Filed 6/24/15 P. v. Montano CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B252536

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. BA388602)
         v.

MARC MONTANO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Monica
Bachner, Judge. Affirmed as modified.
         Suzann Ellen Papagoda, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., Michael
R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.

                                        _________________________
       Defendant and appellant Marc Montano raises contentions of sentencing error and
a discovery violation following his conviction of possession of a controlled substance,
with prior serious felony conviction findings.
       For the reasons discussed below, the judgment is affirmed as modified.
                                    BACKGROUND
       Viewed in accordance with the usual rules of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       On September 2, 2011, at 9:45 p.m., Los Angeles Police Officers John Bain and
Arthur Castro were on patrol near Hermon Park, an area known for narcotics trafficking.
From about 100 yards away, and using high-powered binoculars, the officers observed
defendant Montano standing with some other people near the park benches. A few
minutes later, Montano got into the driver’s seat of a truck that was parked close to the
benches. Joaquin Gonzalez got into the passenger seat. As Montano began driving
away, the officers drove into the park. From 20 or 30 feet away, they saw Montano turn
his back slightly and lift the truck’s center console compartment. Montano made some
movements with his right hand and then closed the console. Gonzalez also made some
furtive movements near the console.
       The officers detained the two men and had them get out of the truck. Bain
searched under and behind the driver’s seat, and then noticed that the center console was
not completely closed. Inside the console, Bain found a box of sandwich bags under the
console’s removable tray. Inside the box were six clear plastic bags containing a
crystalline substance. Also inside the center console was a digital scale. No glass pipes
or syringes were found in the truck or in either man’s possession. Montano had $7 on
him. No customer lists or business records were found. The crystalline substance proved
to consist of 24.6 grams of methamphetamine.
       Bain opined Montano possessed the methamphetamine for sale given the amount
recovered. An ounce of methamphetamine, which was 28 grams, cost about $1,200.
Most users did not purchase or walk around with an ounce at a time due to lack of money
and fear that someone would steal it. Also, the methamphetamine had been divided into

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smaller portions, known as eight balls. Montano’s possession of this large quantity of
drugs and so little money indicated he had not yet made any sales that day.
         The prosecution charged Montano with possession for sale of a controlled
substance (Health & Saf. Code, § 11378). He was acquitted of that charge, but convicted
of the lesser included offense of simple possession of a controlled substance, with prior
serious felony conviction enhancement findings (Health & Saf. Code, § 11377; Penal
Code, § 667, subds. (b)-(i)).1 The trial court struck one of the prior serious felony
conviction findings, but found Montano was not suitable for Proposition 36 sentencing
and placed him on formal probation for three years.
                                       CONTENTIONS
         Montano contends: (1) the trial court erred by refusing to sentence him under
Proposition 36; (2) the trial court imposed an unconstitutional probation condition; and
(3) there was Pitchess2 error.
                                        DISCUSSION
         1. Trial court properly denied Proposition 36 sentencing.
         Montano contends his rights to due process and a jury trial were violated because
the trial court refused to sentence him under Proposition 36 based on its own finding that
he did not possess the methamphetamine for personal use. There is no merit to this
claim.
                a. Legal principles.
         “On November 7, 2000, . . . California voters passed Proposition 36, the Substance
Abuse and Crime Prevention Act of 2000. Proposition 36 amended state law to require
that certain adult drug offenders receive probation, conditioned on participation in and
completion of an appropriate drug treatment program, instead of receiving a prison term
or probation without drug treatment. (Pen. Code, § 1210.1.) [¶] Under new Penal Code
section 1210.1, subdivision (a), a defendant convicted of a nonviolent drug possession


1
         All further statutory references are to the Penal Code unless otherwise specified.
2
         Pitchess v. Superior Court (1974) 11 Cal.3d 531.
                                               3
offense ‘shall’ receive probation, provided the defendant is not rendered ineligible under
subdivision (b). A court may not impose incarceration as an additional condition of
probation for defendants eligible under the statute. (Pen. Code, § 1210.1, subd. (a).)”
(People v. Floyd (2003) 31 Cal.4th 179, 183).
       “Proposition 36 outlines an alternative sentencing scheme for those convicted of
certain narcotics offenses. In effect, it acts as an exception to the punishment specified in
an individual narcotics offense.” (In re Varnell (2003) 30 Cal.4th 1132, 1136.) If a
defendant is sentenced under the scheme and successfully completes both a drug
treatment program and the terms of probation, “the conviction on which the probation
was based shall be set aside and the court shall dismiss the indictment, complaint, or
information against the defendant. In addition [with certain exceptions], both the arrest
and the conviction shall be deemed never to have occurred.” (§ 1210.1, subd. (e)(1).)
       Section 1210, subdivision (a), provides: “The term ‘nonviolent drug possession
offense’ means the unlawful personal use, possession for personal use, or transportation
for personal use of any controlled substance . . . . The term ‘nonviolent drug possession
offense’ does not include the possession for sale, production, or manufacturing of any
controlled substance . . . .”
       In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the
Supreme Court held: “Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The high court in
“Apprendi observed that the Sixth Amendment right to trial by jury, and the Fourteenth
Amendment right to due process of law in criminal matters, ‘constitutional protections of
surpassing importance’ [citation], together ‘indisputably entitle a criminal defendant to “a
jury determination that [he or she] is guilty of every element of the crime with which he
[or she] is charged, beyond a reasonable doubt.” ’ [Citation.] The court further found
that the Sixth Amendment jury trial right applied equally to any enhancements to the
crime used to impose additional punishment. [Citation.]” (People v. Mosley (2015) 60
Cal.4th 1044, 1055-1056.)

                                              4
              b. Background.
       Following his conviction, Montano filed a sentencing memorandum requesting
Proposition 36 probation under section 1210.1. Montano further asked the trial court to
reduce his conviction to a misdemeanor and strike his remaining prior serious felony
conviction finding. At the sentencing hearing, the trial court found Montano was not
eligible for Proposition 36 probation: “I [find] by preponderance of the evidence, that the
drugs involved were not possessed for personal use pursuant to the case law; therefore,
making Mr. Montano ineligible for probation . . . [under] Prop 36.” The trial court
added: “[S]pecifically I will point to the amount of the drugs, 24.6 grams, but more
significantly, the drugs were in six separate bags, and there was a digital scale in the
central console, and it was 10:00 p.m. at night in an area known by the police for
narcotics activity. And the officer testified that in his opinion, methamphetamine was
possessed for sale. And also, his testimony that there was no indicia of personal use at
the scene.”
              c. Discussion.
       Montano contends the trial court violated his due process rights under Apprendi
because, after the jury concluded there was insufficient evidence to prove beyond a
reasonable doubt that the drugs had been possessed for sale, the court itself could not find
by a preponderance of the evidence that the drugs were possessed for sale.
       Montano acknowledges the case law holding that the rule of Apprendi does not
apply in the case of ameliorative statutes that can only decrease a defendant’s sentence.
(See People v. Dove (2004) 124 Cal.App.4th 1, 4 [“a factual finding that a defendant did
not possess or transport a controlled substance for personal use, for purposes of
Proposition 36 sentencing, can be made by the trial court under a preponderance of the
evidence standard”]; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115 [Apprendi
does not apply to determination whether, under section 1210.1, defendant must be
granted probation as conviction was for non-violent drug possession offense, because
statute can only reduce defendant’s sentence, not increase it]; People v. Barasa (2002)


                                              5
103 Cal.App.4th 287, 294 [because section 1210.1 “effects a sentencing reduction” the
rule of Apprendi does not apply].)
       As we said in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,
1304-1305, regarding the ameliorative resentencing provisions of the Three Strikes
Reform Act of 2012 (§ 1170.126): “The retrospective part of the Act is not
constitutionally required, but an act of lenity on the part of the electorate. It does not
provide for wholesale resentencing of eligible petitioners. Instead, it provides for a
proceeding where the original sentence may be modified downward. Any facts found at
such a proceeding, such as dangerousness,3 do not implicate Sixth Amendment issues.”
       Montano argues, however, that these cases are no longer good law in the aftermath
of Alleyne v. United States (2013) 133 S.Ct. 2151 [186 L.Ed.2d 314] (Alleyne), which
held that Apprendi applies to both increases in statutory maximum sentences as well as to
increases in mandatory minimum sentences. Alleyne held: “Any fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt. [Citations.] Mandatory minimum sentences increase
the penalty for a crime. It follows, then, that any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury.” (Id. at p. 2155.)
       But Alleyne was construing a criminal statute, 18 U.S.C. § 924(c)(1)(A), which
proscribes “using or carrying a firearm in relation to a crime of violence . . . . Section
924(c)(1)(A) provides, in relevant part, that anyone who ‘uses or carries a firearm’ in
relation to a ‘crime of violence’ shall: [¶] (i) be sentenced to a term of imprisonment of
not less than 5 years; [¶] (ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and [¶] (iii) if the firearm is discharged, be
sentenced to a term of imprisonment of not less than 10 years.” (Alleyne, supra,
133 S.Ct. at pp. 2155-2156.) The jury found Alleyne had used or carried a firearm during

3
        The “dangerousness” finding under section 1170.126, subdivision (f), is a factor
that disqualifies a defendant for ameliorative treatment in the same way that the
“possession for sale” finding disqualified Montano from ameliorative treatment under
section 1210.1.

                                               6
a crime of violence, but did not reach any finding as to whether the firearm had been
brandished. Alleyne claimed on appeal that, given these circumstances, “raising his
mandatory minimum sentence based on a sentencing judge’s finding that he brandished a
firearm would violate his Sixth Amendment right to a jury trial.” (Id. at p. 2156.)
       Alleyne does not undermine the case law establishing that Apprendi is inapplicable
to a Proposition 36 ineligibility determination because section 1210.1 does not establish a
mandatory minimum term. It is, rather, an alternative sentencing scheme that only offers
the possibility of an alternative lesser term to qualifying defendants. Cases construing
the similarly-structured Three Strikes Reform Act of 2012 (§ 1170.126) have reached the
same conclusion. (See People v. Guilford (2014) 228 Cal.App.4th 651, 663 [Alleyne
does not aid defendant because “denial of a [Three Strikes recall petition sentence under
§ 1170.126(f)] does not increase the mandatory minimum sentence for a defendant’s
crime”]; see also People v. Osuna (2014) 225 Cal.App.4th 1020, 1040 [noting Alleyne,
but holding: “Because a determination of eligibility under section 1170.126 does not
implicate the [right to jury trial aspect of the] Sixth Amendment, a trial court need only
find the existence of a disqualifying factor by a preponderance of the evidence.”].)
       Montano is simply incorrect in his assumption that he was entitled to a jury trial to
determine if the drugs found in his possession were for personal use for purposes of
determining Proposition 36 eligibility. The trial court did not err by finding him
ineligible for the special probation terms offered by Proposition 36.
       2. An unconstitutional probation condition must be modified.
       Montano contends, and the Attorney General properly concedes, that one of his
probation conditions must be modified in order to avoid unconstitutional vagueness.
       “A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (In re
Sheena K. (2007) 40 Cal.4th 875, 890.) “The rule of fair warning consists of ‘the due
process concepts of preventing arbitrary law enforcement and providing adequate notice
to potential offenders’ [citation], protections that are ‘embodied in the due process

                                             7
clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal.
Const., art. I, § 7).’ [Citation.] The vagueness doctrine bars enforcement of ‘ “a statute
which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its
application.” [Citation.]’ [Citation.]” (Ibid.)
       Sheena K. held a probation condition forbidding the minor’s association with
“anyone disapproved of by probation” was unconstitutional unless modified to include an
explicit knowledge requirement. The Court of Appeal did so by “inserting the
qualification that defendant have knowledge of who was disapproved of by her probation
officer.” (Id. at p. 892, italics added; see also People v. Garcia (1993) 19 Cal.App.4th
97, 102 [probation condition requiring defendant to refrain from associating with users
and sellers of narcotics was “not sufficiently narrowly drawn because it limits appellant’s
association with persons not known to him to be users and sellers of narcotics”].)
       As one of Montano’s probation conditions, the trial court ordered him to “stay
away from places where [drug] users[,] buyers or sellers congregate.” As the Attorney
General properly concedes, this condition must be modified to read: “stay away from
places where he knows [drug] users, buyers or sellers congregate.” We will order
modification of this probation condition.
       3. Review of in camera Pitchess hearing.
       Montano requests review of the trial court’s ruling on his motion seeking
discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531. Review of the in
camera hearing by this court reveals no abuse of the trial court’s discretion. (See People
v. Mooc (2001) 26 Cal.4th 1216, 1232.) The hearing was properly conducted; the
custodian of records described the records that were searched and the trial court described
the nature of all the complaints against the officers.




                                              8
                                    DISPOSITION
      Montano’s probation condition ordering him to “stay away from places where
[drug] users[,] buyers or sellers congregate” is modified to read: “stay away from places
where he knows drug users, buyers or sellers congregate.” Except to the extent of this
modification, the judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, P. J.

We concur:




      ALDRICH, J.




      EGERTON, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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