Filed 9/9/14 P. v. Montano CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040571
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS130424)

         v.

DANIEL MONTANO,

         Defendant and Appellant.


         Defendant Daniel Montano appeals his conviction by jury trial of possessing a
controlled substance in prison. (Pen. Code, § 4573.6.)1 The jury also found true the
allegations he had suffered four prior strikes. (§§ 667, subds. (b)-(i), 1170.12.)
Defendant was sentenced to a term in prison of 25 years to life. On appeal, his counsel
has filed an opening brief in which no issues are raised and asks this court for an
independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.
Counsel has declared defendant was notified an independent review under Wende was
being requested. We advised defendant of his right to submit written argument on his
own behalf within 30 days. Defendant has submitted a letter brief arguing the trial court
erred in denying his Romero2 motion and in imposing an unreasonable restitution fine.
         Pursuant to People v. Wende, we have reviewed the entire record and have
concluded that there are no arguable issues. We will provide “a brief description of the

         1
             Further unspecified statutory references are to the Penal Code.
         2
             People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
facts and procedural history of the case, the crimes of which defendant was convicted,
and the punishment imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 110.) Pursuant to
Kelly, we will consider defendant’s letter brief and will explain why we reject his
contentions. (Id. at p. 113.)
                       FACTUAL AND PROCEDURAL BACKGROUND
       The Complaint
       On February 26, 2013, a complaint was filed charging defendant, an inmate at the
Correctional Training Facility in Soledad, with a count of possession of controlled
substances in prison (§ 4573.6). The complaint also alleged defendant had suffered four
prior strikes within the meaning of section 1170.12, subdivision (c)(2), including a
conviction for murder (§ 187, subd. (a)), two convictions for assault with a firearm (§
245, subd. (a)(2)), and a conviction for shooting into an occupied vehicle (§ 246).
       Defendant’s Romero Motion
       In March 2013, defendant filed a motion requesting the trial court exercise its
discretion under section 1385 and Romero, supra, 13 Cal.4th 497 to dismiss all but one of
his prior strikes. Defendant argued that three of his four prior strikes (the two convictions
for assault with a firearm and the conviction for shooting into an occupied vehicle) arose
out of the same case in 1992 when he was a juvenile. The People opposed the motion.
       Following a hearing on June 12, 2013, the trial court denied defendant’s Romero
motion after acknowledging the seriousness of his prior convictions and the amount of
drugs he allegedly possessed in the present case.
       The Trial
       Defendant’s trial began in October 2013. John Hill, a correctional sergeant
employed with the California Department of Corrections, testified on behalf of the
prosecution. Hill asserted that on April 16, 2012, he participated in a search of
defendant’s cell. When officers entered, defendant, who was standing near the cell’s

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toilet, made a motion with his hands and stepped away. Based on his training, Hill
believed defendant was flushing contraband. Officers restrained defendant and retrieved
six bindles of suspected black tar heroin from the toilet.
       Defendant was taken to a holding cell, and officers performed an unclothed body
search. During the search, officers found three bindles of suspected black tar heroin in
defendant’s shorts. Officers also found another bindle of suspected black tar heroin lying
on defendant’s assigned bunk. In total, the bindles weighed more than five grams and
were later confirmed to contain heroin.
       The prosecution presented evidence of defendant’s prior convictions by
introducing defendant’s prison packet, which included the abstracts of judgment of his
prior cases.
       The jury returned a guilty verdict on the substantive charge of possessing a
controlled substance in prison. The allegations he had suffered four prior strikes were
also found true.
       The Sentence and Romero motion
       In December 2013, defendant filed a second Romero motion requesting the court
dismiss all but one of his prior strikes in the interest of justice. The motion reiterated the
same arguments presented in his pretrial Romero motion.
       On January 14, 2014, the trial court denied defendant’s Romero motion and
sentenced defendant to a term of 25 years to life in prison. Defendant was ordered to pay
a restitution fine in the amount of “$280 times the number of years times the number of
felony counts.” A matching restitution fine was imposed but suspended pending
successful completion of parole, postrelease community supervision, or mandatory
supervision. The trial court also imposed a $40 court operations assessment fine (§
1465.8, subd. (a)(1)) and a $30 court facilities assessment fine (Gov. Code, § 70373).



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                                        DISCUSSION
        Defendant’s supplemental letter brief raises two primary arguments: (1) the trial
court erred in denying his Romero motion, and (2) the imposed restitution fine is
unreasonable.
        First, defendant claims the court should have granted his Romero motion because
his prior strikes occurred years ago and several of his strikes occurred out of the same
incident. Defendant was convicted in 1992 of two counts of assault with a firearm (§
245, subd. (a)(2)) and one count of shooting into an occupied vehicle (§ 246). His
conviction for shooting into an occupied vehicle was stayed pursuant to section 654. He
was also convicted of murder (§ 187, subd. (a)) in 1996 for a crime he committed in
1995.
        Romero acknowledged a court may “strike or vacate an allegation or finding under
the Three Strikes law that a defendant has previously been convicted of a serious and/or
violent felony, on its own motion, ‘in the furtherance of justice’ pursuant to . . . section
1385[, subdivision] (a).” (People v. Williams (1998) 17 Cal.4th 148, 158.) When a trial
court decides whether to dismiss a prior strike, it “must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside” the spirit of the Three Strikes law. (Id. at p. 161.)
        A court only abuses its discretion in declining to strike a prior conviction under
limited circumstances, because the law creates a “strong presumption that any sentence
that conforms to these sentencing norms is both rational and proper.” (People v.
Carmony (2004) 33 Cal.4th 367, 378.) An abuse of discretion can occur if the court is
unaware of its discretion to dismiss a prior strike, or if it considered impermissible factors
when declining to dismiss.



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       Here there is nothing to indicate the trial court considered inappropriate factors
when it declined to dismiss his prior strikes. Additionally, a trial court does not abuse its
discretion when it denies a Romero motion even if some of the prior convictions arose
out of the same set of facts so long as the defendant committed multiple acts. (People v.
Benson (1998) 18 Cal.4th 24, 26, 36.)3 Moreover, each conviction can qualify as a
separate strike, notwithstanding that the trial court stayed sentence on one of the felonies
pursuant to section 654. (People v. Benson, supra, at p. 26.) Defendant has therefore
failed to establish the trial court abused its discretion in denying his Romero motion.
(Romero, supra, 13 Cal.4th at p. 504.)
       Second, defendant claims he believed the restitution fine imposed under section
1202.4, subdivision (b) was set at $280 and only recently became aware that the $280
was multiplied by his 25-year prison sentence for a total fine of $7,000.4 He contends
that had he known the restitution fine was $7,000 he would have objected to the amount,
because he suffers from financial hardships because of his incarceration.
       However, the transcript of the sentencing hearing indicates defendant was present
when the trial court orally imposed the restitution fine of “$280 times the number of
years times the number of felony counts.” Despite this pronouncement, defendant failed


       3
          Recently, our Supreme Court addressed an issue raised but not determined by the
Benson court, holding that a trial court abuses its discretion by failing to strike a prior
strike if two prior convictions are based on a single act. (People v. Vargas (2014) 59
Cal.4th 635, 645.) Here the only evidence of defendant’s convictions is contained in the
abstracts of judgment, which are devoid of any information regarding the factual
circumstances of his crimes. Therefore, there is nothing in the record that establishes his
convictions arose out of a single act. We note that any claims based on matters outside
the record are more appropriately raised by writ of habeas corpus. (People v. Salcido
(2008) 44 Cal.4th 93, 172.)
        4
          Additionally, the amount of the restitution fine ($7,000) is not statutorily
unauthorized. Section 1202.4 specifies a maximum restitution fine of $10,000. (§
1202.4, subd. (b)(1).)


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to object to the fine and has therefore forfeited his contention on appeal. (People v.
Nelson (2011) 51 Cal.4th 198, 227.)
       In addition to considering the arguments set forth by defendant in his letter brief,
we have also conducted an independent review of the record pursuant to Wende and Kelly
and have concluded there are no arguable issues on appeal.
                                       DISPOSITION
       The judgment is affirmed.




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                 Premo, Acting P.J.




WE CONCUR:




    Elia, J.




    Mihara, J.
