v. Montoya
Filed 1/10/13 P. v. Montoya CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE
DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
FONZIE EDDIE MONTOYA,
Defendant and Appellant.
F063271
(Super. Ct. No. VCF236314A)
THE COURT
name="_ftnref1" title="">*
APPEAL from a
judgment of the Superior Court of
County. Valeriano Saucedo, Judge.
Richard L. Fitzer,
under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State
Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
It
was alleged in an information as follows:
Appellant, Fonzie Eddie Montoya, committed
212.5, subd. (c);
name="_ftnref2" title="">[1] count 1), short-barreled
shotgun or rifle activity (§ 12020, subd. (a)(1); count 2), possession of a
firearm by a felon (§ 12021, subd. (a)(1); count 3), and misdemeanor possession
of ammunition (§ 12316, subd. (b)(1); count 4); he personally used a
firearm in committing the count 1 offense (§ 12022.53, subd. (b)); he had
suffered a prior felony conviction that qualified as both a serious felony
within the meaning of section 667, subdivision (a) and as a “strikeâ€;
separate prison terms for prior felony convictions, within the meaning of
section 667.5, subdivision (b) (section 667.5(b)).
Jury trial
began, but in the midst of trial, after the court gave an indicated sentence of
21 years, appellant pled no contest to the substantive offense charges and
admitted the strike and enhancement allegations. Thereafter, appellant moved to withdraw his
plea, and the court denied the motion.
The court
imposed a prison term of 21 years calculated as follows: on count 1, six years, consisting of the
three-year midterm, doubled pursuant to the three strikes law; 10 years on the
accompanying firearm use enhancement; and five years on the prior serious
felony enhancement (§ 667, subd. (a)).
The court imposed concurrent four-year terms on each of counts 2 and 3,
and specifically stated it was imposing no time on count 4. The court made no mention of the three
section 667.5(b) prior prison term enhancements.
Appellant
requested, and the court issued, a certificate of probable cause
(§ 1237.5).
Appellant’s
appointed appellate counsel has filed an opening brief which summarizes the
pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record.
(People v. Wende (1979) 25 Cal.3d
436.) Appellant himself has filed a
brief in which he argues, as best we can determine, that his plea was the
product of ineffective assistance of counsel and judicial misconduct. We conclude the court erred in failing to
impose sentence on the section 667.5(b) enhancements, remand for resentencing,
and otherwise affirm.
FACTS
Angela
Tomasello testified to the following:
While working as a pizza delivery person one night in May 2010, she went
to a residence on “NE 2d,†but upon walking up to the door of the residence
where she was to make her delivery and knocking, she saw that “there [were] no
lights on.†As she was about to leave,
“two guys,†one wearing a Halloween costume mask and holding a sawed-off
shotgun and the other wearing a bandanna “over his face,†approached her. “[T]hey told [Tomasello] to give them the money
bag and to put the pizzas down and to get on the ground and don’t look at them
or they were going to shoot [her].†She
got down on the ground and the person with the bandanna “took the money,â€
approximately $60.00, “from [her] hand.â€
City
of Visalia Police Officer Randy Lentzner testified to the following: On the night of May 2, 2010, he responded to
a dispatch report that a pizza delivery person had been robbed at 224 NE
2nd. Records revealed that the telephone
call for the pizza delivery had come from a cell phone, and that twice in April
2010, the police had received calls from that phone reporting “family
disturbances†at “219 Granite,†which is located approximately 50 yards from
224 NE 2nd. Officer Lentzner went to the
apartment at 219 Granite and spoke to Lisa Zavala, the occupant, who stated she
had made the calls in April from a phone she had borrowed from a neighbor.
After
speaking with Zavala, Officer Lentzner left her residence and saw appellant and
Alonzo Gaytan, appellant’s codefendant, standing in front of the apartment at
221 Granite, which is next door to 219 Granite.
At that point, approximately 45 minutes had elapsed since the dispatch
call regarding the robbery. Thereafter,
police searched the apartment at 221 Granite.
There were three adults there, including Virginia Montoya. In searching the apartment, police found a
Halloween costume mask, a bandanna, and a sawed-off shotgun.
Virginia
Montoya testified that in May 2010 she lived at 221 Granite with her two
children and appellant, her brother.
DISCUSSION
Appellant’s Contentions
Appellant argues
that his trial counsel was constitutionally ineffective in a variety of ways.
“It is well
settled that where ineffective assistance of counsel results in the defendant’s
decision to plead guilty, the defendant has suffered a constitutional violation
giving rise to a claim for relief from the guilty plea.†(In re
Alvernaz (1992) 2 Cal.4th 924, 934.)
To establish ineffective assistance of counsel, a defendant must
establish that his counsel’s performance was deficient under an objective
standard of professional competency, and that there is a reasonable probability
that, but for counsel’s error(s), a more favorable determination would have
resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) Since the failure of either prong of an
ineffective assistance of counsel claim is fatal to establishing the claim, we
need not address both prongs if we conclude appellant cannot prevail on one of them. (People
v. Cox (1991) 53 Cal.3d 618, 656, disapproved on other grounds in
421, fn. 22.)
First, appellant
faults his trial counsel for failing to make a motion—of the sort commonly
called a Pitchess motion—for
discovery of information in the personnel records relating to one of the police
officers who testified at trial.
show that the officer in question had in the past “fabricated police
reports.†He suggests that he would not
have pled no contest to the charges but for this failure.
Appellant’s
claim fails. As indicated above, it
consists of two parts, the second of which—that appellant pled guilty based on
counsel’s incompetent representation—is premised on the first—that counsel’s
failure to make such a Pitchess motion
was objectively unreasonable. “We
presume ‘counsel’s conduct falls within the wide range of reasonable
professional assistance’ [citations], and accord great deference to counsel’s
tactical decisions. [Citation.] Because it is inappropriate for a reviewing
court to speculate about the tactical bases for counsel’s conduct at trial
[citation], when the reasons for counsel’s actions are not readily apparent in
the record, we will not assume constitutionally inadequate representation and
reverse a conviction unless the appellate record discloses ‘“no conceivable
tactical purposeâ€â€™ for counsel’s act or omission.†(People
v. Lewis (2001) 25 Cal.4th 610, 674-675.)
Thus, a claim of ineffective assistance of counsel must be rejected if
“‘“the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] ... unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation.â€â€™â€ (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266.) “[O]ur
review on a direct appeal is limited to the appellate record.†(People
v. Barnett (1998) 17 Cal.4th 1044, 1183 (Barnett).)
There is nothing
in the record that shows that records of false police reports exist or that, as
appellant claims, he made counsel aware of such evidence and/or asked counsel
to make a Pitchess motion. Therefore, the record admits of the
possibility that no such evidence exists or that counsel had no reason to
believe the officer’s personnel records contained such evidence. Thus, this is not a case in which there could
be no satisfactory explanation for counsel’s purported failure.
Appellant also
argues that his counsel’s failure to move to suppress evidence (§ 1538.5)
uncovered in the search of the apartment he shared with his sister was
objectively unreasonable, and again suggests that his plea was the product of
counsel’s purported deficient performance.
He argues the search of the apartment was unlawful because his parole
officer was not present, he was outside the apartment at the time, and the
police did not obtain a search warrant.
(Katz v. United States (1967)
389 U.S. 347, 357 [search conducted without a warrant is unreasonable per se
under the Fourth Amendment unless it falls within one of the specifically
recognized exceptions].)
To prevail on
this argument, appellant must demonstrate the suppression motion was
meritorious. (Kimmelman v. Morrison (1986) 477 U.S. 365, 375.) He has not done so. The record admits of numerous possible
justifications for what was apparently a warrantless search, including the
consent of Virginia Montoya. (See
109 [exception to warrant requirement is doctrine of consent by which a
warrantless search of a premises is valid when an occupant with authority has
given voluntary consent to police to search any area held in common with a
co-occupant].) Again, in the absence of
a showing on the record that there can be no conceivable explanation of
counsel’s failure to make a motion, appellant claims should have been made, the
claim of ineffective assistance of counsel fails.
Appellant also
argues that one of the jurors knew his (appellant’s) mother and “[knew] of
[his] family,†and suggests that counsel was constitutionally ineffective in
failing to seek to exclude this juror during the jury selection process. However, there is nothing in the record
supporting the factual premise of this claim, i.e., that a juror was acquainted
with one or more members of appellant’s family.
It is therefore not cognizable on appeal. (Barnett,
supra, 17 Cal.4th at p. 1183.)
Next, in what is
apparently a claim of both ineffective assistance of counsel and judicial
misconduct, appellant asserts that both his counsel and the court told
appellant he had no choice but to admit the prior prison term enhancement
allegations. The record belies this
claim, which appellant bases on the reporter’s transcript of a proceeding prior
to trial during which the court asked defense counsel if appellant would be
willing to waive his right to jury trial on the prior prison term enhancement
allegations and admit them, and counsel indicated he would discuss the matter
with appellant. There is nothing in the
record that suggests that appellant was pressured by the court or counsel into
entering his plea of no contest.
Finally,
appellant makes three other claims of ineffective assistance of counsel, viz.,
claims that counsel did not explain the charges to appellant, “did the
opposite†of “everything†appellant asked him to do, and “did not fight for
[appellant].†The last two of these
claims are vague and conclusory, and none of them are supported by the
record. Appellant has not met his burden
of establishing ineffective assistance of counsel as to any of these matters.
Court’s Failure to Impose Sentence on the Prior Prison
Term Enhancements
As indicated
above, appellant admitted three prior prison term enhancement allegations (§
667.5(b)) but the trial court neither struck, nor imposed sentence on, any of
them. Indeed, at sentencing, the court
made no mention of the prior prison term enhancements. When a trial court finds a prior
prison term allegation to be true, the trial court must either impose the
additional one-year term or strike the allegation. (People v. Langston (2004) 33 Cal.4th
1237, 1241 [prior prison term enhancement is “mandatory unless strickenâ€]; People
v. Campbell (1999) 76 Cal.App.4th 305, 311 [“the court must either impose
the prior prison enhancements or strike themâ€].) “The failure to impose or strike an
enhancement is a legally unauthorized sentence subject to correction for the
first time on appeal.†(
386, 391.)
Section 1385 authorizes a trial
court to strike an enhancement. (
[California Supreme Court has “held that the power to dismiss an action
includes the lesser power to strike factual allegations relevant to
sentencingâ€]; People v. Bonnetta (2009)
46 Cal.4th 143, 145 (Bonnetta) [“discretion
... conferred [by section 1385] on the trial courts includes the discretion to
dismiss or strike an enhancement in the furtherance of justiceâ€].) However, the court
here, although it apparently intended to strike the prior prison term
enhancements under section 1385, simply made no mention of them, and did not
comply with the requirement of section 1385 that the reasons for striking
enhancements be set forth in the minutes.
Such error cannot be deemed harmless.
(Bonnetta, at pp. 151-152.)
The question that remains is: Can we strike the section 667.5(b)
enhancements, as it appears the trial court meant to do in order to reach its
indicated sentence of 21 years, or must we remand the matter to allow the trial
court to either impose or strike those enhancements? Bonnetta
controls on this point. There, as here, the trial court imposed its indicated
sentence. At sentencing, the court
struck several enhancements, and stated its reasons for doing so. (Bonnetta,
supra, 46 Cal.4th at p. 148.) The trial court’s decision was reduced to an
order entered upon the minutes, but the written order did not set forth any of
the court’s reasons for striking the enhancements. (Ibid.) Our Supreme Court held the striking of the
enhancements was ineffective, because of the absence of compliance with the
requirement of section 1385 that the reasons for the dismissal be set forth in
the court’s minutes. The high court
ordered remand to the trial court, refusing to “adopt[] ... a new rule allowing
a reviewing court to examine the transcripts of the oral proceedings for a
trial court’s reasons for its decision to dismiss, so that a court’s failure to
comply with the letter of Penal Code section 1385 might be deemed harmless
error ....†(Id. at p. 150.) The court stated: “Having concluded Penal Code section 1385
states a mandatory requirement, we have no reason to consider whether a
violation of its provisions might be deemed harmless. Nonetheless, ... we find it useful again to
note that the purpose of the requirement is to allow review of the trial
court’s reasons for ordering dismissal.
‘[W]e are dealing not with a pure question of law but with the exercise
of a trial court’s discretion. It would
be incongruous for an appellate court, reviewing such order, to rely on reasons
not cited by the trial court. Otherwise,
we might uphold a discretionary order on grounds never considered by, or, worse
yet, rejected by the trial court. And, if
the appellate court is free to scour the record for other reasons to support
the dismissal, or accept reasons suggested by the defendant, there was no
reason for the Legislature to require that the lower court record the basis for
the dismissal in the first instance.†(
Further, the
court stated: “[A]s the trial court’s
order of dismissal is ineffective, the matter must be remanded at least for the
purpose of allowing the trial court to correct the defect by setting forth its
reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may,
but need not, revisit its earlier decision, as on reflection it might determine
its reasoning was flawed or incomplete.
Judicial economy is furthered by allowing the trial court to correct
what, upon reconsideration and reflection, it perceives to have been an
unwarranted dismissal, or to consider if a dismissal should be ordered for some
new or different reason. In such cases,
the court must also have the
as reconvening the sentencing hearing or allowing a defendant to withdraw a
plea entered on the understanding a count or an enhancement would be
dismissed.†(Bonnetta, supra, 46
Cal.4th at p. 153.)
The reasoning of
greater, force here, where the court failed to impose the prior prison term
enhancements without even mentioning them, either in open court or in its
minutes. Under Bonnetta, we may not simply strike the prior prison term
enhancements; rather, we must remand the matter to the trial court with
directions that the trial court either impose sentence on those enhancements or
exercise its discretion to strike one or more of them pursuant to, and in
compliance with, section 1385.
Independent
Review of the Record
Following
independent review of the record, we have concluded that no other reasonably
arguable legal or factual issues
exist.
DISPOSITION
The
sentence is vacated and the matter is remanded for resentencing, to allow the court to
dismiss the prior prison term enhancements, provided that it does so in
compliance with Penal Code section 1385.
On remand, the court may, but need not, reconsider the sentence
imposed. If upon reconsideration, the
court imposes a sentence that exceeds the previously indicated sentence of 21
years, appellant must be allowed to withdraw his plea. (See People
v. Bonnetta (2009) 46 Cal.4th
143, 153.) In all other respects, the
judgment is affirmed.
name="_ftn1" title="">* Before Wiseman, Acting P.J., Kane, J., and Detjen, J.
name="_ftn2" title="">[1] Except as otherwise indicated, all statutory references are
to the Penal Code.
