People v. Montano CA5 ( 2021 )

Filed 4/7/21 P. v. Montano CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079976
Plaintiff and Respondent,
(Super. Ct. No. BF156029A)
v.
ADOLFO MONTANO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Tami M. Krenzin, Amanda D.
Cary and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Franson, J. and Meehan, J.
INTRODUCTION
When defendant Adolfo Montano was 21 years old, he robbed three college
students at gunpoint and fired his gun into the air twice. He was subsequently convicted
by jury of three counts of second degree robbery (Pen. Code, § 212.5, subd. (c); counts
1–3)1 and one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1);
count 4).2 As to all counts, the jury found that the crimes were committed for the benefit
of a criminal street gang (§ 186.22, subd. (b)(1)); and as to counts 1 through 3, that
defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). In a
bifurcated proceeding, the trial court found that defendant suffered a prior felony
conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)), and served two prior prison terms (§ 667.5, former subd. (b)).
The trial court sentenced defendant to an aggregate term of 70 years in prison as follows:
on count 1, the upper term of five years, doubled to 10 years for the prior strike offense,
plus additional terms of 10 years for the gang enhancement, 20 years for the firearm
enhancement, five years for the prior serious felony conviction, and one year for the prior
prison term enhancement; on counts 2 and 3 each, a consecutive term of two years, plus
additional terms of three years four months for the gang enhancement and six years eight
months for the firearm enhancement; and on count 4, a term of six years, plus additional
terms of 10 years for the gang enhancement and 10 years for the firearm enhancement,
stayed under section 654.
Defendant appealed and in Montano I, this court reversed the gang enhancement
findings as unsupported by substantial evidence and remanded the matter for
resentencing. The judgment was otherwise affirmed.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 We take judicial notice of our prior opinions in People v.Montano (Feb. 22, 2017,
F070695) [nonpub. opn.] (Montano I) and People v.Montano (Feb. 25, 2019, F075894) [nonpub.
opn.] (Montano II), and the records from those appeals. (Evid. Code, §§ 452, subd. (d), 459.)
2.
On remand, the trial court resentenced defendant to the same terms, minus the
gang enhancements, for an aggregate prison term of 53 years 4 months.
Following resentencing, defendant appealed and in Montano II, this court
remanded the matter to allow the trial court to exercise its discretion regarding whether to
strike one or more of the firearm enhancements under Senate Bill No. 620 (Stats. 2017,
ch. 682, §§ 1–2, pp. 1–4 (Senate Bill No. 620) and whether to strike the prior serious
felony conviction enhancement under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1,
2, pp. 1–6 (Senate Bill No. 1393). We otherwise affirmed the judgment.
Defendant’s third appeal is now before us, following remand in Montano II.3 The
appeal raises a single issue. Pursuant to Senate Bill No. 136, which amended
section 667.5, subdivision (b), effective January 1, 2020, defendant requests that we
strike the one-year prior prison term enhancement imposed. (Stats. 2019, ch. 590, § 1,
pp. 1–4 (Senate Bill No. 136).) The People concede defendant is entitled to relief under
Senate Bill No. 136.
We agree with the parties and order the one-year prior prison term enhancement
stricken, which reduces defendant’s aggregate sentence to 52 years 4 months. The
judgment is otherwise affirmed.
DISCUSSION
Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant
here, trial courts are required to impose a three-year sentence for each prior, separate
prison term served by the defendant for a violent felony where the current offense is also
a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant
to former subdivision (b), and subject to exceptions not relevant here, trial courts are
required to impose an additional one-year term for each prior, separate prison term or
3 The trial court declined to exercise discretion to strike the firearm enhancements or the
prior serious felony conviction enhancement. Defendant does not challenge those
determinations.
3.
county jail felony term. As amended by Senate Bill No. 136, subdivision (b) of
section 667.5 limits imposition of the additional one-year term to each prior, separate
prison term served for a conviction of a sexually violent offense as defined in Welfare
and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court’s decision in In re Estrada
(1965) 63 Cal.2d 740, 744 (Estrada), “‘“[a]n amendatory statute lessening punishment is
presumed to apply in all cases not yet reduced to final judgment as of the amendatory
statute’s effective date” [citation], unless the enacting body “clearly signals its intent to
make the amendment prospective, by the inclusion of either an express saving clause or
its equivalent” [citations].’” (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting
People v. DeHoyos (2018) 4 Cal.5th 594, 600; accord, People v. Frahs (2020) 9 Cal.5th
618, 624.)
We agree with the parties that Senate Bill No. 136 is retroactive under the Estrada
rule and, therefore, the amendment to section 667.5, subdivision (b), applies here. As
well, we agree that defendant’s prior conviction for receiving stolen property is not a
qualifying offense under section 667.5, subdivision (b), as amended. Therefore, we order
the one-year prior prison term enhancement imposed by the trial court stricken, reducing
defendant’s aggregate sentence by one year to 53 years 4 months.4
DISPOSITION
Pursuant to Senate Bill No. 136, the one-year prior prison term enhancement
imposed under section 667.5, former subdivision (b), is stricken, which reduces
defendant’s aggregate sentence by one year to 53 years 4 months. The trial court shall
forward an amended abstract of judgment reflecting this modification to the appropriate
authorities. The judgment is otherwise affirmed.
4 Striking the prior prison term enhancement does not require remand for resentencing
under the full resentencing rule where, as here, the trial court imposed the maximum sentence.
(People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)
4.