People v. Montelongo CA4/1

INTRODUCTION

Estevan Steve Montelongo was found guilty of the first degree murder

of his girlfriend, Michelle Hashtani (Pen. Code, § 187, subd. (a)).1 The jury returned a true finding on an allegation that, in the commission of the murder, he personally and intentionally discharged a firearm and proximately caused death to a person (§ 12022.53, subd. (d)). The trial court also found true an allegation that he suffered a prior conviction for aggravated assault with a deadly weapon, which constituted a serious felony conviction (§ 667, subd. (a)(1)) and a prior strike (id., subds. (b)–(i)). The court sentenced Montelongo to prison for 75 years to life, plus 5 years. Montelongo appeals the judgment and claims the trial court misunderstood the scope of its authority to strike the section 12022.53, subdivision (d) firearm enhancement and, in its place, impose a lesser uncharged firearm enhancement under section 12022.53, subdivisions (b) or (c). He also argues his trial counsel was ineffective for failing to request that the court strike the greater enhancement and impose a lesser enhancement in its place. While this appeal was pending, the Supreme Court issued People v. Tirado…