Filed 7/3/13 P. v. Montoya CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054699
v. (Super.Ct.No. RIF10003653)
FORTINO GILBERT MONTOYA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas Kelly, Judge.
(Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed.
Gregory S. Cilli, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Joy Utomi,
Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant, Fortino Montoya, pled guilty to two counts of possessing an assault
weapon (Pen. Code, § 12280, subd. (b)),1 possessing a handgun by an ex-felon (§ 12021,
subd. (a)(1)), and possessing ammunition by a person who may not possess a firearm
(§ 12316, subd. (b)(1)). He also admitted suffering two strike priors (§ 667, subds. (c) &
(e)(2)(A)). After the trial court dismissed one of his strikes, he was sentenced to prison
for seven years, four months. Defendant appeals, claiming the trial court improperly
sentenced him. We reject his contentions and affirm.
PROCEEDINGS BELOW
Defendant pled guilty to all the crimes and admitted both the strike allegations
brought against him. In his change of plea form, he stated that his sentence would be “7
years, 4 months top[.]” At the taking of the plea, the trial court explained how the seven
years, four months maximum was calculated as follows, “ . . . [Dismissing] one of the
strikes and . . . sentencing [defendant] to [the assault weapons charges] consecutive.
[Sentences for the handgun possession and ammunition possession] would be stayed.”
At the sentencing, defense counsel pointed out that the probation officer had
recommended something other than seven years and four months. Specifically, the
probation officer recommended imposition of the middle term for the assault weapon
possession, doubled because of the strikes. Defense counsel asked the court to impose a
sentence of five years, four months, which, we assume, would be double the midterm for
one of the assault weapon convictions plus a consecutive double one-third the midterm
1 All further statutory references are to the Penal Code unless otherwise indicated.
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for the other. The prosecutor, who had previously expressed his opinion that seven years,
four months, was an adequate sentence, but objected to the dismissing of one of
defendant’s two strikes, reiterated his approval of a seven years, four months sentence.
The sentencing court said, “This is one of the tougher cases . . . . It’s got heavy
weights on both sides of the scale. I acknowledge [defendant] had . . . the last ten
years . . . [as an] upstanding citizen. . . . [¶] On the other hand, it’s absolutely chilling to
see these assault rifles out in the community, in [his] home. . . . I’m certain that [he was]
aware of just how dangerous those things are. There’s absolutely no reason that I feel
that people need to have assault weapons stashed away at their homes. So that was
extremely poor judgment. [¶] . . . I . . . took a balance when I got a sense of [defendant]
from [his] attorney, and I [dismissed] a strike as I did not feel on balance [that defendant
was] within the legislative scheme there to just throw [him] in prison and toss the key
away. So it’s a balancing. . . . [T]here’s heavy weights on both sides of the scale. If we
were to change the nature of the weapons, for instance, I would probably—I definitely
would tip towards a lesser sentence. So this is a tough one. [¶] So with respect to the
first assault [weapon possession] charge . . . , we had an understanding . . . with a seven-
year, four-month top. [S]o I’m going to stick with that assessment. So . . . I’m selecting
the upper term of three years. [¶] The reasons are . . . [defendant’s] criminal history,
although it’s also reflected in the strike. There was a strike that was [dismissed]. It’s a
pretty serious criminal history. Even though a strike is [dismissed], it doesn’t disappear.”
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ISSUE AND DISCUSSION
Defendant contends that the sentencing court considered the nature of the weapon
he possessed in imposing the upper term, and because the nature of that weapon is an
element of the offense of which defendant was convicted, this was improper. In so doing,
defendant relies on the statements the trial court made concerning the nature of the
weapon and ignores the court’s statement that it was imposing the upper term due to
defendant’s criminal history. However, we are unwilling to ignore the court’s very
specific statement of a reason for imposing the upper term. Therefore, we cannot agree
with defendant that the trial court relied solely on the nature of the weapon in imposing
the upper term, or, even if it relied partially on the nature of the weapon, in addition to
defendant’s criminal history, it would not have imposed the upper term had it not relied
on the former factor.2
Additionally, as the People correctly point out, defendant waived the matter by
failing to object below.3 (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant’s “fall
back” position, that his trial counsel was incompetent for failing to object to the court’s
reliance on the nature of the weapon in imposing the upper term, is unmeritorious. To
succeed, defendant must demonstrate a reasonable likelihood that absent its reliance on
2 This removes the necessity of determining whether trial counsel for defendant
was incompetent for failing to object to the trial court’s reliance, to the extent that it did,
on the nature of the weapon in imposing the upper term.
3 We do not agree with defendant that his attorney’s assertion that he should
receive the midterm, doubled, for one of the assault weapon possession convictions,
constituted an objection to the trial court relying, to the extent that it did, on the nature of
the weapon as the reason for imposing the upper term.
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the nature of the weapon, the court would have imposed the midterm. (People v. Price
(1991) 1 Cal.4th 324, 492.) However, given the court’s remarks about defendant’s
criminal history as being the reason for aggravating his sentence, we cannot conclude that
he has met his burden in this regard.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.
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