People v. Montgomery CA2/7

Filed 8/23/23 P. v. Montgomery CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B325823

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA284010-02) v.

JUSTIN MONTGOMERY,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Affirmed. Jonathan E. Demson, under appointment by the Court of Appeal; Justin Montgomery, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent. _______________________

Justin Montgomery was convicted following a jury trial in 2007 of attempted murder (Pen. Code, §§ 187, subd. (a), 664),1 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 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.] (Montgomery I).) 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.] (Montgomery II).) On February 11, 2021 the superior court summarily denied Montgomery’s petition for resentencing under former section 1170.95 (since renumbered section 1172.6), ruling Montgomery was ineligible for relief because he had been convicted of attempted murder, not murder. While Montgomery’s appeal was pending, the Legislature amended former section 1170.95 to expressly include within its reach certain convictions for attempted murder and voluntary manslaughter. In light of this new legislation, we remanded Montgomery’s case for the superior court to appoint counsel for Montgomery and to determine in accordance with the procedures described in former