People v. Morgan CA3

Filed 1/26/23 P. v. Morgan CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE,

Plaintiff and Respondent, C095040

v. (Super. Ct. No. CM017991)

JASON ERIC MORGAN,

Defendant and Appellant.

In 2003, a jury convicted defendant Jason Eric Morgan of murder during the commission of a robbery, assault with a deadly weapon, and torture. The jury also found true allegations that defendant personally inflicted great bodily injury and personally used a deadly weapon. It was further determined that defendant had a prior serious or violent felony conviction and had served a prior prison term. In 2004, the trial court sentenced defendant to an aggregate 66 years to life in prison. This court affirmed the judgment. (People v. Spain (Aug. 1, 2005, C046182) [nonpub. opn.] (Spain).)

1

In 2019, defendant filed a petition for resentencing under Penal Code former section 1170.95 (now 1172.6).1 (Stats. 2022, ch. 58, § 10; Stats. 2021, ch. 551.) Following an evidentiary hearing, the trial court denied the petition. Defendant now contends that in considering his petition, the trial court made independent factual findings in violation of defendant’s Sixth Amendment right to a jury finding of each fact essential to sustain a conviction. But because appellate courts have held that Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) is an act of lenity that does not implicate Sixth Amendment rights, we will affirm the trial court’s order denying the petition for resentencing. BACKGROUND The facts underlying defendant’s offenses are taken from our unpublished opinion in Spain. We granted defendant’s motion to incorporate by reference the record on appeal in Spain. In 2002, defendant and codefendant Anthony Eugene Spain attacked M.W. in a dispute over a methamphetamine sale. Defendant sliced M.W.’s throat and stabbed his leg. When M.W.’s brother D.W. intervened, Spain stabbed D.W. in the chest. Defendant and Spain fled with cash and cigarettes they took from M.W. M.W. survived but D.W. died from his injury. (Spain, supra, C046182.) The People tried defendant on the theory that the murder was committed during a robbery. The jury was also instructed on other theories of murder, including first degree premeditated murder, second degree murder, voluntary manslaughter, and aiding and abetting. But the trial court did not give a natural and probable consequence instruction. (Spain, supra, C046182.) The jury convicted defendant of murder during the commission of a robbery (§ 187, subd. (a)), assault with a deadly weapon (§ 245,