People v. Montgomery CA4/3

Filed 4/7/16 P. v. Montgomery CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G051365

v. (Super. Ct. No. 11CF2191)

ALBERTA MONTGOMERY, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Marilee Marshall & Associates and Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Alberta Montgomery appeals the trial court’s denial of her motion pursuant to Penal Code section 1170.18.1 She argues that receiving a stolen vehicle worth less than $950 qualifies her for resentencing under the statute,2 or alternatively, that we must interpret the statute to include that offense under equal protection principles. We need not reach either issue, however, because defendant’s petition to the trial court did not even attempt to show that the vehicle she received was worth less than $950. We therefore affirm the order.

I FACTS In 2011, defendant pleaded guilty to receiving a stolen vehicle with a prior felony conviction (§§ 666.5, subd. (a)/496d, subd. (a)). She also admitted that she had a prior conviction for unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) and that she had a prior serious and violent felony. She admitted she knowingly received a stolen vehicle. The court sentenced defendant to three years’ formal probation, including 365 days in county jail. In November 2012, defendant admitted a probation violation, and was sentenced to 16 months in state prison. Also in November 2012, the voters approved Proposition 47, which reclassified certain offenses from felonies to misdemeanors and created a post-conviction resentencing procedure for those convicted of felony offenses that have been reclassified. (§ 1170.18; People v. Rivera (2015) 233 Cal.App.4th 1085, 1091-1093.) Defendant thereafter filed a petition to reduce her felony conviction to a misdemeanor. The prosecution’s response argued that a violation of sections 666.5, subdivision (a)/496d,