People v. Montgomery CA4/1

California Court of Appeal · D067660 · 2015-08-27 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCD240113
Trial judge: David J. Danielsen
Outcome: affirmed — Affirmed.
Area: criminal
Panel: McINTYRE (author), Richard D. Huffman, Sr., Judith D. McConnell

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:10Z · confidence high

The trial court denied Montgomery's petition to reduce his burglary and forgery convictions to misdemeanors under Proposition 47. The Court of Appeal affirmed the denial, finding Montgomery ineligible because his offenses did not constitute shoplifting and his forgery convictions were accompanied by identity theft convictions.

Ruling reviewed	Standard	The court	The model
Denial of Proposition 47 petition for burglary convictions “Burglary and forgery, violations of sections 459 and 470, subdivision (d), respectively, are not among the offenses specified in the Act that are eligible for resentencing.”	de novo	correct	agree with court The court correctly identified that Penal Code section 459 (burglary) is not listed in Penal Code section 1170.18, subdivision (a) as an eligible offense for resentencing under Proposition 47. Furthermore, the court correctly noted that the new shoplifting statute (section 459.5) requires entry with intent to commit larceny, which does not apply to check fraud.
Denial of Proposition 47 petition for forgery convictions “Thus, Montgomery is not eligible for a reduction under the amended forgery statute based on his five convictions for using personal information in violation of section 530.5.”	de novo	correct	agree with court The court correctly applied the statutory exclusion in Penal Code section 473, subdivision (b), which explicitly states that misdemeanor treatment for forgery does not apply to persons convicted of both forgery and identity theft (section 530.5). Since Montgomery had concurrent identity theft convictions, he was statutorily ineligible.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for independent appellate review when appointed counsel files a brief raising no issues.
relied: People v. Kelly (2006) 40 Cal.4th 106 — Clarifies the responsibilities of appointed counsel in Wende appeals, including the requirement to advise the defendant of the right to file a supplemental brief.

The appellate opinion: sound — The opinion is sound because it correctly applies the statutory text of Proposition 47 to the specific facts of the case. It accurately identifies that the defendant's conduct (check fraud) does not meet the definition of shoplifting and that the statutory exclusion for concurrent identity theft convictions bars relief for the forgery counts.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The trial court denied Sean Montgomery's Penal Code section 1170.18 (Proposition 47) petition to reduce his six burglary and six forgery convictions to misdemeanors. On a Wende appeal with no supplemental brief, the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed, reasoning that burglary by passing a fraudulent check is not shoplifting under section 459.5 and that section 473, subdivision (b) excludes defendants also convicted of identity theft under section 530.5.

Ruling reviewed	Standard	The court	The model
Denial of Proposition 47 petition as to the burglary (§ 459) convictions; appellate court held the convictions do not qualify as shoplifting under new § 459.5 because defendant attempted to pass fraudulent checks rather than commit larceny “Here, however, Montgomery did not commit a shoplifting; rather, he attempted to pass a fraudulent check. Thus, Montgomery is not eligible for a reduction under the new shoplifting statute.”	unclear	correct (statutory interpretation)	disagree with court The court treats 'larceny' in § 459.5 as excluding entry to cash a forged check, without addressing Penal Code § 490a, which directs that any statutory reference to 'larceny' be read as 'theft,' a term that includes theft by false pretenses (§ 484). The California Supreme Court later adopted that broader reading in People v. Gonzales (2017) 2 Cal.5th 858, holding that entering a bank to cash forged checks is shoplifting under § 459.5. Gonzales postdates this opinion, so the panel cannot be faulted for not citing it, but the statutory text (§ 490a) existed and the opinion does not engage with it, nor does it state the value of the checks, which is also an element of § 459.5 eligibility.
Denial of Proposition 47 petition as to the forgery (§ 470, subd. (d)) convictions; appellate court held § 473, subdivision (b) misdemeanor treatment is unavailable because defendant was also convicted of identity theft under § 530.5 “Thus, Montgomery is not eligible for a reduction under the amended forgery statute based on his five convictions for using personal information in violation of section 530.5.”	unclear	correct	agree with court Section 473, subdivision (b) expressly states it 'shall not be applicable to any person who is convicted both of forgery and of identity theft, as defined in Section 530.5.' The opinion recites that Montgomery was convicted of five counts under § 530.5 in the same set of cases, so the plain text of the exclusion applies and the result follows directly from the statute.
Conduct of independent Wende review of the record on appeal from the postjudgment order and finding of no arguable issues “There are no arguable appellate issues and we are satisfied that Montgomery's attorney has fully complied with his responsibilities.”	unclear	correct	agree with court The court applied Wende/Kelly independent review to an appeal from a postconviction order. People v. Serrano (2012) 211 Cal.App.4th 496 had held Wende review is not constitutionally required in appeals from postjudgment orders and that such an appeal may be dismissed as abandoned when no supplemental brief is filed; the panel did not address this, though its more generous approach did not prejudice the defendant.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no issues, the Court of Appeal must independently review the record for arguable issues.
relied: People v. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal the reviewing court should briefly describe the case and the issues considered to show it has conducted the required independent review.
missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende independent review is not required in appeals from postjudgment orders not affecting a defendant's first appeal as of right; where no supplemental brief is filed, the appeal may be dismissed as abandoned.

The appellate opinion: questionable — The forgery holding rests on the plain text of § 473, subdivision (b) and is correct, and the Wende procedure, while arguably unnecessary under Serrano, did not harm the defendant. The burglary holding, however, assumes without analysis that passing a fraudulent check is not 'larceny' under § 459.5, ignoring § 490a's directive to read 'larceny' as 'theft,' a reading the Supreme Court later rejected in People v. Gonzales (2017) 2 Cal.5th 858; the opinion also never states the check amounts relevant to the $950 threshold.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 8/27/15 P. v. Montgomery 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, D067660

Plaintiff and Respondent, v. (Super. Ct. No. SCD240113)

SEAN MONTGOMERY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

In 2012, in four separate incidents, Montgomery entered four separate businesses and attempted to cash fraudulent checks. In 2013, in four separate cases, Sean Montgomery was convicted of five counts of using personal identifying information, six counts each of burglary and forgery, two counts of possessing a controlled substance, and one count of acquiring account information. He received a total prison term of nine years four months.

In 2015, Montgomery filed a petition to reduce to misdemeanors his convictions for burglary and forgery under the ameliorative provisions of Proposition 47, entitled "The Safe Neighborhoods and Schools Act" (the Act). The trial court denied the petition.

Montgomery timely appealed.

Montgomery filed a brief raising no issues, but requesting this court to independently review the record for arguable contentions under People v. Wende (1979)

25 Cal.3d 436. We advised Montgomery of his right to file a supplemental brief.

Montgomery has not filed a brief. We have completed our independent review of the record. There are no arguable appellate issues and we are satisfied that Montgomery's attorney has fully complied with his responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, at p. 441.)

Misdemeanor resentencing under the Act is available to "[a] person currently serving a sentence for a conviction" under "[s]ections 11350, 11357, or 11377 of the Health and Safety Code, or [s]ection 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code." (Pen. Code, § 1170.18, subd. (a), undesignated statutory references are to the Penal Code.) Burglary and forgery, violations of sections 459 and 470, subdivision (d), respectively, are not among the offenses specified in the Act that are eligible for resentencing.

The Act added section 459.5 defining shoplifting, a misdemeanor, as "entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to 2 be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary." (§ 459.5;

Historical and Statutory Notes, 48A Pen. Code (2015 pocket supp.) foll. § 459.5, p. 122.)

Here, however, Montgomery did not commit a shoplifting; rather, he attempted to pass a fraudulent check. Thus, Montgomery is not eligible for a reduction under the new shoplifting statute.

The Act also amended section 473, regarding punishment for forgery, to provide for misdemeanor treatment if the forgery did not exceed $950. (§ 473, subd. (b);

Historical and Statutory Notes 48B West's Ann. Pen. Code (2015 pocket supp.) foll.

§ 473, p. 4.) This subsection also provides that it "shall not be applicable to any person who is convicted both of forgery and of identity theft, as defined in Section 530.5."

(Ibid.) Thus, Montgomery is not eligible for a reduction under the amended forgery statute based on his five convictions for using personal information in violation of section 530.5.

DISPOSITION

The order denying defendant's Proposition 47 petition for recall and resentencing is affirmed.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

Cites, in this corpus

People v. Kelly S133114 · 2006-11-27
People v. Wende Crim. 20851 · 1979-10-12