People v. Montano CA6

Filed 9/9/14 P. v. Montano CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040571 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS130424)

v.

DANIEL MONTANO,

Defendant and Appellant.

Defendant Daniel Montano appeals his conviction by jury trial of possessing a controlled substance in prison. (Pen. Code, § 4573.6.)1 The jury also found true the allegations he had suffered four prior strikes. (§§ 667, subds. (b)-(i), 1170.12.) Defendant was sentenced to a term in prison of 25 years to life. On appeal, his counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared defendant was notified an independent review under Wende was being requested. We advised defendant of his right to submit written argument on his own behalf within 30 days. Defendant has submitted a letter brief arguing the trial court erred in denying his Romero2 motion and in imposing an unreasonable restitution fine. Pursuant to People v. Wende, we have reviewed the entire record and have concluded that there are no arguable issues. We will provide “a brief description of the

1 Further unspecified statutory references are to the Penal Code. 2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

facts and procedural history of the case, the crimes of which defendant was convicted, and the punishment imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 110.) Pursuant to Kelly, we will consider defendant’s letter brief and will explain why we reject his contentions. (Id. at p. 113.) FACTUAL AND PROCEDURAL BACKGROUND The Complaint On February 26, 2013, a complaint was filed charging defendant, an inmate at the Correctional Training Facility in Soledad, with a count of possession of controlled substances in prison (§ 4573.6). The complaint also alleged defendant had suffered four prior strikes within the meaning of section 1170.12, subdivision (c)(2), including a conviction for murder (§ 187, subd. (a)), two convictions for assault with a firearm (§ 245, subd. (a)(2)), and a conviction for shooting into an occupied vehicle (§ 246). Defendant’s Romero Motion In March 2013, defendant filed a motion requesting the trial court exercise its discretion under section 1385 and Romero, supra, 13 Cal.4th 497 to dismiss all but one of his prior strikes. Defendant argued that three of his four prior strikes (the two convictions for assault with a firearm and the conviction for shooting into an occupied vehicle) arose out of the same case in 1992 when he was a juvenile. The People opposed the motion. Following a hearing on June 12, 2013, the trial court denied defendant’s Romero motion after acknowledging the seriousness of his prior convictions and the amount of drugs he allegedly possessed in the present case. The Trial Defendant’s trial began in October 2013. John Hill, a correctional sergeant employed with the California Department of Corrections, testified on behalf of the prosecution. Hill asserted that on April 16, 2012, he participated in a search of defendant’s cell. When officers entered, defendant, who was standing near the cell’s