Filed 3/21/13 P. v. Morgan CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

TODD SHELDON MORGAN, 

Defendant and Appellant. 

 H038394 

 (Monterey County 

 Super. Ct. No. SS091860) 

I. INTRODUCTION 

 After a jury trial, defendant Todd Sheldon Morgan was found guilty of committing 

assault with a deadly weapon by a life prisoner with malice aforethought (Pen. Code, 

§ 4500)1

 on a victim 70 years of age or older (§ 12022.7, subd. (c)). He admitted the 

allegations that he had six prior violent or serious felony convictions that also qualified as 

strikes within the meaning of the Three Strikes law (§ 1170.12, subd. (c)(2)). The trial 

court imposed a sentence of 27 years to life plus a consecutive three-year term. 

 Defendant filed a timely notice of appeal, and we appointed counsel to represent 

him in this court. Appointed counsel has filed an opening brief that states the case and 

facts but raises no issue. We notified defendant of his right to submit written argument 

on his own behalf within 30 days. The 30-day period has elapsed and we have received 

no response from defendant. 

 1

 All further statutory references are to the Penal Code unless otherwise indicated. 
2

 Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 

40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme 

Court’s direction in People v. Kelly, supra, at page 110, we provide “a brief description 

of the facts and procedural history of the case, the crimes of which the defendant was 

convicted, and the punishment imposed.” 

II. FACTUAL AND PROCEDURAL BACKGROUND 

 A. Factual Background

 Our summary of the facts is taken from the testimony given at the jury trial. In 

April 2009, defendant was incarcerated at Salinas Valley State Prison where he was 

serving a life sentence. An incident involving defendant occurred at approximately 

2:00 p.m. on April 12, 2009. 

 At that time, correctional officer Curtis L. Befort was monitoring the prison 

exercise yard from his position in the “gun booth.” He saw three inmates, including 

defendant, leaning against a table in the yard. One of the three inmates stood up and ran 

towards the basketball courts. Befort then saw defendant turn and attack the third inmate, 

Dennis Miller. Defendant was making striking motions towards Miller’s head and torso 

with his left hand while Miller tried to cover and protect himself. On his institutional 

radio, Befort announced that a fight was occurring. He also told the other prisoners in the 

yard to lie down. 

 Two other correctional officers, Carlos Martinez and Eric M. Schmidt, were in the 

yard. After hearing on the institutional radio that a fight was occurring near the table, 

Martinez and Schmidt looked over and saw that defendant was on top of inmate Miller 

and making stabbing motions with an object in his right hand. Miller was curling his legs 

up in a fetal position on the table while trying to protect his head. Martinez yelled at 

defendant and Miller to stop, but defendant looked at him while continuing to make 

stabbing motions towards Miller. When Martinez was about 20 yards away, he saw 
3

defendant drop an object and then lie flat on the ground. Miller was on the table with 

blood dripping from gashes on his face, upper torso, and hands. 

 Martinez then handcuffed defendant and, after putting on latex gloves, took 

possession of the bloody object that defendant had dropped. Martinez wrapped the object 

in a latex glove and put it in his pocket before placing it in an evidence bag in the 

evidence locker. He later determined that the object was an inmate-manufactured 

weapon, made of a piece of wood approximately nine and one-half inches long and three 

and one-half inches wide, sharpened to a point on one end with cloth wrapped around the 

other end to form a handle. 

 Miller was treated at Santa Clara Valley Medical Center by John Sherck, M.D., a 

trauma surgeon. Dr. Sherck determined that Miller, who was born in 1934, was seriously 

injured. His injuries included skin avulsions; puncture wounds to his hands; multiple 

lacerations on his face; cuts to his ears and back; and stab wounds to the neck, shoulder 

and chest. The stab wound to the chest broke one of Miller’s ribs and punctured his lung. 

In Dr. Sherck’s opinion, Miller’s injuries were very significant and would have caused 

his death without medical intervention. 

 B. Procedural Background 

An amended complaint was filed on September 25, 2009, that charged defendant 

with committing assault with a deadly weapon by a life prisoner with malice aforethought 

(§ 4500; count 1) on victim Dennis Miller. The complaint specially alleged that 

defendant had personally inflicted great bodily injury on a victim 70 years of age or 

older who was not an accomplice to the offense. (§ 12022.7, subd. (c).) The special 

allegations also stated that defendant had six prior violent or serious felony convictions 

that qualified as strikes within the meaning of the Three Strikes law (§ 1170.12, 

subd. (c)(2)), including five prior convictions for burglary in the first degree (§§ 459, 

460.1) in 1987 and 1988 and one prior conviction for robbery in the second degree 

(§§ 211, 212.5, subd. (c)) in 2001. 
4

 At the conclusion of the preliminary hearing held on September 25, 2009, 

defendant was held to answer on count 1, including the special allegation that defendant 

had inflicted great bodily injury on a victim 70 years of age or older. A third amended 

information was filed on February 9, 2011, that included a second count for assault with a 

deadly weapon (§ 245, subd. (a)(1); count 2) with the special allegation that defendant 

had personally inflicted great bodily injury on a victim 70 years of age or older who was 

not an accomplice to the offense (§ 12022.7, subd. (c)). 

 In April 2011, defendant filed a motion pursuant to People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497 in which defendant requested that the court dismiss his 

prior strike convictions in the interest of justice. The trial court denied the motion after a 

hearing held on April 13, 2011. 

 The matter proceeded to a jury trial on April 16, 2012. On the same day, 

defendant admitted the allegations that he had six prior violent or serious felony 

convictions that also qualified as strikes within the meaning of the Three Strikes law 

(§ 1170.12, subd. (c)(2)). On April 18, 2012, the parties stipulated that the victim had 

died and the jurors would be instructed not to speculate about his death or consider it any 

way. 

 On April 19, 2012, the trial court heard and granted the prosecution’s request 

to amend count 2 to allege the lesser included charge of a violation of section 4501 

(assault with a deadly weapon by a prisoner) instead of a violation of section 245, 

subdivision (a)(1). Defendant’s request that the jury be instructed on the lesser included 

offense of “simple assault” was denied. 

 The jurors returned their verdict on count 1 on April 19, 2012, finding defendant 

guilty of committing assault with a deadly weapon by a life prisoner with malice 

aforethought (§ 4500) and also finding that in the commission of the offense defendant 

personally inflicted great bodily injury on a victim 70 years of age or older within the 

meaning of section 12022.7 subdivision (c). 
5

 During the sentencing hearing held on May 30, 2012, the trial court imposed a 

sentence of 27 years to life pursuant to section 1170.12, subdivision (c)(2)(A), plus a 

consecutive term of three years pursuant to section 12022.7, subdivision (c). 

 The trial court ordered defendant to pay a $3,000 restitution fine (§ 1202.4, 

subd. (b)) and suspended the imposition of a $3,000 parole revocation restitution fine 

(§ 1202.45). The court also ordered payment of a court operations assessment fee of $40 

(§ 1465.8, subd. (a)(1)) and a court facilities assessment fee of $30 (Gov. Code, § 70373). 

Additionally, defendant was ordered to pay an unspecified amount of victim restitution to 

the family of the victim for all out-of-pocket and economic losses. The court reserved 

jurisdiction over the amount of the losses, which were to be collected and determined by 

the Department of Corrections and Rehabilitation. 

 The abstract of judgment was filed on June 20, 2012 and an amended abstract of 

judgment was filed on October 19, 2012. 

C. Appeal 

 Defendant filed a timely notice of appeal on May 30, 2012. Having carefully 

reviewed the entire record, we conclude that there are no arguable issues on appeal. 

(People v. Wende, supra, 25 Cal.3d at pp. 441-443.) 

 We observe, however, that the trial court imposed a consecutive term of three 

years pursuant to section 12022.7, subdivision (c), although section 12022.7, 

subdivision (c) provides: “Any person who personally inflicts great bodily injury on a 

person who is 70 years of age or older, other than an accomplice, in the commission of a 

felony or attempted felony shall be punished by an additional and consecutive term of 

imprisonment in the state prison for five years.” (Italics added.) We will correct the 

unauthorized sentence by ordering the abstract of judgment modified to state that the 

consecutive term pursuant to section 12022.7, subdivision (c) is five years. 
6

III. DISPOSITION 

 The abstract of judgment is ordered modified to state that the consecutive term 

pursuant to Penal Code section 12022.7, subdivision (c) is five years. As so modified, 

the judgment is affirmed. The clerk of the superior court is directed to prepare an 

amended abstract of judgment and to forward it to the Department of Corrections and 

Rehabilitation. 

 ____________________________________ 

 BAMATTRE-MANOUKIAN, J. 

WE CONCUR: 

_________________________________ 

 ELIA, ACTING P.J. 

_________________________________ 

 MÁRQUEZ, J.