People v. Montoya CA2/4 ( 2015 )

Filed 1/7/15 P. v. Montoya CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B243042
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA066801)
v.
LETICIA MARIE MONTOYA, et al.,
Defendants and Appellants.
APPEALS from a judgment of the Superior Court of Los Angeles County,
Beverly R. O’Connell, Judge. Modified and affirmed.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and
Appellant Leticia Montoya.
Gail Harper, under appointment by the Court of Appeal, for Defendant and
Appellant Sergio Flores.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell,
Joseph P. Lee, and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Defendants Leticia Montoya and Sergio Flores were each charged with one count
of willful, deliberate and premeditated murder (Pen. Code, § 187 (count 1)),1 and one
count of shooting from a motor vehicle (former §12034, subd. (c) (count 3)).2 In
addition, Flores was charged with one count of unlawful firearm activity (former
§ 12021, subd. (c)(1) (count 2)).3 Firearm allegations were included in counts 1 and 2
(§§ 12022.53, subds. (b), (c), (d), (e)(1)), and criminal street gang allegations were
included in counts 1 and 3 (§ 186.22, subd. (b)(1)(c)). In a joint trial to separate juries,
defendants were convicted on all counts, with sustained findings on the firearm and
criminal street gang allegations.4 Each defendant appeals from the judgment. We
modify the judgment as to custody credits. The judgment, as modified, is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
At about 2:00 a.m. on December 28, 2008, Kevin Montenegro, Nick Perez, and
Abraham Guerrero were standing outside Guerrero’s house on Correnti Street in
Pacoima. A white car drove by the house, made a U-turn, and returned with its
headlights off. A rifle was protruding from the front passenger window. The car stopped
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2 Former section 12034 is presently found at section 26100, subdivision (c). The
statute provides: “Any person who willfully and maliciously discharges a firearm from a
motor vehicle at another person other than an occupant of a motor vehicle is guilty of a
felony punishable by imprisonment in state prison for three, five, or seven years.”
3 Former section 12021, subdivision (c)(1) is presently found at section 29805.
4 Montoya also was found to have suffered a prior prison term. She received a
sentence of 51 years to life, consisting of 25 years to life for murder (count 1), 25 years to
life for the gang and firearm enhancements (§§ 186.22, subd. (b)(1)(C), 12022.53, subd.
(d)), and one year for the prior prison term (§ 667.5, subd. (b).) The sentence on count 3,
shooting from a motor vehicle, was stayed under section 654.
Flores received a sentence of 50 years and 8 months to life, consisting of 50 years
to life for the murder conviction, gang and firearm enhancements (count 1), plus a
consecutive 8-month term for the unlawful firearm activity conviction (count 2). The
sentence on count 3, shooting from a motor vehicle, was stayed under section 654.
2
and the front passenger asked the men where they were from. Perez replied, ‘“We are not
from anywhere.”‘ Perez grabbed the barrel of the rifle and tried to wrestle it away.
Three or four shots were fired, and Perez let go of the barrel. Guerrero was shot in the
arm and chest, and died from his injuries.
Later that night, Perez told police the shooter was a bald male with facial hair and
big eyes. Perez also said the shooter might have been wearing a “hoody.” Two days
after the shooting, Montenegro and Perez worked with a police sketch artist to create a
composite sketch of the shooter. Several weeks after the shooting, Montenegro and Perez
were shown a photographic lineup that included Flores. They each identified Flores as
the possible shooter, but neither was certain of his identification. Several months later,
Montenegro and Perez identified Flores as the possible shooter during a live lineup;
again, neither was certain of his identification.
Montenegro and Perez identified Flores as the shooter at both the preliminary
hearing and trial. At trial, Montenegro testified that he was “sure” of his identification of
Flores, and Perez testified that he was “80 percent” certain of his identification of Flores.
Perez explained that his degree of certainty had grown from 50 percent at the preliminary
hearing to 80 percent at trial because “I don’t think it’s a coincidence that the sketch that
we did looks like him. The picture that I was shown looks like the guy. I picked him out,
and the lineup again.” Both Montenegro and Perez testified that the composite sketch,
which was presented as an exhibit at trial, accurately depicted the shooter.
On cross-examination, Perez testified that of the individuals depicted in the
photographic lineup, Flores had the shortest hair and the only moustache, and was
wearing a hoody. Montenegro testified on cross-examination that Flores was the only
individual who had appeared in both the photographic and live lineups.
The eyewitness identifications of Flores were buttressed by testimony of an
informant, Jose Andalon, the purported shot-caller for the Pacoima Southside Locos
(PSSL) gang. Andalon testified against both defendants in this case, in exchange for
dismissal of numerous charges and a favorable sentence in his unrelated burglary case.
Both juries were informed of Andalon’s criminal background and plea agreement.
3
A. Andalon’s Testimony
Andalon testified that he was a founding member of the Little Pacoima gang,
which became affiliated with the PSSL gang (jointly, the PSSL gang). Andalon claimed
to be the PSSL gang’s shot caller (i.e., the person who decides what crimes to commit)
when this shooting occurred. He identified Montoya and Flores as members of that gang,
and said he loved Montoya—a trusted member of the gang—like a sister.
The PSSL’s rival gang is the Pacoima Van Nuys Boys (PVNB) gang and its
clique, Anybody Killer (ABK). Two months before the shooting in this case, Flores told
Andalon that he had stabbed a PVNB gang member who was chasing him, that other
PVNB gang members had followed him home, written on his wall, and were looking for
him. One month before the shooting in this case, Andalon gave Flores a rifle. In early
December 2008, PVNB members shot several PSSL members on Wingo Street. The
shooting in this case occurred on December 28, 2008, a few weeks after the shooting on
Wingo Street.
Hours after the shooting in this case, Flores called Andalon and said, “I smoked
the fools,” meaning he had killed a rival gang member. Flores told Andalon that after he
learned that PVNB or ABK gang members were outside on Correnti Street, they went in
Vital Gomez’s car (Gomez is a PSSL gang member)5 to Correnti Street where some
people were standing outside. Flores asked where they were from, then fired the gun
until the clip was empty. The deceased victim, Guerrero, was wearing a hat with the
letter “A,” which is the insignia of the ABK gang. Flores said that he had gotten back for
what they had done to him.
After receiving this news, Andalon immediately called Montoya at her workplace
to say, “what the fuck happened?” Montoya said she could not talk on her work phone,
so Andalon called her back on her cell phone. Montoya told Andalon that while she and
5 After the shooting in this case, police searched Gomez’s car, a white Chevy
Malibu, and recovered a .22 caliber long rifle bullet. The bullet was consistent with the
bullet fragment recovered from Guerrero’s body.
4
Flores were “getting high on PCP,” they discussed the shooting on Wingo Street and the
incident where Flores got “jumped.” They both felt they had to do something, and they
walked to Flores’s house where Flores retrieved the rifle. They walked back to
Montoya’s house, carrying the rifle between them “like they were a couple, hugging.”
When they arrived at her house, they learned that PVNB or ABK gang members “were
hanging out outside on Correnti.” Montoya took Gomez’s car keys and drove Flores,
who was in the front seat, and Jose Euyoque (known as Gordo), who was in the back seat,
to Correnti Street. Montoya made a U-turn, turned off the headlights, and drove up to a
group of people in front of a house. Flores “got out, told them where they were from.
Before he even answered, he pulled the trigger and shot them.” On the way home,
Montoya damaged Gomez’s car by hitting a curb.
Andalon told Montoya that she “didn’t need to do that shit.” Montoya replied that
she knew what she was doing and was a grown woman.
Later that day, Flores gave Andalon more details about the shooting. Flores said
that he and Montoya “were getting high,” they “walked from his house” with the “gun
between them,” and they learned “that the Van Nuys Boys or ABK were outside on
Correnti, which is where they hang out at.” They drove to Correnti Street in Gomez’s
car, and saw some people outside. Flores “pulled the trigger. He said he didn’t know the
gun was automatic,” and he fired until “the whole clip went out.”
Andalon testified that he was in charge of the gang when the shooting occurred,
but denied ordering the shooting. The gang had agreed to keep the shooting a secret after
learning that Guerrero, the victim, was a “police explorer” and “it was a big deal.”
Andalon claimed that because he had snitched on defendants, there was a “hit” on his
life, and his family members would have to relocate.
5
B. Montoya’s Custodial Statement to Police
When Montoya was arrested and interviewed about this shooting, she gave a taped
statement that was played at trial for her jury only.
During the interview, Montoya stated that on the night of the shooting, Gomez,
Gordo, Flores, and three girls had been at her house. She walked with Flores to his house
and waited outside while he went inside to get money. They then walked back to
Montoya’s house. Montoya drove Gordo and Flores in Gomez’s car to buy some beer.
Flores was in the front passenger seat. She did not see a gun. Flores said that he wanted
to find “Ducky,” and told her where to turn. (“Ducky” was a member of ABK and lived
in PSSL territory.) When Montoya turned onto Correnti Street, she saw a group of men.
Flores exchanged words with someone. Multiple gunshots were fired from the
passenger’s side of the car. She drove away and damaged the car while returning home.
When they returned to her house, Montoya asked Gordo and Flores “what the
fuck” happened. Gordo stated, “You let him have it,” and Flores answered, “Yeah, it got
stuck.” Flores told Gordo that the victim was not Ducky. Flores gave Gordo the gun so
he could get rid of it. Later, they had a meeting at which Gordo told everyone to keep
quiet about the shooting. Montoya said that she was worried about people thinking she
was a snitch, but she was “not going to go down for this shit.”
C. Flores’s Defense Evidence
Flores sought to impeach the prosecution’s eyewitness identification evidence
through the testimony of Dr. Mitchell Eisen, a psychologist. Dr. Eisen testified that
memories can be altered over time for various reasons. He was presented with a
hypothetical that mirrored the process through which Montenegro and Perez eventually
identified Flores as the shooter in this case. Based on the hypothetical, Dr. Eisen testified
that when a witness assists in creating a composite sketch, and selects a suspect who
resembles the composite sketch from a photographic lineup, the witness’ subsequent
identifications of the same suspect could be influenced by the witness’ desire to remain
consistent and by the “carry over effect” of seeing a familiar face from an earlier
photographic lineup.
6
Officer Pedro Cabunoc testified that when Andalon was arrested for burglary in
October 2008, Andalon had sought to provide information on another matter. Andalon
told Cabunoc that he was “just trying to see if I can get out of this.”
Detective Joshua Byer testified that when Andalon was first interviewed
concerning this case, Andalon said that an unknown Malibu car was used in the shooting,
that Flores was alone, and he did not know where Flores had obtained the gun. At the
next interview, Andalon said that Flores was with Montoya during the shooting, the car
was Gomez’s, and Andalon had given the gun to Flores.
Corina Flores, the mother of Flores’s children, testified that Flores was at her
house at the time of the shooting, and that Flores never brought a gun to her house. She
denied that Flores was living with his mother on Osborne Street at the time of the
shooting.
D. Montoya’s Defense Evidence
Montoya presented evidence that she had tested negative for drugs on 24
occasions between February 2008 and February 2009. However, she did not test for
drugs between December 25 and 30, 2008.
Montoya’s employer, Rogelio Flores, testified that in December 2008, Montoya
was working for a graffiti removal organization. Montoya’s coworker, Otto Portillo,
testified that Montoya had asked him to remove PSSL graffiti in Pacoima on many
occasions.
As to Andalon’s alleged telephone conversation with Montoya, the store manager
for AT&T in Panorama City—Antonio Alvarado—testified that AT&T did not have a
record of a call between phone numbers ending in 7711 and 1228, during the period
December 26, 2008, to January 9, 2009. However, because a business may have several
routing phone numbers, it was possible that a call made to the 7711 number could have
appeared on the statement as a different number.
7
DISCUSSION
While this case was pending, the California Supreme Court issued its opinion in
People v. Chiu (2014) 59 Cal.4th 155 (Chiu), which addressed the natural and probable
consequences doctrine and related pattern jury instruction. In light of that ruling, we
vacated the submission of this matter and requested further briefing by the parties on the
application of the Chiu decision to this case.6 We received and considered those letter
briefs, and rescheduled the matter for oral argument.
In part I of the discussion, we address Flores’s contentions, including his claim of
instructional error regarding the natural and probable consequences doctrine. In part II,
we address Montoya’s argument concerning the same instructional error. In part III, we
discuss custody credits.
I
A. Montoya’s Extrajudicial Statements to Andalon
There was evidence that Montoya told Andalon that she wanted to do something
about a prior shooting on Wingo Street; she went with Flores to get the gun; she got the
keys to a car and drove Flores to look for rival gang members on Correnti Street; she
drove past a house where she saw a group of people, circled back with the headlights off,
and stopped the car while Flores shot at them; and after the shooting, she drove them
back to her house. Flores argues these statements were inadmissible hearsay and should
have been excluded under Evidence Code section 352.
Respondent argues the statements were properly admitted under the declaration
against interest exception to the hearsay rule. The exception, in Evidence Code section
1230, provides in relevant part: “Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is
6 The parties do not dispute that Chiu is retroactive and applies to this case. The
decision changed the law by disapproving the use of the natural and probable
consequences theory as a basis to elevate murder to first rather than second degree. (See
In re Johnson (1970) 3 Cal.3d 404, 410–411 [retroactivity of decisions announcing a new
rule of law].)
8
unavailable as a witness and the statement, when made, . . . so far subjected him to the
risk of civil or criminal liability, . . . that a reasonable man in his position would not have
made the statement unless he believed it to be true.”
Both parties agree that Montoya was unavailable as a witness for purposes of
Evidence Code section 1230. (People v. Leach (1975) 15 Cal.3d 419, 438 (Leach).)
They also agree that no reasonable person in Montoya’s position would admit to
participating in a drive-by shooting that he or she did not commit. The parties disagree,
however, as to the admissibility of the portions of Montoya’s statements that implicated
Flores.
1. Evidence Code Section 1230
Flores contends that Montoya’s statements regarding his involvement in the
shooting were inadmissible because they were not specifically disserving to Montoya’s
interests. His contention is based on the Supreme Court’s statement in Leach, that “[i]n
the absence of any legislative declaration to the contrary, . . . the exception to the hearsay
rule relating to evidence of declarations against interest set forth in section 1230 of the
Evidence Code [is] inapplicable to evidence of any statement or portion of a statement
not itself specifically disserving to the interests of the declarant.” (Leach, supra, 15
Cal.3d at p. 441–442, fn. omitted, italics added.)
When deciding whether such statements are admissible under Evidence Code
section 1230, the trial court must make “a careful analysis of what was said and the
totality of the circumstances. (People v. Wilson [(1993)] 17 Cal.App.4th [271,] 276 [‘The
fact that the statement is also disserving to [nondeclarant] does not render the statement
unreliable and inadmissible. . . .’]; United States v. Sasso [(2d Cir. 1995)] 59 F.3d [341,]
349; People v. Gordon [(1990)] 50 Cal.3d [1223,] 1252–1253 [overruled on other
grounds in People v. Edwards (1991) 54 Cal.3d 787, 835].)” (People v. Greenberger
(1997) 58 Cal.App.4th 298, 335 (Greenberger).)
“There is no litmus test for the determination of whether a statement is trustworthy
and falls within the declaration against interest exception. The trial court must [consider
factors such as] whether the declarant spoke from personal knowledge, the possible
9
motivation of the declarant, what was actually said by the declarant and anything else
relevant to the inquiry. [Citations.]” (Greenberger, supra, 58 Cal.App.4th at p. 334.)
In Greenberger, a police informant secretly recorded his private conversations
with defendants Mentzer and Lowe, who each made statements that were self-inculpatory
and inculpatory of a codefendant. In concluding their statements were admissible as
declarations against interest, we noted that “the most reliable circumstance is one in
which the conversation occurs between friends in a noncoercive setting that fosters
uninhibited disclosures. [Citations.]” (Greenberger, supra, 58 Cal.App.4th at p. 335.)
Although self-inculpatory statements are generally more reliable than those that
shift responsibility to others (Greenberger, supra, 58 Cal.App.4th at p. 335), a statement
that is inculpatory of another person is not necessarily unreliable. For example, in People
v. Wilson, supra, 17 Cal.App.4th 271, the defendant told his wife (Mrs. Wilson) “that the
gun ‘he had used to shoot the Mexicans’ was hidden in the bushes.” (Id. at p. 276.) Mrs.
Wilson reported the defendant’s statement to police, and her statement (which
incorporated the defendant’s statement) was admitted at trial. In affirming the
defendant’s conviction, the court found the statement met the requirements for
declaration against interest exception because it placed her at risk of being charged as an
accessory. The fact that her statement also was disserving to the defendant’s penal
interest did not render the statement unreliable and inadmissible. (Ibid.)
In People v. Cervantes (2004) 118 Cal.App.4th 162 (Cervantes), defendant
Morales made statements to a friend that were self-inculpatory and inculpatory of his
codefendants. The friend testified to Morales’s statements, which were admitted at trial
as declarations against interest. The appellate court affirmed, finding the statements met
the requirements of Evidence Code section 1230 because they subjected Morales “to the
risk of criminal liability to such an extent that a reasonable person in his position would
not have made the statement unless he believed it to be true.” (Id. at p. 175.)
In People v. Arauz (2012) 210 Cal.App.4th 1394, a jailhouse conversation
between defendant and his cellmate was secretly recorded. Defendant’s statements,
which were self-inculpatory and inculpatory of a codefendant, were admitted at a joint
10
trial as declarations against interest. In affirming that ruling, the appellate court found the
statements were specifically disserving of the declarant’s penal interests and, because
they were not testimonial, they were not subject to the Confrontation Clause. (Id. at p.
1397.)
In this case, Montoya’s statements to Andalon were made during a private
telephone conversation. Montoya discussed Flores’s role in the shooting, which she
personally witnessed, but did not attempt to shift blame from herself. On the contrary,
she freely and openly discussed her desire to respond to a prior gang shooting; her active
role in obtaining the gun, the car key, and driving the vehicle used in the shooting; and
her capacity as a grown woman to make her own decisions. Under the circumstances, we
find Montoya’s statements were highly inculpatory and no reasonable person in her
position would have made them unless he or she believed they were true. We therefore
conclude that her statements “bear sufficient indicia of trustworthiness and fall within the
declaration against interest exception.” (People v. Arceo (2011) 195 Cal.App.4th 556,
577 (Arceo).)
Finally, we address the issue of prejudice. Even if we were to find that Evidence
Code section 1230 did not apply to Montoya’s extrajudicial statements, we would find no
prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836 [a miscarriage of justice should
be declared only when the court, after examining the entire cause, including the evidence,
is of the opinion that it is reasonably probable that a result more favorable to the appellant
would have been reached in the absence of the error]; People v. Duarte (2000) 24
Cal.4th 603, 618–619 [Watson standard applies to erroneous admission of hearsay].)
We are not persuaded that the exclusion of Montoya’s statements would have
resulted in a more favorable outcome for Flores. Perez and Montenegro independently
identified Flores as the shooter. Their percipient identification testimony, Flores’s self-
incriminating statements to Andalon, and the physical evidence—the discovery of a
bullet (matching the type of bullet found in the victim’s body) in Gomez’s car—provided
sufficient independent evidence of Flores’s guilt to sustain his conviction. On this
11
record, it is not reasonably probable that Flores would have obtained a more favorable
result if the statements had been excluded.
2. Confrontation Clause
Having determined that Montoya’s statements were admissible as declarations
against interest, we next consider Flores’s Confrontation Clause claim. The dispositive
issue is whether Montoya’s statements to Andalon were testimonial. As explained in
Davis v. Washington (2006) 547 U.S. 813, only testimonial evidence can cause a
declarant to be a witness within the meaning of the Confrontation Clause. (Id. at p. 828.)
The Confrontation Clause does not apply “to out-of-court nontestimonial statements
(Whorton v. Bockting (2007) 549 U.S. 406, 420; People v. Gutierrez (2009) 45 Cal.4th
789, 812, including statements by codefendants. [Citations.])” (Arceo, supra, 195
Cal.App.4th at p. 571; Cervantes, supra, 118 Cal.App.4th at p. 177 [codefendant’s
nontestimonial statement was properly admitted against defendants, because statement
qualified as declaration against interest and satisfied constitutional standards of
trustworthiness.].)
Although it is clear the Confrontation Clause applies only to testimonial evidence,
the Supreme Court has not provided a comprehensive definition of the term
“testimonial.” The Court has acknowledged this, stating: “Where testimonial evidence is
at issue, . . . the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination. We leave for another day
any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the
term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations. These are the modern
practices with closest kinship to the abuses at which the Confrontation Clause was
directed.” (Crawford v. Washington (2004) 541 U.S. 36, 68.)
Notwithstanding the lack of a comprehensive definition, we have found no cases,
nor have the parties cited any, that hold a private conversation between friends to be
testimonial. We are satisfied that Montoya’s extrajudicial statements would not be
deemed testimonial even under a very broad definition of that term.
12
Because the Confrontation Clause does not apply to nontestimonial statements, we
conclude that redaction of Flores’s name was not required under Bruton v. United States
(1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518. (Arceo, supra, 195
Cal.App.4th at p. 571 [Bruton rule, like Confrontation Clause, does not apply to
nontestimonial statements]; Cervantes, supra, 118 Cal.App.4th at pp. 176–177 [same];
Greenberger, supra, 58 Cal.App.4th at p. 332 [same].)
B. Accomplice Instruction
Flores contends that because Andalon is an accomplice, and because a conviction
cannot be sustained on uncorroborated accomplice testimony (People v. Garcia (2000) 84
Cal.App.4th 316, 325), the trial court was required to provide a cautionary instruction on
its own motion regarding accomplice testimony.
Generally, “an instruction on accomplice testimony must be given on the court’s
own motion when the accomplice is called solely by the prosecution. [Citations.]”
(People v. Guiuan (1998) 18 Cal.4th 558, 566.) A witness is an accomplice if he or she
“‘is liable to prosecution for the identical offense charged against the defendant on trial in
the cause in which the testimony of the accomplice is given.’ [Citations.]” (People v.
Felton (2004) 122 Cal.App.4th 260, 268, quoting People v. Arias (1996) 13 Cal.4th 92,
142–143.)
In this case, Andalon provided the murder weapon to Flores a month before the
shooting, but there is no evidence that he knew Flores intended to kill someone with it
then or a month later. “It is well settled that aiding and abetting the commission of a
crime requires some affirmative action. The mere knowledge or belief that a crime is
being committed or likely to be committed, and the failure on the part of the one having
such knowledge or belief to take some steps to prevent it, in no sense amounts to aiding
and abetting.” (People v. Weber (1948) 84 Cal.App.2d 126, 130.) “‘Providing assistance
without sharing the perpetrator’s purpose and intent is insufficient to establish that a
person is an accomplice.’ [Citations.] An accomplice must ‘share[] the perpetrator’s
criminal purpose’; even providing ‘assistance with knowledge of the perpetrator’s
13
criminal purpose’ is insufficient. [Citation.]” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 430.)
Under the circumstances, we are not persuaded that providing the murder weapon
to Flores one month before the killing made Andalon an accomplice as a matter of law.
At most, Andalon is a possible accomplice in light of his testimony that he was in charge
of the gang when the killing occurred. Whether he intended to aid and abet the shooting
of Guerrero is a question of fact. Given Andalon’s express denial that he ordered the
shooting, the record does not establish that he is an accomplice as a matter of law.
In any event, even if we assume that Andalon is an accomplice, “[a] trial court’s
failure to instruct on accomplice liability under section 1111 is harmless if there is
‘sufficient corroborating evidence in the record.’ (People v. Lewis (2001) 26 Cal.4th 334,
370.) To corroborate the testimony of an accomplice, the prosecution must present
‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the
crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.]
Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates
to some act or fact that is an element of the crime. [Citations.] ‘“[T]he corroborative
evidence may be slight and entitled to little consideration when standing alone.”
[Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 562–563.)
As discussed, Perez and Montenegro independently identified Flores as the
shooter. Their testimony, coupled with the physical evidence—the discovery of a bullet
(which matched the type of bullet found in the victim’s body) in Gomez’s car (which fit
the description of the vehicle used in the shooting)—provided sufficient corroboration to
cure the alleged instructional error.
Flores also contends the court erred by failing to instruct, sua sponte, that Montoya
was an accomplice whose extrajudicial statements required corroboration and were to be
viewed with caution. In People v. Brown (2003) 31 Cal.4th 518, 555–556, the Supreme
Court held that where an accomplice’s extrajudicial statements were made under
conditions sufficiently trustworthy to permit their admission into evidence despite the
hearsay rule—namely, they were declarations against interest—the court is not required
14
to instruct the jury to view the accomplice’s extrajudicial statements with caution and to
require corroboration. As we have discussed, Montoya’s statements to Andalon were
properly found to be declarations against penal interest. (Evid. Code, § 1230.) Where
that is the case, the usual problem with accomplice testimony—that it is self-interested
and shifts blame to codefendants—is not present, and the instruction on accomplice
testimony is not required. (Brown, supra, 31 Cal.4th at pp. 555–556.)
In any event, “‘[a] trial court's failure to instruct on accomplice liability under
section 1111 is harmless if there is sufficient corroborating evidence in the record.
[Citation.] “Corroborating evidence may be slight, may be entirely circumstantial, and
need not be sufficient to establish every element of the charged offense. [Citations.]”
. . . The evidence “is sufficient if it tends to connect the defendant with the crime in such
a way as to satisfy the jury that the accomplice is telling the truth.” [Citation.].’ (People
v. Lewis (2001) 26 Cal.4th 334, 370.)” (Brown, supra, 31 Cal.4th at p. 556.) Even if we
were to assume the trial court erred by failing to instruct sua sponte on accomplice
testimony, the error was harmless for the reasons previously discussed.
C. Natural and Probable Consequences Instruction
The trial court instructed the jury that if it found Flores guilty of murder, it must
decide whether the crime was first or second degree murder. The jury was informed that
the prosecution was pursuing two theories of first degree murder: willful, deliberate, and
premeditated murder, and murder committed by shooting a firearm from a motor vehicle.
In addition, the jury for Flores was instructed that the prosecution was “relying
upon the natural and probable consequences theory.” It received an instruction that,
“Under the natural and probable consequences theory of murder, before you may decide
whether the defendant is guilty of murder, you must decide whether he is guilty of assault
with a deadly weapon. [¶] To prove that the defendant is guilty of murder, the People
must prove that: [¶] 1. The defendant is guilty of assault with a deadly weapon; [¶] 2.
During the commission of assault with a deadly weapon a co-participant in that assault
with a deadly weapon committed the crime of murder; and [¶] 3. Under all of the
circumstances, a reasonable person in the defendant’s position would have known that
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the commission of the murder was a natural and probable consequence of the commission
of the assault with a deadly weapon.” The term “co-participant” was defined as either the
“perpetrator or anyone who aided and abetted the perpetrator. It does not include a
victim or innocent bystander.”
As we have discussed, in Chiu the Supreme Court held that “an aider and abettor
may not be convicted of first degree premeditated murder under the natural and probable
consequences doctrine. Rather, his or her liability for that crime must be based on direct
aiding and abetting principles. [Citation.]” (Chiu, supra, 59 Cal.4th at p. 158–159.)
Flores, who was tried as the perpetrator who fired the fatal shots, was not tried on a
theory of aiding and abetting. The instruction did not apply since Flores, if guilty at all,
was the shooter. Accordingly, we agree with his contention that the instruction on the
natural and probable consequences doctrine, which applies to aiders and abettors, should
not have been given. But any error was harmless under any standard.
According to Chiu, “[w]hen a trial court instructs a jury on two theories of guilt,
one of which was legally correct and one legally incorrect, reversal is required unless
there is a basis in the record to find that the verdict was based on a valid ground. (People
v. Guiton (1993) 4 Cal.4th 1116, 1128–1129; People v. Green (1980) 27 Cal.3d 1, 69–71
[overruled on another ground in People v. Martinez (1999) 20 Cal.4th 225, 234].)”
(Chiu, supra, 59 Cal.4th at p. 167.)
In this case, the jury was properly instructed that “[a] defendant is guilty of first
degree murder if the People have proved that he or she acted willfully, deliberately and
with premeditation. The defendant acted willfully if he or she intended to kill. The
defendant acted deliberately if he or she carefully weighed the considerations for and
against his or her choice and, knowing the consequences, decided to kill. The defendant
acted with premeditation if he or she decided to kill before completing the act that caused
death.” In closing argument, the prosecutor argued that the jury could convict Flores of
first degree murder under either one of two theories—“willful, deliberate and
premeditated first degree murder,” or “shooting from a motor vehicle”—and so long as
16
all 12 jurors found Flores guilty under either of those theories, nothing more was
required.
The record contains ample support for Flores’s conviction under the legally
correct theory of willful, deliberate, and premeditated murder. The record also contains
ample support for Flores’s conviction under section 189, which provides that “any
murder which is perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict death, is
murder of the first degree.”
As previously mentioned, the evidence showed that after discussing the need to do
something about the prior shooting by a rival gang on Wingo Street, Flores and Montoya
went to his house to retrieve a rifle, which they brought back to her house. Upon learning
that rival gang members were standing outside on Correnti Street, they drove to that
street and saw several men, including one (Guerrero) who was wearing a cap with a rival
gang’s insignia. Flores fired shots at the group, killing Guerrero. Flores was positively
identified by Montenegro and Perez—in a photographic lineup, a live lineup, the
preliminary hearing, and at trial—as the shooter in the front passenger seat who issued a
gang challenge before firing at them.
A key factor in determining whether a defendant acted with premeditation and
deliberation is the extent to which he or she reflected on the decision to kill. (People v.
Nazeri (2010) 187 Cal.App.4th 1101, 1114–1115.) As noted in Nazeri, other courts have
found there was sufficient evidence of premeditation and deliberation where the
defendant entered a house and obtained a steak knife from the kitchen before engaging in
a frenzied knife attack (People v. Perez (1992) 2 Cal.4th 1117), where the defendant
returned to his car to get a rifle and ammunition before committing the murders (People
v. Thomas (1992) 2 Cal.4th 489), and where the defendant committed the additional act
of slashing the victim’s throat after the victim was strangled to the point of
unconsciousness (People v. Lewis (2009) 46 Cal.4th 1255). (Nazeri, supra, 187
Cal.App.4th at p. 1115.)
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When Flores’s planning activities are measured against the activities in these other
cases, we are satisfied beyond a reasonable doubt that the jury based its first degree
murder verdict on the legally valid theory that Flores committed an intentional,
deliberate, and premeditated murder. We conclude that on this record, any instructional
error concerning the natural and probable consequences doctrine was harmless under the
Chapman standard. (Chapman v. California (1967) 386 U.S. 18, 22–24 (Chapman).)
D. Prosecutorial Misconduct
On direct examination, the prosecution’s gang expert, Officer Timo Peltonen,
testified that in his opinion, Flores was a member of the PSSL gang. When asked to state
the grounds for his opinion, Peltonen listed a number of factors—including Flores’s
admission that he was a gang member, his gang moniker, his association with known
gang members, his gang tattoos—but ended with “the fact that he committed this murder
in association with two other gang members.” (Italics added.) Upon defense counsel’s
immediate objection, the jury was admonished to disregard Peltonen’s statement that
Flores “committed this murder,” which was stricken from the record. The trial court told
the jury that “whether or not Mr. Flores is guilty of murder is for you to decide.”
Outside the presence of the jury, Flores moved for a mistrial. The trial court
denied the motion, stating that the improper language had been stricken and the jury had
been instructed to disregard it. The court ordered Peltonen to “refrain from referring to
any such conclusion that Mr. Flores murdered anyone in this case.” There is no
indication of any repeat episode or that the matter was referred to by counsel during
closing argument.
On appeal, Flores contends the prosecutor committed misconduct in eliciting
Peltonen’s statement that “Flores committed this murder.” Although Peltonen should not
have made the statement, there is no indication that the statement was elicited by the
prosecutor. Defense counsel’s immediate objection was met by the trial court’s swift and
proper admonishment to disregard the comment, which was stricken. We conclude that
any prejudice from the improper remark was cured by the trial court’s timely
admonishment. (People v. Mendoza (2007) 42 Cal.4th 686, 702 [when defendant’s
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objections are sustained and jury is admonished to disregard improper comment, it is
assumed jury complied and no prejudice resulted].)
E. Identification Evidence
Flores contends that his conviction must be reversed for insufficient identification
evidence. We conclude the eyewitness identification testimony of Montenegro and Perez
provided substantial evidence to support his conviction.
Flores argues the eyewitness identifications were unreliable because the
photographic lineup was followed by a live lineup and he was the only person who
appeared in both lineups. Flores’s expert witness, Dr. Eisen, explained the possible
problems with eyewitness identifications, including the “carry over effect” of seeing a
familiar face from an earlier photographic lineup.
It is the jury’s role to assess the eyewitness identifications in light of the composite
sketch of the shooter, the six-packs used in the photographic lineups, and Dr. Eisen’s
expert testimony. As to Dr. Eisen’s testimony, the jury was instructed that it must
consider an expert’s opinions, but need not accept them as true or correct, and should
evaluate the believability of an expert witness like any other witness. As to the
hypothetical questions posed to Dr. Eisen, the jury was told to “decide whether an
assumed fact has been proved. If you conclude that an assumed fact is not true, consider
the effect of the expert’s reliance on that fact in evaluating the expert’s opinion.”
Where, as here, the eyewitness identification testimony is believed by the jury, the
reviewing court will not reweigh the evidence. (In re Gustavo M. (1989) 214 Cal.App.3d
1485, 1497.) “‘The strength or weakness of the identification, the incompatibility of and
discrepancies in the testimony, if there were any, the uncertainty of recollection, and the
qualification of identity and lack of positiveness in testimony are matters which go to the
weight of the evidence and the credibility of the witnesses, and are for the observation
and consideration, and directed solely to the attention of the jury in the first
instance . . . .’ [Citation.]” (People v. Mohamed (2011) 201 Cal.App.4th 515, 522.)
“[W]hen the circumstances surrounding the identification and its weight are explored at
length at trial” and the jury believes the eyewitness identification testimony, that
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evidence is sufficient to prove the defendant’s identity. (In re Gustavo M., supra,
214 Cal.App.3d at p. 1497; People v. Anderson (2001) 25 Cal.4th 543, 570–575.)
Flores contends that Andalon’s testimony was not to be believed because the
testimony of a snitch is tainted and unreliable. However, Andalon’s motives and
credibility were a jury question, as Flores’s counsel highlighted in closing argument:
“It’s Shady [Andalon’s gang moniker]. It’s Shady. It’s Shady. It’s Shady. That’s who
did this. And he can’t wait for you to convict my client, because now he’s done. And
when he’s done with his 12 years, ‘La de da, I skipped out on eleven life sentences.’ It
was worth it.” Counsel argued: “It’s [Gomez’s] car” and “Shady’s gun.” “Notice that
Shady protected both himself and . . . Gomez. Willing to give everybody up, everybody
he knows. ‘Lettie [Montoya], I love her,’ but she’s gone. Jose Euyoque, aka Gordo.
Friend, but he’s gone. He was there, too.”
In this case, the jury was instructed on the factors to be considered in evaluating
eyewitness identification testimony. It was also instructed to consider the motives of
each witness, including any promise of leniency in exchange for his or her testimony.
Where, as here, these issues have been thoroughly explored at trial, the appellate court
will defer to the jury’s factual findings that, as in this case, are supported by substantial
evidence.
II
We turn to Montoya’s appeal, which also challenges the natural and probable
consequences instruction in light of Chiu, supra, 59 Cal.4th at p. 158–159.7 We agree
that the natural and probable consequences instruction should not have been given to
Montoya’s jury. The issue, accordingly, is whether the error was prejudicial.
7 Montoya’s jury was instructed that a first degree murder conviction under the
natural and probable consequences doctrine required findings that: (1) Montoya was
guilty of the target offense, assault with a deadly weapon; (2) during the commission of
the target offense, a co-participant committed the crime of murder; and (3) under all of
the circumstances, a reasonable person in Montoya’s position would have known that the
commission of the murder was a natural and probable consequence of the target offense.
20
Montoya’s jury was presented with two theories of first degree murder: willful,
deliberate, and premeditated murder, and murder committed by shooting a firearm from a
motor vehicle. The prosecution argued that Montoya was guilty of first degree murder
under a direct aiding and abetting theory. In light of this theory, the trial court instructed
that the prosecution must prove: “1. The perpetrator committed the crime; [¶] 2. The
defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or
during the commission of the crime, the defendant intended to aid and abet the
perpetrator in committing the crime; and [¶] 4. The defendant’s words or conduct did, in
fact, aid and abet the perpetrator’s commission of the crime.” Montoya’s jury also was
instructed that in order to aid and abet a crime, the defendant must know of the
perpetrator’s unlawful purpose and specifically intend to aid, facilitate, promote,
encourage or instigate the perpetrator’s commission of that crime.
Montoya’s jury received both the legally valid theory that a defendant who
directly aided and abetted a premeditated murder may be convicted of first degree
murder, and the legally invalid theory that an aider and abettor may be convicted of first
degree premeditated murder under the natural and probable consequences doctrine.
Where, as here, a jury receives instructions on two theories of guilt, “one of which was
legally correct and one legally incorrect, reversal is required unless there is a basis in the
record to find that the verdict was based on a valid ground. [Citations.]” (Chiu, supra,
59 Cal.4th at pp. 167–168.)
In Chiu, the defendant’s conviction was reversed because the record failed to
demonstrate that the invalid natural and probable consequences instruction was harmless.
But in this case, the record shows that Montoya, if guilty at all, was guilty of first degree
premeditated murder.
The guilty verdict on count 3, shooting from a motor vehicle, indicates the jury
rejected Montoya’s exculpatory account of the shooting (provided during her custodial
interview) in favor of her inculpatory statements to her friend Andalon. Her actions were
identical to those of Flores, except that she drove the car while he pulled the trigger.
The evidence showed that after actively planning and preparing to kill rival gang
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members on Correnti Street, Montoya and Flores executed their plan by going to that
location and committing a drive-by shooting against suspected rival gang members. By
her own conduct and incriminating statements to Andalon, Montoya demonstrated that
she possessed the necessary mental state to be convicted of first degree premeditated
murder. (People v. Nazeri, supra, 187 Cal.App.4th at pp. 1114–1115 [premeditation and
deliberation are present if the jury could find a sufficient extent of reflection on the
decision to kill]; People v. Thompson (2010) 49 Cal.4th 79, 118 [evidence supported
defendant’s first degree murder conviction based on the theory that defendant aided and
abetted a premeditated murder by intentionally maneuvering the victim to an isolated area
where defendant and his companion carried out their plan to rob and kill the victim, using
the gun that defendant had supplied for that purpose].)
On this record, we are satisfied beyond a reasonable doubt that the jury based its
first degree murder verdict on the legally valid theory that Montoya directly aided and
abetted an intentional, deliberate, and premeditated murder. (Chapman, supra, 386 U.S.
at pp. 22–24.) We conclude the instructional error was harmless.
III
Finally, we turn to the issue of presentence custody credits. Montoya contends the
trial court erroneously failed to award her any presentence custody credits. (See People
v. Johnson (2010) 183 Cal.App.4th 253, 289 [statutory prohibition against work time and
conduct credits for convicted murderers does not apply to presentence custody credits].)
The Attorney General agrees that Montoya is entitled to presentence custody credits. The
parties have calculated that 921 days of presentence custody credits should be awarded to
her.
A sentence that fails to award legally mandated presentence custody credit is
unauthorized and may be corrected when discovered. (People v. Taylor (2004) 119
Cal.App.4th 628, 647.) We direct the trial court on remand to prepare a corrected
abstract of judgment for Montoya that reflects 921 days of presentence credits.
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As to Flores, the Attorney General contends the abstract of judgment must be
corrected to show one additional day of presentence custody credits, which would
increase his presentence custody credits from 925 days to 926 days. However, the
Attorney General also argues that Flores should not have received any conduct credit, and
seeks to deduct 138 days of conduct credit that he erroneously received in violation of
section 2933.2. We conclude the Attorney General is correct on both points. We direct
the trial court on remand to prepare a corrected abstract of judgment for Flores that
awards 926 days of presentence custody credits and no conduct credits.
DISPOSITION
The judgment is modified to reflect an award of 926 days of presentence custody
credits and no conduct credits as to Flores, and 921 days of presentence custody credits as
to Montoya. The clerk of the superior court is ordered to prepare an amended abstract of
judgment as to each defendant, and to transmit the amended abstract to the Department of
Corrections and Rehabilitation. The judgment, as modified, is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.
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