Filed 4/6/22 P. v. Montes CA4/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
|
G058526
(Super. Ct. No. 97CF0404)
O P I N I O N |
Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Reversed and remanded with directions.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steve Oetting, Acting Assistant Attorney General, and Warren J. Williams, Deputy Attorney General, for Plaintiff and Respondent.
Nearly a quarter century ago, appellant Juan Alexander Montes was convicted of attempted murder and other crimes he committed with his fellow gang members. When he more recently sought resentencing under Penal Code section 1170.95, the trial court denied his petition on the basis that section does not apply to the crime of attempted murder.[1] That was true at the time the trial court made its ruling in 2019. However, as of January 1, 2022, new legislation makes section 1170.95 applicable to defendants who were convicted of attempted murder under the natural and probable consequences doctrine. As respondent concedes, this change requires that we reverse the trial court’s denial order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 1997, appellant and other members of his gang confronted a rival bunch at a restaurant in Orange. During the confrontation, appellant struck Jorge Garcia with a chain, after which his cohort Arturo Cuevas shot Garcia several times. The incident led to appellant’s prosecution for a variety of offenses, including attempted murder. At trial, the prosecution posited appellant was guilty of that offense because it was a natural and probable consequence of lesser crimes he aided and abetted. The jury convicted appellant as charged, and he was sentenced to prison for 30 years to life.
After we affirmed the judgment on appeal, appellant petitioned for resentencing under section 1170.95. Without appointing appellant counsel, the trial court summarily denied his petition because he was convicted of attempted murder, not murder. Following our affirmance of that ruling (People v. Montes (Oct. 13, 2020, G058526) [nonpub. opn.]), the California Supreme Court granted appellant’s petition for review and transferred the matter back to us with directions to vacate our opinion and reconsider the matter in light of newly enacted Senate Bill No. 775 (Stats. 2021, ch. 551) (SB 775).
DISCUSSION
Appellant contends SB 775 compels reversal of the trial court’s denial order. Respondent agrees, and so do we.
Appellant’s underlying claim for resentencing is grounded in SB 1437, which narrowed the scope of vicarious liability for the crime of murder by limiting the felony murder rule and abolishing the natural and probable consequences doctrine in murder cases. (§§ 188, subd. (a)(3), 189, subd. (e).) That bill “also added section 1170.95 to the Penal Code, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief” in the form of resentencing. (People v. Lewis (2021) 11 Cal.5th 952, 957, fn. omitted.) If, as in the present case, the defendant asks for an attorney in connection with his petition for resentencing, the trial court must grant the request and allow input from counsel before considering whether the defendant has established a prima facie case for relief. (Id. at pp. 961-970.)
As originally enacted, section 1170.95 applied only to defendants who were convicted of murder. (Former § 1170.95, subd. (a).) However, effective the first of this year, SB 775 expanded that section to include defendants who were convicted of “attempted murder under the natural and probable consequences doctrine[.]” (§ 1170.95, subd. (a), as amended by Stats. 2021, ch. 551.) Respondent concedes this change applies to appellant’s case, since the order denying his petition for resentencing is not yet final. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [an ameliorative criminal statute is generally presumed to apply to all cases that are not final when the statute becomes effective]; People v. Montes (2021) 71 Cal.App.5th 1001, 1006-1007 [applying SB 775 retroactively].)
Respondent also admits that because the prosecution relied on the natural and probable consequences doctrine to secure appellant’s conviction for attempted murder, he may be eligible for resentencing under section 1170.95. Therefore, he is entitled to have the trial court reconsider his petition anew on the merits. We agree. Accordingly, we will reverse the trial court’s denial order and remand the matter for that purpose.
DISPOSITION
Our prior opinion in this matter, filed October 13, 2020, is hereby vacated and superseded by this opinion. The trial court’s order denying appellant’s petition for resentencing is reversed, and the matter is remanded for further proceedings. On remand, the trial court shall appoint appellant counsel and reconsider the merits of his petition pursuant to the procedures set forth in section 1170.95.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
[1] All further statutory references are to the Penal Code.
