Filed 6/24/15 P. v. Montano CA2/3 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

MARC MONTANO, 

 Defendant and Appellant. 

B252536 

(Los Angeles County 

Super. Ct. No. BA388602) 

 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. 

_________________________
2 

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 
3 

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. 
4 

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.) 
5 

 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) 
6 

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. 
7 

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 
8 

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. 
9 

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.