P. v. Montes





















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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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, v. JUAN ALEXANDER MONTES, Defendant and Appellant.

G047904 (Super. Ct. No. 97CF0404) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">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.href="#_ftn1" name="_ftnref1" title="">[1] The petition was denied and he appealed.

We appointed href="http://www.mcmillanlaw.com/">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?

It does not. His petition is based upon a misapprehension
of the application of the statute.

Section
1170.126 (b) provides: “Any person
serving an indeterminate term of life imprisonment imposed pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision
(c) of section 1170.12 upon conviction, whether by trial or plea, of a felony
or felonies that are not defined as serious and/or violent felonies by
subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file
a petition for a recall of sentence, within two years after the effective date
of the act that added this section or at a later date upon a showing of good
cause, before the trial court that entered the judgment of conviction in his or
her case, to request resentencing in accordance with the provisions of subdivision
(e) of Section 667, subdivision (c) of Section 1170.12, as those statutes have
been amended by the act that added the section.”

Section
1170.126 (e) provides: “An inmate is
eligible for resentencing if: [¶] (1)
The inmate is serving an indeterminate term of life imprisonment imposed
pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c)
of Section 1170.12 for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of section 667.5
or subdivision (c) of Section 1192.7. [¶]
(2) The inmate’s current sentence
was not imposed for any of the offenses appearing in clauses (i) to (iii),
inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section
667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12.
[¶] (3) The inmate has no prior
convictions for any of the offenses appearing in clause (iv) of subparagraph
(C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.”

Montes’ petition
asserted that he had been incarcerated for misdemeanor brandishing a firearm
under section 417. Had that been the
case, not only would he have been eligible for relief under section 1170.126,
but the sentence would have been illegal ab
initio. But that was not the
case. While a violation of section 417
was one of the charges of which he
was convicted (as a lesser necessarily included offense of assault with a
semi-automatic firearm), Montes was also convicted of an array of other
charges, at least three of which were exempted by section 1170.126.

No relief is available
to Montes under the section, and appellate counsel could do nothing but request
independent review by this court
under Wende. Having conducted that review, we now affirm
the judgment.

The judgment is
affirmed.







BEDSWORTH,
J.



WE CONCUR:









O’LEARY, P.
J.









MOORE, J.