P. v. Montes

Filed 10/13/20 P. v. Montes CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN ALEXANDER MONTES,
Defendant and Appellant.
G058526
(Super. Ct. No. 97CF0404)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and
Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 4 --

2
Recently, Justice Arthur Gilbert reminded us, “A Court of Appeal opinion
is an explanation for a decision. In most cases the opinion should contain only the
necessary facts and law to support the issue or issues to be decided. To aid the litigants,
their attorneys, and the public, the opinion should be concise, readable, and filed with
reasonable dispatch. Generally, the opinion should not mimic law review articles.”
(People v. Valdes (2020) 53 Cal.App.5th 953, 954-955.) With that sound advice in mind,
we turn to the present controversy.
In 1998, appellant Juan Alexander Montes was convicted of attempted
murder and other crimes for aiding and abetting the shooting of a rival gang member. On
appeal, we affirmed the judgment, which has long since become final. (See People v.
Montes (1999) 74 Cal.App.4th 1050.)
Following the passage of Senate Bill No. 1437 (SB 1437) in 2018,
appellant petitioned to vacate his conviction for attempted murder and to be resentenced
pursuant to Penal Code section 1170.95.1 SB 1437 restricted the scope of liability for
aiders and abettors. However, per its terms, the measure, as codified in section 1170.95,
applies only to those defendants who were “convicted of first degree or second degree
murder[.]” (§ 1170.95, subd. (a).) Because appellant was convicted of attempted
murder, not murder, the trial court summarily denied his petition.
In challenging that ruling, appellant admits his attempted murder conviction
falls outside the express terms of SB 1437 and section 1170.95. But he claims he is
entitled to resentencing as a matter of equal protection and in light of decisional authority
extending the remedial benefits of ameliorative sentencing provisions to lesser included
offenses. We disagree.
As to whether SB 1437 applies to attempted murder trials going forward
and to attempted murder convictions that are not yet final for purposes of direct review,
1 All further statutory references are to the Penal Code.

-- 2 of 4 --

3
the Courts of Appeal have reached differing conclusions. (Compare People v. Larios
(2019) 42 Cal.App.5th 956, 964-968 (Larios), rev. granted Feb. 26, 2020, S259983 [does
apply]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1012-1016 (Medrano), rev.
granted Mar. 11, 2020, S259948 [does apply] with People v. Dennis (2020) 47
Cal.App.5th 838, 846, rev. granted July 29, 2020, S262184 [does not apply]; People v.
Munoz (2019) 39 Cal.App.5th 738, 753-760 (Munoz), rev. granted Nov. 26, 2019,
S258234 [does not apply]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1105, rev.
granted Nov. 13, 2019, S258175 [does not apply].) The California Supreme Court is
currently considering and ultimately will have the last word on that issue.
However, even those courts that have extended SB 1437 in that context
have concluded the bill does not apply to attempted murder convictions that are already
final. (Larios, supra, 42 Cal.App.5th at pp. 968-970; Medrano, supra, 42 Cal.App.5th at
pp. 1016-1018.) As these courts have pointed out, the plain language and legislative
history of SB 1437 and section 1170.95 support this conclusion, and it makes sense from
a doctrinal and fiscal standpoint, as well. (Ibid.; see also Munoz, supra, 39 Cal.App.5th
at pp. 758-766 [explaining why neither equal protection principles nor decisional
authority support the view that SB 1437 applies to convictions for attempted murder].)
Therefore, we join these courts in holding attempted murderers cannot avail themselves
of the benefits of SB 1437 if their convictions are already final. Because appellant’s
attempted murder conviction was final when he petitioned for relief under SB 1437 and
section 1170.95, the trial court properly denied his petition.

-- 3 of 4 --

4
DISPOSITION
The trial court’s order denying appellant’s petition for resentencing is
affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.

-- 4 of 4 --