P. v. Morgan CA6

Filed 5/31/13 P. v. Morgan CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 filed an opening brief that stated the case and facts but raised no issue. We notified defendant of his right to submit written argument on his

1 All further statutory references are to the Penal Code unless otherwise indicated.

own behalf within 30 days. The 30-day period elapsed without any response from defendant. In our original opinion filed on March 21, 2013, we reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Following the California Supreme Court‟s direction in People v. Kelly, supra, at page 110, we provided “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” We concluded that there were no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.) We also corrected an 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, not three years as imposed by the trial court. We subsequently granted defendant‟s petition for rehearing in our order filed on April 10, 2013, for the sole purpose of considering his contention that the original opinion erroneously corrected an unauthorized sentence without requesting further briefing from the parties. We asked the parties to submit supplemental briefing addressing the issue of whether “the appropriate remedy in light of the unauthorized sentence is to remand the matter for resentencing.” Upon further consideration, we have determined that the appropriate remedy is to remand the matter for a new sentencing hearing. 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.