People v. Morris CA2/2

Filed 9/17/20 P. v. Morris CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B305345
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA140325)
v.
MARDELLAS LASHAWN
MORRIS,
Defendant and Appellant.
THE COURT:
Mardellas Lashawn Morris (defendant) appeals from his
convictions and resulting sentence following his no contest plea to
one count of second degree robbery (Pen. Code, § 211)1 and his
admission to several sentencing enhancements for which he
received a negotiated state prison aggregate sentence of eight
1 All further statutory references are to the Penal Code
unless otherwise indicated.
years.
Counsel was appointed to represent defendant in
connection with this appeal. After examination of the record,
counsel filed an “Opening Brief” in which no arguable issues are
raised, and asks this court for an independent review of the
record as required by People v. Wende (1979) 25 Cal.3d 436(Wende). On June 29, 2020, we advised defendant that he had 30
days within which to personally submit any contentions or issues
for us to consider. To date, no supplemental brief has been
submitted.
I. Procedural and Material Factual Background of
Case
A. Information
In April 2016, the People charged defendant with second
degree robbery (§ 211), a serious and violent felony. (§§ 1192.7,
subd. (c) & 667.5, subd. (c).) The People also alleged defendant’s
1997 robbery conviction constituted a prior “strike” within the
meaning of our Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(j)) and a prior serious felony (§ 667, subd. (a)(1)).
Additionally, the People alleged defendant had served two prior
prison terms (§ 667.5, subd. (b))—in 2013 for bringing a
controlled substance into the jail (§ 4573, subd. (a)), and in 2004
for grand theft from a person (§ 487, subd. (c)).
B. The plea and sentence
In December 2016, defendant entered into a negotiated
plea. In exchange for a sentence of eight years in state prison
and dismissal of the prior strike allegation, defendant agreed to
plead guilty to second degree burglary, admit he had suffered the
prior serious felony for the 1997 robbery, and the prior prison
term for the 2013 offense. The plea agreement, which defendant
initialed and signed, states that he had not been induced to enter
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the plea by any promise or representation other than that he
would be sentenced to eight years in state prison. When it was
brought to the court’s attention that defendant had not served a
prison sentence for the 2013 offense, defendant admitted he had
served a prior prison term for the grand theft in 2004. The court
accepted defendant’s plea, found defendant “knowingly,
intelligently waived his constitutional rights and . . . freely and
voluntarily entered” into the plea, and that there was “a factual
basis for the plea.” The court sentenced defendant to the agreed
upon eight-year sentence, comprised of the low term of two years
for the robbery, plus the five-year prior serious felony
enhancement, plus the one-year prior prison sentence
enhancement.
C. Post-conviction proceedings
In June 2018, defendant filed “a pro per motion to
withdraw a plea of guilty.” The trial court concluded that it was
“strictly buyer’s remorse” and denied the motion after reviewing
the file from the sentencing court which showed that a “[prior
strike] was stricken for the purposes of sentencing” and that
defendant had “knowing[ly] and intelligent[ly] waive[d]” his
rights.
One month later, in July 2018, defendant filed a motion for
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transcripts of prior proceedings in which his attorney “made
statements to him in private discussions.” The court denied the
motion because “[t]here can be no transcript of . . . off-the-record
proceedings.”
In June 2019, defendant filed a pro per motion seeking
clarification of his sentence based on the “washout” provision of
2 We presume the “proceedings” defendant referenced here
was the 2016 plea hearing.
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section 667.5, subdivision (b). According to the “washout” rule, “if
a defendant is free from both prison custody and the commission
of a new felony for any five-year period following discharge from
custody or release on parole, the enhancement does not apply.”
(People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.) Because
defendant’s washout period between his 2004 grand theft and his
2016 robbery conviction exceeded five years he sought to have his
sentence reduced to seven years. The matter was transferred for
further proceedings to the court that took defendant’s plea and
sentenced him in 2016.
At a hearing in July 2019, the sentencing court adjusted
the sentence for the robbery to reflect the three-year midterm
and added the five-year prior “because the agreed-upon
disposition was eight years.” The court overruled defense
counsel’s objection that defendant needed to be present for
resentencing because the court was not “giving him more time.”
One month later, in August 2019, defendant filed a motion
for a stay of the July 2019 nunc pro tunc proceeding, requesting
the appointment of new counsel, and defendant’s personal
appearance. Defendant argued he was never informed of the
hearing, and that his counsel was ineffective for not informing
him of the hearing and for not knowing “the facts and the law of
the washout period.” The court granted defendant’s request for a
rehearing, and issued an order for defendant to be transported
from state prison to court for the hearing.
At a hearing in December 2019, the court continued the
matter to determine if it had jurisdiction to impose the
resentencing at the earlier hearing and whether defendant had to
be present or not. Prior to adjourning the hearing the court
asked defendant outside the presence of the prosecutor to address
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the issues related to his counsel’s effectiveness. Defendant stated
he was not asking to represent himself, nor was he making a
motion to vacate his plea. Instead, defendant argued that the
one-year prison prior was illegal and the court had sentenced him
“on incorrect information.”
At a hearing in January 2020, the court noted the
maximum sentence defendant was facing was 15 years and that
defendant had agreed to an eight-year sentence. Defendant
argued that he would not have taken the offer if he had known
the maximum sentence was 15 years, and not 16 years as he was
led to believe. The court imposed an eight-year sentence
comprised of the midterm of three years for the robbery and five
years for the prior serious felony enhancement. Defendant
advised the court of its discretion to strike the five-year
enhancement pursuant to Senate Bill 1393 (Stats. 2018, ch. 1013,
§§ 1-2; § 667, subds. (a) & (f)(2)), but the court declined to do so
because it was part of the plea agreement and would deprive the
People of the “benefit of the bargain.”
Defendant filed a timely notice of appeal.
II. DISCUSSION
As stated above, defendant’s appointed counsel filed a
Wende brief, raising no issues. We notified defendant of his
counsel’s brief and gave him leave to file, his own brief or letter
stating any grounds or argument he might wish to have
considered. Defendant declined our invitation.
Defendant’s eight-year sentence was the result of a
negotiated plea and defendant is estopped from challenging what
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was a negotiated part of his plea agreement. “The rationale
behind this policy is that defendants who have received the
benefit of their bargain should not be allowed to trifle with the
courts by attempting to better the bargain through the appellate
process.” (People v. Hester (2000) 22 Cal.4th 290, 295.)
Negotiated plea agreements are an ‘“accepted and integral part of
our criminal justice system.’” (People v. Panizzon (1996) 13
Cal.4th 68, 79-80.) A negotiated plea is one in which the
defendant pleads to specific charges and enhancements, and the
trial court plays no part except to approve or disapprove the plea
and to enter sentence thereon. (People v. Segura (2008) 44
Cal.4th 921, 931.)
Here, defendant declined to withdraw his plea. The eight-
year sentence to which the parties had agreed could not be
specifically enforced in the precise manner originally
contemplated, but the resentenced term did not exceed the
initial agreed-upon sentence, thus, there was no error. See In re
Ricardo C. (2013) 220 Cal.App.4th 688, 698 [a plea agreement is
a contract between the accused and the prosecutor, both parties
are bound by its terms, and both the defendant and
the People are entitled to the benefit of the bargain].)
Defendant has, by virtue of counsel’s compliance with the
Wende procedure and our review of the record, received adequate
and effective appellate review of the judgment and sentence
entered against him in this case. (Smith v. Robbins (2000) 528
U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106.)
3 The sole exception is where the court lacks fundamental
jurisdiction over the parties and the subject matter. That is not
the issue here.
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The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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LUI , P.J., CHAVEZ, J., HOFFSTADT, J.
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