P. v. Morgan
Filed 11/1/13 P. v. Morgan CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. KENNETH MORGAN, Defendant and Appellant. | D063442 (Super. Ct. No. SCD132068) |
APPEAL from
an order of the Superior Court
of
County, David J. Danielsen, Judge. Affirmed.
David K.
Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Kenneth Morgan filed a petition for a recall of his
sentence in the trial court, pursuant to Penal Code section 1170.126.
that a person serving an indeterminate term of life imprisonment under the
"Three Strikes" law for a conviction based on "a felony or
felonies that are not defined as serious and/or violent felonies . . . may file
a petition for a recall of sentence . . . ."
The trial
court denied the petition on the ground that Morgan had suffered a conviction
for rape in concert with force and
violence (§ 264.1), and thus was not eligible for resentencing
pursuant to section 1170.126, subdivision (e)(3).
Appointed
appellate counsel filed a brief presenting no argument for reversal, but
inviting this court to review the record for error in accordance with People
v. Wende (1979) 25 Cal.3d 436 (Wende). Morgan filed a
reversal. After having independently
reviewed the entire record for error as required by Anders v. California
(1967) 386 U.S. 738 (Anders) and Wende, we affirm.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
In 1998, a
jury found Morgan guilty of selling a narcotic substance (Health & Saf.
Code, § 11352, subd. (a)) (count 1) and
Saf. Code, § 11357, subd. (b) (count 2).
The jury also found true that Morgan had suffered three
prior strike convictions, including a 1989 conviction for rape in concert with
force and violence (§ 264.1). The
trial court sentenced Morgan under the Three Strikes law to a term of 25 years
to life in prison.
In December
2012, Morgan filed a petition pursuant to section 1170.126 to recall his
sentence. The trial court denied the
petition on the ground that Morgan was ineligible for resentencing under
section 1170.126, subdivision (e)(3) because he had suffered a conviction for
rape in concert with force and violence (§ 264.1).
Morgan
appeals.
III.
DISCUSSION
Appointed
appellate counsel has filed a brief summarizing the facts and proceedings in
the trial court. Counsel presented no
argument for reversal but invited this court to review the record for error in
accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders,
supra, 386 U.S. 738, counsel identified as possible, but not arguable,
issues:
"Whether the superior court's finding that
appellant has a prior conviction for rape in concert with force and violence in
violation of . . . section 264.1 is
correct. . . .
"Whether appellant's prior conviction for rape in
concert with force and violence in violation
of . . . section 264.1 disqualifies him from relief under
. . . section 1170.126 because it is a sexually violent
offense. . . . "
After this
court received counsel's brief, we gave Morgan an opportunity to file a
supplemental brief. Morgan filed a
supplemental brief in which he contends that he was entitled to a recall of his
sentence under section 1170.126 because he was sentenced to an indeterminate
life sentence for a non-serious and non-violent crime and he does not currently
pose a threat to public safety. Morgan
does not contend that the trial court erred in concluding that he is ineligible
for resentencing pursuant to section 1170.126, subdivision (e)(3).
ineligible for resentencing under section 1170.126, subdivision (e) because of
his prior conviction for rape in concert with force and violence (§ 264.1)
(see fn. 2, ante), it was not within
the trial court's discretion to resentence him, regardless of whether he
currently poses a threat to public safety.
A review of
the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders,
supra, 386 U.S. 738, including the issues suggested by counsel and by
Morgan, has disclosed no reasonably arguable
appellate issue. Morgan has been
adequately represented by counsel on this appeal.
IV.
DISPOSITION
The
order denying the petition to recall sentence is affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting
P. J.
IRION,
J.
name="_ftn1" title="">[1] Unless
otherwise specified, all subsequent statutory references are to the Penal Code.
Morgan
referred to his petition as a "Motion for sentence reduction pursuant to
Proposition 36." Section 1170.126
was enacted as part of Proposition 36, the Three Strikes Reform Act of
2012. (Prop. 36, § 6, approved Nov. 6,
2012, eff. Nov. 7, 2012).
name="_ftn2" title="">[2] Section
1170.126, subdivision (e) provides in relevant part: "An inmate is eligible for resentencing
if: [¶] . . . [¶] (3) The inmate has no prior convictions for any of the
offenses appearing in . . . clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12."
Section
1170.12, subdivision (c)(2)(C)(iv)(I) provides:
"A 'sexually violent offense' as defined by subdivision (b) of
Section 6600 of the Welfare and Institutions Code."
Welfare
and Institutions Code section 6600, subdivision (b) provides in relevant part:
" 'Sexually violent offense' means the following acts when committed by
force, violence, duress, menace, fear of immediate and unlawful bodily injury
on the victim or another person, . . . and result in a conviction . . . : a
felony violation of Section . . . 264.1."
