People v. Montalvo CA3

Filed 3/3/23 P. v. Montalvo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C096630

Plaintiff and Respondent, (Super. Ct. No. 87F4788)

v.

THOMAS LEE MONTALVO,

Defendant and Appellant.

Defendant Thomas Lee Montalvo appeals from an order denying his postjudgment petition to vacate his attempted murder conviction pursuant to Penal Code section 1172.61 (formerly section 1170.95). Defendant’s appointed counsel found no arguable

1 Further undesignated statutory references are to the Penal Code.

1

issues and filed a brief asking this court to independently review the record. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant timely filed a supplemental brief without assistance of counsel; this court subsequently requested supplemental briefing from both parties’ counsel on December 12, 2022, and that briefing was completed January 24, 2023. Having reviewed the record provided to us on appeal as well as our prior opinion in this case, and having considered the parties’ arguments, we find procedural error but conclude the error was harmless under any standard, as our independent review of the record before us reveals that defendant is ineligible for relief under the statute at issue as a matter of law. Accordingly, we affirm the trial court’s order denying defendant’s petition. FACTUAL AND PROCEDURAL BACKGROUND Defendant’s Convictions The information filed on July 27, 1987, charged defendant with first degree attempted murder (§§ 664, 187, subd. (a); count 1); robbery (§ 211; count 2); and vehicle theft (Veh. Code, § 10851; count 3). As to the attempted murder, the information alleged that “Defendant . . . did willfully and unlawfully, and with malice aforethought attempt to murder, [the victim] a human being.” As to the robbery count, the informed alleged defendant had personally used a firearm (§ 12022.5) and had intentionally inflicted great bodily injury on the victim (§ 12022.7). In 1988, a jury found defendant guilty as charged and found the enhancements true except the great bodily injury allegation, which was mistried. Defendant was sentenced to life with the possibility of parole, plus a two-year determinate term to be served