P. v. Morgan CA6

Filed 3/21/13 P. v. Morgan CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.

1 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