People v. Morris CA5

Filed 5/20/21 P. v. Morris CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080625
Plaintiff and Respondent,
(Super. Ct. No. F18900333)
v.
MATTHEW ALAN MORRIS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Heather
Mardel Jones, Judge.
Erica Lynn Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Smith, J. and De Santos, J.
Appointed counsel for appellant Matthew Alan Morris asked this court to review
the record to determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) Morris was advised of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief. To date, we
have not received a supplemental brief from him. Finding no arguable error that would
result in a disposition more favorable to Morris, we affirm. We will remand this case
back to the lower court for the correction of errors in the abstract of judgment.
BACKGROUND
On January 18, 2018, the Fresno County District Attorney’s Office filed a criminal
complaint charging Morris with one count of receiving stolen property in violation of
Penal Code section 496d, subdivision (a). The complaint further alleged a prior strike
conviction (Pen. Code,1 §§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)), and two prior
prison term enhancements (§ 667.5, subd. (b)).
On December 7, 2018, following an indicated sentence by the trial court, Morris
entered an open plea of no contest to the charged offense and he admitted the prior strike
allegation and prior prison term enhancements. The trial court stated sentencing would
be postponed six months for Morris to complete a drug treatment program through
WestCare, a treatment facility in which he was already enrolled. Upon successful
completion of the program and assuming Morris obeyed all laws, the trial court would
reduce Morris’s conviction to a misdemeanor and he would receive no additional time in
custody. The trial court also stated it would strike Morris’s prior strike pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The People did not object to
the trial court’s indicated sentence.
On December 8, 2018, 11 days after he began the WestCare treatment program,
Morris discharged himself. At the time he absconded, he was on a grant of post-release
1 All statutory citations are to the Penal Code unless otherwise indicated.
2.
community supervision. Morris’s probation officer was unable to reach him for a period
of time.
In May 2019, Morris was arrested for shoplifting.
On November 12, 2019, Morris asked the trial court to relieve appointed counsel
pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and to appoint him new
counsel. Following a confidential hearing, his motion was denied.2
On January 10, 2020, the trial court sentenced Morris to a prison term of four
years. He received the middle term of two years, doubled to four years pursuant to his
prior strike conviction. In declining to exercise its discretion to strike the prior strike, the
trial court stated it had considered letters written by Morris and his spouse, motions filed
by the parties, and the sentencing report. The trial court stated that while Morris’s prior
conviction had occurred in 2002, it did not find the conviction too remote in time in
proximity to the current offense, and found the prior conviction was relevant in light of
Morris’s overall criminal history.
The trial court struck both prior prison term enhancements, referencing the
enactment of new legislation. In addition, the trial court imposed various fines and fees.
With respect to Morris’s PRCS case (case No. F15907254), the trial court terminated
PRCS and sentenced him to 180 days.
On January 13, 2020, Morris filed a timely notice of appeal. His request for a
certificate of probable cause was denied by the trial court. Morris did not file a petition
2 At the Marsden hearing, Morris claimed he was under the influence of drugs at the
time he entered his plea. The trial court questioned Morris and his defense counsel about
Morris’s claim, but ultimately concluded there were insufficient grounds to grant the
motion. Although Morris represented that he wanted to withdraw his plea and was given
additional time to discuss this possibility with defense counsel, Morris ultimately
declined to do so. At no point during the criminal proceedings below did Morris attempt
to withdraw his plea on any grounds.
3.
for writ of mandate challenging the trial court’s denial of his request for a certificate of
probable cause.
DISCUSSION
Morris’s appellate counsel filed a Wende brief with this court. The brief also
included the declaration of appellate counsel stating that Morris was advised he could file
his own brief with this court. By letter on July 24, 2020, we invited Morris to submit a
letter containing “any grounds on appeal that [he] want[ed] this court to consider.” To
date, he has not done so. After independent review of the record, we find that no
reasonably arguable factual or legal issues exist. We do however find that the abstract of
judgment must be amended.
Section 4 of the abstract of judgment was not completed. Morris was sentenced to
a four-year term in state prison after the trial court declined to strike his prior strike
conviction. Thus, section 4 stating he was sentenced “per PC 667(b)-(i) or PC 1170.12
(strike prior)” should be checked.
In addition, section 5 of the abstract of judgment fails to state that victim
restitution (§ 1202.4, subd. (f)) was ordered in an amount “to be determined.” The trial
court should amend the appropriate boxes within this section to reflect the trial court’s
order concerning victim restitution.
DISPOSITION
The judgment of conviction is affirmed.
The trial court is directed to amend the abstract of judgment by (a) checking the
box in section 4 of the form to show Morris was sentenced based upon his prior strike
conviction, and (b) checking the box in section 5 indicating that victim restitution was
ordered in an amount to be determined. The trial court is further directed to transmit
certified copies of the amended abstract to all appropriate parties and entities.
4.