People v. Montgomery CA5

Filed 7/12/24 P. v. Montgomery 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F085871 Plaintiff and Respondent, (Super. Ct. No. F10901528) v.

SHAWN JULIAN MONTGOMERY, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION Petitioner Shawn Julian Montgomery petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for attempted murder (§§ 187, subd. (a), 664). The trial court denied the petition at the prima facie stage following a hearing at which petitioner was not present. On appeal, petitioner contends his statutory and constitutional right to be present at the prima facie hearing was violated, thus requiring reversal and remand for a new resentencing hearing. We reject petitioner’s contentions and affirm. PROCEDURAL BACKGROUND2 On January 27, 2011, a jury found petitioner guilty of attempted murder (§§ 187, subd. (a), 664; count 1), shooting from a motor vehicle (former § 12034, subd. (c); count 2), shooting at an occupied motor vehicle (§ 246; count 3), possession of a firearm by a prohibited person (former § 12021, subd. (a)(1); count 4), and active participation in a criminal street gang (§ 186.22, subd. (a); count 5). As to counts 1 through 3, the jury found true gang and firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subd. (d)). The trial court sentenced petitioner to an aggregate term of 10 years, 8 months, plus an indeterminate term of 50 years to life. On appeal, this court affirmed. (People v. Montgomery (Mar. 18, 2013, F062095) [nonpub. opn.].) On September 1, 2022, petitioner filed a petition for resentencing on his attempted murder conviction pursuant to section 1172.6. The People opposed the petition on the ground this court’s prior opinion established that the jury’s verdict rested on a finding that