People v. Montgomery CA2/7

Filed 8/23/23 P. v. Montgomery CA2/7
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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
1 Statutory references are to this code unless otherwise
stated.
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section 1170.95, subdivision (c), whether Montgomery had made
a prima facie showing he was entitled to relief. (People v.
Montgomery (Jan. 19, 2022, B311367) [nonpub. opn.]
(Montgomery III).)
On remand, after appointing counsel for Montgomery and
receiving a response from the prosecutor and a reply from
Montgomery’s counsel, the superior court on August 16, 2022
again denied Montgomery’s petition, finding Montgomery was
ineligible for resentencing relief as a matter of law because there
were no instructions at his trial on the natural and probable
consequences doctrine nor was that theory argued to the jury.
No arguable issues have been identified following review of
the record by Montgomery’s appointed appellate counsel. We also
have identified no arguable issues after our own independent
review of the record and analysis of the contention presented by
Montgomery in his supplemental brief. We affirm.
FACTUAL BACKGROUND
As described in our opinion reversing the February 2021
order summarily denying Montgomery’s petition for resentencing
(Montgomery III, supra, B311367), the evidence at trial
established that Montgomery was the driver of a van under
surveillance by the Los Angeles Police Department. Saul Eady,
Montgomery’s codefendant, and a third man were also in the van.
As detectives monitored the van, one of them observed a person
in the passenger side of the van reach out and fire four or five
shots toward an alley. Detectives went to the alley to investigate
and found Curtis Muse, who admitted he had been a member of
the Crips at one time. The area where the shooting occurred was
controlled by the Black P Stones, a rival Bloods gang. Muse was
uninjured, but his car had several bullet holes in it. Muse told
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the detectives he had been in the driver’s seat of his car at the
time of the shooting.
Detectives took control of the van after it was parked and
its occupants left. From its interior they recovered a nine-
millimeter semiautomatic handgun and a pump-action shotgun.
Shell casings found at the shooting scene were matched to the
handgun. A substantial quantity of rock cocaine and marijuana
was also found inside the van. The People’s gang expert testified
that both Montgomery and Eady were members of the Black P
Stones.
The jury found Montgomery guilty of attempted murder,
assault with a semiautomatic firearm, shooting at an occupied
motor vehicle and possession for sale or transportation of
marijuana and cocaine and found true related criminal street
gang and firearm enhancements. The jury did not find true that
the crime attempted was willful, deliberate and premeditated
murder.
DISCUSSION
We appointed counsel to represent Montgomery on appeal
from the denial of his postjudgment petition. After reviewing the
record, appointed counsel did not identify any arguable issues
and so informed this court. Appointed counsel advised
Montgomery on June 30, 2023 that he was filing a brief stating
he was unable to find arguable issues and that Montgomery could
personally submit any contentions he believed the court should
consider.
On August 3, 2023 we received a one-page handwritten
supplemental brief from Montgomery in which he asked us to
address the issue raised in the reply brief filed in the superior
court by his appointed counsel. In that reply brief Montgomery’s
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counsel argued, although the trial court had rejected the
prosecutor’s request to instruct the jury on the natural and
probable consequences doctrine, the prosecutor had, in effect,
argued that theory to the jury and Montgomery’s ineligibility for
resentencing relief could not be determined as a matter of law
from the record of conviction. Counsel noted, for example, that
the prosecutor in closing argument stated, “Mr. Eady discharged
that weapon with the intent to kill him, to kill Mr. Muse. And
that act can be imputed to Mr. Montgomery because he was
aiding and abetting.” Not only the act, counsel argued, but also
Eady’s express malice could have been imputed to Montgomery
by the jury.
However, elsewhere in the reply brief Montgomery’s
counsel quoted the prosecutor explaining in language that
accurately tracked CALCRIM No. 3.01—the aiding and abetting
instruction the court gave the jury—“[A] person aids and abets
the commission or alleged commission of a crime when he or she,
one, with the knowledge of the unlawful purpose of the
perpetrator, and with the intent or purpose of committing or
encouraging or facilitating the commission of the crime, and by
act or advice aids, promotes, encourages, or investigates the
commission of the crime.” As the superior court ruled, whatever
lack of precision there may have been in portions of the
prosecutor’s closing argument when viewed in isolation, the
record of conviction—the jury instructions and the verdict—
unequivocally demonstrated that Montgomery was convicted of
attempted murder as a direct aider and abettor, not under a now-
invalid theory of imputed malice.
Because no cognizable legal issues have been raised by
Montgomery’s appellate counsel or by Montgomery or identified
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in our independent review of the record, the order denying his
petition for resentencing is affirmed. (See People v. Delgadillo
(2022) 14 Cal.5th 216, 231-232; see also People v. Serrano (2012)
211 Cal.App.4th 496, 503; see generally People v. Kelly (2006)
40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436,
441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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