People v. Montenegro CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Bernardino County · No. FWV1101427
- Trial judge
- Gregory S. Tavill
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Michele M. Castillo, Julia C. Kelety
Analysis
The trial court denied Montenegro's petition for resentencing under Penal Code section 1172.6, finding she was ineligible as a matter of law because the record of conviction established she was the sole perpetrator and actual killer. The Court of Appeal affirmed the denial after an independent review of the record pursuant to a Delgadillo brief.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“The court found the record of conviction demonstrated Montenegro was the only perpetrator and was the actual killer. Accordingly, the court found she was not eligible for relief as a matter of law.” | de novo | correct | agree with court The appellate court independently reviewed the record and found no error, affirming the trial court's determination that the record of conviction conclusively established Montenegro was the sole perpetrator and actual killer, rendering her ineligible for relief under section 1172.6 as a matter of law. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appointed appellate counsel to file a brief identifying no meritorious issues and inviting the court to independently review the record.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying potentially meritorious issues and to notify the defendant of the right to file a supplemental brief.
The appellate opinion: sound — The opinion is procedurally sound, correctly applying the Delgadillo framework to review the record independently. It properly affirms the trial court's denial based on the conclusive nature of the record of conviction regarding the defendant's role as the sole perpetrator.
How this analysis was made · dispute it
unusual dispositionThe San Bernardino Superior Court denied Carmen Montenegro's Penal Code section 1172.6 resentencing petition at the prima facie stage, finding from the record of conviction that she was the sole perpetrator and actual killer of a 2014 first-degree murder and that the jury was never instructed on aiding and abetting, felony murder, or natural and probable consequences. On appeal, appointed counsel filed a Delgadillo no-issues brief, Montenegro filed a supplemental brief complaining about counsel consultation and her absence from the hearing, and the Court of Appeal independently reviewed the record, found no arguably meritorious issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition at the prima facie stage without issuing an order to show cause or holding an evidentiary hearing, on the ground that the record of conviction (jury instructions) showed defendant was the actual killer and sole perpetrator“The court found the record of conviction demonstrated Montenegro was the only perpetrator and was the actual killer. Accordingly, the court found she was not eligible for relief as a matter of law.” | unclear | correct | agree with court Under People v. Lewis the trial court may consult the record of conviction, including jury instructions, at the prima facie stage and may deny the petition where the record establishes ineligibility as a matter of law. A jury instructed only on direct-perpetrator premeditated murder, with no aiding and abetting, felony murder, or natural and probable consequences theories, necessarily found the defendant was the actual killer who acted with malice, which is a conviction still valid under amended sections 188 and 189. The appellate court did not articulate a standard of review (the prima facie determination is reviewed de novo), but its conclusion that no arguable issue exists follows from the record it describes. |
Rejection of defendant's supplemental-brief claims that counsel failed to adequately consult with her and that her absence from the prima facie hearing denied her due process, warranting a new hearing“We have carefully reviewed the supplemental brief and its attachments. She has not identified any potentially meritorious issues for reversal on appeal.” | unclear | correct | unsure Delgadillo requires the Court of Appeal to evaluate the specific arguments raised in a defendant's supplemental brief and address them in a written opinion. The court acknowledged the arguments but disposed of them in one sentence without explaining why they fail. The result is nonetheless defensible: the prima facie hearing involved only a legal question resolved on the record of conviction, so the defendant's absence and any shortfall in consultation could not have affected the outcome where she was ineligible as a matter of law. Because the opinion does not supply this reasoning or cite authority for it, I cannot say the court's treatment itself demonstrates correctness, only that the outcome appears right. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — In an appeal from the denial of a section 1172.6 petition where appointed counsel finds no arguable issues, the Court of Appeal need not conduct Wende review but must notify the defendant of the right to file a supplemental brief, must address any arguments raised in that brief in a written opinion, and may exercise discretion to independently review the record.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel who finds no meritorious issues should file a brief referring to anything in the record that might arguably support the appeal to assist the court's review.
- missed: People v. Lewis (2021) 11 Cal.4th 952 — At the section 1172.6 prima facie stage the court must appoint counsel and may consider the record of conviction, including jury instructions, to determine whether the petitioner is ineligible for relief as a matter of law, but may not engage in factfinding; the opinion resolved the dispositive prima facie question without citing this controlling authority.
The appellate opinion: sound with gaps — The result is defensible because a jury instructed solely on a direct-perpetrator theory of premeditated murder necessarily found the defendant was the actual killer acting with malice, making her ineligible for section 1172.6 relief as a matter of law. The opinion, however, cites no authority for the prima facie analysis (omitting People v. Lewis) and disposes of the defendant's supplemental-brief due process and counsel-consultation complaints in a single conclusory sentence rather than the reasoned evaluation Delgadillo contemplates.
Opinion
Filed 2/24/25 P. v. Montenegro CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084183
Plaintiff and Respondent, v. (Super. Ct. No. FWV1101427)
CARMEN MONTENEGRO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino County, Gregory S. Tavill, Judge. Affirmed. Carmen Montenegro, in pro. per.; and Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2014, a jury convicted Carmen Montenegro of first-degree premeditated murder (Pen. Code,1 § 187, subd. (a)) and found true an allegation she personally used a deadly weapon in the commission of the offense (§ 12022, subd. (b)(1)). The court sentenced Montenegro to an 1 All statutory references are to the Penal Code. indeterminate term of 25 years to life plus one year for the weapon enhancement. In 2024, Montenegro filed a petition for resentencing under section 1172.6. The court appointed counsel, received briefing and held a hearing, and determined Montenegro had not presented a prima facie case for resentencing under section 1172.6. The court reviewed the record of conviction and found Montenegro was the only perpetrator. The jury was not instructed on theories of aiding and abetting, felony murder or natural and probable consequences. The court found the record of conviction demonstrated Montenegro was the only perpetrator and was the actual killer. Accordingly, the court found she was not eligible for relief as a matter of law. Montenegro filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel notes this court has discretion to independently review the record for error. We notified Montenegro of her right to file her own brief on appeal. She has responded with a supplemental brief. In her supplemental brief, Montenegro does not address the merits of her petition. Rather, she complains counsel did not adequately consult with her and that she was not present at the hearing on the petition. She contends she was denied due process and is thus entitled to a new hearing. We have carefully reviewed the supplemental brief and its attachments. She has not identified any potentially meritorious issues for reversal on appeal.
2 DISCUSSION As we have noted, counsel has not identified any potentially meritorious issues. Counsel invites the court to exercise its discretion to independently review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738, counsel has identified a possible issue the was considered in evaluating the potential merits of this appeal: Whether the court erred in denying the resentencing petition without first issuing an order to show cause and conducting an evidentiary hearing. We have independently reviewed the record for error. We have not discovered any potentially meritorious issues for reversal on appeal. Competent counsel has represented Montenegro on this appeal. DISPOSITION The order denying appellant’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19