People v. Montiel CA2/6

Filed 1/29/21 P. v. Montiel CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B299956 (Super. Ct. No. 2019005079) Plaintiff and Respondent, (Ventura County)

v.

EMILIO MONTIEL,

Defendant and Appellant.

Emilio Montiel appeals a judgment following his conviction, after a jury trial, for possession of a firearm by a felon (Pen. Code,1 § 29800, subd. (a)(1)), two felony counts; providing false information to an officer (§ 148.9, subd. (a)(1)), a misdemeanor; and delaying or obstructing an officer (§ 148, subd. (a)(1)), a misdemeanor. Montiel fell within the purview of the “Three Strikes” law. The trial court sentenced him to an aggregate state prison term of six years. Included within that sentence were two one-year sentences because of true findings that Montiel served

1 All statutory references are to the Penal Code.

prior prison terms which constituted sentence enhancements under former section 667.5, subdivision (b). We conclude, among other things, that: 1) substantial evidence supports Montiel’s conviction for delaying or obstructing an officer; 2) because of Senate Bill No. 136, the two prior prison term enhancements must be stricken; and 3) Montiel has not shown that the trial court erred by imposing a $900 restitution fine (§ 1202.4, subd. (b)) and a $900 parole revocation fine (§ 1202.45), which was “suspended unless parole is revoked.” We remand for resentencing. In all other respects, we affirm. FACTS On November 19, 2018, Sheriff’s Deputy Bill Meixner went to an apartment complex to arrest Brandy Mendez on an outstanding warrant. Mendez’s brother told him that Mendez lived in the attached garage. Meixner went to the garage, knocked on the door a couple of times, and announced his presence. But there was no response for a period of five minutes. Meixner had to force the door open. Mendez was inside. Montiel was also present. Meixner testified Montiel was trying to hide. Meixner ordered him to come out multiple times without a response. Montiel did not comply with Meixner’s multiple orders, but after a delay he eventually came out. He was placed in handcuffs. Meixner testified Montiel’s actions delayed him in performing his duties. When the deputies asked Montiel for his name, he told them he was Elliot Mesa. Sheriff’s deputies eventually discovered his true name. After a search of the area, police found a gun and photo evidence from a cell phone that Montiel had also possessed another firearm at an earlier occasion.