People v. Montalbo CA5

Filed 4/16/14 P. v. Montalbo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F066170 Plaintiff and Respondent, (Super. Ct. No. 1211768) v.

DAVID GARCIA MONTALBO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Poochigian, J. and Franson, J.

In exchange for an indicated sentence of 32 years, appellant David Garcia Montalbo, in January 2010, pleaded no contest to two counts of attempted robbery (Pen. Code, §§ 211, 664),1 two counts of assault with a firearm (§ 245, subd. (a)(2)) and a single count of active participation in a criminal street gang (§ 186.22, subd. (a)), and admitted the following enhancement allegations: He committed both attempted robberies and both assaults for the benefit of, at the direction of, or in association with, a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)); he personally used a firearm in committing both attempted robberies (§ 12022.53, subd. (b)) and both assaults (§ 12022.5, subd. (a)); and in committing the count 1 offense, he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). In February 2010, appellant moved to withdraw his plea, and the court denied the motion and imposed the indicated 32-year prison term. In April 2010, appellant filed a timely notice of appeal. In that appeal, People v. Montalbo, case No. F060053, in August 2011, this court found that the court erred in deciding appellant’s motion to withdraw his plea without any input from appellant, reversed the judgment, remanded the matter for the limited purpose of allowing appellant to file a motion to withdraw his plea pursuant to section 1018, and directed that if appellant failed to file such a motion, or if the motion was denied, the trial court was to reinstate the judgment.2 On September 12, 2012, appellant filed a notice of motion to withdraw his plea. On September 21, 2012, after a hearing, the court denied the motion. The instant appeal followed.