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In Re Brian Montgomery

August 2, 2012


APPEAL from a judgment of the Superior Court of El Dorado County, Suzanne N. Kingsbury, Judge. Super.Ct.No. PC20100276)

The opinion of the court was delivered by: Duarte , J.


Reversed with directions.

The Warden of California State Prison-Solano (the State) appeals the trial court's order granting Brian Montgomery's petition for writ of habeas corpus. The trial court held the September 2009 decision by the Board of Parole Hearings (the Board) issuing a three-year denial of Montgomery's parole was not supported by some evidence, and accordingly remanded to the Board for a new suitability hearing.

As we will explain, applying the most recent guidance provided by our Supreme Court on this issue, we conclude that there was indeed some evidence supporting the Board's finding of current dangerousness. Accordingly, we shall reverse.


Life Offense

In the early evening of December 4, 1990, El Dorado County Sheriff's Deputy Robert Pepper attempted to stop Montgomery for speeding. Montgomery had been attempting to manufacture methamphetamine and had a propane stove, a box of glassware and a large bag of "unfinished" methamphetamine in his car. He also had outstanding arrest warrants and was on probation. Montgomery had previously told a friend there were outstanding warrants for his arrest and he did not want to "run into any cops because he didn't want to be arrested again and go back to jail." Upon seeing Deputy Pepper's lights, rather than immediately stopping, Montgomery slowed to about 20 miles per hour, entered a store parking lot, slowed to five miles per hour, drove onto an adjoining street, continued about 100 feet, turned into another parking lot, drove 75 feet and then stopped.

Deputy Pepper approached the car and shined his flashlight throughout, concluding that Montgomery was alone in the car. He then asked Montgomery to put his hands on the steering wheel. Montgomery's right arm moved; Pepper saw a faint muzzle flash and "heard eight or nine reports of a .22 semi-automatic long rifle coming in split-second succession" from the vehicle. Montgomery fled the scene.

Deputy Pepper, who had been wearing a bulletproof vest, suffered nine bullet wounds to the chest, shoulder, side, abdomen and back. Two of the bullets were stopped by the strike plate of the bulletproof vest and one was stopped by his "badge holder wallet" in his shirt pocket. Critically injured, he was life-flighted to Sacramento Medical Center where he underwent major surgery.

After leaving the scene, Montgomery called a friend and told her that he had shot someone. Montgomery also told the friend he had methamphetamine and equipment to make methamphetamine in his car. He hid the car and the gun used to shoot Deputy Pepper. Defendant told other friends there was a passenger in the car, "Tex",*fn1 who had shot a police officer. He claimed he did not know where the rifle came from, or what had happened to it, to Tex, or to the methamphetamine.

The next morning, Montgomery was arrested. He was found in possession of 30 rounds of live .22-caliber ammunition, a plastic bindle of white powder and a piece of laboratory glassware. Montgomery's car was found abandoned near a dirt road in a densely wooded area a mile or two away from the scene. The car contained three expended .22-caliber shells, a Freon refrigerant can, an empty .22-caliber ammunition box, and various substances and glassware associated with manufacturing methamphetamine. Montgomery's fingerprints were found throughout the car. Montgomery told police he and Tex had been together; when Montgomery saw the officer's red lights he became frightened because he had outstanding warrants. He claimed Tex told him not to worry about it and when the officer approached, Tex grabbed defendant's rifle and began shooting. He denied owning the glassware, but admitted using methamphetamine the day of the offense. While in jail, Montgomery showed a visitor a map indicating where the gun was hidden and asked her to pick it up and keep it at her home. Police found the gun used at the location indicated on the map.

Montgomery was convicted of attempted first degree murder, assault on a peace officer with a semiautomatic weapon and assault on a peace officer with a firearm. As to each count it was also found true that Montgomery had intentionally inflicted great bodily injury and personally used a firearm. As to the attempted murder it was found true that in the commission of that offense, he injured another by discharging a firearm from a motor vehicle. He was sentenced to life in prison with the possibility of parole.

Parole Plans

Upon release, Montgomery had available residences in both Placerville and Redwood City. His preference was to move away from the Placerville area, as Deputy Pepper still lived there. In both cities, Montgomery had employment prospects with either a masonry contractor or a communications contractor. He had also developed a substance abuse relapse prevention plan, including information about local meetings and sponsors in both cities.

Criminal and Social History

Montgomery's past criminal history included multiple convictions. He had a juvenile adjudication for burglary in 1983. In 1986, he was convicted of possessing a switchblade knife, in 1988, of possessing methamphetamine, in 1989 for burglary and possessing controlled substance paraphernalia, and in 1990 for battery. These convictions resulted in multiple grants of diversion and probation. He also had a number of failures to appear and probation violations. He was on probation at the time he committed the life offense.

Montgomery had a "good" relationship with his divorced parents. Nonetheless, because he did not get along with his mother's boyfriend, he quit school after finishing 10th grade "to find different living arrangements." Montgomery described his childhood as lonely.

He started drinking at age 17 and would drink to the point of passing out or throwing up. He smoked marijuana "once in a while" and used PCP and cocaine "less than once per month." He first used methamphetamine at 19 years of age, and continued "heavy methamphetamine use" until arrested for his life offense. When he did not use methamphetamine, he "could not think straight" and would regularly not show up for work. He knew his heavy drug use "resulted in paranoid ideas and suspicion, but he continued to use." He acknowledged that most of his criminal offenses were committed as a result of his drug use.

Institutional Programming, Education and Vocational Training

While in prison, Montgomery completed a variety of vocational training programs, including landscaping, masonry and lens lab. He worked in the laundry and yard crew. Since 2000, he had worked in the lens lab. His supervisor's work reports reflected above-average performance. Montgomery participated in a variety of self-help programming, including tobacco cessation, anger management, violence prevention, stress management, computer literacy, offense prevention, domestic violence, parenting classes, and emotional awareness. Montgomery also participated in Alcoholics Anonymous (AA) from 1995 to 1996 and the third quarter of 2005. He then participated in substance abuse programming on an informal basis. In 2009, he began attending a formal AA and Narcotics Anonymous (NA) program.

Disciplinary Record

Montgomery received a 128*fn2 in 1993 for not tucking in his shirt and one in 1994 for failing to ...

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