People v. Morales CA4/1 ( 2020 )

Filed 12/14/20 P. v. Morales CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077829
Plaintiff and Respondent,
v. (Super. Ct. No. SCD104976)
MARK MORALES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Michael S. Groch, Judge. Affirmed.
Mark Morales, in pro. per.; and Christine M. Aros, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 1995, a jury convicted Mark Morales of one count of first degree
murder and one count of second degree murder (Pen. Code,1 § 187, subd. (a)).
The jury also found Morales personally used a firearm (§ 12022.5, subd. (a))
and that he committed more than one murder (§ 190.2, subd. (a)(3)). Morales
1 All further statutory references are to the Penal Code unless otherwise
specified.
was sentenced to a term of life without parole, consecutive to a term of 15
years to life.
In June 2020, Morales filed a petition to recall his sentence in light of
section 1170.91,2 claiming he served in the military and suffered mental
impairment as a result.
The trial court denied the petition on two grounds. First, Morales did
not attach any proof of military service.3 Second, the court held that
section 1170.91 applied only to persons sentenced to a determinate term
under section 1170, subdivision (b). Morales was sentenced to indeterminate
terms and not under section 1170, subdivision (b). Accordingly, the court
found Morales ineligible for relief under section 1170.91 and denied his
petition.
Morales filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal. 3d 436 (Wende) indicating she has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Morales the opportunity
2 Section 1170.91, subdivision (a) provides, “If the court concludes that a
defendant convicted of a felony offense is, or was, a member of the United
States military who may be suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental health
problems as a result of his or her military service, the court shall consider the
circumstance as a factor in mitigation when imposing a term under
subdivision (b) of Section 1170. This consideration does not preclude the
court from considering similar trauma, injury, substance abuse, or mental
health problems due to other causes, as evidence or factors in mitigation.”
3 Morales later filed a certificate showing he served in the United States
Navy from 1992-1994.
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to file his own brief on appeal. Morales has responded with a supplemental
brief, which we will discuss below.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified the following possible issues that were considered in evaluating
the merits of the appeal:
1. Whether the court erred in denying the petition based on the failure
to attach proof of military service; and
2. Whether the court erred in holding section 1170.91 applies only to
determinate sentences under section 1170, subdivision (b).
In his supplemental brief, Morales argues the eligibility requirements
of subdivision (a) of section 1170.91 limiting the statute’s scope to person who
received a determinate sentence should be ignored. He argues the statute
should be broadly construed to provide relief for military veterans who suffer
mental health issues. The remedy in the statute is specifically designed to
permit trial courts to mitigate sentences imposed under section 1170,
subdivision (b). Indeterminate sentences such as Morales received are not
subject to the sentencing process used in determinate sentencing. We do not
believe Morales’s argument raises a reasonably arguable issue for reversal on
appeal.
We reviewed the entire record as required by Wende and Anders. We
have not discovered any arguable issues for reversal on appeal. Competent
counsel has represented Morales on appeal.
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DISPOSITION
The order denying Morales’s petition under section 1170.91 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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