People v. Montgomery CA5

INTRODUCTION

Petitioner Shawn Julian Montgomery petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for attempted murder (§§ 187, subd. (a), 664). The trial court denied the petition at the prima facie stage following a hearing at which petitioner was not present. On appeal, petitioner contends his statutory and constitutional right to be present at the prima facie hearing was violated, thus requiring reversal and remand for a new resentencing hearing. We reject petitioner’s contentions and affirm.

PROCEDURAL BACKGROUND2

On January 27, 2011, a jury found petitioner guilty of attempted murder (§§ 187, subd. (a), 664; count 1), shooting from a motor vehicle (former § 12034, subd. (c); count 2), shooting at an occupied motor vehicle (§ 246; count 3), possession of a firearm by a prohibited person (former § 12021, subd. (a)(1); count 4), and active participation in a criminal street gang (§ 186.22, subd. (a); count 5). As to counts 1 through 3, the jury found true gang and firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subd. (d)). The trial court sentenced petitioner to an aggregate term…