People v. Montes CA5

Filed 11/10/26 P. v. Montes CA5 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F083319 Plaintiff and Respondent, (Super. Ct. No. MCR069258N) v. HIGINIO MONTES, OPINION Defendant and Appellant. THE COURT * APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- * Before Hill, P. J., Detjen, J. and Sandhu, J.  Defendant Higinio Montes pled guilty pursuant to a negotiated plea to conspiracy to transport methamphetamine for sale and admitted the quantity exceeded one kilogram. The trial court sentenced him to a seven-year term that included an upper term. On appeal appellant argued: (1) his sentence must be vacated and his case remanded for resentencing in light of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill No. 567) amendments to Penal Code section 1170, subdivision (b) 1; (2) the condition of his mandatory supervised release requiring that he support his legal dependents is unconstitutionally vague; and (3) the administrative fees assessed in connection with his restitution fine must be vacated in light of Assembly Bill No. 177 (2021–2022 Reg. Sess.) (Assembly Bill No. 177). 2 We vacated the portion of defendant’s sentence imposing the administrative fees and otherwise affirmed. As to the first issue, we held defendant was not entitled to relief under Senate Bill No. 567 because he entered into a stipulated plea agreement. The California Supreme Court has, however, transferred the case to us with directions to vacate our decision and reconsider the cause in light of People v. Mitchell (2026) 19 Cal.5th 729 (Mitchell). We now vacate defendant’s sentence and remand with directions for the trial court to allow defendant to be afforded the opportunity to either waive or invoke the requirements of section 1170, subdivision (b). Further, although remaining issues from defendant’s appeal are arguably moot, we resolve them for the benefit of the trial court because it may soon be faced with the same issues. 1 Undesignated statutory references are to the Penal Code. 2 Defendant raised a fourth argument in his opening brief. However, he conceded that the issue was meritless in his reply and expressly requested to withdraw that portion of his appeal. We accept defendant’s concession. 2.  PROCEDURAL HISTORY On April 1, 2021, the Madera County District Attorney filed a complaint charging defendant 3 with conspiracy to transport methamphetamine for sale (§ 182, subd. (a)(1); Health & Saf. Code, § 11379, subd. (a)) in an amount exceeding one kilogram (Health & Saf. Code, § 11370.4, subd. (b)(1)). On August 16, 2021, pursuant to a negotiated plea agreement, defendant pled guilty as charged and admitted the quantity allegation. In exchange for defendant’s guilty plea, the plea agreement specified that the trial court would sentence defendant to seven years as a split sentence, with five years served in local jail and two years served on mandatory supervised release. The parties stipulated that the declaration in support of the motion to increase bail contained a factual basis for defendant’s plea and could be used by the court to find a factual basis. On September 14, 2021, the court sentenced defendant pursuant to the negotiated plea agreement to four years (the upper term), plus a consecutive three-year drug quantity enhancement. The court imposed the sentence as a split sentence with five years in local jail and two years on mandatory supervised release. In doing so, the court did not discuss, consider, or otherwise find true any circumstances in aggravation or mitigation, despite that the probation officer’s report identified one of each. The court imposed terms of defendant’s mandatory supervision including the requirements that he “support all legal dependents.” The court further imposed a $300 restitution fine (§ 1202.4, subd. (b)) (and a stayed $300 parole revocation restitution fine (§ 1202.45, subd. (b))) plus a 10 percent administrative fee. On September 15, 2021, defendant filed a notice of appeal. 3 Several codefendants who are not parties in this appeal also were charged in this multicount complaint. Defendant was only charged in count 1. 3.  On March 27, 2023, this court issued its now-vacated opinion determining the trial court did not err in failing to exercise its discretion when imposing sentence pursuant to the negotiated plea agreement. We rejected defendant’s second argument on appeal and vacated the administrative fees. Defendant petitioned for review with the California Supreme Court, which was granted and deferred pending the Court’s decision in Mitchell. On September 23, 2026, the Court transferred this case back to this court “with directions to vacate its decision and reconsider the cause in light of [Mitchell].” (People v. Montes, S279843, Supreme Ct. Mins., Sept. 23, 2026.) We vacated our prior opinion and provided leave for the parties to submit supplemental briefing. On October 8, 2026, defendant filed a supplemental brief; no further briefing was submitted by the People. FACTUAL SUMMARY In July 2020, the Madera County Narcotic Enforcement Team learned that Juan Jimenez was a methamphetamine dealer in Madera County and was known to possess and sell pounds of methamphetamine. On January 29, 2021, officers obtained a wiretap authorization order for Jimenez’s phone and several other phones he was known to use. On February 11, 2021, officers intercepted a call between Jimenez and Rafael Nunez wherein Nunez told Jimenez that a 23-pound shipment of methamphetamine was being sent to Jimenez. In a later call in the evening of the same day, defendant spoke to Jimenez about the person who would deliver the methamphetamine. Officers obtained a warrant to track the locations of defendant’s phone, Nunez’s phone, and a vehicle that both men used. They learned that defendant and Nunez traveled from Central California to Mexico. While in Mexico, defendant contacted Jimenez to ask if he wanted five pounds of methamphetamine. Several days later, California Highway Patrol officers stopped defendant and Nunez in Tulare County. They had six pounds of methamphetamine in their possession. 4.  DISCUSSION I. Amendments to Section 1170, Subdivision (b) and Mitchell Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b)(2), such that it now provides: “The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a 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.” (§ 1170, subd. (b)(2).) Subdivision (b)(3) of section 1170 also permits a trial court to rely upon a certified record of conviction to determine prior criminality for purposes of sentencing without submitting the prior conviction to a jury. Senate Bill No. 567 is retroactive to cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740. (Mitchell, supra, 19 Cal.5th at p. 735.) Our Supreme Court recently held that a defendant “is entitled to the retroactive benefit of section 1170[, subdivision ](b)’s provisions notwithstanding [the defendant’s] agreement to a specified term as part of a plea bargain.” (Mitchell, supra, 19 Cal.5th at p. 745.) Where a defendant did not have the opportunity to receive the benefit of the amended statute because the sentence was imposed prior to the statute’s amendment, “the proper remedy is to remand this case and permit [the defendant] to pursue relief under the new benefit that Senate Bill [No.] 567 confers.” (Id. at p. 751.) The high court in Mitchell expounded on the procedure: “[O]n remand, [the defendant] may either waive or invoke the requirements of section 1170[, subdivision ](b). If [the defendant] reaffirms … acceptance of the plea bargain and enters a new waiver of section 1170[, subdivision ](b)’s requirements, the court shall reinstate the original sentence as negotiated by the parties. If [the defendant] declines to enter that waiver, in lieu of further proceedings the parties may agree to modify the existing plea agreement to specify a midterm sentence …. If the court also accepts the modification it shall sentence [the defendant] 5.  accordingly. [Citation.] If no such agreement is reached and approved, [the defendant’s] remedy is to withdraw … assent to the bargain. In that case the court shall set aside the plea, the ‘matter shall proceed as to [the defendant] as if no plea had been entered’ [citation], and the case shall be set for trial.” (Id. at pp. 751–752.) Here, as in Mitchell, defendant is entitled to receive the retroactive benefit of the amended section 1170, subdivision (b), as his sentence is not yet final on appeal. (Mitchell, supra, 19 Cal.5th at p. 735.) Defendant entered into his negotiated plea and was sentenced prior to the effective date of Senate Bill No. 567. His negotiated plea contained an upper term of four years, and the court imposed this term without discussing, considering, or otherwise finding true any circumstances in aggravation or mitigation identified in the probation officer’s report. Defendant did not stipulate to any aggravating circumstances, was not subject to a trial on aggravating circumstances, and did not waive his constitutional right to a trial on any aggravating circumstances. (Mitchell, at p. 745; § 1170, subd. (b)(2).) Further, the court did not make any findings based on a certified record of prior conviction. (See § 1170, subd. (b)(3).) Defendant is entitled to remand where he may elect either to waive or invoke the requirements of section 1170, subdivision (b), as consistent with Mitchell. II. Mandatory Supervised Release Condition Defendant previously argued the condition of his supervised release requiring him to support all legal dependents was unconstitutionally vague. We disagree. A. Standard of Review A condition imposed for mandatory supervised release may be challenged as unconstitutionally vague or overbroad. Such challenges are evaluated under the standards used to review the constitutional validity of probation conditions. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1194.) “ ‘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 6. the ground of vagueness.’ ” (Ibid.) 4 “In determining whether the condition is sufficiently definite, however, a court is not limited to the condition’s text. [Citation.] We must also consider other sources of applicable law [citation], including judicial construction of similar provisions. [Citations.] Thus, a probation condition should not be invalidated as unconstitutionally vague ‘ “ ‘if any reasonable and practical construction can be given to its language.’ ” ’ ” (People v. Hall (2017) 2 Cal.5th 494, 500‒501.) B. Analysis Defendant contends that the condition of his mandatory supervised release requiring him to support his legal dependents “leaves [him] to guess who qualifies as a legal dependent [and] how much support he must provide.” He contends that “[a]n authority figure may decide that no matter how much support [defendant] provides, he should be providing more.” We disagree. An order that a probationer support their dependents is a standard term of probation. (§ 1203.1, subd. (d) [“the court may require … that the probationer go to work and earn money for the support of the probationer’s dependents”].) Family Code section 3900 et seq. and common law set out the duties to support minor dependents. (See Moss v. Superior Court (1998) 17 Cal.4th 396, 405 [holding the duty of a parent to support the parent’s child or children is a fundamental parental obligation].) The Family Code makes clear that a parent’s obligation to support their dependents is “according to the parent’s circumstances and station in life” and considers the “parent’s actual income.” (Fam. Code, § 4053, subds. (a), (c).) Both orders that a person support their dependents and conditions of mandatory supervision imply an element of willfulness for any violation. 4 Defendant did not argue that the conditions of his mandatory supervision are unreasonable. The reasonableness of a condition would be reviewed for abuse of discretion under the Lent test. (People v. Bryant (2021) 11 Cal.5th 976, 991; see People v. Lent (1975) 15 Cal.3d 481.) Such challenges are subject to forfeiture if not preserved. (See People v. Welch (1993) 5 Cal.4th 228, 236–237.) 7. (Moss, at p. 405; People v. Hall, supra, 2 Cal.5th at p. 501.) A person on mandatory supervision does not violate a condition requiring them to provide support for dependents if they are unable to do so. A reasonable and practical understanding of the challenged condition of probation requires defendant to provide support for any dependents of whom he should reasonably be aware, in the manner required by law. That condition provides fair warning of what is required and is therefore not unconstitutionally vague. III. Administrative Fees and Assembly Bill No. 177 Previously, we concurred with the parties that Assembly Bill No. 177 required the outstanding balance on the administrative fees imposed in connection with defendant’s restitution fine be vacated. Such fees remain unauthorized. Starting January 1, 2022, Assembly Bill No. 177 repealed the 10 percent discretionary administrative fee applicable to restitution fines imposed under section 1202.4, former subdivision (l). (Stats. 2021, ch. 257, §§ 19–20.) Assembly Bill No. 177 declared that “[o]n and after January 1, 2022[,] the balance of any court-imposed costs pursuant to [s]ection … 1202.4 … shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Stats. 2021, ch. 257, § 35; Pen. Code, § 1465.9, subd. (b).) By its plain language, Assembly Bill No. 177 renders the balance of these administrative fees that remained on and after January 1, 2022, unenforceable and uncollectible. Therefore, defendant is entitled to have any portion of the administrative fees imposed pursuant to section 1202.4, former subdivision (l) that remained unpaid as of January 1, 2022, vacated from the judgment. DISPOSITION We vacate defendant’s sentence and remand for further proceedings with orders for the trial court to allow defendant to be afforded the opportunity to either waive or 8. invoke the requirements of section 1170, subdivision (b). In all other respects, the judgment is affirmed. 9.