Filed 3/10/22 P. v. Montes CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS ARANDA MONTES,

Defendant and Appellant.

 D078619

 (Super. Ct. No. SCD282761)

APPEAL from a judgment of the Superior Court of San Diego County, 

David M. Gill, Judge. Affirmed in part, reversed in part, and remanded for 

resentencing.

Kenneth J. Vandevelde, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Michael 

Pulos and Eric A. Swenson, Deputy Attorneys General for Plaintiff and 

Respondent.
2

This appeal only raises claims of sentencing error. After a bench trial, 

Jesus Aranda Montes was convicted of arson of property (a lesser included 

offense of arson of a structure, Count 1), possessing a destructive device in 

public (Count 2), and possessing a flammable material (Count 3). Believing it 

was required to designate Count 2 as the “principal term” because it had the 

highest triad (two, four, or six years), the court sentenced Montes to prison 

for six years and eight months.

Citing People v. Miller (2006) 145 Cal.App.4th 206 (Miller), on appeal 

Montes contends the trial court misunderstood the scope of its discretion in 

choosing the principal term. We agree. The principal term is the longest 

term the court chooses to impose, not the longest term available. (Id. at 

pp. 215‒218.) Because the trial court misunderstood the scope of its 

discretion, the matter must be remanded for resentencing. (See People v. El 

(2021) 65 Cal.App.5th 963, 966‒967.)

FACTUAL AND PROCEDURAL BACKGROUND

Surveillance cameras recorded Montes throwing an object that was on 

fire over a fence into the victim’s backyard. Fortunately, it burned only four 

small patches of grass. 

Responding police officers found Montes inside his home in a locked 

bathroom, along with a disposable lighter, gasoline can, and a glass bottle 

containing gasoline and a cloth wick. Two other glass bottles containing 

gasoline were found near the front door.

After inspecting the burned area, an arson investigator concluded that 

a cloth soaked in a “flammable liquid” was thrown into the neighbor’s yard, 

and when it hit the ground it “bounced or moved,” creating the four burned 

areas. 
3

Testifying on his own behalf, Montes claimed that he threw a rock, not 

a flaming cloth. He explained that what appeared to be a Molotov cocktail 

was actually a spray bottle for cleaning car parts with gasoline.1

DISCUSSION

A. The Trial Court Misunderstood the Scope of Its Sentencing Discretion

Having convicted Montes of (1) arson of property; (2) possession of a 

destructive device; and (3) possession of flammable material, the court’s 

sentencing choices were:

Count 1: 16 months, 2 years, or 3 years (Pen. Code,2 § 451, subd. (d));

Count 2: 2 years, 4 years, or 6 years (§ 18715, subd. (a)); and

Count 3: 16 months, 2 years, or 3 years (§§ 453, subd. (a), 1170, subd. 

(h)(1)).

After the court stated it was inclined to impose consecutive sentences, 

defense counsel urged the court to select Count 1 (arson) as the principal 

offense, impose the middle term of two years, and “then run Count 2 

consecutive to that.” He added, “I don’t think treating Count 2 . . . as 

the primary offense makes sense in this case.” 

The deputy district attorney who appeared at sentencing was not trial 

counsel. The court offered to continue the hearing “so that trial counsel can 

be present,” but she declined the offer. Addressing consecutive sentencing, 

the prosecutor stated—and more importantly, the trial court agreed—that as 

a matter of law, it was required to choose Count 2 as the principal count

because it carried the highest triad:

1 The court remarked, “I just think as a reasonably objective trier of fact, 

I found some of [Montes’s] testimony rather incredible and not worthy of 

particular belief or weight.” 

2 Undesignated statutory references are to the Penal Code.
4

“[Prosecutor:] I would just first respond[.] I did receive 

defense counsel’s Statement in Mitigation. I think the 

general thrust of it is essentially that the court should pick 

Count 1, the strike offense, as essentially the lead offense 

here. I would point out that I don’t believe the court is 

actually capable—well, not capable, but pursuant to 

[section] 1170.1, the court must pick the count with the 

highest triad essentially as the lead crime here. [(Italics 

added.)] 

“[The Court:] Well, that’s my understanding, yes.” (Italics 

added.) 

The court imposed the “aggravated term of 6 years on Count 2” as the 

principal offense, plus a consecutive eight months (one-third of the midterm) 

on Count 1. On Count 3, the upper term was imposed and stayed under 

section 654. 

Section 1170.1 provides the general formula for determining 

consecutive terms of imprisonment. Subdivision (a) provides in part: “The 

principal term shall consist of the greatest term of imprisonment imposed by 

the court for any of the crimes, including any term imposed for applicable 

specific enhancements.” (Italics added.) In Miller, the appellate court held 

that a trial judge erroneously interpreted section 1170.1 as requiring that the 

longer of two aggregate sentences offered in a plea agreement be imposed. 

(Miller, supra, 145 Cal.App.4th at pp. 213‒214.) Rather, it is the longest 

term the trial court chooses to impose, not the longest term available under 

the sentencing scheme, that becomes the principal term. (Id. at pp. 215‒216.) 

Accordingly, if a trial court does not want to designate the longest available 

sentence as the principal term, it may exercise its discretion to select the 

terms for each offense and then make the principal term designation 

according to the longest of the selected terms.
5

In this case, for example, the court had discretion to choose Count 1 as 

the principal offense. If it had done so and imposed that upper term, 

Montes’s total unstayed sentence would have been four years and four

months, consisting of three years on Count 1, and one and one-third years on 

Count 2 (one-third of the two-year midterm).

On appeal, the Attorney General does not dispute that the deputy 

district attorney appearing at sentencing misstated the law.3 Rather, he 

claims that defense counsel corrected that mistake because in rebuttal 

argument, Montes’s lawyer stated:

“[I]t’s not that I want to go down the rabbit hole of 

consecutive sentencing, but [section] 1170.1’s 

language . . . doesn’t say that the Court is manifestly 

obligated to select the count that carries with it the highest 

triad. It’s the term for which the most amount of time is 

imposed[,] is what the language is.” 

Because the trial court “made no statement to the contrary and failed 

to express any disagreement in response to defense counsel’s contention,” the 

Attorney General infers that the trial judge was persuaded, changed his view 

of the law, and exercised informed discretion in selecting Count 2 as the 

principal term. “At minimum,” the Attorney General claims, “the record is 

ambiguous” in this respect. 

We view the record differently. Immediately after the prosecutor 

misstated the law, the trial court said, “that’s my understanding, yes.” And 

after rebuttal argument, the court said nothing to the contrary. The only 

explanation offered for selecting Count 2 as the principal term was that 

section 1170.1 required it. Taking nothing away from defense counsel’s 

3 The probation officer made the same mistake, designating Count 2 as 

“the primary term because it carries the longer term of 4 years” as the middle 

term. 
6

oratory skills, it seems highly unlikely the trial court would have completely 

flip-flopped on the law after listening to a short rebuttal argument that 

merely asserted, without citation to any supporting authority, a position 

contrary to the one it had already adopted. 

Montes is entitled to a new sentencing hearing where the court can 

exercise its discretion in selecting the principal term. (People v. Flores (2021) 

63 Cal.App.5th 368, 385.) We reject the Attorney General’s argument that 

remand is unnecessary because “there is no possibility, much less a 

reasonable probability, that [the court] would sentence [Montes] any 

differently if given another chance . . . .” The court noted there were 

mitigating factors: Montes had no criminal history, and he may have been 

suffering from mental conditions that “significantly reduced his culpability 

for the crime.” Additionally, the probation report, which the trial judge 

characterized as being “thorough and well done, well thought-out” 

recommended a total sentence of four years, eight months—significantly less 

than the six years, eight months actually imposed. The trial court did not 

state that Montes should receive the maximum sentence possible. 

Accordingly, remand is necessary so that the trial court may have the 

opportunity to exercise its sentencing discretion.4

B. On Remand, Montes is Entitled to the Benefit of Newly Amended 

Section 1170, Subdivision (b)

Effective January 1, 2022, the Legislature amended section 1170, 

subdivision (b) to narrow the permissible grounds for imposing an upper 

term. As amended, an upper term may be imposed “only when there are 

circumstances in aggravation of the crime that justify the imposition of a 

4 Because of this disposition, it is unnecessary to address Montes’s 

contention that as a matter of law, reversal is always required where a trial 

court fails to exercise sentencing discretion. 
7

term of imprisonment exceeding the middle term, and the facts underlying 

those circumstances have been stipulated to by the defendant, or have been 

found true beyond a reasonable doubt at trial by the jury or by the judge in a 

court trial.” (Id., at subd. (b)(2); Stats. 2021, ch. 731 (Sen. Bill No. 567), §1.3.) 

Because his judgment is not yet final, at resentencing Montes is entitled to 

the benefit of this ameliorative change in the law. (People v. Flores (2022)

73 Cal.App.5th 1032, 1039.)

C. The Unpaid Portion of Montes’s Criminal Justice Administration Fee 

Must Be Vacated

As part of sentencing, the trial court imposed various fees and fines, 

including $154 as a criminal justice administration fee under former 

Government Code section 29550.1. While this appeal was pending, the 

Legislature repealed that statute and added Government Code section 6111, 

which provides in part: “On and after July 1, 2021, the unpaid balance of any 

court-imposed costs pursuant to . . . [Government Code] Section[ ] 29550.1 . . .

is unenforceable and uncollectible and any portion of a judgment imposing 

those costs shall be vacated.”

Invoking this new law, Montes contends we should “strike” the $154 

fee. However, the repeal of Government Code section 29550.1 does not entitle 

him to that disposition. Rather, under Government Code section 6111, any 

portion of the $154 fee that remained unpaid as of July 1, 2021 is deemed 

“unenforceable” and must be vacated from the judgment. (People v. LopezVinck (2021) 68 Cal.App.5th 945, 953.)
8

DISPOSITION

The portion of the $154 criminal justice administration fee imposed by 

the court that remains unpaid as of July 1, 2021 is vacated. The matter is 

remanded for resentencing consistent with the views expressed in this 

opinion. After resentencing, the superior court shall prepare an amended 

abstract of judgment and forward a certified copy to the Department of 

Corrections and Rehabilitation. In all other respects, the judgment is 

affirmed.

DATO, J.

WE CONCUR:

AARON, Acting P. J.

IRION, J.