction for voluntary manslaughter with the use of a gun was a strike prior. She testified that the only way the conviction would have qualified as a nonstrike was if defendant had pleaded to involuntary manslaughter without the use of a weapon. Defendant testified he recalled that during those plea proceedings in June 2006 he saw a written document that contained the terms of the plea agreement and the document stated that as part of the deal, his conviction would not be a strike prior. He recalled that he, his attorney, and the prosecutor all signed the document. The prosecutor testified, however, that there would not have been a written plea agreement because the district attorney's office in Sacramento County does not use plea forms.
Before ruling on defendant's motion to withdraw his plea, the trial court reviewed the 2006 case file, including the probation officer's report and the transcript of the plea hearing. Based on defendant's statement to the probation officer in 2006, and the case file, the court found beyond a reasonable doubt that there were no promises made to defendant that his plea to manslaughter would not be deemed a strike prior. Further, based on the court's experience, Sacramento County did not use plea forms for felony cases. The court also agreed with the prosecutor who testified that the offense to which defendant pleaded guilty was a strike offense under the law and that it was an "impossibility" that it was considered as anything other than a strike. Accordingly, the court found that defendant had in fact pleaded to a strike.
The trial court sentenced defendant to an aggregate term of 10 years in state prison as follows: the upper term of four years on count one, doubled to eight years pursuant to sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1); one year, one-third the middle term, on count three, doubled to two years pursuant to sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), to run consecutive to the principal term. The court awarded custody credits in the amount of 1,180 days (590 actual and 590 conduct), which was subsequently amended to reflect 1,181 credits (591 actual and 590 conduct). The court ordered defendant to pay a court operations assessment of $40 per count (§ 1465.8), a conviction assessment of $30 per count (Gov. Code, § 70373), and a restitution fine of $300 (§ 1202.4, subd. (b)), with an additional $300 parole revocation restitution fine, which was stayed pending successful completion of parole (§ 1202.45).
Defendant filed a timely notice of appeal but did not obtain a certificate of probable cause.
DISCUSSION
Upon review of the record, we have identified clerical errors in the abstract of judgment. Based on defendant's two convictions, the total amount assessed under section 1465.8 was $80 and the total amount assessed under Government Code section 70373 was $60. These figures are transposed on the abstract of judgment. We shall order the trial court to prepare an amended abstract of judgment to correct these errors.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. Accordingly, we affirm the judgment.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting the total amount assessed under Penal Code section 1465.8 is $80 and the total amount assessed under Government Code section 70373 is $60. The trial court is further instructed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed.
KRAUSE, J. We concur: BLEASE, Acting P. J. ROBIE, J.