California Court of Appeal Jun 5, 2015 No. E062025Unpublished
Filed 6/5/15 P. v. Morgan CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062025
v. (Super.Ct.No. FSB1400361)
JOMAL MORGAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Jomal Morgan pled guilty to possession of a firearm by a
felon (count 1; Pen. Code, § 29800, subd. (a))1 and admitted he had suffered a prior strike
1 All further statutory references are to the Penal Code unless otherwise indicated.
Defendant asked defense counsel if he had gone over the plea form with defendant
and was satisfied defendant understood everything on the form. Defense counsel
responded that he had and that he was. The court found defendant had read and
understood the plea form. The court specifically found defendant understood his
constitutional rights. Defendant plead guilty to the count 1 offense.
The court asked defendant, “And do you admit you have a prior strike for criminal
threats in the year 2000?” Defendant responded, “Yes, ma’am.” Counsel stipulated the
factual basis for defendant’s plea would consist of the police report and defendant’s
record.
The court dismissed the remaining enhancements. The court further found
defendant had “personally and orally entered his plea in open court. The plea was
entered freely, voluntarily, knowingly, intelligently by him and there is a factual basis for
the plea which the Court will accept and confirm.”
On September 16, 2014, the court sentenced defendant to four years imprisonment
consisting of the midterm of two years on the count 1 offense, doubled pursuant to the
prior strike conviction. The court awarded defendant a total of 476 days of custody
credits. The abstract of judgment reflects that defendant was sentenced to four years on
the count 1 offense, but box 4, which would reflect the sentence had been imposed
pursuant to sections “667(b)-(i) & 1170.12 (two strikes),” remains unchecked.
On September 30, 2014, defendant filed a letter in the superior court reading, “I
[defendant] request a[n] appeal. I have a learning disability and feel that I was
manipulated into taking a deal and was forced to take a strike that was not a strike at the
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time the crime was committed.” On October 9, 2014, an attorney with Appellate
Defenders, Inc. filed an amended notice of appeal reflecting, “This appeal is based on the
sentence or other matters that occurred after the plea and do not affect its validity.” The
amended notice of appeal further reads, “This appeal challenges the validity of the plea
. . . .”
The attached request for certificate of probable cause indicates, “Defendant’s
original notice of appeal, signed and filed by him in this court . . . states that he has a
learning disability and feels that he was manipulated into taking a deal and was forced to
take a strike that was not a strike at the time the crime was committed. Based on this
statement, it appears that his plea was not knowing, intelligent, and voluntary.” The court
denied the request on October 10, 2014.
On November 14, 2014, defendant filed a notice of appeal in propria person
challenging the validity of the plea. The attached request for certificate of probable cause
reads, “I did not understand what my constitutional rights to trial were and that I was
giving up those rights. Therefore[,] my plea was not voluntary because I entered my plea
based on false or misleading information and unfair pressure not of my free will. I was
also writing to the Judge and explaining to my attorney that I was under duress because
my mother was in the hospital. The court also selected an unauthorized sentence and
abused its discretion by allowing me to admit to a (strike) but at the time of my offense
the crime was not (strikable) [sic].” The court denied the request on November 17, 2014.
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DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
(People v. Castelan (1995) 32 Cal.App.4th 1185, 1188 [The denial of a request for a
certificate of probable cause can only be challenged by the filing of a petition for writ of
mandate.]; People v. Voit (2011) 200 Cal.App.4th 1353, 1366 [“[A] plea of guilty . . .
forecloses an appellate challenge that the plea lacks a factual basis.”]; id. at p. 1372, fn.
14 [Defense counsel’s concession or stipulation to a factual basis for the plea “must be
regarded as an admission by defendant.”]; People v. Jones (1995) 37 Cal.App.4th 1312,
1316 [unequivocal evidence of intent to admit prior convictions, such as an on the record
oral admission of the prior conviction allegation, constitutes sufficient evidence to
support the prior conviction allegation.]; § 667, subdivisions (d)(1), Stats.1994, c. 12
(A.B.971), § 1, eff. March 7, 1994 to November 6, 2012 & § 1192.7, subdivision (c)(38),
[“[T]errorist threats, in violation of Section 422” constitutes a strike conviction.]
Stats.1999, c. 298 (A.B.381), § 1; Initiative Measure (Prop.21, § 17, approved March 7,
2000) effective March 8, 2000, to September 16, 2002.)
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect the court
sentenced defendant pursuant to sections 667, subdivisions (b)-(i), and 1170.12,
subdivisions (a)-(d). The trial court is further directed to forward a copy of the corrected
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abstract of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
HOLLENHORST J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction and sentence, finding no arguable issues on appeal, while directing the trial court to correct the abstract of judgment to accurately reflect the sentencing statutes.
Issues
Whether the court abused its discretion in denying the defendant's request for a certificate of probable cause.
Whether the defendant entered his plea voluntarily.
Whether a sufficient factual basis for the plea exists.
Whether the court imposed an unlawful sentence.
Disposition. Affirmed and remanded with directions.
Quotations verified verbatim against the opinion
“We affirm the judgment, but direct the superior court to correct the abstract of judgment.”
“The trial court is directed to correct the abstract of judgment to reflect the court sentenced defendant pursuant to sections 667, subdivisions (b)-(i), and 1170.12, subdivisions (a)-(d).”