Filed 3/21/13 P. v. Morgan CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038394
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS091860)

         v.

TODD SHELDON MORGAN,

         Defendant and Appellant.


                                              I. INTRODUCTION
         After a jury trial, defendant Todd Sheldon Morgan was found guilty of committing
assault with a deadly weapon by a life prisoner with malice aforethought (Pen. Code,
§ 4500)1 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 opening brief that states the case and
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.

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             All further statutory references are to the Penal Code unless otherwise indicated.
       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.”
                II. FACTUAL AND PROCEDURAL BACKGROUND
       A. Factual 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.” 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



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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.

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       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).

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       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 Department of Corrections and Rehabilitation.
       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 three
years pursuant to section 12022.7, 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 five years.” (Italics added.) We will correct the
unauthorized sentence by ordering the abstract of judgment modified to state that the
consecutive term pursuant to section 12022.7, subdivision (c) is five years.




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                                  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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