Opinion
F062529
10-03-2012
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE BUFORD MORGAN, JR., Defendant and Appellant.
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.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1255077)
OPINION
THE COURT
Before Gomes, Acting P.J., Detjen, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Stanislaus 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.
Appellant, Lawrence Buford Morgan, Jr., pled no contest to attempted first degree murder (count 1/Pen. Code, §§ 664 & 187, subd. (a)), first degree robbery (count 2/ § 212.5, 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)).
All further statutory references are to the Penal Code unless otherwise indicated.
On April 26, 2011, the trial court sentenced Morgan to a "total commitment, [determinate] and [indeterminate], [of] 25 years, four months to life."
On December 5, 2011, Morgan's appellate counsel filed a brief which raised no issues and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende)). 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, 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.
The serious felony enhancement was based on Morgan's 1991 assault conviction (§ 245, subd. (a)(1)). The prior prison term enhancement was based on Morgan's 2005 conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)).
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 state prison is now 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.]" (Neely, supra, 176 Cal.App.4th at pp. 797-798.)
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 Williams, the Supreme Court made it 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 does not apply to indeterminate life terms, 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))." (Williams, at p. 404.) Thus, the court concluded that under the 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." (Williams, at p. 405.)
In People 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 Misa court affirmed the sentence, 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 Williams that section 1170.1 did not apply to indeterminate sentences and concluded that "a logical application of the Williams analysis in this context would require the imposition of the prior conviction enhancement on [the defendant's] second strike offense (the torture count) notwithstanding that the enhancement was also imposed as a status enhancement relating to the determinate term on the assault count." (Misa, at p. 846.)
The holdings of Williams and Misa apply equally to Morgan's serious felony and prior prison term enhancements. As in Williams and Misa, Morgan 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." (Williams, supra, 34 Cal.4th at p. 404.)
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 Williams and Misa.
The court does not have discretion to strike a serious felony enhancement (§ 1385, subd. (b)), but it retains discretion to strike a prior prison term enhancement pursuant to section 1385 subdivision (a). (People v. Garcia (2008) 167 Cal.App.4th 1550, 1560-1561.)
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 Williams and Nguyen because in neither case was the holding at issue based on the number of indeterminate sentences imposed. (Williams, supra, 34 Cal.4th at p. 402; Nguyen, supra, 21 Cal.4th at p. 205.)
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, Misa was improperly decided. We summarily reject these arguments because 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. Although Morgan was sentenced as a second 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.
Since the court will have to issue new abstracts of judgment if it resentences Morgan on remand, we address these issues for the guidance of the trial court.
--------
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'"].)
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 Department of Corrections and Rehabilitation. If the court is not able to sentence Morgan 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.