People v. Montano CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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