People v. Montoya CA3

Filed 9/10/24 P. v. Montoya CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C098144

Plaintiff and Respondent, (Super. Ct. No. 17FE010379)

v.

XAVIER ROBERT MONTOYA,

Defendant and Appellant.

Defendant Xavier Robert Montoya pled no contest to voluntary manslaughter in February 2019 after initially being charged with murder. On appeal Montoya claims the trial court erred in summarily denying his resentencing petition under Penal Code former section 1170.95, now section 1172.6.1 We conclude a person, like Montoya, who pled

1 Undesignated statutory references are to the Penal Code.

Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 throughout this opinion.

1

guilty to manslaughter after statutory amendments eliminated imputed malice theories of murder liability is not eligible for resentencing as a matter of law. Because the trial court correctly found that the timing of Montoya’s plea precluded him from eligibility for resentencing, we affirm its denial of the petition. FACTUAL AND PROCEDURAL BACKGROUND A first amended information charged Montoya with murder (§ 187, subd. (a)), shooting at an occupied vehicle (§ 246), and three counts of carrying a loaded firearm (§ 25850, subd. (a)); alleged criminal street gang enhancements (§ 186.22, subd. (b)(1)); and alleged Montoya personally discharged a firearm, causing great bodily injury (§ 12022.7). In February 2019, Montoya pled no contest to voluntary manslaughter (§ 192, subd. (a)) and admitted a personal firearm use allegation (§ 12022.5, subd. (a)). The trial court dismissed the remaining counts and allegations and sentenced Montoya to 11 years on the voluntary manslaughter charge and 10 years for the firearm enhancement, for an aggregate sentence of 21 years. In 2022, Montoya filed a petition for resentencing pursuant to section 1172.6. Montoya claimed he was entitled to resentencing because he was originally charged with murder and pled no contest to voluntary manslaughter. He further claimed he could not be presently convicted of murder because of the changes to the law, arguing a “finder of fact did not conclude that [Montoya] actually killed [the victim],” Montoya did not directly aid and abet the offense with reckless indifference to human life, the trial court “expressed doubts about [Montoya’s] membership in a gang,” and “neither the [gunshot residue] nor [Montoya’s] positioning in the car amounted to proof against [him].” Montoya asserted section 1172.6 applied to manslaughter convictions and “[i]t is undisputed that under the current state of the law . . . [Montoya] could not today be charged with murder under the facts of this case.”