Opinion
F079582
12-27-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MONTANO, Defendant and Appellant.
Jyoti Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F08903863)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Jyoti Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J.
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Appellant Anthony Montano appeals from the trial court's denial of his motion to resentence him pursuant to Penal Code section 1170.18. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On May 28, 2008, after being shown a Play Station by one of three clerks in a store, Montano began to walk out of the store with it. When a clerk began following him, Montano stated, " 'If you follow me, I'll shoot you.' " The clerk stopped, and Montano walked out with the Play Station.
On October 22, 2008, the Fresno County District Attorney filed a complaint charging Montano with five counts of robbery, a firearm enhancement (§ 12022.53, subd. (b)) in one count, three prior serious felony enhancements (§ 667, subd. (a)), four prior prison term enhancements (§ 667.5, subd. (b)), and allegations that Montano had three prior convictions within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)). Montano then pled guilty to one count of second degree robbery and he admitted a serious felony enhancement (§ 667, subd. (a)), a prior prison term enhancement (§ 667.5, subd. (b)) and the allegations that he had three prior convictions within the meaning of the Three Strikes law (§ 667, subds. (b)-(i)).
Counts 1 through 3 were based on the robbery that occurred on May 28, 2008. The other two counts were based on robberies that allegedly occurred on May 29, 2008, and June 2, 2008.
On December 1, 2008, the court struck the prior prison term enhancement and two of Montano's prior strike convictions and sentenced him to an aggregate 15-year term, a doubled upper term of 10 years on his robbery conviction and a five-year serious felony enhancement.
On April 19, 2019, Montano filed a petition for resentencing pursuant to section 1170.18, asking the court to resentence him in the instant case pursuant to that section.
Section 1170.18 provides: "(a) A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 ..., as those sections have been amended or added by this act. [¶] (b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 ..., as those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety...." --------
On May 6, 2019, the trial court denied Montano's petition.
On July 1, 2019, Montano filed a timely appeal.
Montano's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Montano has not responded to this court's invitation to submit additional briefing.
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.