People v. Montes CA4/1

Filed 3/10/22 P. v. Montes CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078619

Plaintiff and Respondent,

v. (Super. Ct. No. SCD282761)

JESUS ARANDA MONTES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Eric A. Swenson, Deputy Attorneys General for Plaintiff and Respondent.

This appeal only raises claims of sentencing error. After a bench trial, Jesus Aranda Montes was convicted of arson of property (a lesser included offense of arson of a structure, Count 1), possessing a destructive device in public (Count 2), and possessing a flammable material (Count 3). Believing it was required to designate Count 2 as the “principal term” because it had the highest triad (two, four, or six years), the court sentenced Montes to prison for six years and eight months. Citing People v. Miller (2006) 145 Cal.App.4th 206 (Miller), on appeal Montes contends the trial court misunderstood the scope of its discretion in choosing the principal term. We agree. The principal term is the longest term the court chooses to impose, not the longest term available. (Id. at pp. 215‒218.) Because the trial court misunderstood the scope of its discretion, the matter must be remanded for resentencing. (See People v. El (2021) 65 Cal.App.5th 963, 966‒967.) FACTUAL AND PROCEDURAL BACKGROUND Surveillance cameras recorded Montes throwing an object that was on fire over a fence into the victim’s backyard. Fortunately, it burned only four small patches of grass. Responding police officers found Montes inside his home in a locked bathroom, along with a disposable lighter, gasoline can, and a glass bottle containing gasoline and a cloth wick. Two other glass bottles containing gasoline were found near the front door. After inspecting the burned area, an arson investigator concluded that a cloth soaked in a “flammable liquid” was thrown into the neighbor’s yard, and when it hit the ground it “bounced or moved,” creating the four burned areas.