People v. Montano CA2/7

Filed 6/27/16 P. v. Montano CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B265307

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA027859) v.

MARIO MONTANO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Scott M. Gordon, Judge. Affirmed. A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent. _______________

Following a suitability hearing under The Three Strikes Reform Act of 2012, 1 enacted by the voters as Proposition 36 (Pen. Code § 1170.126), the trial court found Mario Montano posed an unreasonable risk of danger to public safety and denied his petition for recall of his prison sentence and request for resentencing. On appeal Montano contends the trial court erred by failing to apply the narrow definition of “unreasonable risk of danger to public safety” found in the more recently enacted Proposition 47 (§ 1170.18), which reduced certain nonviolent felony crimes to misdemeanors and authorized, when appropriate, resentencing of qualified offenders under its provisions. We hold Proposition 47’s definition of “unreasonable risk of danger to public safety” does not apply to Proposition 36 petitions. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On March 17, 1998 a jury found Montano guilty of selling a controlled substance (heroin) (Health & Saf. Code, § 11352, subd. (a)), and possessing a controlled substance for sale (Health & Saf. Code, § 11351). The trial court found true specially pleaded allegations that Montano had suffered two prior serious or violent felony convictions for assault with a deadly weapon in 1979 and 1983 and sentenced him under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) to an indeterminate state prison term of 25 years to life. On December 7, 2012 Montano filed a petition for recall of his sentence and resentencing under Proposition 36, which amended the three strikes sentencing scheme to provide, in general, that a recidivist is not subject to an indeterminate life term for a third strike felony that is neither serious nor violent, unless the offense satisfies other criteria 2 identified in the statute. The amendments also allow inmates previously sentenced to