Filed 4/15/15 P. v. Montes CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

PEDRO MONTES, 

 Defendant and Appellant. 

 G050162 

 (Super. Ct. No. 13CF0888) 

 O P I N I O N 

 

 Appeal from a judgment of the Superior Court of Orange County, Thomas 

A. Glazier, Judge. Affirmed. 

 Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 No appearance for Plaintiff and Respondent. 

* * * 
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 A jury convicted Pedro Montes of possessing cocaine base for sale and 

found he committed the offense for the benefit of, at the direction of, or in association 

with the Townsend Street criminal street gang. In February 2014, the trial court imposed 

an 11-year prison term. Montes’s appointed counsel filed a brief under the procedures 

outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel summarized the 

facts and procedural history of the case, and cited possible legal issues, but raised no 

specific issues, and asked this court to review the record to determine whether there were 

any arguable matters. Counsel submitted a declaration stating he reviewed the entire 

record. Counsel advised Montes he would soon file a Wende brief, provided him a copy 

of the brief and the appellate record, and advised Montes he could personally file a 

supplemental brief on his own behalf raising any issues he believed worthy of 

consideration. Counsel did not argue against his client or assert the appeal was frivolous. 

He did not move to withdraw as counsel but advised Montes he could ask the court to 

relieve him as counsel. We gave Montes 30 days to file a supplemental brief, but he has 

not responded. We have reviewed the record, found no arguable issues, and therefore 

affirm the judgment. 

FACTS AND PROCEDURAL HISTORY 

 The Orange County District Attorney filed a criminal complaint alleging 

that on March 17, 2013, Montes possessed cocaine base for sale (Health & Saf. Code, 

§ 11351.5) and committed the offense to benefit the Townsend Street criminal street gang 

(Pen. Code, § 186.22, subd. (b); all statutory citations are to the Penal Code unless 

otherwise specified). The complaint also alleged Montes suffered a prior conviction in 

February 2013 for possessing a weapon in a school zone to benefit his gang and that it 

qualified as a prior conviction under the Three Strikes law (§§ 667, subds. (d) & 

(e), 1170.12, subds. (b) & (c)(1)) and also triggered a five-year enhancement under 

section 667, subdivision (a)(1). 
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 On August 5, 2013, the trial court conducted a hearing with Montes and his 

appointed lawyer pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court denied 

the motion to relieve counsel, explaining counsel was acting in a reasonably competent 

manner. 

 The court conducted a preliminary hearing and held Montes to answer the 

charges. The district attorney filed an information identical to the complaint on 

September 18, 2013. 

 At trial, Santa Ana Detective Gerardo Zuniga testified around 10:00 p.m. 

on the evening of March 17, 2013, he and Detective Salo drove a patrol car with its 

headlights off north on Townsend Street when they spotted Montes and Jesus Verduzco 

near a wrought iron fence. Both men turned to look up and down the street. Verduzco 

grabbed Montes, the men ducked, and then ran in different directions. Montes tossed a 

small orange object into some bushes and continued running. Zuniga detained Montes 

and recovered the object, a small orange pill bottle containing 20 or more wafer-like 

pieces of cocaine base (rock cocaine) totaling 832 milligrams. The pieces would sell for 

$5 to $20 depending on size. 

 Verduzco had a $10 bill, a $5 bill, and 15 $1 bills on his person. Neither 

man had paraphernalia to use the cocaine or appeared to be under the influence. 

Although Montes denied any knowledge of the drugs, he admitted belonging to 

Townsend Street, a criminal street gang, and his nickname was Snaps. He also admitted 

Townsend Street sold drugs to make money. 

 Zuniga opined Montes possessed the cocaine for sale based on the number 

of pieces and his belief Montes and Verduzco were working in tandem, evidenced by 

their furtive behavior and fleeing together when they saw the officers. Zuniga also noted 

the absence of drug paraphernalia or evidence the men were under the influence, prior 

arrests of Townsend Street gang members selling similar amounts of cocaine base, and 

their presence in a high narcotics sales area. Zuniga also opined Montes was an active 
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Townsend Street gang member based on his admissions and prior activity, and explained 

the Townsend Street gang benefitted from selling base cocaine because the gang would 

use the money to purchase weapons, “put money on the books” for incarcerated gang 

members, pay “taxes” to stay in good standing with the Mexican Mafia, and to facilitate 

gang meetings. Gang members also gained respect by “putting [in] work or proving 

themselves to the gang by being out there risking” apprehension in service to the gang. 

 The court denied Montes’ motion for acquittal (§ 1118.1) on the gang 

enhancement at the close of the prosecution’s case. Montes elected not to testify, and the 

jury convicted him as noted above. 

 In May 2014, the court found Montes suffered a serious felony conviction 

as alleged under the Three Strikes law (§§ 667, subds. (b)-(e), 1170.12, subds. (b)-(c)) 

and section 667, subdivision (a). The court stated it had read the probation report and 

materials furnished by the defense. It found Montes statutorily ineligible for probation 

(§ 667, subd. (c)(2)), but stated it would deny probation in any event because Montes was 

on probation when he committed the current crime. The court imposed an 11-year prison 

term, comprised of the three-year mitigated term, doubled to six years under the Three 

Strikes law, plus a five-year enhancement under section 667, subdivision (a). The court 

struck punishment for the gang enhancement (§ 186.22, subd. (g)), explaining it was an 

unusual case and striking the punishment served the interests of justice. 

 The court stated it selected the mitigated term and struck punishment on the 

gang enhancement because Montes had not previously served time in prison. The court 

also noted the crime did not involve a weapon or violence, and the prison sentence “will 

be a significant and substantial increase to the most recent local jail commitment that 

[Montes] had received previously.” The court declined to strike the Three Strikes law 

prior conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497; § 1385.) 

The court found Montes violated probation in the prior case, imposed a four-year 

sentence in that case, and directed Montes to serve the sentences concurrently with each 
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other. The court imposed various fines and fees, directed him to register as a narcotics 

offender (Health & Saf. Code, § 11590) and a gang offender (§ 186.30), and ordered him 

to provide a DNA sample (§§ 296, 296.1). The court awarded custody credits of 852 

days (426 actual days and 426 conduct). Finally, the court notified Montes of his parole 

obligations and his right to appeal. 

DISCUSSION 

 Following the Wende guidelines, we have reviewed counsel’s brief and the 

entire appellate record and discern no arguable issue. This includes counsel’s suggestion 

we consider whether the trial court properly admitted expert opinion testimony that 

Montes possessed the drugs for sale, the offense benefitted the Townsend Street criminal 

street gang, and there was sufficient evidence to support the section 186.22, subdivision 

(b) enhancement. Montes has not availed himself of the opportunity to file a 

supplemental brief (People v. Kelly (2006) 40 Cal.4th 106, 111 [appellate court must 

address issues raised personally by appellant in a Wende proceeding]), nor has he 

requested to have appellate counsel relieved. Consequently, we affirm the judgment. 

(Wende, supra, 25 Cal.3d at p. 443.) 
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DISPOSITION

 The judgment is affirmed. 

 

 ARONSON, J. 

WE CONCUR: 

O'LEARY, P. J. 

IKOLA, J.