People v. Montgomery CA3

Filed 4/30/15 P. v. Montgomery CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C076227

Plaintiff and Respondent, (Super. Ct. No. SC RD CRF 980001001) v.

ALBERT FRANK MONTGOMERY,

Defendant and Appellant.

Defendant Albert Frank Montgomery appeals from the trial court’s denial of his petition for resentencing under the Three Strikes Reform Act of 2012 (the Act) based on the court’s finding that resentencing would pose an unreasonable risk of danger to public safety.1 He contends that the trial court’s finding is an abuse of discretion and denial of

1 Penal Code section 1170.126. Undesignated statutory references are to the Penal Code.

1

due process because it relies on facts not found in the record and ignores other relevant information. We affirm. BACKGROUND On the night of January 29, 1998, defendant sped past a highway patrol officer and led police on a high speed chase before being apprehended. When apprehended, he was found to be in possession of methamphetamine and a hypodermic needle and without a driver’s license. A jury convicted defendant of willful evasion of a police officer (Veh. Code, § 2800.2), possession of methamphetamine (Health & Saf. Code, § 11377), unlawful possession of a hypodermic needle (Bus. & Prof. Code, former § 4140), driving without a license (Veh. Code, § 12500), reckless driving (Veh. Code, § 23103), and sustained two strike allegations. Defendant admitted three prior prison term allegations and the trial court sentenced him to 30 years to life. Defendant appealed his conviction, which this court affirmed in March 2000. Defendant filed a petition for resentencing pursuant to section 1170.126 on February 4, 2014. The People filed an opposition later that month. Attached to the opposition was a copy of the probation report for defendant’s most recent conviction. The probation report recited defendant’s criminal record, which included three convictions for resisting or delaying a peace officer (§ 148), two convictions for vandalism (§ 594), two convictions for disturbing the peace (§ 415), single convictions for felony assault (§ 245), accessory to a felony (murder) (§ 32), driving under the influence (Veh. Code, former § 23102, subd. (a)), assault with intent to commit murder with use of a deadly weapon, possession of a controlled substance by a prisoner (§ 4573.6), battery (§ 242), and voluntary manslaughter (§ 192, subd. (a)). The felony assault and accessory convictions happened in 1978. The probation officer could not find the file for the case, but noted that defendant was initially charged with murder (§ 187) in that case and pleaded to the assault and accessory charges in