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Name: People v. Montellano
Case #: B292044
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 08/26/2019

Trial court’s determination that petitioner was eligible for resentencing under Penal Code section 1170.126 (Prop. 36) was not an order appealable by the People. In 1997, Montellano was sentenced to a life term under the Three Strikes law. In 2014, he filed a petition under section 1170.126 to have his sentence recalled on the grounds that his third-strike felony conviction for evading a police officer was not a violent or serious felony. After extensive briefing and a hearing, the trial court concluded Montellano’s “super strike” convictions in 1998 for murder and attempted murder were not disqualifying “prior convictions” under section 1170.126 and that Montellano was eligible for resentencing. The trial court had not yet determined whether Montellano was suitable for resentencing (i.e., whether his resentencing would pose an unreasonable risk of danger to public safety). The People appealed, asserting the eligibility determination was appealable under Penal Code section 1238, subdivision (a)(5) as a postjudgment order that affects the substantial rights of the People. Held: People’s appeal dismissed. A postjudgment order affects the substantial rights of the People if it alters the judgment, its enforcement, or the defendant’s relationship to the judgment. Here, the Court of Appeal concluded a trial court’s determination that a petitioner is eligibility for resentencing under section 1170.126 (the first step of a two-step process) does not affect the substantial rights of the People. The eligibility determination does not automatically entitle a petitioner to resentencing and does not affect the judgment. The trial court in this case only determined Montellano was eligible for resentencing and had not resentenced him, which would modify the judgment. The court disagreed with People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979 (a writ case), which concluded the People have the right to appeal the eligibility finding under section 1238, subdivision (a)(5).

The full opinion is available on the court’s website here: