People v. Montano CA5

Filed 4/4/24 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F086592 Plaintiff and Respondent, (Super. Ct. No. BF169286B) v.

JOSE ANTONIO MONTANO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.

Solomon Wollack, 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, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Jose Antonio Montano (defendant) appeals for a second time from a judgment of conviction of first degree murder with the special circumstance of lying in wait. In the

*Before Hill, P. J., Peña, J. and Smith, J.

previous appeal, this court affirmed the special-circumstance murder conviction but remanded for possible retrial of other charges and for resentencing. (People v. Montano (2022) 80 Cal.App.5th 82, 115.) In an unpublished part of the prior opinion, this court rejected defendant’s challenge to the constitutionality of Penal Code section 3051, subdivision (h), which excludes persons sentenced to life in prison without the possibility of parole (LWOP) from eligibility for youth offender parole. (Undesignated statutory references are to the Penal Code.) The proceedings on remand did not change defendant’s LWOP sentence. However, at the time of his resentencing, and while the current appeal was pending, the California Supreme Court had undertaken review of another appellate court’s decision regarding the legality of section 3051, subdivision (h). (People v. Hardin (2022) 84 Cal.App.5th 273, review granted Jan. 11, 2023, S277487.) Defendant’s current appeal was filed in hope of the California Supreme Court deciding the issue differently than this court did in the prior appeal. The California Supreme Court has now decided Hardin, and the outcome does not assist defendant. (People v. Hardin (2024) 15 Cal.5th 834, 838–839.) We therefore reject (again) defendant’s claim regarding his ineligibility for youth offender parole. Defendant alternatively claims the trial court erred by imposing a parole revocation restitution fine under section 1202.45. The People concede the second claim, and we accept the concession. The judgment shall be modified accordingly. As modified, the judgment will be affirmed. PROCEDURAL HISTORY A summary of the underlying facts is provided in People v. Montano, supra, 80 Cal.App.5th at pages 90 through 100. The parties agree it is unnecessary to repeat the factual background here since it has little relevance to the issues on appeal. Defendant was 21 years old at the time of the victim’s death. A jury convicted defendant of first degree murder with the special circumstance of lying in wait (§§ 187,