People v. Montgomery CA3

Filed 1/22/16 P. v. Montgomery CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C077753, C078819

v. (Super. Ct. No. 13F08366)

JOHNLYNN S. MONTGOMERY,

Defendant and Appellant.

A jury convicted defendant Johnlynn S. Montgomery1 of commercial burglary and

1 Defendant’s first name is spelled differently in each record for the cases presented in this consolidated appeal. We adopt the spelling in case No. C077753 for consistency.

1

the trial court sentenced him to seven years in prison. The trial court also denied defendant’s subsequent petition for resentencing under the provisions of Proposition 47. (Pen. Code, § 1170.18). Defendant filed two appeals, one from the judgment and one from the order denying his petition for resentencing, which we consolidated. In case No. C078819, appointed counsel asks us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the order denying his petition for resentencing. Regarding case No. C077753, defendant contends the trial court erred in ordering him to pay a crime prevention fine, main jail booking fee and main jail classification fee without determining his ability to pay. Agreeing with defendant’s contention, we will vacate the crime prevention fine, main jail booking fee and main jail classification fee and remand the matter to the trial court to determine defendant’s ability to pay. BACKGROUND A jury found defendant guilty of commercial burglary. (Pen. Code, § 459.)2 The trial court found true the allegations that defendant had a prior strike conviction and served a prior prison term, and sentenced defendant to an aggregate term of seven years in state prison. Defendant appealed the judgment, initiating appellate case No. C077753. Defendant subsequently filed a petition for resentencing pursuant to section 1170.18. The trial court denied the petition due to ineligibility based on defendant’s current conviction. Defendant appealed the denial of his petition for resentencing, initiating appellate case No. C078819.