Filed 6/7/13 P. v. Montes CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                          G047904

         v.                                                             (Super. Ct. No. 97CF0404)

JUAN ALEXANDER MONTES,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of 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.1 The petition was denied and he appealed.
              We appointed 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?




       1      All further statutory references are to the Penal Code.

                                              2
                  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


                                                3
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.




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