People v. Montano CA3

Filed 5/10/22 P. v. Montano CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C094078

Plaintiff and Respondent, (Super. Ct. No. 10F03010)

v.

JESUS CEJA MONTANO,

Defendant and Appellant.

Defendant Jesus Ceja Montano appeals the trial court’s order denying his petition for resentencing under Penal Code section 1170.95.1 Defendant contends the trial court erred in finding him ineligible for relief as a matter of law. Based, in part, on new legislation that applies retroactively to defendant’s case, the People concur that defendant is entitled to reversal and remand for further proceedings on one of his convictions. As

1 Undesignated statutory references are to the Penal Code.

1

we shall explain, we conclude that he is entitled to reversal and remand on two of his convictions. PROCEDURAL BACKGROUND Given the nature of this appeal, it is not necessary to recount at length the events leading up to defendant’s six convictions for attempted murder.2 (People v. Delamora et al., (May 25, 2016, C076142), [nonpub. opn.] (Delamora).)3 It is enough to state that defendant drove codefendant Frank Delamora to an apartment complex. Delamora got out of the car and fired 20 to 30 shots from an assault rifle at men he believed to be rival gang members. Afterward, defendant and Delamora led the police, one of whom had a ride along passenger, on a high-speed chase with Delamora continuing to fire the assault rifle out of defendant’s passenger window. The chase ended when the pursuing police officer lost sight of the car as it sped down the freeway. Montano was the owner of the assault rifle used in the shooting. (Delamora, supra, C076142.) At trial, the court instructed the jury it could find defendant guilty of all counts of attempted murder based on an aiding and abetting theory (CALCRIM No. 401). With

2 The jury found defendant guilty of attempted murder each as to a different civilian (§§ 664/187, subd. (a); counts one through four); attempted murder of a peace officer (§§ 664/187, subd. (a); count five) and attempted murder of a civilian ride along passenger (§§ 664/187, subd. (a); count seven); assault with a semiautomatic firearm on a peace officer (§ 245; subd. (d)(2); count six); discharging a firearm at an occupied motor vehicle (§ 246; count 12); and discharging a firearm at an inhabited dwelling house (§ 246; count 13). The jury found true the allegation as to all counts that he was a principal and at least one principal who personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)) and was armed with a firearm (§ 12022, subd. (a)(2)). The jury also found true that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). (Delamora, supra, C076142.) 3 On our own motion, we take judicial notice of our opinion affirming the judgment of conviction and sentence in defendant’s direct appeal. (Evid. Code, §§ 459, subd. (a), 452, subd. (d) [permitting a court to take judicial notice of records of “any court of this state”].)