People v. Morris CA1/5

Filed 3/9/22 P. v. Morris CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A163154 v. PHILLIP MORRIS , (Alameda County Defendant and Appellant. Super. Ct. No. 105275)

This is an appeal from a postjudgment order denying defendant Phillip Morris’s petition for resentencing under Penal Code1 section 1170.95 (hereinafter, petition). By this petition, defendant seeks relief from the 15 years to life sentence he received after pleading no contest to second degree murder. Admittedly, defendant shot his wife about 11 times in the heat of an argument. Defendant’s appointed appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 asserting that he has found no cognizable issue on appeal. Counsel therefore asked this court to conduct an independent review of the record to determine whether any such issue exists.

All statutory citations herein are to the Penal Code unless otherwise 1

indicated.

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Defendant thereafter filed supplemental briefs in which he raises a claim of ineffective assistance of counsel that he wishes to bring to the court’s attention. Defendant argues his appointed counsel effectively abandoned his appeal by failing to raise an argument based on evidence in the record that he acted without malice or intent to kill when fatally shooting his wife. Defendant therefore asks this court to appoint him new counsel to pursue this theory on appeal. For reasons explained post, we conclude defendant has no right to the Wende review process because this appeal is not his first appeal as of right. Nonetheless, we have exercised our discretion to review the record for reasonably arguable issues and have found none. We have also considered the issues raised in defendant’s supplemental briefs and find them unmeritorious. Accordingly, we affirm the lower court’s order and deny defendant’s request for appointment of new counsel. FACTUAL AND PROCEDURAL BACKGROUND In 1992, defendant was convicted of second degree murder after pleading no contest. He received a sentence of 15 years to life in prison. The abstract of judgment indicates that before pleading no contest to second degree murder, defendant pleaded not guilty to murder by reason of insanity. On May 13, 2021, defendant, representing himself, filed this petition for recall of sentence and resentencing under section 1170.95. In his petition, defendant attested that he was convicted of second degree murder under the natural and probable consequences doctrine or the felony murder doctrine and could not now be convicted of murder because of the changes to section 188 that became effective January 1, 2019. Defendant did not check the box on the petition to indicate that he was not the actual killer. A preliminary hearing transcript attached to the petition contained eyewitness testimony