Filed 8/23/23 P. v. Montgomery CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN MONTGOMERY,

Defendant and Appellant.

 B325823

 (Los Angeles County

 Super. Ct. No. BA284010-02)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, George G. Lomeli, Judge. Affirmed. 

Jonathan E. Demson, under appointment by the Court of 

Appeal; Justin Montgomery, in pro. per., for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

_______________________
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Justin Montgomery was convicted following a jury trial in 

2007 of attempted murder (Pen. Code, §§ 187, subd. (a), 664),1

assault with a semiautomatic firearm (§ 245, subd. (b)), shooting 

at an occupied motor vehicle (§ 246) and possession for sale or 

transportation of marijuana and cocaine (Health & Saf. Code, 

§§ 11359, 11351.5, 11352, subd. (a), 11360, subd. (a)). Criminal 

street gang (§ 186.22, subd. (b)) and firearm enhancements 

(§§ 12022, subd. (a)(1), 12022, subd. (c), 12022.53, subd. (b)) were 

found true. We affirmed Montgomery’s convictions on direct 

appeal but remanded for further proceedings because of error in 

considering a prior felony strike conviction in the absence of 

adjudication or an admission. (People v. Montgomery (Sept. 2, 

2009, B208165) [nonpub. opn.] (Montgomery I).) On remand the 

trial court found the prior strike allegation to be true and 

reimposed the original aggregate sentence of 45 years to life. We 

affirmed the judgment. (People v. Montgomery (Oct. 24, 2011, 

B225344) [nonpub. opn.] (Montgomery II).)

On February 11, 2021 the superior court summarily denied 

Montgomery’s petition for resentencing under former 

section 1170.95 (since renumbered section 1172.6), ruling 

Montgomery was ineligible for relief because he had been 

convicted of attempted murder, not murder. While Montgomery’s 

appeal was pending, the Legislature amended former 

section 1170.95 to expressly include within its reach certain 

convictions for attempted murder and voluntary manslaughter. 

In light of this new legislation, we remanded Montgomery’s case 

for the superior court to appoint counsel for Montgomery and to 

determine in accordance with the procedures described in former 

1 Statutory references are to this code unless otherwise 

stated.
3

section 1170.95, subdivision (c), whether Montgomery had made 

a prima facie showing he was entitled to relief. (People v. 

Montgomery (Jan. 19, 2022, B311367) [nonpub. opn.] 

(Montgomery III).)

On remand, after appointing counsel for Montgomery and 

receiving a response from the prosecutor and a reply from 

Montgomery’s counsel, the superior court on August 16, 2022 

again denied Montgomery’s petition, finding Montgomery was 

ineligible for resentencing relief as a matter of law because there 

were no instructions at his trial on the natural and probable 

consequences doctrine nor was that theory argued to the jury. 

No arguable issues have been identified following review of 

the record by Montgomery’s appointed appellate counsel. We also 

have identified no arguable issues after our own independent 

review of the record and analysis of the contention presented by 

Montgomery in his supplemental brief. We affirm.

FACTUAL BACKGROUND

As described in our opinion reversing the February 2021 

order summarily denying Montgomery’s petition for resentencing 

(Montgomery III, supra, B311367), the evidence at trial 

established that Montgomery was the driver of a van under 

surveillance by the Los Angeles Police Department. Saul Eady, 

Montgomery’s codefendant, and a third man were also in the van. 

As detectives monitored the van, one of them observed a person 

in the passenger side of the van reach out and fire four or five 

shots toward an alley. Detectives went to the alley to investigate 

and found Curtis Muse, who admitted he had been a member of 

the Crips at one time. The area where the shooting occurred was 

controlled by the Black P Stones, a rival Bloods gang. Muse was 

uninjured, but his car had several bullet holes in it. Muse told 
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the detectives he had been in the driver’s seat of his car at the 

time of the shooting. 

Detectives took control of the van after it was parked and 

its occupants left. From its interior they recovered a ninemillimeter semiautomatic handgun and a pump-action shotgun. 

Shell casings found at the shooting scene were matched to the 

handgun. A substantial quantity of rock cocaine and marijuana 

was also found inside the van. The People’s gang expert testified 

that both Montgomery and Eady were members of the Black P 

Stones.

The jury found Montgomery guilty of attempted murder, 

assault with a semiautomatic firearm, shooting at an occupied 

motor vehicle and possession for sale or transportation of 

marijuana and cocaine and found true related criminal street 

gang and firearm enhancements. The jury did not find true that 

the crime attempted was willful, deliberate and premeditated

murder. 

DISCUSSION

We appointed counsel to represent Montgomery on appeal

from the denial of his postjudgment petition. After reviewing the 

record, appointed counsel did not identify any arguable issues 

and so informed this court. Appointed counsel advised 

Montgomery on June 30, 2023 that he was filing a brief stating 

he was unable to find arguable issues and that Montgomery could 

personally submit any contentions he believed the court should 

consider. 

On August 3, 2023 we received a one-page handwritten 

supplemental brief from Montgomery in which he asked us to 

address the issue raised in the reply brief filed in the superior 

court by his appointed counsel. In that reply brief Montgomery’s 
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counsel argued, although the trial court had rejected the 

prosecutor’s request to instruct the jury on the natural and 

probable consequences doctrine, the prosecutor had, in effect, 

argued that theory to the jury and Montgomery’s ineligibility for 

resentencing relief could not be determined as a matter of law 

from the record of conviction. Counsel noted, for example, that 

the prosecutor in closing argument stated, “Mr. Eady discharged 

that weapon with the intent to kill him, to kill Mr. Muse. And 

that act can be imputed to Mr. Montgomery because he was 

aiding and abetting.” Not only the act, counsel argued, but also 

Eady’s express malice could have been imputed to Montgomery 

by the jury.

However, elsewhere in the reply brief Montgomery’s 

counsel quoted the prosecutor explaining in language that 

accurately tracked CALCRIM No. 3.01—the aiding and abetting 

instruction the court gave the jury—“[A] person aids and abets

the commission or alleged commission of a crime when he or she, 

one, with the knowledge of the unlawful purpose of the 

perpetrator, and with the intent or purpose of committing or 

encouraging or facilitating the commission of the crime, and by 

act or advice aids, promotes, encourages, or investigates the 

commission of the crime.” As the superior court ruled, whatever 

lack of precision there may have been in portions of the 

prosecutor’s closing argument when viewed in isolation, the 

record of conviction—the jury instructions and the verdict—

unequivocally demonstrated that Montgomery was convicted of 

attempted murder as a direct aider and abettor, not under a nowinvalid theory of imputed malice. 

Because no cognizable legal issues have been raised by 

Montgomery’s appellate counsel or by Montgomery or identified 
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in our independent review of the record, the order denying his

petition for resentencing is affirmed. (See People v. Delgadillo

(2022) 14 Cal.5th 216, 231-232; see also People v. Serrano (2012)

211 Cal.App.4th 496, 503; see generally People v. Kelly (2006) 

40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 

441-442.)

DISPOSITION

The postjudgment order is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J. 

FEUER, J.