People v. Montanez CA4/2 ( 2014 )

Filed 1/15/14 P. v. Montanez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E059246
v. (Super.Ct.No. FVA06563)
GILBERT ANDREW MONTANEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Gilbert Andrew Montanez appeals after the trial court
denied his petition for resentencing under Penal Code section 1170.126, known as the
1
Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7,
2012)).1 Defendant filed a notice of appeal on July 24, 2013. We affirm.
PROCEDURAL BACKGROUND
Defendant was charged by amended felony complaint with one count of first
degree residential burglary. (§ 459.) The amended complaint also alleged that defendant
suffered a prior conviction of first degree burglary (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i)), and that he had served a prior prison term (§ 667.5, subd. b). Defendant
pled guilty to the first degree residential burglary charge. (§ 459.) On May 30, 1997,
after denying defendant’s Romero2 motion, the court sentenced him to state prison for 25
years to life.3 (§ 667, subd (e)(2).)
On May 9, 2013, defendant filed an in pro. per. petition for resentencing under
section 1170.126. The court denied the petition on the ground that defendant’s current
conviction for first degree residential burglary (§ 459) made him ineligible for
resentencing under section 1170.126, subdivision (e)(1).
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
3 We note that, although the limited record in this appeal does not clearly reflect
so, the trial court found true the allegations that defendant had two prior strike
convictions. (See People v. Montanez (Sept. 8, 1998, E020850) [nonpub. opn.].)
2
ANALYSIS
After the notice of appeal was filed, this court appointed counsel to represent
defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d
493], setting forth a statement of the case, a brief statement of the facts, and identifying
one potential arguable issue: whether the court erred in denying his petition for
resentencing under section 1170.126.
Defendant was offered an opportunity to file a personal supplemental brief, which
he has not done. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an
independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
3