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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
1 We resolve this case by memorandum opinion pursuant to California
Standards of Judicial Administration, section 8.1. (See also People v. Garcia
(2002) 97 Cal.App.4th 847, 853–855.) Rather than restate the factual and
procedural background of the case, we will assume familiarity with our prior
opinion from Montelongo’s first appeal (People v. Montelongo (April 26, 2022,
D078706) [nonpub. opn.]).
2 Undesignated statutory references are to the Penal Code.
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2023 order awarding additional custody credits. We reject the first two
contentions but agree with the third.
DISCUSSION
I
We begin with Montelongo’s contention that dismissal of the 25-years-
to-life firearm enhancement was mandatory under section 1385, subdivisions
(c)(2)(B) and (c)(2)(C). “For all criminal sentencings after January 1, 2022,
our Legislature in Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 721, § 1) has provided direction on how trial courts are to exercise their
discretion in deciding whether to dismiss sentencing enhancements.” (People
v. Walker (2022) 86 Cal.App.5th 386, 391 (Walker).) Specifically, section
1385, subdivision (c)(1) now provides that “the court shall dismiss an
enhancement if it is in the furtherance of justice to do so,” and subdivision
(c)(2) states that “[i]n exercising its discretion under this subdivision, the
court shall consider and afford great weight to evidence” of nine listed
“mitigating circumstances,” any one of which “weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” Subdivision (c)(3) further
provides: “While the court may exercise its discretion at sentencing, this
subdivision does not prevent a court from exercising its discretion before,
during, or after trial or entry of plea.”
The nine listed “mitigating circumstances” include factors such as
mental illness, prior victimization, childhood trauma, use of an inoperable or
unloaded firearm, the defendant’s status as a juvenile, and the use of a prior
conviction that is over five years old. (§ 1385, subd. (c)(2)(A)-(I).) They also
include the following two mitigating circumstances of relevance to this
appeal: “(B) Multiple enhancements are alleged in a single case. In this
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instance, all enhancements beyond a single enhancement shall be dismissed.
[¶] (C) The application of the enhancement could result in a sentence of over
20 years. In this instance, the enhancement shall be dismissed.” (§ 1385,
subd. (c)(2), italics added.)
Montelongo argues that because two separate enhancements were
alleged and found true (the firearm enhancement and the serious felony
prior), and because they resulted in a sentence of over 20 years, the firearm
enhancement must be dismissed under section 1385, subdivisions (c)(2)(B)
and (c)(2)(C). He contends that the trial court lacked any discretion to impose
the 25-years-to-life firearm enhancement because the “shall be dismissed”
language of these subdivisions made dismissal mandatory.
Other California courts have consistently rejected this mandatory
dismissal argument in construing the “shall be dismissed” language of
subdivisions (c)(2)(B) and (c)(2)(C). (See People v. Mendoza (2023) 88
Cal.App.5th 287, 290–293; People v. Anderson (2023) 88 Cal.App.5th 233,
238–240; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15–21; Walker, supra,
86 Cal.App.5th at pp. 391, 395–398.)
We find the reasoning of these cases to be persuasive and adopt their
holdings as our own. The statutory words “shall be dismissed” cannot be read
in isolation. Construed as a whole, the statute makes clear that the listed
mitigating circumstances merely guide the court’s discretion in determining
whether a dismissal is in furtherance of justice. Subdivision (c)(1) first sets
forth the governing “furtherance of justice” standard for dismissal, then
subdivision (c)(2) states that the court must consider the listed mitigating
circumstances “[i]n exercising its discretion” whether to dismiss. Subdivision
(c)(2) further states that dismissal is not required if the court finds that it
would “endanger public safety.” Subdivision (c)(3) confirms the discretionary
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nature of this decision by stating that the court “may exercise its discretion at
sentencing” but is not prevented “from exercising its discretion” earlier in the
proceedings. We therefore join our sister courts in finding that the “shall be
dismissed” language of subdivisions (c)(2)(B) and (c)(2)(C)—read in the
context of the statute as a whole—applies only after a court has exercised its
discretion in determining that a dismissal is “in the furtherance of justice”
and would not “endanger public safety.” (§ 1385, subds. (c)(1), (c)(2).)
II
We also reject Montelongo’s argument that the trial court erred by
finding that dismissal of the enhancements would endanger public safety. A
court’s discretionary decision to dismiss or strike a sentencing enhancement
under section 1385 is reviewable for abuse of discretion. (People v. Carmony
(2004) 33 Cal.4th 367, 373 (Carmony).)
The trial court found that dismissal of the sentencing enhancements
under section 1385 would endanger public safety “because of the fact that
[Montelongo] has demonstrated multiple times that he is a danger to females
in this society.” Specifically, the court noted that Montelongo had a 1999
prior conviction for aggravated assault with a deadly weapon against another
girlfriend, as well as a 2000 prior conviction for assaulting and knocking
unconscious a female prison guard, and in the current offense, he shot his
girlfriend in the head and killed her. The court concluded that Montelongo’s
record indicated that he “has issues with regard to his anger” creating a risk
that “females can be seriously injured if not killed.” For these reasons, the
court declined to exercise its discretion under section 1385 to dismiss the
enhancements.
This ruling was not an abuse of discretion because it was not “so
irrational or arbitrary that no reasonable person could agree with it.”
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(Carmony, supra, 33 Cal.4th at p. 377.) Montelongo contends that even if
both the firearm and serious felony enhancements were dismissed, he would
still be over 90 years old before he becomes eligible for parole. But it was for
the trial court to weigh this fact along with the relevant risk factors. Based
on Montelongo’s prior record and the current offense, it was not irrational or
arbitrary for the trial court to conclude that public safety would be
endangered by striking these enhancements and making Montelongo eligible
for earlier release. The trial court could have made a different sentencing
decision, but it did not exceed the bounds of reason by making the decision it
did.
Contrary to Montelongo’s contentions, nothing in the record suggests
that the trial court applied the wrong legal standard in finding that a
dismissal would endanger public safety. Section 1385, subdivision (c)(2)
defines “endanger public safety” to mean “there is a likelihood that the
dismissal of the enhancement would result in physical injury or other serious
danger to others.” By finding that Montelongo was “a danger to females in
this society”—and focusing on the risk that women could “be seriously injured
if not killed”—the court faithfully applied the statutory standard. Absent any
contrary indication in the record, we must presume that the court was aware
of and applied the correct legal standard. (People v. Asghedom (2015) 243
Cal.App.4th 718, 725.)
III
Finally, Montelongo argued in his opening brief that the trial court
erred by not awarding him custody credits for the time he actually spent in
prison between the date of his original sentencing and the date of the
resentencing. The People conceded that the trial court should have awarded
credits for the actual time Montelongo had already served in jail or prison as
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of the date of the resentencing. (§ 2900.1; People v. Buckhalter (2001) 26
Cal.4th 20, 29; People v. Saibu (2011) 191 Cal.App.4th 1005, 1012.) While
this appeal was pending, however, the trial court cured the error by awarding
additional custody credits in a minute order dated March 10, 2023. In his
reply brief, Montelongo no longer argues that additional credits should be
awarded, but contends that the abstract of judgment should be amended to
reflect the additional custody credits awarded on March 10, 2023. We agree
that the abstract of judgment should be so amended.
DISPOSITION
As amended by the minute order of March 10, 2023, the judgment is
affirmed. The matter is remanded to the trial court to issue an amended
abstract of judgment reflecting the additional credits awarded on March 10,
2023. The court shall forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
CASTILLO, J.
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