People v. Montoya CA5

Filed 6/22/22 P. v. Montoya 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082410 Plaintiff and Respondent, (Super. Ct. No. CR-19-010444) v.

TADEO EFREN MONTOYA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Tadeo Montoya drove a stolen truck while under the influence of methamphetamine. He had a substantial amount of heroin and methamphetamine in the

* Before Poochigian, Acting P. J., Franson, J. and Smith, J.

truck, as well as a loaded firearm. Montoya was convicted, among other offenses, of two counts of possessing a controlled substance while in possession of a loaded and operable firearm. Montoya claims there is insufficient evidence to supports the jury’s finding that his firearm was operable. We disagree and affirm. STATEMENT OF THE CASE Montoya was charged with transportation of heroin for sale (count 1; Health & Saf. Code, § 11352, subd. (a))1; possession of heroin for sale (count 2; § 11351); transportation of methamphetamine for sale (count 3; § 11379, subd. (a)); possession of methamphetamine for sale (count 4; § 11378); possession of heroin while possessing a firearm (count 5; § 11370.1, subd. (a)); possession of methamphetamine while possessing a firearm (count 6; 11370.1, subd. (a)); unauthorized use of a vehicle (count 7; Veh. Code, § 10851, subd. (a)); receiving a stolen vehicle (count 8; Pen. Code, § 496d, subd. (a)); and driving under the influence of a narcotic (count 9; Veh. Code, § 23152, subd. (f)). It was further alleged that Montoya was personally armed with a firearm (Pen. Code, §§ 1203.07, subd. (a)(2), 12022, subd. (a)(1)), possessed 14.25 grams or more of heroin (Pen. Code, § 1203.07, subd. (a)(2)), and possessed 57 grams or more of a substance containing methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)). During trial, the trial court dismissed count 8, and a jury found Montoya guilty of the remaining counts and allegations. The trial court sentenced Montoya to a total term of eight years eight months in prison. STATEMENT OF THE FACTS On the evening of October 28, 2019, Highway Patrol Officer Matt Fowles observed a white Ford truck traveling southbound on Highway 99. The truck had