People v. Montgomery CA2/7

California Court of Appeal Jan 19, 2022 No. B311367Unpublished

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Holding. The court reversed the denial of the defendant's petition for resentencing and remanded the case for the trial court to appoint counsel and determine if the defendant made a prima facie showing of eligibility under the newly amended Penal Code section 1170.95.

Issues

Whether the trial court erred in summarily denying a petition for resentencing under Penal Code section 1170.95 for a conviction of attempted murder.
Whether the enactment of Senate Bill No. 775 entitles the defendant to have his petition reconsidered under the amended statute.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“In light of this new legislation, we remand Montgomery’s case for the superior court to appoint counsel for Montgomery and to determine in accordance with the procedures described in section 1170.95, subdivision (c)”

“The postjudgment order denying Montgomery’s section 1170.95 petition is reversed.”

Filed 1/19/22 P. v. Montgomery CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B311367

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA284010) v.

JUSTIN MONTGOMERY,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, David R. Fields, Judge. Reversed and remanded with directions. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising

Attorney General, Amanda V. Lopez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent. ___________________________ Justin Montgomery was convicted following a jury trial in 1 2007 of attempted murder (Pen. Code, §§ 187, subd. (a), 664), assault with a semiautomatic firearm (§ 245, subd. (b)), shooting at an occupied motor vehicle (§ 246) and possession for sale or transportation of marijuana and cocaine (Health & Saf. Code, §§ 11359, 11351.5, 11352, subd. (a), 11360, subd. (a)). Criminal street gang (§ 186.22, subd. (b)) and several firearm enhancements (§§ 12022, subd. (a)(1), 12022, subd. (c), 12022.53, subd. (b)) were found true. We affirmed Montgomery’s convictions on direct appeal but remanded for further proceedings because of error in considering a prior felony strike conviction in the absence of adjudication or an admission. (People v. Montgomery (Sept. 2, 2009, B208165) [nonpub. opn.].) On remand the trial court found the prior strike allegation to be true and reimposed the original aggregate sentence of 45 years to life. We affirmed the judgment. (People v. Montgomery (Oct. 24, 2011, B225344) [nonpub. opn.].) On February 11, 2021 the superior court summarily denied Montgomery’s petition for resentencing under section 1170.95, ruling Montgomery was ineligible for relief because he had been convicted of attempted murder, not murder. While Montgomery’s appeal was pending, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective January 1, 2022, which

People v. Montgomery CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B311367

JUSTIN MONTGOMERY,

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