THE PEOPLE v. PETER MONTELLANO
B292044
Court of Appeal of the State of California, Second Appellate District, Division Five
August 26, 2019
Filed 8/26/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Appellant,
v.
PETER MONTELLANO,
Defendant and Respondent.
B292044
(Los Angeles County
Super. Ct. No. VA041564)
APPEAL from a postjudgment order of the Superior Court of the County of Los Angeles, William C. Ryan, Judge.
Dismissed.
Jackie Lacey, Los Angeles County District Attorney, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys, for Plaintiff and Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Respondent.
THE PEOPLE v. PETER MONTELLANO
B292044
Court of Appeal of the State of California, Second Appellate District, Division Five
August 26, 2019
The Los Angeles County District Attorney (the District Attorney) appeals from the trial court’s postjudgment order finding defendant Peter Montellano eligible for resentencing under
II. FACTUAL AND PROCEDURAL BACKGROUND
In November 1994, defendant participated in the gang murder of Raul Casillas and the attempted gang murder of Casillas’s pregnant wife, G.C. After the victims lost their way in East Los Angeles and unintentionally drove through defendant’s gang territory, defendant and his fellow gang members surrounded their car and shot into it multiple times with a shotgun and a handgun, hitting Casillas in the head and G.C. in multiple locations. Casillas died from his wounds, but G.C. survived. Although the police were aware of defendant’s involvement in the shooting and were actively trying to locate him, he evaded arrest for over two years.
In February 1997, while still at large on the gang shooting case, defendant stole a car and a Bell Gardens police officer
initiated a pursuit. During the pursuit, defendant drove recklessly trying to evade the police, running stop signs and red lights at a high rate of speed. Defendant eventually abandoned the car and fled on foot. He was apprehended 90 minutes later, and thereafter made several admissions to the police concerning his guilt.
In an information filed in the instant case (No. VA041564) in March 1997, the District Attorney charged defendant in count 1 with the unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a) and in count 2 with evading an officer in violation of Vehicle Code section 2800.2. The District Attorney alleged as to count 2 that defendant had suffered two prior strike convictions for robbery and two prior convictions for which he served a prison term.
In July 1997, the jury in this case found defendant guilty of unlawful driving or taking of a vehicle and evading a police officer. Because defendant admitted that he suffered two prior strike convictions, the trial court sentenced him under the Three Strikes Law on count 2 to a 25-years-to-life sentence, plus an additional two years for the two prior prison term enhancement allegations.
The following year, in April 1998, a jury in the gang shooting case found defendant guilty of the murder of Casillas and the attempted murder of G.C. The trial court ordered
defendant’s sentence in that case to run consecutively to defendant’s three-strike sentence in the instant case.
On May 22, 2014, defendant petitioned in this case under
In August 2018, the District Attorney filed a notice of appeal from the trial court’s eligibility determination. The statement of appealability in the opening brief asserted that the eligibility determination was appealable under
After the case was fully briefed, but prior to oral argument, we sent a letter to the parties advising them to be prepared to address at argument whether the trial court’s eligibility determination was an appealable order under
subdivision (a)(5). At oral argument, the District Attorney, relying exclusively on Martinez, supra, 225 Cal.App.4th 979, reiterated that the
III. DISCUSSION
A. Prerequisite to Appellate Jurisdiction
“Appellate courts have jurisdiction over a direct appeal . . . only where there is an appealable order or judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 [107 Cal.Rptr.2d 149, 23 P.3d 43] (Griset); Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [32 Cal.Rptr.2d 275, 876 P.2d 1074] (Jennings) [an appealable order or judgment ‘is a jurisdictional prerequisite to an appeal’].) ‘A trial court’s order is appealable when it is made so by statute.’ (Griset, supra, 25 Cal.4th at p. 696; see Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 [118 Cal.Rptr.3d 571, 243 P.3d 575] [‘right to appeal is wholly statutory’ (citing
B. Section 1170.126 Resentencing
The trial court’s eligibility determination was made as part of its adjudication of defendant’s resentencing petition pursuant
to
Proposition 36 “amended the Three Strikes law with respect to defendants whose current conviction is for a felony that is neither serious nor violent. In that circumstance, unless an exception applies, the defendant is to receive a second[-]strike sentence of twice the term otherwise provided for the current felony . . . . [¶] . . . [¶] In addition to reducing the sentence to be imposed for some third[-]strike felonies that are neither violent nor serious, [Proposition 36] provides a procedure by which some prisoners already serving third[-]strike sentences may seek resentencing in accordance with the new sentencing rules. (
“The trial court’s consideration of a [resentencing] petition under the Act is a two-step process. First, the court determines whether the petitioner is eligible for resentencing. If the petitioner is eligible, the court proceeds to the second step, and resentences the petitioner under the Act unless it determines
C. Section 1238, subdivision (a)(5)
In criminal cases, the People’s right to appeal is controlled and limited by
remedy.” [Citation.] The circumstances allowing a People’s appeal are enumerated in
Here, the District Attorney asserts that the trial court’s eligibility determination is “[a]n order made after judgment, affecting the substantial rights of the [P]eople.” (
“[O]ur courts have generally held that
(People v. Minjarez (1980) 102 Cal.App.3d 309, 311-312 [162 Cal.Rptr. 292]); (2) a certificate of rehabilitation issued to a defendant before the period of rehabilitation required by law has been completed (Daudert v. People (1979) 94 Cal.App.3d 580, 582-585 [156 Cal.Rptr. 640]); (3) an order granting probation (People v. Warner (1978) 20 Cal.3d 678, 681-682 [143 Cal.Rptr. 885, 574 P.2d 1237]); (4) an order erroneously staying sentence pursuant to
In each of the foregoing examples, the postjudgment orders found appealable under
D. Analysis
The District Attorney’s appealability contention is premised exclusively on
judgment already imposed.” (Id. at p. 987.) Although we agree that a trial court’s eligibility determination under
Martinez, supra, 225 Cal.App.4th 979 involved the distinct issue of whether a trial court’s eligibility determination under
But the court in Martinez, supra, 225 Cal.App.4th 979 then went on to hold that, “[e]ven if we were to conclude the People had no right of appeal at this juncture of the proceedings, we would still find writ review appropriate. ‘If the prosecution has not been granted by statute a right to appeal, review of any alleged error may be sought by a petition for writ of mandate only when
Superior Court (Stanley) (1979) 24 Cal.3d 622, 625-626 [156 Cal.Rptr. 626, 596 P.2d 691], fn. omitted.)” (Id. at p. 988.) According to the court in Martinez, the trial court’s order finding defendant eligible for resentencing in that case exceeded the court’s jurisdiction to act under
Given the court’s conclusion on the availability of writ relief in that case, the appealability discussion in Martinez, supra, 225 Cal.App.4th 979 is dictum, as it was unnecessary to the court’s ultimate holding authorizing writ review of the eligibility determination. (See Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 287.) But even if the appealability discussion in Martinez, supra, 225 Cal.App.4th 979 was necessary to the court’s alternative holding in that case, we disagree with the premise of that holding, that the eligibility determination necessarily affects enforcement of the judgment or defendant’s relationship to it.
As explained above, a trial court’s adjudication of a petition for resentencing under
Here, the trial court completed only the first step in that process by finding defendant eligible for resentencing under the terms of
process, defendant was not automatically entitled to resentencing. Instead, his three-strikes sentence remained in full force and effect, and would continue to control the terms and conditions of his incarceration during the entire time the resentencing process was pending completion.
Only if the trial court determines a defendant is suitable for resentencing, is a defendant entitled to a second-strike sentence and a modification to the judgment necessarily occurs. Therefore, it is only at that point in the process—when the length of the defendant’s three-strike sentence is directly and immediately impacted—that the People’s substantial rights are affected
Accordingly, we conclude that because the trial court’s preliminary eligibility determination did not, by itself, entitle defendant to a second-strike sentence, that ruling did not necessarily affect the substantial rights of the People by directly and immediately altering the judgment, its enforcement, or defendant’s relationship to it. The trial court’s order was therefore not directly appealable under
IV. DISPOSITION
The appeal is dismissed.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.