People v. Montano CA4/1

Filed 11/30/22 P. v. Montano CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079690
Plaintiff and Respondent,
v. (Super. Ct. No. SCD290824)
ELIZABETH LORAIN MONTANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Yvonne E. Campos, Judge. Affirmed in part, reversed in part, and remanded
for resentencing.
Jennevee H. de Guzman, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General,
for Plaintiff and Respondent.
Elizabeth Lorain Montano robbed three businesses over a period of six
weeks using a black airsoft pistol. She was arrested and eventually entered a
guilty plea on four counts of robbery (Pen. Code,1 § 211). Thereafter, the trial
court sentenced Montano to four years in prison. On appeal, Montano asserts
the court abused its discretion by denying her probation. Alternatively, she
argues that resentencing is required for the trial court to consider whether to
impose the lower term for her principal offense under recent changes to
section 1170, which now requires leniency in sentencing for victims of
domestic violence. We reject Montano’s assertion that the trial court abused
its discretion by denying probation, but agree that remand for resentencing
in light of the recent changes to the law is required.
FACTUAL AND PROCEDURAL BACKGROUND2
Between May 15 and June 23, 2021, Montano robbed four victims at
three separate businesses. During each robbery, Montano brandished a black
gun, which was later determined to be an airsoft gun used to fire BBs, and
demanded that the employees at each business give her money.
The first robbery took place on May 15, 2021, at a Metro T-Mobile store
in San Diego. Montano entered the store wearing a dark hooded sweatshirt
and a black face mask. After asking an employee about iPhone promotions,
Montano told the employee she had a gun and demanded all the money in the
cash register or she would shoot. The victim then told Montano she did not
believe Montano had a weapon. Montano responded by opening a bag she
was carrying and showing what the employee described as a black semi-
automatic handgun. Montano also told the victim she would “blow her
1 Subsequent undesignated statutory references are to the Penal Code.
2 Because Montano pled guilty and there was no trial, the facts are taken
primarily from the probation report and Montano’s plea hearing.
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away.” The victim was afraid and unlocked the cash register drawer. Video
surveillance captured the incident and showed Montano hoist herself over the
counter and grab approximately $1,000 in cash. During her guilty plea,
Montano stated that she went into the “store and demanded money from the
girl behind the counter” and took property “by the use of fear.”
On the evening of June 21, 2021, Montano entered a 7-Eleven in San
Diego. She was dressed in a white hoodie, black pants and gloves, and wore a
mask. Montano asked for lottery tickets, then followed a female clerk behind
the counter and said something like “open the drawer” and “give me the
money.” The female clerk and a male employee saw Montano holding a black
handgun that the man identified as a Glock 17. Montano pointed the weapon
at the woman and said, “open the drawer bitch!” and pushed her several
times for moving too slowly. The male clerk opened his register and Montano
took $129 in cash and ran out of the store. During her guilty plea to the two
charges of robbery based on this encounter, Montano admitted that, in a
“classic stickup” she went into the 7-Eleven, and “demanded money” from the
two clerks. She stated “I brought in a BB gun, and I went in there and I told
the lady that I was robbing her. And that I demanded money from the cash
register.”
Two nights later, Montano entered a nail salon in San Diego, again in
dark clothing and a black face mask. She approached the manager, who was
standing behind the cashier’s counter, and yelled, “This is an armed robbery!”
and pointed a “black firearm” at the manager. Montano then placed a bag on
the counter and ordered the victim to fill it with money. The manager, who
police described as “frantic,” feared for her life and complied. Montano told
the manager to “hurry up,” and the manager put about $800 into the bag.
Montano then left the salon. In her guilty plea to the offense, Montano
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admitted she “went in [the nail salon] with the same airsoft gun and
demanded money from the woman behind the desk.”
Montano was eventually identified by the police and arrested. In a
hotel room where Montano was staying, investigators discovered one of the
hoodies she wore during the robberies, a black pistol, and a demand note that
read, “Put all the money in the bag, quietly! Please, no one has to get shot,
thank you.”
In October 2021, Montano pled guilty to four counts of robbery (§ 211;
counts 1–4). The probation report submitted before sentencing recommended
the court deny probation and impose a prison term of eight years, consisting
of the upper term of five years on the principal count, count 1, and
consecutive one-year terms, one-third the middle term, for counts 2 through
4. The probation officer who evaluated the case determined that Montano
had no significant mitigating factors and several aggravating factors that
weighed in favor of an upper-term sentence for the principal count. The
report listed as aggravating factors that: (1) Montano was armed during the
robberies, (2) she was on probation at the time of the crimes, (3) the manner
in which the crime was carried out indicated planning and sophistication,
and (4) Montano’s prior performance on probation was unsatisfactory.
The probation report identified three factors supporting probation:
(1) Montano was willing to comply with probation, (2) she had the ability to
comply with probation based on her age, health, and mental faculties, and
(3) she showed remorse for her crimes. The report concluded that these
factors were outweighed by those supporting denial of probation, including
(1) the serious nature and circumstances of the crimes, (2) the fact that
Montano brandished a weapon, (3) that Montano committed the crimes on
her own, (4) the emotional injury the crimes inflicted on the victims, (5) that
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she was on probation at the time of the crimes, (6) her substance abuse made
compliance with probation less likely, and (7) that she victimized four
separate individuals.
Montano submitted a statement in mitigation seeking probation based
in large part on her history of domestic violence at the hands of the father of
the two youngest of her three children. The mitigation statement outlined a
brutal history of violence perpetrated by the father against Montano and her
children, including the 2019 rape of her oldest daughter, who was twelve
years old at the time. The statement also explained that Montano had lost
custody of her children as a result of the violence, and that she was desperate
to change her life and reunify with her children. Montano submitted the
recommendation of a drug addiction specialist who evaluated her and opined
that she would benefit from treatment. In addition, Montano submitted
several letters of support from family members and her current boyfriend.
At the sentencing hearing, the prosecutor recommended 365 days in
local custody, and a suspended sentence and probation. She explained that it
was a difficult determination, but she believed Montano should be given a
chance to reform her life and reunify with her children. The prosecutor also
pointed to the lack of violence in Montano’s own criminal history and noted
that Montano expressed remorse and took responsibility for her crimes.
After hearing additional argument from Montano’s defense counsel, the
court denied probation and sentenced her to state prison for four years,
consisting of the middle term of three years for count 1; a consecutive one-
year term for count 2; and two concurrent one-year terms for counts 3 and 4.
In explaining its decision, the court acknowledged Montano had accepted
responsibility for the crimes and that she had suffered trauma in her life, but
determined the seriousness of Montano’s crimes and the impact on the
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victims, as well as Montano’s persistent drug abuse, weighed in favor of
denying probation.
DISCUSSION
I
Montano asserts that the trial court abused its discretion by denying
probation because the factors favoring probation overwhelmingly outweighed
those supporting its denial. She also argues the court improperly relied on its
experience with other defendants to deny probation. The Attorney General
responds that the trial court’s decision to deny probation was well within its
broad sentencing discretion.
A
“[A] grant of probation is an act of grace or clemency, and an offender
has no right or privilege to be granted such release. [Citation.] Stated
differently, ‘[p]robation is not a right, but a privilege.’ ” (People v. Moran
(2016) 1 Cal.5th 398, 402.) “[I]n most circumstances the trial court has broad
discretion to choose probation when sentencing a criminal offender. A
reviewing court will defer to such choice absent a manifest abuse of that
discretion.” (Ibid.)
“The decision to grant or deny probation requires consideration of all
the facts and circumstances of the case.” (People v. Birmingham (1990) 217
Cal.App.3d 180, 185.) California Rules of Court, rule 4.4143 provides that
the “[c]riteria affecting the decision to grant or deny probation include facts
relating to the crime and facts relating to the defendant,” and sets forth a list
of criteria that the court may consider. A trial court may also consider
additional criteria not listed in the rules, provided that those criteria are
reasonably related to the court’s decision. (Rule 4.408(a).)
3 Subsequent rule references are to the California Rules of Court.
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A trial court abuses its discretion “if it relies upon circumstances that
are not relevant to the decision or that otherwise constitute an improper
basis for [the] decision.” (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
“ ‘The burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary determination to
impose a particular sentence will not be set aside on review.’ ” (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.)
B
Here, the trial court properly exercised its discretion. The court’s
denial of probation was in line with the recommendation of the probation
department, and, at the sentencing hearing, the court clearly explained its
rationale. The court stated it had considered the mitigation statement as
well as Montano’s other submissions, including the drug specialist’s opinion
and the letters of support from her family members. The court explicitly
credited Montano for admitting her guilt and expressing remorse for her
actions.
However, the court found the aggravating factors outweighed those in
mitigation. In particular, the court pointed to the circumstances of the crime
and the fear created by Montano’s use of an airsoft pistol that the victims
believed was a semi-automatic handgun or Glock. Other aggravating factors
before the court also supported its decision. Montano had several prior
offenses, though nonviolent, and she was on probation at the time of the
current offenses. (See rule 4.414(b)(1), (2).) Further, Montano had failed
prior attempts at drug rehabilitation. (See rule 4.414 (b)(4) [“Ability to
comply with reasonable terms of probation as indicated by the defendant’s
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age, education, health, mental faculties, history of alcohol or other substance
abuse, family background and ties, employment and military service history,
and other relevant factors.”], italics added.)
Montano also asserts that the trial court improperly relied on its own
experiences with other defendants and litigants in denying probation. She
points to the court’s statement that it had seen probation violations be
minimized after suspended sentences were imposed and that as a juvenile
and drug court judge, the court had seen treatment programs fail. These
statements, however, were made in the context of analyzing Montano’s
situation; they do not show that the court was holding her responsible for the
conduct of others. Further, reliance on an erroneous factor does not warrant
reversal here, where the court identified multiple aggravating factors
supporting its denial of probation. (See People v. Price (1991) 1 Cal.4th 324,
492 [“When a trial court has given both proper and improper reasons for a
sentence choice, a reviewing court will set aside the sentence only if it is
reasonably probable that the trial court would have chosen a lesser sentence
had it known that some of its reasons were improper.”].)
In sum, the mitigating factors Montano relies on for her argument were
presented to the trial court. The court weighed these factors, but ultimately
concluded that probation was not appropriate. Montano argues this was the
wrong conclusion, essentially asking this court to reweigh the mitigating and
aggravating factors and conclude probation is mandated. That is not our
role. (See People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825 [“In
reviewing [the determination to grant or deny probation,] it is not our
function to substitute our judgment for that of the trial court.”].) On the
record before us, we cannot say the trial court’s denial of probation was
arbitrary, capricious, or in excess of the bounds of reason.
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II
Montano next argues remand for resentencing is required for the trial
court to consider recent amendments to section 1170 that became applicable
to Montano’s case after judgment. The Attorney General concedes the change
in the law applies retroactively to Montano, but argues that on this record
remand is unnecessary. Specifically, he notes that Montano’s mitigation
statement addressed the new law, establishing the trial court was aware of
the changes at the time of sentencing.
Section 1170 was amended, effective January 1, 2022, to require the
sentencing court to impose the lower term if “[p]rior to the instant offense, or
at the time of the commission of the offense, the person is or was a victim of
intimate partner violence or human trafficking.” (§ 1170, subd. (b)(6)(C).)
Under the new law, the court can still impose a higher term if it “finds that
the aggravating circumstances outweigh the mitigating circumstances [such]
that imposition of the lower term would be contrary to the interests of
justice.” (Ibid.) The Attorney General concedes this change in the law
applies retroactively to Montano, as the amendment is ameliorative and the
judgment was not final when it became effective. The concession is well-
taken. (See People v. Flores (2022) 75 Cal.App.5th 495, review den. June 15,
2022, S274232.)
Ordinarily, remand is the appropriate course when retroactive changes
in law affect the sentencing court’s discretion. This is so because
“ ‘[d]efendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court’ ” (People v. Gutierrez (2014) 58
Cal.4th 1354, 1391), and “ ‘a court that is unaware of its discretionary
authority cannot exercise its informed discretion.’ ” (People v. McDaniels
(2018) 22 Cal.App.5th 420, 425 (McDaniels).) An exception to this
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requirement exists, however, in the circumstance where “the record ‘clearly
indicate[s]’ that the trial court would have reached the same conclusion ‘even
if it had been aware that it had such discretion.’ ” (Gutierrez, at p. 1391.)
When “ ‘ “the record shows that the trial court would not have exercised its
discretion even if it believed it could do so, then remand would be an idle act
and is not required.” ’ ” (McDaniels, at p. 425; see People v. Flores (2020) 9
Cal.5th 371, 431–432 [holding remand to resentence defendant to exercise
sentencing discretion conferred by statutory amendment would be an idle
act].)
In the Attorney General’s view, the record is clear on this issue because
the mitigation statement submitted by Montano’s defense counsel raised the
change in the law and argued it should be applied to Montano since her case
would not be final by the time the law took effect. Montano does not contest
that her counsel briefed the issue before sentencing. She argues, however,
that the record is insufficient to show the court considered her history of
trauma and abuse in selecting the middle term sentence on the principal
offense because the issue was not addressed at the sentencing hearing.
Further, the court made no statement on the record indicating it was
deviating from the low term because it found the aggravating circumstances
outweighed the mitigating circumstances, and that imposing the lower term
was “contrary to the interests of justice.” (§ 1170, subd. (b)(6), (c).)
As stated, remand for resentencing is required “unless the record shows
that the trial court clearly indicated when it originally sentenced the
defendant that it would not in any event have [exercised its discretion in a
manner favorable to the defendant].” (McDaniels, supra, 22 Cal.App.5th at
p. 425, italics added.) Although the issue was set forth in the mitigation
statement, we agree with Montano that her case should be remanded for
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resentencing on this issue since the law was not in effect at the sentencing
hearing. Although the record may suggest it is unlikely the trial court will
choose the lesser sentence, it does not clearly show that the court will not.
Accordingly, we remand for resentencing and express no opinion as to how
the trial court should exercise its discretion.
DISPOSITION
The sentence is reversed and the cause is remanded to allow the
superior court to consider the application of section 1170,
subdivision (b)(6)(C). In all other respects, the judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
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