People v. Montelongo CA4/1

Filed 5/19/23 P. v. Montelongo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080790

Plaintiff and Respondent,

v. (Super. Ct. No. SCN388970)

ESTEVAN S. MONTELONGO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed and remanded. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Paige Hazard, Eric Tran, and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION1 A jury found Estevan Steve Montelongo guilty of first degree murder

(Pen. Code, § 187, subd. (a))2 with personal and intentional discharge of a firearm proximately causing death (§ 12022.53, subd. (d)) for shooting his girlfriend in the head and killing her. The court further found that Montelongo had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), which also constituted a prior strike (id., subds. (b)-(i)). The court sentenced Montelongo to prison for 75 years to life plus five years—a doubled two- strikes sentence of 50 years to life for the murder, 25 years to life for the firearm enhancement, and five years for the serious felony prior. In a prior appeal, we reversed and remanded the matter for resentencing so that the trial court could exercise its discretion whether to impose a lesser firearm enhancement under the holding of People v. Tirado (2022) 12 Cal.5th 688. (People v. Montelongo (April 26, 2022, D078706) [nonpub. opn.].) On remand, the court held a new sentencing hearing and again imposed the same sentence of 75 years to life plus five years. In this appeal, Montelongo now contends that: (1) the trial court was required to dismiss the firearm enhancement under section 1385, subdivisions (c)(2)(B) and (c)(2)(C); (2) the trial court erred in finding that dismissal of an enhancement would endanger public safety; and (3) the abstract of judgment should be amended to reflect the trial court’s March 10,