People v. Montes

• Decision Date: 15 January 2021
• Docket Number: F078357
• Citation: 273 Cal.Rptr.3d 915,59 Cal.App.5th 1107
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlos Alejandro MONTES, Defendant and Appellant.

59 Cal.App.5th 1107

273 Cal.Rptr.3d 915

The PEOPLE, Plaintiff and Respondent,

v.Carlos Alejandro MONTES, Defendant and Appellant.

F078357

Court of Appeal, Fifth District, California.

Filed January 15, 2021

MEEHAN, J.

INTRODUCTION

Defendant Carlos Alejandro Montes drove a stolen semitruck (semi) and trailer to a wholesale tire business, broke into the fenced yard and began taking tires. Defendant was still on the premises when police arrived and he then drove the semi at multiple officers, led police on a high-speed chase, and fled on foot after eventually crashing the semi into a wall.

This course of conduct resulted in a litany of charges and defendant was convicted by a jury of the following 13 crimes: five counts of assault on a peace officer with a deadly weapon ( Pen. Code, § 245, subd. (c) ; counts 1, 4–6 & 9),¹ two counts of vandalism (§ 594, subd. (b)(1); counts 3 & 10), one count of evading a peace officer while driving recklessly ( Veh. Code, § 2800.2 ; count 7), one count of evading a peace officer by driving against traffic on a highway ( Veh. Code, § 2800.4 ; count 8), one count of driving or taking a vehicle ( Veh. Code, § 10851, subd. (a) ; count 12), one count of receiving a stolen vehicle (§ 496d, subd. (a); count 13), one count of assault with a deadly weapon ( § 245, subd. (a)(1) ; count 14), and one misdemeanor count of petty theft (§ 488; count 15).² In a bifurcated proceeding, the trial court found true that defendant served one prior prison term within the meaning of section 667.5, former subdivision (b), and that he had prior convictions for violating Vehicle Code section 10851, subdivision (a), for the purpose of applying the alternate sentencing scheme under section 666.5, subdivision (a), to counts 12 and 13.

The trial court sentenced defendant to a total determinate term of 13 years 4 months in prison.³ Selecting count 1 as the principal term, the court imposed the upper term of five years for assault on a peace officer with a deadly weapon. On the remaining felony counts, the trial court imposed one-third of the middle term, to run consecutively, as follows: eight months each on count 3 and count 10 for vandalism, 16 months each on counts 4 through 6 and 9 for assault on a peace officer with a deadly weapon, eight months on count 8 for reckless evasion of a peace officer while driving against traffic, and one year on count 12 for driving or taking a vehicle. The court also imposed a concurrent term of 180 days on count 15 for petty theft and, pursuant to section 654, imposed the upper term of three years, stayed, on count 7 for reckless evasion of a peace officer and upper terms of four years each, stayed, on counts 13 and 14 for receiving a stolen vehicle and assault with a deadly weapon. In addition, the trial court imposed a minimum restitution fine of $300 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 under section 1202.45, subdivision (a), stayed; a crime prevention fine of $10 under section 1202.5; a total court operations assessment of $520 under section 1465.8; and a total court facilities assessment of $390 under Government Code section 70373.

Defendant claims that his conviction for violating Vehicle Code section 10851, subdivision (a), must be reversed because he cannot be convicted of both taking and receiving the same property, and that his sentence for vandalism on count 10 must be stayed under section 654 because the damage to the semi underlying that conviction occurred during the course of his flight from police underlying his conviction on count 8. Defendant also claims, in accordance with the postsentencing decision in People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), that he is entitled to relief from the fines and assessments imposed until and unless the People demonstrate he has the ability to pay.

The People dispute defendant's entitlement to any relief on his claims.

We conclude that while the trial court erred when it instructed the jury on Vehicle Code section 10851, subdivision (a), and section 496d, subdivision (a), the error was harmless because defendant's conviction on count 12 may be construed as based on posttheft driving. We also reject defendant's challenge to the sentence on count 10 under section 654. However, with respect to defendant's Dueñas claim, we conclude that defendant did not forfeit review of his claim and on this undeveloped record, it is appropriate to remand the matter for the limited purpose of allowing the parties to address the issues and make a record. Finally, in the event that there is no change to the judgment following proceedings on defendant's ability-to-pay claim, we order the trial court, on our own motion, to correct the abstract of judgment to reflect imposition of a total court operations assessment of $520 under section 1465.8 and a total court facilities assessment of $390 under Government Code section 70373. ( People v. Leon (2020) 8 Cal.5th 831, 855, 257 Cal.Rptr.3d 592, 456 P.3d 416 ; People v. Mitchell (2001) 26 Cal.4th 181, 185, 109 Cal.Rptr.2d 303, 26 P.3d 1040.)

FACTUAL SUMMARY⁴

Sometime on May 1, 2018, the owner of a trucking company left his Peterbilt semi with an attached trailer at a repair shop in the 3600 block of East Brundage Road in Kern County. The truck was locked with the windows rolled up, but the owner left a "hide-a-key" so mechanics could access the semi.

At approximately 4:00 a.m. on May 2, 2018, an onsite employee monitoring the surveillance cameras at a tire wholesale business in the 3900 block of East Brundage Road observed a semi with attached trailer arrive at the yard of the business next door. The driver detached the trailer, positioned the truck by a different trailer, and used that trailer to knock down the fence into the tire wholesaler's yard, causing approximately $1,000 in fence damage. The individual then entered the tire wholesaler's yard on foot and began throwing tires into the yard next door. After the employee called 911, multiple officers with the Bakersfield Police Department responded to the scene.

Officer Dalton parked his patrol car and, on foot, entered the yard where the semi was idling. He saw an individual loading tires onto a trailer. Officer Barrier was driving the first patrol vehicle to enter the driveway area between two tall steel buildings. The approximately 40-foot opening was secured by two chain-link fence gates that met in the middle, each approximately 20 feet wide and 8 feet high. One of the gates was wide open and damaged. As Dalton used his flashlight to direct Barrier into the yard and toward the semi, the semi began moving forward. Barrier lit up the cab of the semi with his spotlight, but the semi's speed increased so Barrier activated his forward-facing red light. The semi continued to pick up speed and Barrier floored his gas pedal to get out of the way. The semi then made a wider turn and continued toward Barrier, who had to again floor his vehicle's gas pedal to get out of the way.

After missing Officer Barrier's vehicle by a couple of feet, the semi accelerated toward Officer Dalton, who was standing between the semi and the exit gate. Dalton was unable to move out of the fenced area in time so he backed up to a building wall, pulled his firearm and lit up the cab of the semi with the bright light attached to the firearm. Dalton made eye contact with the driver, whom he identified as defendant, but he did not fire because he was unsure where the other officers were located. The semi missed hitting Dalton by approximately two feet and continued through the gate.

Officer Otterness was entering the driveway area in his patrol vehicle and as he passed a blind spot, he saw the semi heading straight for him but he was between the two buildings and had nowhere to go so he stopped his vehicle. He could see the cab lift as the driver, whom he also identified as defendant, shifted gears, and he estimated the semi was going between 30 and 40 miles per hour. Otterness felt his life was in danger and he aimed his firearm at the semi but did not fire. The semi came within ten to 15 feet of him before it swerved and hit the closed gate on its way out of the yard.

Officer Puryear was parked on the street on the other side of the closed gate with his lights off and the passenger side of his vehicle facing the oncoming semi. He saw the semi swerve toward Officer Otterness's patrol vehicle and Officer Dalton running away. Puryear heard the semi accelerate and saw it lift as the driver shifted gears and headed for the gate. Puryear estimated the semi was going 30 to 40 miles per hour and as the semi hit the gate, Puryear accelerated his vehicle out of the way to avoid being hit.

Multiple officers followed the semi as it took off down East Brundage Road, including Officers Dalton, Barrier, Otterness and Puryear. The ensuing vehicle pursuit lasted approximately 10 minutes and covered four miles. During that time, the driver ran several stop signs and red stoplights; reached speeds of 90 miles per hour on streets with speed limits of 25, 35 and 45 miles per hour; hit at least one parked vehicle; and drove on the wrong side of the road against traffic. At no time did the driver brake or yield to pursuing officers.

Officer Dalton was "parallel" assisting, which involved clearing intersections along the pursuit route to ensure vehicle and pedestrian safety. At one point during the pursuit, Dalton was blocking an alleyway with his patrol vehicle when the semi swerved toward him. He dove into the passenger side of his vehicle and the semi came within one foot of it while traveling approximately 50 miles per hour. Dalton heard gravel from the road spray his patrol vehicle as the semi passed.

The pursuit ended when the semi hit the seven to eight foot cinderblock wall of a residential property, disabling the semi and causing damage to it that cost the trucking company owner approximately $11,000 to fix.⁵ The...