People v. Montalvo CA3 ( 2023 )

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
Effective June 30, 2022, after defendant filed his petition, the Legislature renumbered
section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.)
We will generally refer to the section by its new numbering.
2
consecutively. This court affirmed this judgment in an unpublished opinion. (People v.
Montalvo (May 4, 1989, C004259) [nonpub. opn.].)2
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, was enacted “to amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act with the intent to kill, or
was not a major participant in the underlying felony who acted with reckless indifference
to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The legislation accomplished this
by amending sections 188 and 189 and adding former section 1170.95 to the Penal Code.
Senate Bill No. 775 (2020-2021 Reg. Sess.), effective January 1, 2022 (Cal. Const. art.
IV, § 8), extended the procedure of former section 1170.95 (now § 1172.6) to individuals
convicted of attempted murder. (Stats. 2021, ch. 551, § 2.)
Section 1172.6, subdivisions (b) and (c) create a two-step process for evaluating a
petitioner’s eligibility for relief. (People v. Lewis (2021) 11 Cal.5th 952, 960-962.) First,
the trial court determines whether the petition is facially sufficient under section 1172.6,
subdivision (b). (Lewis, at p. 960.) If the petition is facially sufficient, the court
considers the requirements of subdivision (c), appointing counsel (if requested) and
following the briefing schedule set out in the statute. (Lewis, at p. 966.) Following the
completion of this briefing, the court must hold a hearing and determine whether the
petitioner has made a prima facie showing they are entitled to relief. (§ 1172.6, subd. (c)
[“After the parties have had an opportunity to submit briefings, the court shall hold a
hearing to determine whether the petitioner has made a prima facie case for relief. If the
petitioner makes a prima facie showing that the petitioner is entitled to relief, the court
2 We take judicial notice on our own motion of our prior opinion in this case. (Evid.
Code, § 452, subd. (d).) Although the opinion is not contained in the record on appeal, it
is clear the trial court possessed it at the time of that court’s ruling.
3
shall issue an order to show cause”].) A statement of decision is required where the court
declines to issue an order to show cause. (Ibid.)
As our high court has explained, “[w]hile the trial court may look at the record of
conviction after the appointment of counsel to determine whether a petitioner has made a
prima facie case for section 117[2.6] relief, the prima facie inquiry under subdivision (c)
is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the
court takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A] court
should not reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citation.] ‘However, if the record, including the
court’s own documents, “contain[s] facts refuting the allegations made in the petition,”
then “the court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (People v. Lewis, supra, 11 Cal.5th at p. 971.)
At the subdivision (d) hearing on the merits of whether defendant is entitled to
resentencing relief, “the burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of . . . attempted murder under California
law as amended by the changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (d)(3).)
Defendant’s Petition for Resentencing
On January 24, 2022, defendant filed his section 1172.6 petition seeking to vacate
his attempted murder conviction and be resentenced. On January 26, 2022, the trial
court appointed counsel and issued an order to show cause without finding prima facie
entitlement to relief. On March 1, 2022, the trial court directed the People to file a
response to defendant’s petition.
4
A response had not yet been filed when, on June 24, 2022, the court issued a
tentative written decision, stating in relevant part that: “[A] quick review of the records
on file with the case demonstrates the following: [¶] The defendant was found guilty of
premeditated attempted murder along with robbery and personal use of a firearm: see
jury verdict. [¶] The finding that the defendant willfully, deliberately and with
premeditation attempted to kill a person disqualified him from the benefits of the re-
sentencing law.” The parties appear to agree on appeal that the trial court was
referencing, in part, the February 11, 1988, minute order from the final day of
defendant’s trial, which recited the jury’s verdicts and was attached to the court’s
tentative decision. The minute order is included in the record provided to us and states as
relevant here that the jury found true the allegation that “The ATTEMPTED MURDER
was willful, premeditated and deliberate.”
On July 12, 2022, the trial court held a hearing on the petition without securing the
incarcerated defendant’s attendance. At the hearing, the court adopted its tentative
decision and denied defendant’s petition. Defendant timely appealed; the case was fully
briefed on January 24, 2023.
DISCUSSION
Counsel filed an opening brief setting forth the facts and procedural history of the
case and requesting this court review the record and determine whether there are any
arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.)
Defendant timely filed a supplemental brief, claiming error in the trial court’s
failure to notify him of and secure his attendance at the hearings associated with his
petition, as well as the court’s determination of his ineligibility for relief based solely on
its review of the February 11, 1988, minute order. We requested and received additional
briefing from appointed counsel and the People’s representative, addressing the apparent
procedural error evidenced by the trial court’s issuance of an order to show cause
followed by a summary denial of defendant’s petition.
5
While this appeal was pending, and after we requested additional briefing, our
Supreme Court decided People v. Delgadillo (2022) 14 Cal.5th 216, holding that the
Wende procedure does not apply to an appeal from the denial of postconviction relief.
We have reviewed the record and ordered supplemental briefing on the arguable error we
detected therein, and we have considered the arguments raised by defendant in his
supplemental brief, all in compliance with current law. (See id. at p. 232.)
The Attorney General concedes the trial court’s failure to abide by the procedures
required by section 1172.6 was error, but argues the error was harmless beyond a
reasonable doubt because defendant is ineligible for relief as a matter of law. We agree.
The trial court’s finding as to defendant’s ineligibility for relief failed to comply
with the requirements of section 1172.6, subdivision (d), including holding the People to
their burden to prove beyond a reasonable doubt that defendant was guilty of “attempted
murder under California law as amended by the changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) However, the error was harmless,
because it is clear from our review of the record that defendant was indeed the individual
found by the jury to have acted in a willful, premeditated, and deliberate manner, as
argued by the Attorney General and found by the trial court after its review of the minute
order as well as other unspecified records.
Although defendant argues that without review of the jury instructions themselves,
we cannot conclusively determine defendant’s ineligibility for relief (see People v. Eynon
(2021) 68 Cal.App.5th 967, 973, 976-978 [recognizing first degree premeditated natural
and probable consequences murder existed until our Supreme Court’s decision in
People v. Chiu (2014) 59 Cal.4th 155, 158-159]), we agree with the Attorney General
that review of the charging document and minute order containing the jury’s verdicts, as
well as the manner in which defendant was sentenced, support only the conclusion of
ineligibility.
6
Further, our review of our original opinion in this case reveals that defendant’s
previous appellate argument regarding the propriety of his sentence for attempted murder
hinged on his assertion that “had he completed the murder, he would have been subject to
a punishment of death or life imprisonment” and that he did not contest that “the jury
found his attempt was willful, deliberate, and premeditated.” (People v. Montalvo
(May 4, 1989, C004259) [nonpub. opn.], italics added.) We have reviewed the entire
record in defendant’s current appeal, and nothing even remotely suggests a conclusion
other than that defendant was indeed the individual found by the jury to have acted in a
willful, premeditated, and deliberate manner; thus, he is ineligible for relief as a matter of
law.
DISPOSITION
The order denying defendant’s petition is affirmed.
/s/
Duarte, Acting P. J.
We concur:
/s/
Renner, J.
/s/
Boulware Eurie, J.
7