People v. Montano CA2/3

Filed 6/24/15 P. v. Montano CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B252536

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA388602) v.

MARC MONTANO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Monica Bachner, Judge. Affirmed as modified. Suzann Ellen Papagoda, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Marc Montano raises contentions of sentencing error and a discovery violation following his conviction of possession of a controlled substance, with prior serious felony conviction findings. For the reasons discussed below, the judgment is affirmed as modified. BACKGROUND Viewed in accordance with the usual rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following. On September 2, 2011, at 9:45 p.m., Los Angeles Police Officers John Bain and Arthur Castro were on patrol near Hermon Park, an area known for narcotics trafficking. From about 100 yards away, and using high-powered binoculars, the officers observed defendant Montano standing with some other people near the park benches. A few minutes later, Montano got into the driver’s seat of a truck that was parked close to the benches. Joaquin Gonzalez got into the passenger seat. As Montano began driving away, the officers drove into the park. From 20 or 30 feet away, they saw Montano turn his back slightly and lift the truck’s center console compartment. Montano made some movements with his right hand and then closed the console. Gonzalez also made some furtive movements near the console. The officers detained the two men and had them get out of the truck. Bain searched under and behind the driver’s seat, and then noticed that the center console was not completely closed. Inside the console, Bain found a box of sandwich bags under the console’s removable tray. Inside the box were six clear plastic bags containing a crystalline substance. Also inside the center console was a digital scale. No glass pipes or syringes were found in the truck or in either man’s possession. Montano had $7 on him. No customer lists or business records were found. The crystalline substance proved to consist of 24.6 grams of methamphetamine. Bain opined Montano possessed the methamphetamine for sale given the amount recovered. An ounce of methamphetamine, which was 28 grams, cost about $1,200. Most users did not purchase or walk around with an ounce at a time due to lack of money and fear that someone would steal it. Also, the methamphetamine had been divided into