People v. Montelongo, B294095

• Court: California Court of Appeals
• Citation: 269 Cal.Rptr.3d 883,55 Cal.App.5th 1016
• Docket Number: B294095
• Parties: The PEOPLE, Plaintiff and Respondent, v. Giovanny MONTELONGO, Defendant and Appellant.
• Decision Date: 15 October 2020

55 Cal.App.5th 1016
269 Cal.Rptr.3d 883

The PEOPLE, Plaintiff and Respondent,
v.
Giovanny MONTELONGO, Defendant and Appellant.

B294095

Court of Appeal, Second District, Division 7, California.

Filed October 15, 2020

55 Cal.App.5th 1020

INTRODUCTION

When he was 18 years old, Giovanny Montelongo stabbed and killed 15-year-old Keshawn Brooks while trying to take Brooks's backpack and a

55 Cal.App.5th 1021

bag containing football gear. A jury convicted Montelongo of robbery and felony murder with a special circumstance finding under Penal Code section 190.2, subdivision (a)(17), which mandates a sentence of death or life in prison without the possibility of parole. On the murder conviction, the trial court sentenced Montelongo to life in prison without the possibility of parole, plus one year for using a deadly or dangerous weapon. The trial court also imposed various fines and assessments, including a restitution fine of $10,000.

Montelongo challenges his sentence as violating the Due Process Clause of, and the Eighth and Fourteenth Amendments to, the United States Constitution. He argues that, as applied to him, the felony murder special circumstance statute is void for vagueness, that his sentence is cruel and unusual because the trial court failed to take his youth into account before sentencing him to prison for life without the possibility of parole for a crime he committed when he was 18 years old, and that the trial court failed to consider his ability to pay the fines and assessments the court imposed. Because none of Montelongo's arguments has merit, we affirm the judgment. We also direct the trial court to correct the minute order following the sentencing hearing and the abstract of judgment to strike the parole revocation fine.

269 Cal.Rptr.3d 887

FACTUAL AND PROCEDURAL BACKGROUND

A. Montelongo Kills Brooks

On March 12, 2015 Brooks and Lance Coleman-Davis walked home together from school. They were both 15 years old. Brooks had two bags: a backpack containing his schoolwork and an equipment bag for football practice. Brooks and Coleman-Davis saw Montelongo down an alley. Montelongo made the shape of an "L" with his hand, which the boys knew was a gang sign for the Westside Longo street gang. Montelongo began jogging toward the boys and asked them where they were from. The boys said they did not "bang," meaning they were not gang members.

Montelongo reached for one of Brooks's bags, and Coleman-Davis pushed Montelongo away. Montelongo reached for the bag again and said " ‘Give me your bag,’ " and Brooks punched him in the face. As Montelongo and Brooks struggled, Montelongo stabbed Brooks once in the chest with a six-inch knife. Brooks dropped his bags. Montelongo picked up one of the bags, said "Fuck Crabs,"¹ and walked back down the alley. Brooks collapsed near a

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barbershop, where a nurse tried to stop his bleeding with a towel while waiting for an ambulance. Brooks died at the hospital.

B. The Police Arrest Montelongo, and the People Charge Him with Robbery and Special Circumstance Murder

A police officer arrived, questioned Coleman-Davis, and retrieved Brooks's backpack. Another officer found Brooks's equipment bag outside an apartment building near the end of the alley. Police found Montelongo in the backyard of a house nearby and arrested him.

The People charged Montelongo with robbery ( Pen. Code, § 211 )² and murder (§ 187, subd. (a)) and alleged the special circumstance that Montelongo committed murder during the commission of a robbery, within the meaning of section 190.2, subdivision (a)(17). As to both counts the People alleged Montelongo personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b).

C. A Jury Convicts Montelongo, and the Trial Court Sentences Him

A jury convicted Montelongo on both counts and found true the allegations Montelongo committed murder while engaged in the commission of robbery, personally used a deadly or dangerous weapon, and committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. The People asked the court to sentence Montelongo to life in prison without the possibility of parole, as required by section 190.2, subdivision (a)(17), plus an additional year for the weapon enhancement under section 12022, subdivision (b)(1).

Montelongo argued that, because he was 18 years old when he committed the crimes, a sentence of life without the possibility of parole was cruel and unusual punishment under the United States and California Constitutions and that he was not "irretrievably depraved." Montelongo acknowledged that the United States Supreme

269 Cal.Rptr.3d 888

Court's decision in Miller v. Alabama (2012) 567 U.S. 460, [132 S.Ct. 2455], 183 L.Ed.2d 407 ( Miller ) prohibited mandatory sentences of life without the possibility of parole only for juvenile offenders under the age of 18. Nevertheless, he argued that "there has been a sea change in what is constitutionally acceptable in the sentencing of youth

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offenders" and that "the state of research and the need for corresponding action have changed rapidly." Citing scientific advancements in brain research, Montelongo urged the court to consider the factors mandated by Miller to determine whether his crimes reflected " ‘unfortunate yet transient immaturity’ " or " ‘irreparable corruption’ " before sentencing him to life without the possibility of parole. (See id. at pp. 477-480, 132 S.Ct. 2455 ; People v. Gutierrez (2014) 58 Cal.4th 1354, 1388-1389, 171 Cal.Rptr.3d 421, 324 P.3d 245.)

With regard to the Miller factors, Montelongo described his upbringing and home environment as chaotic, abusive, and neglectful, and he argued the crimes he committed demonstrated impetuous acts of a teenager, not "extreme viciousness or incurable depravity." Montelongo also contended sentencing him to life without the possibility of parole violated his right to equal protection under the Fourteenth Amendment because section 3051 denied him a parole hearing after his 25th year of imprisonment, while giving that benefit to other 18-year-old offenders.³

The trial court sentenced Montelongo on the murder conviction to a prison term of life without the possibility of parole, plus one year for the weapon enhancement.⁴ In response to Montelongo's argument that a sentence of life without the possibility of parole as applied to him violated the United States and California Constitutions, the court stated: "I reviewed the Miller factors that you point out. But with respect to that, I would like to say that a lot of people grow up in families that aren't perfect and they don't go around killing little 15-year-old kids." On the robbery conviction, the court sentenced Montelongo to the middle term of three years, plus 10 years for the gang enhancement and one year for the weapon enhancement, execution of which the court stayed under section 654.

The court also ordered Montelongo to pay a $10,000 restitution fine (at $300 "per year") (§ 1202.4), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment ( Gov. Code, § 70373 ). Montelongo did not object to the restitution fine or the assessments. Although the court did not mention a parole revocation fine at the sentencing hearing, the court's minute order and the abstract of judgment indicate the court also ordered Montelongo to pay a parole revocation fine of $10,000 (§ 1202.45), which the court stayed "unless parole, postrelease, community supervision or mandatory supervision is revoked." Montelongo timely appealed.

55 Cal.App.5th 1024

DISCUSSION

A. The Felony Murder Special Circumstance Statute Is Not Unconstitutionally Vague as Applied to Montelongo

Montelongo argues the "mode of culpability" established by sections 187, 189,

269 Cal.Rptr.3d 889

and 190.2, subdivision (a)(17), is unconstitutionally vague under the Fourteenth Amendment to the United States Constitution because where, as here, intent to kill is not an element of murder, "there is no meaningful distinction between first degree felony murder based on robbery and the robbery-murder special circumstance." Montelongo's argument fails because two statutes that criminalize the same conduct but impose different penalties are not, for that reason, unconstitutionally vague.

1. Robbery Felony Murder vs. Robbery Murder Special Circumstance

Section 187, subdivision (a), defines murder as "the unlawful killing of a human being ... with malice aforethought." Section 189 defines first degree murder to...