P. v. Montano

Filed 8/16/06 P. v. Montano CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.

Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

This appeal follows remand to determine the truth of appellant Isedro Steven Montano's prior convictions. In this appeal, Montano raises for the first time an issue that could have been raised in his first appeal or in his retrial and resentencing, specifically, that an enhancement incorrectly referenced the wrong subdivision of a code section. Although we deem the issue forfeited, we will correct the judgment to reflect the correct subdivision.

FACTUAL AND PROCEDURAL SUMMARY

In Montano's first appeal, case No. F043334, we affirmed convictions for narcotic offenses, but found error in the absence of advisements before Montano admitted the truth of the prior conviction allegations. Remittitur issued on November 8, 2004.

On February 7, 2005, after a jury trial, the prior conviction and prior prison term allegations were found true. On March 10, 2005, judgment and sentence were imposed. The trial court sentenced Montano to a total term of 13 years, including three years for the Health and Safety Code section 11370.2^[1] enhancement. The enhancement imposed pursuant to section 11370.2 was identified as imposed pursuant to subdivision (c).

Montano acknowledges that the section 11370.2, subdivision (c) enhancement was originally set forth in the amended information filed February 27, 2003. In his first appeal, case No. F043334, he did not contend this enhancement was incorrectly pled, nor did he challenge it in the trial court after remand, either during the trial on the prior conviction allegations or at resentencing.

DISCUSSION

Montano contends an enhancement of his sentence is unauthorized because the enhancement was imposed pursuant to the wrong subdivision of section 11370.2. Montano further asserts the sentencing error is not correctable on appeal because the accusatory information also referenced the wrong subdivision. The People concede the appropriate charging language is found in subdivision (b), not subdivision (c), of section 11370.2. The People contend the issue is waived.

Montano's claim is not cognizable on appeal because â€