People v. Montoya CA4/3

Filed 6/30/16 P. v. Montoya 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G052927

v. (Super. Ct. No. 97CF1374)

ALFRED CHAVEZ MONTOYA, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Allen G. Weinberg, 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, Peter Quon, Jr., and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

Alfred Chavez Montoya appeals from a postjudgment order after the trial court denied his petition to recall his sentence and release him on compassionate release. Montoya argues the trial court abused its discretion by denying his petition. We disagree and affirm the postjudgment order. FACTS In May 1997, officers stopped Montoya’s vehicle because he was not wearing a seat belt. When the officers asked for his identification, Montoya told them that he was on active federal parole for a murder conviction. Officers searched the car and found 16 bindles containing approximately 23.9 grams of methamphetamine. A jury found Montoya guilty of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and simple possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). In December 1998, the trial court found Montoya had suffered three prior strike convictions, two convictions for murdering United States Border Patrol agents in July 1967, and one conviction for robbery in 1959. The court sentenced Montoya to prison for 25 years to life for the transportation conviction and stayed the sentence on the simple possession conviction pursuant to Penal Code section 654. In October 2015, Dr. Steven Paik recommended Montoya be considered for compassionate release. Paik reported Montoya, who was then 81 years old, had multifocal hepatocellular carcinoma. Prior cancer treatments were unsuccessful and Montoya was not a candidate for other treatments because he was frail. Doctors believed Montoya had six months to live. The following month, the Board of Parole Hearings (BPH) approved a motion to recommend to the court that Montoya’s sentence be recalled because Montoya had an incurable disease that would produce death within six months and his release would not pose a threat to public safety. The following month, the BPH sent a letter to the Orange County Superior Court that included the BPH’s recommendation, an investigative report, a diagnostic study, and a medical evaluation.