People v. Morgan CA2/4

Filed 3/13/23 P. v. Morgan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B319097
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA041908
v.
KINA MORGAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura L. Laesecke. Dismissed.
Richard B. Lennon and Cheryl Lutz, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 1999, the Los Angeles County District Attorney filed an
amended information charging defendant and appellant Kina
Morgan with murder in violation of Penal Code section 187.1 A
jury found her guilty of first degree murder, found the lying-in-
wait special circumstance allegation true, and the trial court
sentenced her to life in prison without the possibility of parole.
Morgan appealed, and this court affirmed the judgment.
In 2019, Morgan filed a petition to vacate her murder
conviction under section 1172.6 (former section 1170.95).2 The
District Attorney filed an opposition and later filed a duplicate of
that opposition. Each included, as exhibits, this court’s opinion
from Morgan’s direct appeal (case no. B143755), the jury
instructions from Morgan’s trial, and the verdict form.
1 All undesignated statutory references are to the Penal
Code. The amended information included a knife use allegation
(§ 12022, subd. (b)(1)), but that allegation was crossed out with a
notation that the prosecution chose not to proceed on it at trial.
The amended information in this record does not include a lying-
in-wait special circumstance allegation, but the jury was
instructed on it.
2 Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. For the sake of
simplicity, we will refer to the statute by its new code section.
That section provides relief for certain individuals convicted of
murder under the felony murder rule or natural and probable
consequences doctrine. (See § 1172.6; Stats. 2018, ch. 1015, § 1,
subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 959.)
2
The trial court appointed counsel on Morgan’s behalf.
Morgan filed a written Marsden motion.3 She also submitted a
peremptory challenge per Code of Civil Procedure section 170.6,
alleging the trial judge overseeing her section 1172.6 petition was
prejudiced against her. The trial court denied the 170.6 challenge
as untimely and continued its ruling on the Marsden motion.
Defense counsel filed a written request that Morgan be given new
counsel, saying that communications had reached an impasse.
Attached to the request was another copy of the jury instructions
given at Morgan’s trial plus the verdict form.
After holding a hearing, the trial court denied the Marsden
motion, reiterated its ruling that the 170.6 challenge was
untimely, and denied the section 1172.6 petition. In denying
section 1172.6 relief, the court noted Morgan was not tried on a
felony murder or natural and probable consequences theory of
liability.
Morgan timely appealed, and we appointed counsel to
represent her. On August 4, 2022, appellate counsel filed a brief
raising no issues and asking us to review the record
independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).)
Morgan did not respond to our letter advising her of her right to
file supplemental briefing.4
3 People v. Marsden (1970) 2 Cal.3d 118.
4 After filing the Wende brief, appellate counsel filed an
extension of time request on Morgan’s behalf, indicating her
client had reached out, expressed that she intended to file a
supplemental brief, and asked counsel to file the extension
request. We granted the request but never received briefing from
Morgan.
3
Because Morgan’s appeal is from an order denying section
1172.6 postconviction relief, this court has no duty to
independently review the record for reasonably arguable issues.
(People v. Delgadillo (2022) 14 Cal.5th 216, 221-222.)5 We
therefore dismiss Morgan’s appeal as abandoned.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
COLLINS, Acting P.J.
SCADUTO, J.*
5 We do note, however, that because the jury was not
instructed on felony murder or natural and probable
consequences liability, the record demonstrates as a matter of
law Morgan is not entitled to section 1172.6 relief.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
4