Filed 3/10/22 P. v. Montes CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078619
Plaintiff and Respondent,
v. (Super. Ct. No. SCD282761)
JESUS ARANDA MONTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
David M. Gill, Judge. Affirmed in part, reversed in part, and remanded for
resentencing.
Kenneth J. Vandevelde, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Eric A. Swenson, Deputy Attorneys General for Plaintiff and
Respondent.
This appeal only raises claims of sentencing error. After a bench trial,
Jesus Aranda Montes was convicted of arson of property (a lesser included
offense of arson of a structure, Count 1), possessing a destructive device in
public (Count 2), and possessing a flammable material (Count 3). Believing it
was required to designate Count 2 as the “principal term” because it had the
highest triad (two, four, or six years), the court sentenced Montes to prison
for six years and eight months.
Citing People v. Miller (2006) 145 Cal.App.4th 206 (Miller), on appeal
Montes contends the trial court misunderstood the scope of its discretion in
choosing the principal term. We agree. The principal term is the longest
term the court chooses to impose, not the longest term available. (Id. at
pp. 215‒218.) Because the trial court misunderstood the scope of its
discretion, the matter must be remanded for resentencing. (See People v. El
(2021) 65 Cal.App.5th 963, 966‒967.)
FACTUAL AND PROCEDURAL BACKGROUND
Surveillance cameras recorded Montes throwing an object that was on
fire over a fence into the victim’s backyard. Fortunately, it burned only four
small patches of grass.
Responding police officers found Montes inside his home in a locked
bathroom, along with a disposable lighter, gasoline can, and a glass bottle
containing gasoline and a cloth wick. Two other glass bottles containing
gasoline were found near the front door.
After inspecting the burned area, an arson investigator concluded that
a cloth soaked in a “flammable liquid” was thrown into the neighbor’s yard,
and when it hit the ground it “bounced or moved,” creating the four burned
areas.
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Testifying on his own behalf, Montes claimed that he threw a rock, not
a flaming cloth. He explained that what appeared to be a Molotov cocktail
was actually a spray bottle for cleaning car parts with gasoline.1
DISCUSSION
A. The Trial Court Misunderstood the Scope of Its Sentencing Discretion
Having convicted Montes of (1) arson of property; (2) possession of a
destructive device; and (3) possession of flammable material, the court’s
sentencing choices were:
Count 1: 16 months, 2 years, or 3 years (Pen. Code,2 § 451, subd. (d));
Count 2: 2 years, 4 years, or 6 years (§ 18715, subd. (a)); and
Count 3: 16 months, 2 years, or 3 years (§§ 453, subd. (a), 1170, subd.
(h)(1)).
After the court stated it was inclined to impose consecutive sentences,
defense counsel urged the court to select Count 1 (arson) as the principal
offense, impose the middle term of two years, and “then run Count 2
consecutive to that.” He added, “I don’t think treating Count 2 . . . as
the primary offense makes sense in this case.”
The deputy district attorney who appeared at sentencing was not trial
counsel. The court offered to continue the hearing “so that trial counsel can
be present,” but she declined the offer. Addressing consecutive sentencing,
the prosecutor stated—and more importantly, the trial court agreed—that as
a matter of law, it was required to choose Count 2 as the principal count
because it carried the highest triad:
1 The court remarked, “I just think as a reasonably objective trier of fact,
I found some of [Montes’s] testimony rather incredible and not worthy of
particular belief or weight.”
2 Undesignated statutory references are to the Penal Code.
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“[Prosecutor:] I would just first respond[.] I did receive
defense counsel’s Statement in Mitigation. I think the
general thrust of it is essentially that the court should pick
Count 1, the strike offense, as essentially the lead offense
here. I would point out that I don’t believe the court is
actually capable—well, not capable, but pursuant to
[section] 1170.1, the court must pick the count with the
highest triad essentially as the lead crime here. [(Italics
added.)]
“[The Court:] Well, that’s my understanding, yes.” (Italics
added.)
The court imposed the “aggravated term of 6 years on Count 2” as the
principal offense, plus a consecutive eight months (one-third of the midterm)
on Count 1. On Count 3, the upper term was imposed and stayed under
section 654.
Section 1170.1 provides the general formula for determining
consecutive terms of imprisonment. Subdivision (a) provides in part: “The
principal term shall consist of the greatest term of imprisonment imposed by
the court for any of the crimes, including any term imposed for applicable
specific enhancements.” (Italics added.) In Miller, the appellate court held
that a trial judge erroneously interpreted section 1170.1 as requiring that the
longer of two aggregate sentences offered in a plea agreement be imposed.
(Miller, supra, 145 Cal.App.4th at pp. 213‒214.) Rather, it is the longest
term the trial court chooses to impose, not the longest term available under
the sentencing scheme, that becomes the principal term. (Id. at pp. 215‒216.)
Accordingly, if a trial court does not want to designate the longest available
sentence as the principal term, it may exercise its discretion to select the
terms for each offense and then make the principal term designation
according to the longest of the selected terms.
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In this case, for example, the court had discretion to choose Count 1 as
the principal offense. If it had done so and imposed that upper term,
Montes’s total unstayed sentence would have been four years and four
months, consisting of three years on Count 1, and one and one-third years on
Count 2 (one-third of the two-year midterm).
On appeal, the Attorney General does not dispute that the deputy
district attorney appearing at sentencing misstated the law.3 Rather, he
claims that defense counsel corrected that mistake because in rebuttal
argument, Montes’s lawyer stated:
“[I]t’s not that I want to go down the rabbit hole of
consecutive sentencing, but [section] 1170.1’s
language . . . doesn’t say that the Court is manifestly
obligated to select the count that carries with it the highest
triad. It’s the term for which the most amount of time is
imposed[,] is what the language is.”
Because the trial court “made no statement to the contrary and failed
to express any disagreement in response to defense counsel’s contention,” the
Attorney General infers that the trial judge was persuaded, changed his view
of the law, and exercised informed discretion in selecting Count 2 as the
principal term. “At minimum,” the Attorney General claims, “the record is
ambiguous” in this respect.
We view the record differently. Immediately after the prosecutor
misstated the law, the trial court said, “that’s my understanding, yes.” And
after rebuttal argument, the court said nothing to the contrary. The only
explanation offered for selecting Count 2 as the principal term was that
section 1170.1 required it. Taking nothing away from defense counsel’s
3 The probation officer made the same mistake, designating Count 2 as
“the primary term because it carries the longer term of 4 years” as the middle
term.
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oratory skills, it seems highly unlikely the trial court would have completely
flip-flopped on the law after listening to a short rebuttal argument that
merely asserted, without citation to any supporting authority, a position
contrary to the one it had already adopted.
Montes is entitled to a new sentencing hearing where the court can
exercise its discretion in selecting the principal term. (People v. Flores (2021)
63 Cal.App.5th 368, 385.) We reject the Attorney General’s argument that
remand is unnecessary because “there is no possibility, much less a
reasonable probability, that [the court] would sentence [Montes] any
differently if given another chance . . . .” The court noted there were
mitigating factors: Montes had no criminal history, and he may have been
suffering from mental conditions that “significantly reduced his culpability
for the crime.” Additionally, the probation report, which the trial judge
characterized as being “thorough and well done, well thought-out”
recommended a total sentence of four years, eight months—significantly less
than the six years, eight months actually imposed. The trial court did not
state that Montes should receive the maximum sentence possible.
Accordingly, remand is necessary so that the trial court may have the
opportunity to exercise its sentencing discretion.4
B. On Remand, Montes is Entitled to the Benefit of Newly Amended
Section 1170, Subdivision (b)
Effective January 1, 2022, the Legislature amended section 1170,
subdivision (b) to narrow the permissible grounds for imposing an upper
term. As amended, an upper term may be imposed “only when there are
circumstances in aggravation of the crime that justify the imposition of a
4 Because of this disposition, it is unnecessary to address Montes’s
contention that as a matter of law, reversal is always required where a trial
court fails to exercise sentencing discretion.
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term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (Id., at subd. (b)(2); Stats. 2021, ch. 731 (Sen. Bill No. 567), §1.3.)
Because his judgment is not yet final, at resentencing Montes is entitled to
the benefit of this ameliorative change in the law. (People v. Flores (2022)
73 Cal.App.5th 1032, 1039.)
C. The Unpaid Portion of Montes’s Criminal Justice Administration Fee
Must Be Vacated
As part of sentencing, the trial court imposed various fees and fines,
including $154 as a criminal justice administration fee under former
Government Code section 29550.1. While this appeal was pending, the
Legislature repealed that statute and added Government Code section 6111,
which provides in part: “On and after July 1, 2021, the unpaid balance of any
court-imposed costs pursuant to . . . [Government Code] Section[ ] 29550.1 . . .
is unenforceable and uncollectible and any portion of a judgment imposing
those costs shall be vacated.”
Invoking this new law, Montes contends we should “strike” the $154
fee. However, the repeal of Government Code section 29550.1 does not entitle
him to that disposition. Rather, under Government Code section 6111, any
portion of the $154 fee that remained unpaid as of July 1, 2021 is deemed
“unenforceable” and must be vacated from the judgment. (People v. Lopez-
Vinck (2021) 68 Cal.App.5th 945, 953.)
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DISPOSITION
The portion of the $154 criminal justice administration fee imposed by
the court that remains unpaid as of July 1, 2021 is vacated. The matter is
remanded for resentencing consistent with the views expressed in this
opinion. After resentencing, the superior court shall prepare an amended
abstract of judgment and forward a certified copy to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
DATO, J.
WE CONCUR:
AARON, Acting P. J.
IRION, J.
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