Filed 4/30/15 P. v. Montgomery 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C076227

                   Plaintiff and Respondent,                                    (Super. Ct. No. SC RD CRF
                                                                                        980001001)
         v.

ALBERT FRANK MONTGOMERY,

                   Defendant and Appellant.




         Defendant Albert Frank Montgomery appeals from the trial court’s denial of his
petition for resentencing under the Three Strikes Reform Act of 2012 (the Act) based on
the court’s finding that resentencing would pose an unreasonable risk of danger to public
safety.1 He contends that the trial court’s finding is an abuse of discretion and denial of




1        Penal Code section 1170.126. Undesignated statutory references are to the Penal
Code.

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due process because it relies on facts not found in the record and ignores other relevant
information. We affirm.
                                     BACKGROUND
       On the night of January 29, 1998, defendant sped past a highway patrol officer and
led police on a high speed chase before being apprehended. When apprehended, he was
found to be in possession of methamphetamine and a hypodermic needle and without a
driver’s license.
       A jury convicted defendant of willful evasion of a police officer (Veh. Code,
§ 2800.2), possession of methamphetamine (Health & Saf. Code, § 11377), unlawful
possession of a hypodermic needle (Bus. & Prof. Code, former § 4140), driving without a
license (Veh. Code, § 12500), reckless driving (Veh. Code, § 23103), and sustained two
strike allegations. Defendant admitted three prior prison term allegations and the trial
court sentenced him to 30 years to life. Defendant appealed his conviction, which this
court affirmed in March 2000.
       Defendant filed a petition for resentencing pursuant to section 1170.126 on
February 4, 2014. The People filed an opposition later that month. Attached to the
opposition was a copy of the probation report for defendant’s most recent conviction.
The probation report recited defendant’s criminal record, which included three
convictions for resisting or delaying a peace officer (§ 148), two convictions for
vandalism (§ 594), two convictions for disturbing the peace (§ 415), single convictions
for felony assault (§ 245), accessory to a felony (murder) (§ 32), driving under the
influence (Veh. Code, former § 23102, subd. (a)), assault with intent to commit murder
with use of a deadly weapon, possession of a controlled substance by a prisoner
(§ 4573.6), battery (§ 242), and voluntary manslaughter (§ 192, subd. (a)).
       The felony assault and accessory convictions happened in 1978. The probation
officer could not find the file for the case, but noted that defendant was initially charged
with murder (§ 187) in that case and pleaded to the assault and accessory charges in

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exchange for dismissal of the murder count. The assault with the intent to commit
murder conviction was in 1981. The probation officer could not locate the file for the
case as it had been destroyed. According to defendant, this offense involved him
drinking and fighting with the victim, who got stabbed in the chest and arms. In the 1987
conviction for voluntary manslaughter, defendant got into a fight with someone who
called him a rat. The victim died of multiple stab wounds, including three to the chest.
         The probation officer’s summary and analysis noted that the current offenses were
not particularly aggravated; the car chase lasted for less than a mile and when traffic was
not particularly heavy, and defendant was caught with a small amount of
methamphetamine intended for personal use. Of greater concern to the probation officer
was defendant’s criminal record. Defendant received the maximum possible sentence for
the assault with intent to commit murder and for the 1987 voluntary manslaughter
conviction. The probation officer recommended a sentence of 28 years eight months.
         Defendant subsequently submitted additional documents, letters of support from
people in the corrections system, and certificates of graduation for an anger management
program. The People filed a response which documented and detailed defendant’s
violations of prison rules -- for mutual combat in 1999, 2004, and 2007, for battery on an
inmate in 2005, for possession of a cell phone in 2009, and for fighting resulting in the
use of force in 2011. Defendant then filed additional documents showing his
participation in and graduation from various classes while in prison.
         Defendant testified at the hearing on his petition. He entered prison for his current
offenses in 1999 as a Level 4 prisoner, the highest security classification. He was
lowered to Level 3 in 2000 or 2001 and to Level 2 in 2006. If resentenced and released
from prison, he would go to his property in Hat Creek, where he would live with his aunt
and siblings. He is an enrolled member of the Pit River Tribe and could work for them
there.



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       The trial court denied the petition, finding defendant posed an unreasonable risk of
danger to public safety. The trial court began its analysis by reciting defendant’s criminal
record. It found he sustained a 1978 conviction for felony assault and accessory to
murder, which it characterized as involving a “vicious beating and then stuffing the
person down a mine shaft.” The court found defendant got two felony convictions in
1981, for robbery and for assault with a deadly weapon, which involved “a stabbing.”
Defendant was convicted of possession of drugs while in prison, three parole violations,
and the 1986 conviction for “involuntary manslaughter.” The court also noted
defendant’s current convictions for felony “evading an officer with willful and reckless
disregard for public safety” and possession of a controlled substance. The court then
noted that defendant’s “pattern of violent behavior” continued while in prison, with his
last incident occurring in 2011. Based on these facts, the trial court found that defendant
posed an unreasonable risk of danger to public safety and therefore denied the petition for
resentencing.
                                       DISCUSSION
       Defendant contends it was an abuse of discretion and denial of due process for the
trial court to deny his petition because the trial court’s finding was based on facts not
supported by the record and because it ignored facts in his favor. We disagree.
       A defendant serving a three strikes sentence for a crime that is neither a serious or
violent felony may petition for recall of sentence in the court where he or she was
originally sentenced. (§ 1170.126, subd. (b).) If factors related to the crime or
defendant’s criminal history do not render defendant ineligible for resentencing (see
§ 1170.126, subd. (e)), then “the petitioner shall be resentenced pursuant to paragraph (1)
of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12
unless the court, in its discretion, determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)



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       “In exercising its discretion in subdivision (f), the court may consider: [¶] (1) The
petitioner’s criminal conviction history, including the type of crimes committed, the
extent of injury to victims, the length of prior prison commitments, and the remoteness of
the crimes; [¶] (2) The petitioner’s disciplinary record and record of rehabilitation while
incarcerated; and [¶] (3) Any other evidence the court, within its discretion, determines
to be relevant in deciding whether a new sentence would result in an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (g).)
       Defendant claims the trial court’s conclusions regarding the nature of his prior
crimes are not supported by the record. Specifically, he notes that the court’s description
of the assault and accessory to murder convictions is not found in the record, as the
probation report noted that the files for this case had been destroyed. He also notes the
probation report found the record of his 1981 conviction for assault with intent to commit
murder was also destroyed, thus preventing the trial court from making any findings
regarding that conviction. He additionally claims the trial court should have considered
the remoteness of the offenses, as well as the type of crimes of which he was convicted
rather than merely the facts behind those offenses. Although defendant was convicted of
two separate felonies involving a person’s death, he stresses that he was not convicted of
murder but instead convicted of the much less culpable voluntary manslaughter and
accessory after the fact. Defendant also argues that the trial court erred in ignoring the
fact that his security level had decreased from Level 4 to Level 2 while he was in prison
and the programs he had completed during his incarceration. Taken together, defendant
finds these errors constitute an abuse of discretion.
       Since section 1170.126, subdivision (g) vests the trial court with discretion
to deny the petition by finding that resentencing would pose an unreasonable risk




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of danger to public safety,2 we review the trial court’s decision for an abuse of
discretion. Under this standard, it is not enough for a defendant to show that reasonable
people might disagree about the court’s sentencing decision but rather, the defendant
must show, for example, the court was unaware of its discretion or acted arbitrarily. (See
People v. Carmony (2004) 33 Cal.4th 367, 376-378 [making these observations in terms
of a trial court’s exercise of discretion in determining whether to strike a defendant’s
strike].) “[T]he term judicial discretion ‘implies absence of arbitrary determination,
capricious disposition or whimsical thinking.’ [Citation.]” (People v. Giminez (1975)
14 Cal.3d 68, 72.) A decision not supported by the record is also an abuse of discretion.
(In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)
       The trial court’s characterization of defendant’s prior crimes includes at least one
error.3 While the court said defendant was convicted of both assault and robbery in 1981,
the probation report shows only the assault conviction, and nowhere in the record is there
any mention of defendant ever having sustained a prior robbery conviction. The trial
court’s error likely stems from the People’s opposition to defendant’s petition, which
describes the incident leading to the 1981 conviction as defendant putting a knife at a



2      Section 1170.126, subdivision (g) states in pertinent part:
      “(g) In exercising its discretion in subdivision (f), the court may consider:
      “(1) The petitioner's criminal conviction history, including the type of
crimes committed, the extent of injury to victims, the length of prior prison
commitments, and the remoteness of the crimes;
      “(2) The petitioner's disciplinary record and record of rehabilitation while
incarcerated; and
      “(3) Any other evidence the court, within its discretion, determines to be
relevant in deciding whether a new sentence would result in an unreasonable risk
of danger to public safety.”
3      A second overt error by the trial court, mischaracterizing defendant’s prior
conviction for manslaughter as an involuntary manslaughter conviction favors defendant
and therefore cannot prejudice him.

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driver’s throat and demanding the car from the victim. The victim tried to run away, but
defendant forced him back into the car and stabbed him in the stomach and chest.
Defendant then tried, but failed to start the car. Although the People’s description of the
incident describes facts that could support an attempted robbery conviction, defendant
was not convicted of robbery or attempted robbery as a result of the incident.
       The trial court’s characterization of the 1981 conviction as involving a stabbing is
supported by the record as defendant told the probation officer he stabbed the victim in
the chest and arms in that case. The court’s description of the facts of the 1978
convictions, a “vicious beating and then stuffing the person down a mine shaft,” are not
found in the record of conviction but again are present in the People’s opposition to
defendant’s petition, which relates an “execution style murder” in which the victim was
beaten, shot in the head, and “dumped [] down a water filled mining shaft.” The People’s
description of this incident and defendant’s other past offenses in their opposition is at
best a hearsay statement taken from some other, unnamed source. While reliable hearsay
evidence can be admissible in section 1170.126 proceedings (People v. Guilford (2014)
228 Cal.App.4th 651, 660-661 [statements in prior Court of Appeal opinion admissible]),
we need not determine whether the court could consider as evidence the description of
the prior offenses as stated in the opposition memorandum. Defendant did not object to
the trial court’s use of these hearsay statements, which forfeits any contention regarding
their use. (Evid. Code, § 353, subd. (a); see People v. Holford (2012) 203 Cal.App.4th
155, 168-169.)
       Notwithstanding the error or possible errors regarding the details of defendant’s
criminal record, the trial court’s description of defendant’s “pattern of violent behavior”
is supported by his lengthy criminal record, and his prison record shows a similar pattern
with numerous infractions for fighting or assaultive behavior. Any errors in the court’s
rendition of defendant’s criminal record are therefore harmless under any standard.



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       Nor was the trial court required to state the evidence favorable to defendant when
rendering its decision. Under section 1170.126, the trial court may consider defendant’s
criminal history, record while incarcerated, or any other relevant factor, but it is not
mandated to consider any of them. The trial court did not state that it ignored the other
factors; it merely found defendant’s pattern of violent behavior so compelling that
resentencing was not warranted. That finding was supported by the record and we
therefore conclude that the denial of defendant’s petition was not an abuse of discretion.
                                       DISPOSITION
       The trial court’s order is affirmed.



                                                         NICHOLSON              , J.



We concur:



      BLEASE                 , Acting P. J.



      BUTZ                   , J.




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