California Court of Appeal Mar 13, 2025 No. E082991Unpublished
Filed 3/13/25 P. v. Montana CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082991
v. (Super.Ct.No. HEF002555)
GERSON MONTANA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed with directions.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and James
Spradley, Deputy Attorneys General, for Plaintiff and Respondent.
1
Gerson Montana appeals from the trial court’s order denying him relief under
Penal Code section 1172.75 after the California Department of Corrections and
Rehabilitation (CDCR) identified him as a person serving time on a judgment that
includes a now-invalid prior prison term enhancement. (Unlabeled statutory references
(b), to eliminate sentence enhancements for prior prison terms unless the prior terms were
for sexually violent offenses as defined in Welfare and Institutions Code section 6600,
subdivision (b). (Stats. 2019, ch. 590, § 1; People v. Carter (2023) 97 Cal.App.5th 960,
966.) Two years later, Senate Bill No. 483 (2021-2022 Reg. Sess.) added section
1172.75 (formerly § 1171.1) to make the new limitations on prior prison term
enhancements retroactive to certain final judgments. (Stats. 2021, ch. 728, § 3.)
3
Subdivisions (c) and (d) of section 1172.75 create a procedure for resentencing of eligible
defendants.
In February 2022, CDCR notified the trial court that Montana was potentially
eligible for resentencing under section 1172.75 because he was serving a term for a
judgment that included a now-invalid prior prison term enhancement.1 Montana filed a
motion asking the court to find him eligible for resentencing under section 1172.75,
subdivision (d), because his prior prison term enhancement was not imposed on the basis
of a sexually violent offense.
The trial court denied Montana relief under section 1172.75. The court found that
Montana’s prior prison term enhancement was for a sexually violent offense, reasoning
that “the prison prior . . . cannot be segregated from all of the charges that were [pled]
and proved. And one of the charges [pled] and proved in the prison prior, which he did a
term was [section] 220 of the Penal Code, which falls specifically within those
enumerated within [section] 6600 (b) of the Welfare and Institutions code.” The court
acknowledged that “[k]idnapping was the only charge alleged in the charging document.”
1 The record on appeal did not reflect that CDCR had identified Montana to the sentencing court as a person serving a term for a judgment that includes a section 667.5, subdivision (b), enhancement as required by section 1172.75. We therefore invited the parties to file supplemental briefs addressing the issue of whether this court has jurisdiction to consider Montana’s appeal. (People v. Burgess (2022) 86 Cal.App.5th 375, 379-382.) In response, Montana filed a motion to augment the record to include a list that CDCR provided to the sentencing court identifying persons serving a term for a judgment that includes now-invalid prior prison term enhancements. Montana’s name and his 2001 case number are on that list. 4
DISCUSSION
Montana argues that the prior prison term enhancement that was imposed in 2001
for his 1986 kidnapping conviction is now legally invalid because it was “never pled nor
proven that the kidnapping for which a prison sentence was imposed was for purposes of
rape.” We agree.
Section 1172.75, subdivision (a), provides that “[a]ny sentence enhancement that
was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5,
except for any enhancement imposed for a prior conviction for a sexually violent offense
. . . is legally invalid.” Section 1172.75, subdivision (b), requires the Secretary of CDCR
and the administrators for each county jail to “identify those persons in their custody
currently serving a term for a judgment that includes an enhancement described in
subdivision (a)” and to provide certain information about those individuals “to the
sentencing court that imposed the enhancement.” Upon receiving that information, the
trial court “shall recall the sentence and resentence the defendant” if the court
“determines that the current judgment includes an enhancement described in subdivision
(a).” (§ 1172.75, subd. (c).) The resentencing “shall result in a lesser sentence than the
one originally imposed as a result of the elimination of the repealed enhancement, unless
the court finds by clear and convincing evidence that imposing a lesser sentence would
endanger public safety.” (§ 1172.75, subd. (d)(1).)
The issue presented in this case—whether a prior prison term enhancement is
legally invalid under section 1172.75 if the conviction that was pled and proved as the
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basis for the enhancement was not a sexually violent offense but the defendant was
convicted and sentenced to a concurrent prison term for a sexually violent offense in the
same case as the conviction that was pled and proved—was considered by Division One
of this district after Montana filed his reply brief in this case. (People v. Green (2024)
104 Cal.App.5th 365 (Green).) Green held that a prior prison term enhancement like
Montana’s is legally invalid, and we find its reasoning persuasive.
The defendant in Green was charged with one count of possessing cocaine base
with the intent to sell (Health & Saf. Code, § 11351.5), and it was alleged that he had
served a prior prison term for a 1990 robbery conviction (§§ 667.5, subd. (b), 211) and
that he had two prior strikes—one for the robbery and one for a 1990 lewd or lascivious
act on a child (§§ 667, subds. (b)-(i), & 1170.12). (Green, supra, 104 Cal.App.5th at
pp. 368-369.) A jury convicted him of the lesser included offense of unlawfully
possessing a controlled substance. (Id. at p. 368.) At a bifurcated bench trial, the
defendant admitted that he had served a prior prison term for the robbery (§ 211) and that
he had prior strikes for the robbery and the lewd or lascivious act (§ 288, subd. (a)).
(Green, at pp. 368-369.) The court sentenced him to 25 years to life for the third strike
(§ 667, subd. (e)(2)) and a consecutive one-year sentence for the prior prison term
enhancement (§ 667.5, subd. (b)). (Green, at pp. 368-369.)
In 2022, CDCR notified the sentencing court that the defendant was potentially
eligible for resentencing under section 1172.75 because he was serving a term for a
judgment that included a now-invalid prior prison term enhancement pursuant to Senate
6
Bill No. 483 (2021-2022 Reg. Sess.). (Green, supra, 104 Cal.App.5th at p. 369.) The
defendant filed a request for resentencing pursuant to section 1172.75, and at the hearing,
the court found that he “was ineligible for resentencing based on his 1990 conviction [for
the lewd or lascivious act], for which he received a concurrent sentence.” (Green, at
p. 369) The trial court “reasoned that the prison prior enhancement could have been
imposed for the [lewd or lascivious act] because he served sentences for both the robbery
and the lewd act as a single prison term.” (Ibid.)
The Court of Appeal reversed. (Green, supra, 104 Cal.App.5th at p. 373.) The
court reasoned that even though the People alleged the sexually violent offense for
purposes of the three strikes law, they did not allege and the defendant did not admit that
he had served a separate prison term for that offense. (Id. at pp. 370-371 [prison priors
may be imposed only when “‘charged and admitted or found true’”].) The defendant’s
prior prison term enhancement therefore was not “imposed for” a sexually violent
offense, so it was legally invalid under section 1172.75. (Green, at p. 371.)
Green is directly on point. Montana served concurrent sentences for his 1986
convictions of assault with intent to commit rape, kidnapping, and robbery. When he was
charged with a lewd or lascivious act offense in 2000, the People alleged that he had
served a prior prison term for the 1986 kidnapping conviction. The People did not allege
that the kidnapping was committed with the intent to commit rape or that his conviction
for assault with intent to commit rape was the basis for his prior prison term
enhancement. After the jury found him guilty on the lewd or lascivious act charge, the
7
court found true beyond a reasonable doubt that he had served the prior prison term for
kidnapping. At his section 1172.75 hearing in 2023, the court found that Montana’s prior
prison term enhancement was for a sexually violent offense even though the information
in 2000 alleged only the kidnapping conviction as the basis for the enhancement.
Kidnapping is not defined as a sexually violent offense in subdivision (b) of section 6600
of the Welfare and Institutions Code, so Montana’s prior prison term enhancement is now
legally invalid. He is therefore entitled to recall of his sentence and resentencing
pursuant to section 1172.75.
The People argue that Green is distinguishable. They contend that unlike the
defendant in Green, who “only admitted that he served a prior prison term for his robbery
(not for his committing a lewd act upon a child conviction),” Montana “admitted that his
prior prison term was served for all three of his convictions including kidnapping,
robbery, and assault with the intent to commit rape.”
The argument lacks merit. The only conviction that was alleged in support of the
enhancement at issue was the kidnapping conviction. The sentencing court found that
prior conviction allegation true and imposed the enhancement on that basis alone. Green
is therefore controlling.
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DISPOSITION
The trial court’s order finding Montana ineligible for resentencing under section
1172.75 is reversed. The matter is remanded with directions to recall Montana’s sentence
and resentence him under section 1172.75, subdivision (d).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
MILLER Acting P. J.
CODRINGTON J.
9
AI Brief
AI-generated · verify before citing
Holding. A prior prison term enhancement is legally invalid under Penal Code section 1172.75 if the specific conviction pled and proven as the basis for the enhancement was not a sexually violent offense, even if the defendant served concurrent sentences for other sexually violent offenses in the same case.
Issues
Whether a prior prison term enhancement is legally invalid under section 1172.75 when the underlying conviction pled and proven was not a sexually violent offense.
Disposition. reversed
Quotations verified verbatim against the opinion
“Montana’s prior prison term enhancement is now legally invalid. He is therefore entitled to recall of his sentence and resentencing pursuant to section 1172.75.”
“The only conviction that was alleged in support of the enhancement at issue was the kidnapping conviction. The sentencing court found that prior conviction allegation true and imposed the enhancement on that basis alone.”