Filed 12/20/05  P. v. Morris CA1/2

Opinion following rehearing

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST APPELLATE DISTRICT

 

DIVISION TWO

 

 

THE PEOPLE,             Plaintiff and Respondent, v. KEVIN LEON MORRIS, SR.,             Defendant and Appellant.	A103410         (Lake County       Super. Ct. No. CR32555 & CR5489)
In re KEVIN LEON MORRIS, SR.,             on Habeas Corpus.	A108912

 

            Appellant Kevin Leon Morris, Sr. was charged by information with assault on a custodial officer (Pen. Code, § 241.1; all further undesignated section references are to the Penal Code) and battery (§ 243.1), both committed on Correctional Officer Jared Bussard, and with resisting a peace officer, Dennis Bierman (§ 148, subd. (a)(1)).  The information further alleged a prior conviction under the three strikes law (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and three prior prison terms (§ 667.5).

            A jury found appellant guilty of all three counts.  Appellant admitted the prior strike conviction and the prior prison terms.  The trial court sentenced him to the upper term of three years on both the assault and battery convictions, and doubled each term under section 1170.12, subdivision (c)(1).  The court also sentenced appellant to one year for resisting a peace officer, and ordered the sentences on all three counts to run concurrently.  The court imposed three one-year enhancements for each of the prior prison terms under section 667.5, for a total prison term in the underlying case (Case No. CR32555) of nine years.[1]

            Appellant raised numerous issues in his appeal to this court, including ineffective assistance of counsel, errors in admission of evidence, prosecutorial misconduct, and unconstitutionality of the statutory scheme pertaining to battery on a custodial officer.  He also raised a number of sentencing issues, including the claim that his sentence is unconstitutional and must be reversed pursuant to Blakely v. Washington (2004) 542 U.S. 296.  Lastly, appellant also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel and denial of his constitutional right to testify, which we considered with this original appeal.

            In an unpublished opinion, we rejected most of appellant's appellate issues and denied his petition for writ of habeas corpus.  However, we agreed with appellant's Blakely argument, and accordingly remanded for resentencing.  (People v. Morris (Mar. 21, 2005) A103410 (Morris I).)

            A petition to the California Supreme Court was subsequently granted, and on September 7, 2005, an order was issued by the Supreme Court transferring the matter to this court with directions to vacate our prior decision and to reconsider the case in light of People v. Black (2005) 35 Cal.4th 1238 (Black).  (Cal. Rules of Court, rule 29.3(d).)

            Thereafter, we issued an unpublished opinion vacating our earlier opinion in Morris I, and rejected appellant's claim of Blakely error based on Black.  (People v. Morris (Oct. 26, 2005) A103410 (Morris II).)  However, Morris II did not include that portion of our opinion in Morris I in which we rejected the balance of appellant's claims.  This oversight was raised by appellant in his petition for rehearing filed on November 10, 2005.  Accordingly, we granted appellant's petition (Order (Nov. 28, 2005) Kline, P.J.), vacate our opinion in Morris II and issue this opinion in its place.

I.

Procedural Background

            Morris was charged by information with assault on a custodial officer (Pen. Code, § 241.1)^[2] and battery (§ 243.1), both committed on Correctional Officer Jared Bussard.  The information also charged Morris with resisting a peace officer, Dennis Bierman.  (§ 148, subd. (a)(1).)  The information further alleged a prior conviction under the three strikes law (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and three prior prison terms (§ 667.5).

            A jury found Morris guilty of all three counts.  Morris admitted the prior strike conviction and the prior prison terms.  The trial court sentenced Morris to the upper term of three years on both the assault and battery convictions, and doubled each term under section 1170.12, subdivision (c)(1).  The court sentenced Morris to one year for resisting a peace officer, and ordered the sentences on all three counts to run concurrently.  The court imposed three one-year enhancements for each of the prior prison terms under section 667.5, for a total prison term in the underlying case (Case No. CR32555) of nine years.[3]

II.

Factual Background

            On February 17, 2003, Morris was in custody in the Lake County jail.  He was escorted into the multipurpose room at the jail to attend a rules violation hearing.  Rules violation hearings are conducted to determine if an inmate has broken a jail rule, and are heard by two officers and one civilian employee.

            Correctional Officer Jared Bussard was in charge of Morris's hearing.  Morris refused to proceed with the hearing if Officer Bussard was on the panel, stating that he felt Officer Bussard was biased against him.  Officer Bussard told him that no one else was available to hold the hearing, and that the hearing could not be rescheduled because it was required to be held within 72 hours of the inmate being served with the paperwork.  He told Morris that he would consider his actions to be a refusal of the hearing.  An argument ensued, and Officer Bussard instructed Morris to return to his cell.  When he did not, Officer Bussard escorted him back to his cell by taking â€