IN RE:    JERRY WAYNE MORGAN                                                   SUPPLEMENTAL BRIEF
                                                                                                                CASE NO. C030469

                                                                                                                HEARING: June 18, 2001

                            Appellant and Petitioner.

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     Defendant/Appellant JERRY WAYNE MORGAN, was arrested after an altercation with a girlfriend, [Virginia] near the outskirts of Red Bluff, California, in Tehama County.

     Mr. Morgan was tried in Shasta County, where the Judge and District Attorney  had  no jurisdiction over this incident.  While he was held in the Shasta County Jail, he was taken out to  Hospital, where he had major heart surgery by Dr. Fletcher, after which he was put back in the S County Jail with no medication. The Doctor said he was to receive medication for the rest of his life.  It is well known that 80% come out of the hospital with a staphylococcus infection, they didn't have before going to the hospital. He was put back in jail with no medication or physical follow-up, for the possibility of this kind of infection after major surgery.

    He was told by his current Appeal lawyer S. Lynne Klein, that she only gets paid for 3.5 hours.  How can she be expected to do a sufficient job for him on this petty an amount of payment?

    In S County the Judge, District Attorney, and Public Defender all worked in collusion to deprive the Defendant of all due process rights. Mr. Morgan read a statement  that moved the Court to dismiss the Public Defender [Elliot Burick], as his Attorney.  That motion was denied.  [Exhibit A]  Mr. Morgan said that, "The Public Defender never did anything for me.  There was no trial as I was so sick I was not able to fight this group  (gang of attorney's) that were against me."  It defies logic and common sense, that Mr. Morgan was sentenced so severely for questionable and doubtful violations. Defendant has asked why does he have 58 points or 25 to life, that is for murder to get that many points.  Some have murdered and have received less time  than Mr. Morgan has received for a minor slapping altercation, in fact in a recent case a man killed his girlfriend and got 15 to life.

    The Prosecuting Attorney did not follow Penal Code §1170.12(d)(1), in that he did not prove each prior felony.  He, with others, intimidated Defendant into accepting a plea, that gave up his rights, with a promise that he would receive leniency if he signed this plea.  Mr. Morgan was intimidated, confused and physically sick from major heart surgery, and didn't understand or comprehend everything that was happening.  He wrote that, "if I signed anything that said 25 to life--I did not see that part."  Also he stated, "if I signed a Plea Bargain, Why did they not give me a copy??  Why did I not see the 25 to life???  Why would I just plea for 25 to life??"  As is evident by these statements, Mr. Morgan did not have any understanding of what was happening with this Plea. Had the case been investigated as it should have been, they would have found that the Governor of Arkansas, Dale Bumpers granted the  Board of Pardons and Paroles recommendation, that the sentence was "commuted to parole eligibility."  Since this sentence had been commuted by the Governor of Arkansas, it would not then be eligible to count for a Third Strike..  [Exhibit B]

    The Judge himself was well aware that he had no venue jurisdiction, in fact Mr. Morgan heard him say, "I have no jurisdiction in Tehama County."   The problem of venue is clearly stated in the records of the Redding Police report by Officer Tennant (#113), where he "recommended this case be forward to Investigator STUFFLEBEAM at Police Department for the filing of §273.5 charges in Tehama County and potential arson charges in Shasta County."  This indicates a clear lack of understanding by Officer to the fact that he has no authority to recommend that charges be filed outside of SHASTA County.  It also provides physical evidence of the police knowledge of the lack of proper or sufficient legal prosecutorial venue.

    Mr. Morgan was pressured by threat to sign the Felony Change of Plea: Waiver of Rights; Advisement of Consequences; Findings and Order.  He was told that it would be much worse for him if he did not sign, he admitted to the fact that he did get into  a slapping contest with his girlfriend, which resulted in charge of Penal Code §273.5 (A), which was an event that took place in Tehama County.  The Shasta County count of PC §451 (B) was dismissed for lack of evidence; in that Mr. Morgan did not set this fire and does not know how it started.  Since this case never went to trial, the facts of this case were never presented, and both parties tell a different story of the same event.

    The Arkansas incident a strike charge, started when Mr. Morgan's cousin,  brother of  J.A. Morgan, was murdered in his cell by jail officers, at the Poinsett County Jail, at Harrisburg, Arkansas on September 2, 1969.  The town was up in arms over this.  Mr. Morgan and his cousin J.A. Morgan, took City Marshal Charles Branyan  and Sheriff Roy Holm and State Trooper Joe Martz at gun point, out to the Harrisburg Memorial park Cemetery, with the intention to have a talk with them and ask questions over the grave of Merle Morgan.  One officer escaped and the other two were released unharmed.  Mr. Morgan was 25 years old at the time, and hot-headed and angry over his cousin's senseless murder in the jail.  He was sentenced to 17 years, on January 10, 1972 the Governor of Arkansas, Dale Bumpers, commuted the sentence, and a pardon was granted. [Exhibit B].

    1. There is the question of venue, in that this incident happened in Tehama county who has venue over this incident, and yet was sentenced in Shasta County, which had no venue over this incident, 32 miles away.

    2. Can a sentence be imposed by a plea bargain in violation of Penal Code §1192.7(b), which clearly states that, "Prior felony convictions shall not be used in plea bargaining."

    3. The failure either purposeful or by incompetence of Prosecuting Attorney to follow  Penal Code §1170.12(d)(1), which requires that he must prove each felony.

    4. The violation of the  United States Constitution, Sect. 9.  No.  3,  No Bill of Attainder or ex post facto Law shall be passed.  Three Strikes is the passing of such a law.

    5. There was collusion between the Judge, District Attorney and Public Defender, who acted in concert to cunningly by verbal treachery to coerce, threaten and commit a fraud against the Defendant.  The withholding of exculpatory evidence from Trial and Sentencing Judge.

    6. The fact that there was no trial to establish facts, only a Change of Plea instead of a trial.  Defendant made numerous attempts to dismiss his Public Defender, and Defendant was cunningly coerced to give up his Constitutional Rights, even under protest? [Exhibit A]

     7. There is also double jeopardy, in that the Arkansas incident was tried and time served and pardon granted, in the Shasta County case there was no trial of the facts, but he received the most severe sentence, in that he is being punished twice for the same crime.

    8. The Shasta County case Penal Code §273.5 (a)(b), is not listed in Penal Code §667.5, as enhancements of Penal Code §1170.12(b)(1), as a violent felony.

    9. Violation of the California Constitution, Article 1, §15, which guarantees a speedy and PUBLIC trial.

   10. Defendant was denied a Public trial, in that most of the events went on, off the record, in secret, and out of view of the public and Defendant.

    1. Defendant was charged with Penal Code §273.5(A) in Shasta County, when the event took place in Red Bluff, Tehama County, California.  There was no police report or investigation done by Tehama County submitted to the Court, where the charges if any should have been filed.

    Redding never pursued the Shasta County case of Penal Code §451(B), in that there was no proof that he did set the fire.  In fact if the fire was set by Mr. Morgan, why did he return to the trailer after going to the store.

    The place where the harm occurred, it is a principle of law, that jurisdiction only applies where the harm occurred. Did the harm occur in Shasta County where the girlfriend slapped him and he slapped her—NO.  Did the harm occur in Shasta County—the answer is NO.  Where was the kidnaping of the Sheriff, Marshal and State Trooper—did it occur in Shasta County where the Judge took jurisdiction—the answer is NO.  The Judge applied Three Strikes, did this take place in this State—the answer is NO.  Does Three Strikes and the State have jurisdiction over an event that takes place in Canada, Argentina or England—the answer is NO.

    Back to the principle that jurisdiction only applies where the harm occurred.  The Judge took venue jurisdiction where he had none.  In other words the Judge thinks he is the Judge of the World, when he is by law  restricted to Shasta County.

    There are seven primary or main elements to a proper, lawful and legal prosecution. One primary element is venue jurisdiction.  The Court knowingly had no venue jurisdiction, and yet the Judge joked, laughed, about the fact with the Assistant District Attorney in front of the so-called Public Defender.  In a lawful prosecution all seven (7) elements of jurisdiction must be present.  If one single element is missing in the case, the case must be dismissed.  In this case, it was not only missing, but the entire Attorney and staff, made fun and jested about it, and kissed it off as a easily correctable defect.  That is a material fact, and it is not true that it can be corrected in any manner other than to relay or transmit the case to the proper venue jurisdiction.

    It is a material and legal fact, as ruled on by the United States Supreme Court in, Brady v. Maryland, that where the prosecution holds back from the Defendant the above exculpatory evidence of lack of venue jurisdiction, it is immediate reversal error.  It may be argued by the Prosecution that it was up to the Public Defender to object at the time of
the sentencing.

    2. It states in Penal Code §1170.12 (d)(2)(e) Prior felony convictions shall not be used in plea bargaining, as defined in subdivision (b) of Section 1192.7.  The Public Defender did not investigate the Arkansas case for facts or details, this failure violated the Constitutional rights of Defendant, as evidenced in the Court records.  In People v. Barriga, (1996) 49 Cal.App. 4th 1242, here the Judge  took back his approval of a bargain, and decided that the bargain violated §1192.7(a) prohibition against plea bargaining in serious felony cases.

    Defendant was coerced into signing the plea bargain, in that he was told that it would be worse for him if he didn't sign it.  As it turned out he was given the severe sentence of 25 to life for a minor altercation with a girlfriend, which took place in Tehama County, not Shasta County.  A minor altercation that time in the County Jail would have been more than sufficient.  In fact Defendant has stated, that one day in Court he signed something for a new Attorney, he did not have his glasses, but did ask what he was signing.  He also says he was not given a copy of the Plea Bargain.
 

    A plea bargain usually means a benefit to the Defendant, it is made in exchange for a lessor sentence or charge.  The Defendant was deceived in that he was given the stiffer sentence of 25 to life, and received no benefit of any kind.  In Weaver v. Graham, it would be understood that Defendant's decision to plea bargain would be based upon the belief
that Defendant would receive a reduced sentence.
 

    In order to obtain the signature of Mr. Morgan, who was in pain from a major heart operation, the Judge, District Attorney and Public Defender, they pressured him to sign away all his legal, and due process rights.  In pain and under stress and great duress, and not understanding the ramifications he could incur from signing the plea, he signed or more properly initialed all the papers placed in front of him, not understanding the implications because of the promises, threats, and pain, he succumbed to the cunning trickery utilized by the Court Officers, and the Judge.

    This activity violated the well established Rules of Court, Law, and Supreme Court mandates, for instance.  Under U.S. v. Tweel, 550 F.2d 297 (1977), "It is a well established rule that a consent search is unreasonable under the Fourth Amendment, if the consent was induced by the deceit, trickery or misrepresentation. . ." U.S. v. Prudden, 424 F.2d 1021, (5th Cir. 1970), cert. denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed2d 62 (1970).  Also stated that:  "Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading."

    Fraud in the case of Mr. Morgan is rampant over and over, when seen as it was against Mr. Morgan's due process rights.  The case in Arkansas that was used as a Three Strike against Mr. Morgan, was used in the sentencing in a fraudulent manner, as the case was some 28 years earlier, was in essence dismissed by the Governor of the State, and hence a non-applicable strike.  Mr. Morgan asked why this was used, and he was never given an answer by either of the Judge, Prosecutors or the Public Defender—that's fraud.

    Since fraud is so overtly rampant in this case, as used against Mr. Morgan, the United States Supreme Court case of U.S. v. Throckmorton, 98 U.S. 61 (1878), applies to this action, in that it clearly states that, "There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents and even judgments."  Therefore, it is a fact that the following should clearly be abrogated.  The signing of the due process rights Plea Bargain was a contract, the sentencing by the Judge is called a Judgment.  In summary, both the trial was a fraud on venue grounds, the signing away of Mr. Morgan's rights was a fraud, and the sentencing of the man on fictitious felony charges that occurred 28 years before, was a fraud.  That nullifies, abrogates and demands a total dismissal or reversal of the sentencing and the man should be released immediately with expungement of the record or a Governor's pardon.

    3. The Prosecuting Attorney failed to follow: Penal Code §1170.12 (d)(1), "The prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2)."  Paragraph (2) provides that "prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice . . ."

    The prosecuting attorney and the Public Defender in this case, both failed to "prove each prior felony conviction," in their refusal to determine and examine the Arkansas case, that had been pardoned by Governor Dale Bumpers of Arkansas. [Exhibit B]
 

    The Shasta County Court basically found Defendant guilty of "kidnapping: 2 strikes" The kidnaping would be the Arkansas case,  the two strikes are not identified.  Defendant had been found guilty in Arkansas, but after serving about two (2) years of the 17 year sentence, the Governor of Arkansas, Dale Bumpers expunged the balance of the sentence. The Governor knew the circumstances of this action, that they were town hero's, in that the Deputies had murdered their cousin in his jail cell and nothing had been done about this crime.  The refusal to tell the Judge of the Governor Dale Bumpers' pardon, is exculpatory
evidence withheld form the sentencing Judge.  This is a violation of Brady v. Maryland, 373 U.S. 83 (1963) [Exhibit B]

    The prosecutor called no witnesses, and in fact he used a "computer printout" against the Defendant as evidence.  In other words he used a non-witness, who cannot be cross examined, to determine the two (2) strikes.
 

Constitutional Issues:
 

    4. Three Strikes violates the United States Constitution, article 1, section 9, prohibits the Legislature of the United States from passing any ex post facto law; and, in section 10, lays several restrictions on the authority of the Legislatures of the several states; and, among them, 'that no state shall pass any ex post facto law.'  Calder v. Bull, 3 U.S. 386 (1798).  The case cited below also speaks to the point of "more burdensome punishment," that one can be deprived of "any defense," and can be "harsh and oppressive," and "should not be altered by legislative enactment, after the fact, to the disadvantage of the accused." Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925).
 

    The Three Strikes law also violates the California Constitution, Article 1, Declaration of Rights, §9.  "A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed."  The present case before the Court, the prosecution went back 28 years to find a "strike," how could the Defendant have known 28 years ago, that he would be punished twice for this event?

    The two cases cited below, show that Three Strikes are ex post facto, in that it applies to events that occurred years ago, and bring a "disadvantage" to the Defendant. The punishment of 25 to life is forbidden by Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d17 (1981), "which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred."
 

    5. It is a material fact, that withholding exculpatory evidence from both the Trial Judge and the Sentencing Judge, mandates and begs the application of the rule of law and holding, called Brady v. Maryland, 373 U.S. 83 (1963), in that any exculpatory evidence withheld from the court, is immediate grounds for dismissal, or reversal.  Holding back the fact that the prior case used as a "Three Strikes" case, was expunged by the Governor of Arkansas is certainly exculpatory.
 

    It is a fact that shortly before signing his rights away, the Defendant had major open heart surgery performed by Dr. Fletcher [since it has been discovered that Dr. Recardo Moreno was the surgeon] in a hospital.  It is common knowledge that it takes literally months, anywhere from 4-10 months for a person to have the toxic gases used in the anesthetic to be depleted and expunged from the human body tissue. This man was absolutely in no condition after this major heart operation to be taking under consideration the waiving of his human rights, his due process rights, his Constitutional rights, and his legal rights following such an outrageous assault to the human organism. To ask a person under such extreme pain following this type of surgery, to give up his rights, is absolutely criminal, perverse, and inordinate in nature.  Yet perpetrated upon Mr. Morgan under extreme duress, and stress in this state of his legal procedures.

    6. In the attached Exhibit A, is the typewritten statement that Mr. Morgan read in Court on March 3, 1999.  It shows that he had previously moved the Court to dismiss his Court appointed Public Defender.  All the Public Defender did was advise him of the "25 years to life,"  He also brought up the jurisdictional issue of Tehama County.  The Public Defender never showed him any police reports, filed no motions, and failed to help Defendant "prepare an affirmative defense."  After this motion was denied, and they removed both Defendant and the public,  they held a ex parte secret hearing out of public view, which is illegal and unlawful.  Defendant was coerced into signing the Plea Bargain, in fact he does not remember signing anything that had Three Strikes mentioned on it.

    7. There is double jeopardy, in that the Arkansas case was tried, sentenced and satisfied by being commuted. The Shasta County action is punishing him again for these crimes, only much more severely than the original punishment.  In United States v. Halper, 490 U.S. 435 (1989), it clearly prohibits multiple punishment.
 

    8. The Defendant in accepting a plea of guilty for the Penal Code §273.5(A), did not receive the safeguards that he should have reasonably expected, as stated below in Santobello v. New York, 04 U.S. 257, 92 S.Ct. 495, 30 L.Ed2d427 (1971).  He instead received the harsh penalty of 25 to life.
 

    9. The Defendant has been "twice put in jeopardy for the same offense," in that he is being punished again for crimes that he has already put in his time and the required punishment.
 

    You talk about cruel and unusual punishment, that the Defendant was taken to the Hospital, had his chest opened up for heart surgery, and five (5) days later put back in a filthy jail cell.  He was given no pain medication, or other anti-infection antibiotics.

    The current California Prison System as presently configured, with constant 24 hour per day lockdowns—weeks on end, the small space [6x10 room, with 2 men in it], the cruelty, and other harsh treatment, would constitute a violation of §17, of the California Constitution.  They don't even treat animals in a Zoo with this cruelty, where even the primates have more room than this.

    10. In violation of the California Constitution, Article 1, §15, Defendant was denied a public trial.  Defendant was removed from the Court, which is clear and distinct, that the Judge was conducting an unlawful hearing, that demands at the vary least a reversal of the Courts judgment and actions.  By the fact not only was the Defendant removed and isolated from his own trial, but so were the viewing public, from whom we have first hand reports. This subterfuge and besmirchment of due process right, as Constitutionally stipulated to, indicates an obvious an overt collusion between the Judge, the Prosecution and the Defendants incompetent Attorney.  Who without objection, allowed this outrageous judicial procedure to be carried out, to the demise, degradation, and incarceration of Defendant.  The Public Defender was not defending, he was pretending, or playin—"fake it till you make it."  From the  Court's own record, it states that at "10:38 a.m., court is again in session without the defendant."

    Even in civil hearings the Brown Act applies, and the Judge did not even have the courtesy to apply the Brown Act, let alone due process.
 

    Obstruction of justice is practiced in expecting a prisoner to be able to prepare a Brief, when they have no paper, typewriter or help from prison.  It is the same as no justice being allowed, in that defendants are not being allowed to defend themselves in the current system.  Also the prisoner does not receive his mail in a timely fashion, making it difficult to help them with their legal papers.  This is a violation of United States Code, Title 18, §Sec. 1702. Obstruction of correspondence.  "Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both."

    Defendant Morgan tried on numerous occasions to dismiss the Public Defender, whom he knew did not have his best interest in mind.  The Court refused his request to dismiss the Public Defender and declare a mistrial.  [Exhibit A]

    The S County case  Penal Code §273.5 (a)(b), is not listed as a violent felony of Penal Code §1170.12 (b)(1), Penal Code §667.5 (8).  To be considered as a Three Strike, it would have had to cause "great bodily injury," the slapping contest would not come up to the level of this standard, in that there was "a large bruise on right side of face, and bruise on her hand."  Again there was no trial for evidence to be presented and cross-examined.

    Defendant JERRY WAYNE MORGAN, born May 22, 1944,  was found guilty of the September 2, 1969 incident in Poinsett County, Harrisburg, Arkansas.  He served a prison term, until he was released after the Governor Dale Bumpers granted a pardon and "commuted to parole eligibility."

    Defendant plead guilty to Penal Code §273.5, which would have carried a sentence of "in a county jail for not more than one year."

   Defendant JERRY WAYNE MORGAN, has served his time for his crime, to give him an additional 25 years to life, is excessive punishment and a violation of the principle set forth above cited case, Weaver v. Graham, where one would expect leniency with a plea bargain.  Plus Penal Code §1192.7(b), expressly forbids "plea bargaining."

    Since Count One was dismissed as unproven or unprovable, and Count Two was tried illegally and unlawfully in a county having no venue jurisdiction, all the enhancements used as strike elements against Mr. Morgan, cannot be applied to him under the Three Strikes case for several reasons.  When reviewing records, the Court also makes careful note that even the enhancement cannot be applied, as abrogated by a pardon by the Governor of Arkansas.  That is in fact an enhancement not for the prosecution, but on behalf of the Defendant.  Most interesting how these judicial officers so turn around the evidence.  No wonder the Defendant is baffled by the paper trickery that was used against him.

    The so-called injured party, the girlfriend of the Defendant, didn't even testify in Court against the Defendant.  It is understood that if she was asked to testify against Mr. Morgan, she would refuse.  Since she was driving the car at the time of the slapping contest, and one bruise does not suggest that this was a "violent crime," is obscene and perverse as used against Mr. Morgan.

    It is a fact that the Trial Judge, in his signed statement dated March 3, 1998, wherein he states that Defendant knowingly, intelligently and voluntarily waived his Constitutional Rights, and freely and voluntarily entered a plea.  All of the above is a fraud, lie and farce upon the record.  Mr. Morgan was tricked, and that is fraud, and fraud nullifies everything to which it attaches.  Therefore, the findings of the Court are a fraud upon both the State, and Mr. Morgan.

    This document was prepared by laymen under the authority of Johnson v. Avery, 393 U.S. 483 (1969), which states as follows:
 

    This Supplemental Brief draws no conclusions of law in its final summation, but investigators are forced to summarize the inconsistencies and violations of due process in the appeal on behalf of Defendant.  These failures are clearly and obviously shown on the records of the court according to law, and is self-evident that this case begs for due process.

    Defendant prays that this case be reversed, and he be released from the California State Prison in a expeditious manner, in all due haste, and his record be expunged at the interest of justice and due process, on behalf of this man's health that has been highly jeopardized in this process.

    I declare under the penalty of perjury, under the laws of the State of California, that the foregoing is true and correct.
 
 

Dated:___April 18, 1999______
                                                                                    Defendant/Appellant.
                                                                                    JERRY WAYNE MORGAN