Filed 1/29/21 P. v. Montiel CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B299956
(Super. Ct. No. 2019005079)
Plaintiff and Respondent, (Ventura County)
v.
EMILIO MONTIEL,
Defendant and Appellant.
Emilio Montiel appeals a judgment following his conviction,
after a jury trial, for possession of a firearm by a felon (Pen.
Code,1 § 29800, subd. (a)(1)), two felony counts; providing false
information to an officer (§ 148.9, subd. (a)(1)), a misdemeanor;
and delaying or obstructing an officer (§ 148, subd. (a)(1)), a
misdemeanor. Montiel fell within the purview of the “Three
Strikes” law. The trial court sentenced him to an aggregate state
prison term of six years. Included within that sentence were two
one-year sentences because of true findings that Montiel served
1 All statutory references are to the Penal Code.
prior prison terms which constituted sentence enhancements
under former section 667.5, subdivision (b).
We conclude, among other things, that: 1) substantial
evidence supports Montiel’s conviction for delaying or obstructing
an officer; 2) because of Senate Bill No. 136, the two prior prison
term enhancements must be stricken; and 3) Montiel has not
shown that the trial court erred by imposing a $900 restitution
fine (§ 1202.4, subd. (b)) and a $900 parole revocation fine
(§ 1202.45), which was “suspended unless parole is revoked.” We
remand for resentencing. In all other respects, we affirm.
FACTS
On November 19, 2018, Sheriff’s Deputy Bill Meixner went
to an apartment complex to arrest Brandy Mendez on an
outstanding warrant. Mendez’s brother told him that Mendez
lived in the attached garage. Meixner went to the garage,
knocked on the door a couple of times, and announced his
presence. But there was no response for a period of five minutes.
Meixner had to force the door open. Mendez was inside.
Montiel was also present. Meixner testified Montiel was trying
to hide. Meixner ordered him to come out multiple times without
a response. Montiel did not comply with Meixner’s multiple
orders, but after a delay he eventually came out. He was placed
in handcuffs. Meixner testified Montiel’s actions delayed him in
performing his duties. When the deputies asked Montiel for his
name, he told them he was Elliot Mesa. Sheriff’s deputies
eventually discovered his true name. After a search of the area,
police found a gun and photo evidence from a cell phone that
Montiel had also possessed another firearm at an earlier
occasion.
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DISCUSSION
Substantial Evidence
Montiel contends there is insufficient evidence to support
his conviction for delaying or obstructing an officer. (§ 148, subd.
(a).) We disagree.
In reviewing the sufficiency of the evidence, we draw all
reasonable inferences from the record in support of the judgment.
We do not decide the credibility of the witnesses. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.) Montiel cites some portions
of the record and claims they support his position. But the issue
is not whether some evidence supports appellant, it is whether
substantial evidence supports the judgment.
“ ‘The legal elements of a violation of section 148,
subdivision (a) are as follows: (1) the defendant willfully resisted,
delayed, or obstructed a peace officer, (2) when the officer was
engaged in the performance of his or her duties, and (3) the
defendant knew or reasonably should have known that the other
person was a peace officer engaged in the performance of his or
her duties.’ ” (In re Muhammed C. (2002) 95 Cal.App.4th 1325,
1329.) One may not be convicted of this offense for merely failing
to respond “with alacrity to police orders.” (Id. at p. 1330.) But a
defendant who responds to “police orders with defiance” may be
convicted of this offense where his or her “defiant behavior
constituted more than a temporary distraction.” (Ibid.) Giving a
false name to a police officer also constitutes a crime under this
statute. (People v. Christopher (2006) 137 Cal.App.4th 418, 432.)
“Willfully” is defined in the Penal Code, and its definition does
not encompass a requirement of actual knowledge. “The word
‘willfully,’ when applied to the intent with which an act is done or
omitted, implies simply a purpose or willingness to commit the
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act, or make the omission referred to. It does not require any
intent to violate law, or to injure another, or to acquire any
advantage.” (People v. Mackreth (2020) 58 Cal.App.5th 317, 330.
Here there was a five-minute delay by Montiel after
Meixner announced his presence. A trier of fact could reasonably
find this was a very substantial delay caused by Montiel’s
recalcitrance. Meixner testified that he specifically “announced
that [he] was with the sheriff’s department.” He heard “people
talking inside the garage.” There was no response to his orders.
Meixner had to eventually break down the door to get in. He was
performing his law enforcement duties at that time. Meixner
testified that when he entered the garage, “it was obvious that
[Montiel] was trying to conceal himself behind the rafters.”
Montiel only came out after Meixner “yelled at him multiple
times without [a] response.” From the evidence the jury could
reasonably find that Montiel was hiding and he refused to comply
with the officer’s multiple lawful commands that he come out.
Meixner testified Montiel’s actions delayed his performance of his
job duties. That evidence is uncontradicted. This evidence
supported the finding that Montiel “willfully resisted, delayed, or
obstructed a peace officer.” (In re Muhammed C., supra, 95
Cal.App.4th at p. 1329.)
Montiel also gave a false name to the deputies. The
conduct of deliberately giving a false name to law enforcement
officers is also a crime under this statute. (People v. Christopher,
supra, 137 Cal.App.4th at p. 432.) Moreover, the false name
further delayed law enforcement in performing their duties. It
took additional time for the deputies to discover that the name
Montiel gave was not his true name. Here a trier of fact could
reasonably infer that Montiel’s “defiant behavior constituted
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more than a temporary distraction” to Meixner’s multiple lawful
commands and the performance of his duties. (In re
Muhammed C., supra, 95 Cal.App.4th at p. 1330.) It is Montiel’s
burden on appeal to show that the evidence does not support the
judgment. He has not done so. The evidence is sufficient.
Sentencing and Senate Bill No. 136
For the two felony convictions (§ 29800, subd. (a)(1)), the
trial court imposed a 16-month sentence which it doubled to 32
months because of a prior strike conviction for one felony and it
added 16 months for the other felony. The court then added two
years after finding Montiel had served prior prison terms falling
under the sentencing enhancement of section 667.5, subdivision
(b). For each of the two misdemeanors, it imposed a one-year
concurrent sentence.
Montiel and the People note that the trial court imposed
two one-year prior prison term enhancements (§ 667.5, subd. (b))
consistent with the law at the time of sentencing. But because of
the subsequent enactment of Senate Bill No. 136, these
enhancements must now be stricken. We agree.
“On October 8, 2019, the Governor signed Senate Bill 136
into law.” (People v. Lopez (2019) 42 Cal.App.5th 337, 340.) It
changed the prior prison term enhancement (§ 667.5, subd. (b)) so
that it now only applies to prior prison terms for sexually violent
offenses. (Lopez, at pp. 340-341.) The parties agree that
Montiel’s prior prison terms were not for sexually violent
offenses. The change in the law required by Senate Bill No. 136
applies retroactively to Montiel. (Lopez, at p. 341.) These
enhancements must be stricken on remand.
The trial court did not impose the maximum possible
sentence; consequently, it may reconsider its sentencing choices
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in resentencing Montiel on remand. (People v. Acosta (2018) 29
Cal.App.5th 19, 26; People v. Lopez, supra, 42 Cal.App.5th at
p. 342; People v. Hill (1986) 185 Cal.App.3d 831, 834.)
Validity of the Fines
The trial court imposed $900 restitution and parole
revocation fines. Montiel contends “the $900 restitution and
‘parole revocation’ fines should be reversed because there was no
evidence that Mr. Montiel has the ability to pay them.” Relying
on People v. Dueñas (2019) 30 Cal.App.5th 1157, he claims the
court did not consider his ability to pay these fines before they
were imposed and consequently they must be set aside. He
claims his counsel raised this issue in the trial court.
In Dueñas, the court held that imposing fines on
defendants who lack the ability to pay violates due process.
(People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.) Courts
following Dueñas have held the defendant must have “the
opportunity to request a hearing on his ability to pay . . . .”
(People v. Santos (2019) 38 Cal.App.5th 923, 934-935, italics
added.)
Here Montiel had that opportunity. His counsel asked the
trial court to strike these fines and he mentioned Dueñas. But he
did not request an evidentiary hearing on Montiel’s ability to pay.
Counsel did not present evidence, present a declaration, or make
an offer of proof regarding Montiel’s current financial condition.
Counsel only stated, “[I]f [Montiel is] looking at a state prison
sentence . . . , he would not have the ability to pay.”
The People contend Montiel does not have grounds to object
to the fines because: 1) he failed to present evidence of his
inability to pay; and 2) he did not take advantage of his adequate
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opportunity to make a factual record in the trial court to show
trial court error on appeal. We agree.
The defendant is “obligated to create a record showing his
inability to pay.” (People v. Aviles (2019) 39 Cal.App.5th 1055,
1074.) Because Montiel is in the best position to know his own
financial condition, he has the burden to show why a fine should
not be imposed. (People v. Frandsen (2019) 33 Cal.App.5th 1126,
1154.) He has not met his burden. His trial counsel only
presented oral argument. Montiel consequently did not preserve
a factual record in the trial court to support his claims on appeal.
(Ibid; see also People v. Santos, supra, 38 Cal.App.5th at p. 934
[“it is the defendant’s burden to demonstrate an inability to pay,
not the prosecution’s burden to show the defendant can pay, as
the Dueñas decision might be read to suggest”].)
But even on the merits, the result is the same.
Montiel contends the trial court erred by not allowing him
to receive an ability-to-pay hearing. But there is no showing in
this record that the court prevented Montiel’s counsel from
presenting evidence about his inability to pay. Instead, Montiel’s
counsel made a legal argument, and then said, “With that we
would go ahead and submit.” (Italics added.) Counsel’s
submission invited the court to decide the legal issues involving
the fines based on the record before the court at that time. A
party may be precluded from claiming error where that party
invited the trial court to rule, and then claims on appeal that this
ruling was premature. (People v. Russell (2010) 50 Cal.4th 1228,
1250; In re G.P. (2014) 227 Cal.App.4th 1180, 1193, 1196 [invited
error doctrine barred claim on appeal].)
Montiel contends the trial court did not comply with its
duty to consider the issue of his ability to pay fines and fees.
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“Absent a showing to the contrary, we presume the trial court
fulfilled its duty to make the requisite determination.” (People v.
Hennessey (1995) 37 Cal.App.4th 1830, 1836.) Moreover, the
record shows the trial court exercised its discretion in
determining whether certain fees or costs would be waived based
on inability to pay. For example, the court ruled that Montiel
would not have to pay “the $2,100 presentence investigation fee
cost.” It also waived other fees after considering Montiel’s ability
to pay. The parole revocation fine was stayed pending successful
completion of parole. The trial court may consider the probation
department’s assessment. Here the probation report contained a
recommendation that the court impose these two $900 fines.
The two fines the trial court imposed are not unusually
high. Montiel has not shown that two $900 fines are
unconstitutional as being “grossly disproportional” when
compared to the gravity of his criminal record and his felonies.
(United States v. Bajakajian (1998) 524 U.S. 321, 334 [141
L.Ed.2d 314, 329]; People v. Aviles, supra, 39 Cal.App.5th at
p. 1070.) His record as a recidivist is substantial.
Moreover, “ ‘ “[a]bility to pay does not necessarily require
existing employment or cash on hand.” ’ ” (People v. Aviles,
supra, 39 Cal.App.5th at p. 1076.) The court may consider the
defendant’s ability to pay in the future. (Ibid.) This may include
the defendant’s “ability to earn prison wages.” (People v. Santos,
supra, 38 Cal.App.5th at p. 934.) These fines may be paid in
installments. Montiel was sentenced to a substantial prison
term. At the time of sentencing, he was 36 years of age. Montiel
made no showing in the trial court that he has any physical
disability that prevents him from working. (People v. Frye (1994)
21 Cal.App.4th 1483, 1487 [“If defendant was ineligible for prison
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work assignment, it was incumbent upon him to alert the court to
any such disability”].) As stated in Aviles, “We can infer
defendant in this case has the ability to pay the fines and fees
imposed upon him from probable future wages, including prison
wages.” (Aviles, at p. 1076; People v. Gentry (1994) 28
Cal.App.4th 1374, 1377 [“Appellant can satisfy the remainder of
the debt either through what is left of his prison wages or
through future employment”].)
Montiel, “as a felon sentenced to prison for a lengthy term,
is not similarly situated to the misdemeanor probationer in
Dueñas.” (People v. Johnson (2019) 35 Cal.App.5th 134, 139.)
Even had he shown error, the error is harmless. (Id. at pp. 139-
140; id. at p. 139 [the claim that a prisoner cannot pay “while
serving an eight-year prison sentence is unsustainable”].)
Because this case must be remanded for resentencing, the
trial court, however, will have the opportunity to reconsider
whether to impose these fines. (People v. Acosta, supra, 29
Cal.App.5th at p. 26.) But based on the current record, Montiel
has not shown the trial court abused its discretion by imposing
them.
DISPOSTION
The case is remanded to the trial court for resentencing. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. PERREN, J.
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Paul W. Baelly, Judge
Superior Court County of Ventura
______________________________
Will Tomlinson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
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