People v. Montes CA4/1

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…