Filed 1/2/20 P. v. Montijo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

JESSE MONTIJO,

Defendant and Appellant.

F079095

(Super. Ct. No. BF162000A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.

Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appellant Jesse Montijo appeals from the trial court’s denial of his motion to strike his firearm enhancement pursuant to Penal Code section 12022.53, subdivision (h). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 27, 2015, Montijo approached a student who was walking to his high school in Bakersfield and asked if he had a cell phone. After showing the student what appeared to be the handle of a gun in his waistband, Montijo took two cell phones, earbuds, and a necklace from him.

On July 14, 2016, a jury convicted Montijo of second degree robbery (§ 212.5, subd. (c)) and found true a personal use of a firearm enhancement (§ 12022.53, subd. (b)).

On August 11, 2016, the court sentenced Montijo to an aggregate term of 13 years, the middle term of three years on his robbery conviction and a 10-year arming enhancement.

Montijo subsequently filed a timely appeal.

“On October 11, 2017, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.) into law, effective January 1, 2018. Senate Bill No. 620 amended section 12022.53 to grant trial courts, for the first time, the discretion to strike section 12022.53’s firearm enhancements. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)” (People v. Hurlic (2018) 25 Cal.App.5th 50, 54.)

In People v. Montijo (August 8, 2018, F074203 [nonpub. opn.]), this court upheld Montijo’s conviction but remanded the matter with directions for the trial court to exercise its discretion pursuant to section 12022.53, as amended by Senate Bill No. 620 and to resentence Montijo if appropriate.

On March 29, 2019, Montijo filed a request for the trial court to strike his personal gun-use enhancement pursuant to section 12022.53, subdivision (h).

On April 3, 2019, the trial court denied the motion and Montijo filed an appeal on that date.

Montijo’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Montijo has not responded to this court’s invitation to submit additional briefing.

Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.