P. v. Montes CA4/3

Filed 6/7/13 P. v. Montes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G047904

v. (Super. Ct. No. 97CF0404)

JUAN ALEXANDER MONTES, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Craig E. Robison, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

In 1999, Appellant Juan Alexander Montes was convicted of attempted murder, assault with a semiautomatic firearm, assault with a deadly weapon, exhibiting a firearm, street terrorism, and attendant firearm use and gang enhancements. He was sentenced to 30 years to life imprisonment. He appealed his conviction and we affirmed the judgment against him. In December 2012, he filed in superior court a petition to recall his sentence on the basis that newly-enacted Penal Code section 1170.126 required a new and lesser sentence for his crimes.1 The petition was denied and he appealed. We appointed counsel to represent him on that appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against his client, but advised the trial court he could find no issues to argue on appellant’s behalf. Montes was invited to express his own objections to the proceedings against him, but did not. Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of Montes’ lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which Montes would prevail, but only issues upon which he might possibly prevail. We have examined the record and found no arguable issue. This is not surprising. In fact, it is what we find in the vast majority of cases in which appellate counsel files a Wende brief. Even the most cynical observer of the appellate system would have to recognize that appellate counsel has a financial incentive for finding issues. The simple matter is counsel makes more money if he/she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel has thrown in the towel, it is unusual. This case is not unusual – at least not in any way that would benefit Montes. In fact, the procedural posture of the case limits us to one issue – the one he raised in his petition: Does section 1170.126 apply to his case?