People v. Montgomery CA2/8 ( 2020 )

Filed 9/23/20 P. v. Montgomery CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B297127
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA457021)
v.
MONDRAY MONTGOMERY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Lisa B. Lench, Judge. Affirmed.
Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and William H. Shin,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Mondray Montgomery was convicted of eight felonies and
two misdemeanors by a jury for his part in a home invasion
robbery. On appeal, he contends the trial court committed
instructional error and improperly denied his motion for new
trial. We affirm the judgment.
FACTS
On May 30, 2014, 80-year-old Samuel Hirt and 73-year-old
Diana Hirt1 had just completed a prayer service at their Beverly
Hills home when they heard a soft knock at the door. Believing
someone had forgotten something, Samuel opened the door
without asking who it was. Three men rushed in, threw Samuel
down, and caused him to hit his head on the marble floor. The
men had hoods covering their heads; Diana described the hoods
as pillowcases with holes cut out for the eyes. They also wore
shirts with the word “Security” on them.
The men demanded money and access to the Hirts’ safe.
They threatened to shoot Samuel in the head. Both Samuel’s and
Diana’s hands and feet were tied with plastic zip ties. Samuel
was punched in the face and severely beaten by two of the three
men. Diana was shot in the leg by the third man. Diana said she
did not keep money in the house but offered them her jewelry.
Diana was dragged by her feet to her bedroom closet, where she
kept the key to the safe. Diana had just taken off her two-carat
diamond engagement ring and left it on top of the bureau in her
closet. She was then dragged to Samuel’s office, where they
unlocked the safe, took everything in it, and ran out. Diana
1 For ease of reference, we refer to the Hirts by their first
names.
2
reported they took all her jewelry. Shortly after they left, Samuel
was able to untie himself and free Diana.
Nearby surveillance video from the night of the robbery
captured a man riding a motorcycle past the Hirts’ home several
times from approximately 8:12 p.m. to 8:25 p.m. The man twice
stopped near the Hirts’ home. The Hirts called 911 at 8:30 p.m.
During the investigation, the Beverly Hills Police
Department (BHPD) received information from the Los Angeles
Police Department (LAPD) about two potential suspects in the
Hirt robbery—Denzel Washington and Wasani Davis. When
BHPD detectives interviewed Davis, he admitted he committed a
string of residential burglaries in May and June of 2014 with
Washington, Washington’s girlfriend, Mia Green, and Sidney
Wilson.2 Davis said he did not know Montgomery.
Davis was a member of the Rollin 20 Outlaws, a gang
affiliated with the Bloods. He was introduced to Washington
between March and May of 2014 by a mutual friend, who was
also a gang member and vouched for Washington as someone
with whom Davis could commit crimes. During this time, Davis
wore an ankle bracelet from a bail bond company that tracked his
movements.
On May 30, 2014, Washington, Green, and Wilson asked
Davis to participate in a home invasion robbery. Washington told
Davis he planned to target Jewish and Asian households in
Beverly Hills, Malibu, and Pacific Palisades. He said the crew
2 Because Davis, Washington, Wilson, and Green are not
parties to this appeal, we need not recount the facts surrounding
the other residential burglaries or the crimes with which they
were charged.
3
would be dressed in mechanic’s outfits or jumpsuits and bring
cigarettes to burn people. Davis declined because he was in a
wheelchair at the time, having hurt his foot in a fight.
Additionally, he was too tired because he had been awake and on
drugs for several days. Davis’s ankle bracelet showed he was not
in Beverly Hills at the time of the Hirt robbery.
Towards the middle of June 2014, Wilson offered to sell a
.38 revolver to Davis for $250. Davis thought the price was too
high and passed on the offer. Wilson told Davis that Washington
used the gun in a robbery they committed while dressed up in
uniforms.
Davis described how he, Washington, Wilson, and Green
drove around Los Angeles in a white Dodge Charger, “scoping”
potential homes to burglarize. They committed burglaries in
Beverly Hills and West Los Angeles on June 16 and June 18,
using pepper spray and a glass breaking device. After the last
burglary, Davis and the crew drove to a garage on 39th Street
where there were police scanners and tools and equipment to
open safes.
During a search of the garage, BHPD found a motorcycle
parked between the front door and the garage that matched the
one depicted on the surveillance video. They also recovered
motorcycle boots, a helmet, gloves, and jackets that appeared to
be like those worn by the man on the motorcycle. At least two
police scanners, three weapons, ammunition, hundreds of
miscellaneous items of jewelry, and various financial documents
were found in the garage.
In November 2015, Wenisha Stewart called BHPD with
information regarding Montgomery’s role in the Hirt robbery.
Stewart had known Montgomery for over 20 years as her
4
mother’s husband. Stewart was angry at Montgomery because
he caused her mother, with whom she and her daughter had been
living, to be evicted from their apartment. Montgomery also
caused Stewart’s car to be impounded.
Stewart reported a friend told her Montgomery was trying
to sell a “really big” ring that he had stolen. Montgomery told
Stewart’s friend and another individual that the woman refused
to give up her ring, so he shot her in the leg. When Stewart
confronted Montgomery, he confessed he participated in a
robbery in Beverly Hills with Washington, Washington’s
girlfriend, and a man on a motorcycle. Montgomery admitted he
shot a woman and took a ring from her. Montgomery described
how they ransacked the large one-story house after the woman
was shot and how her husband “went crazy.” He also told
Stewart they left a car at the location the night before the
robbery. Stewart knew Montgomery owned a black revolver.
At trial, Stewart testified she did not recall any of her
interview with BHPD. An investigator for the prosecutor’s office
testified Stewart refused to accept service of the subpoena to
testify at trial because she had been “jumped and beat up” by
several people who called her a “snitch”. Stewart’s interview
with BHPD was recorded and played to the jury. A transcript of
it was also admitted into evidence.
To discredit her, defense counsel for the codefendants
presented evidence of Stewart’s extensive criminal history and
testimony that she had a reputation for dishonesty in the
community. They argued Stewart had a motive to lie about
Montgomery due to her personal issues with him. Further, they
claimed she lied about Diana refusing to give up her ring, as
Diana had testified she had taken off the ring and placed it on
5
top of the bureau in her closet and that no one demanded the ring
from her.
Using Davis’s and other phone records, BHPD traced the
cell phone numbers of Montgomery, Washington, and Wilson.
The records revealed that the night before the Hirt robbery, over
60 phone calls were exchanged between Washington and
Montgomery’s cell phones. Additionally, the records revealed
Montgomery’s cell phone used cell towers in Beverly Hills the
evening before the Hirt robbery, indicating he was in the area.
On May 30, 2014, between 8:07 p.m. to 8:11 p.m., Montgomery
and Washington made several calls using cell towers located near
the Hirts’ residence.
Montgomery, Washington, Wilson, and Green were initially
charged with 41 counts in connection with the Hirt robbery and
several other residential burglaries. In a second amended
information, Montgomery was charged with attempted murder
(Pen. Code, §§ 664/187, subd. (a); count 1)3, aggravated mayhem
(§ 205; count 2), torture (§ 206; counts 3–4), home invasion
robbery (§ 211, counts 5–6), first degree residential burglary
(§ 459; count 7), assault with a firearm (§ 245, subd. (a)(2); counts
8–9), conspiracy to commit residential burglary (§ 182, subd.
(a)(1); count 10), kidnapping for ransom (§ 209, subd. (a); count
21),4 possession of firearm by a felon (§ 29800, subd. (a)(1); count
39), and conspiracy to commit home invasion robbery (§ 182,
subd. (a)(1); count 41). As to every count except count 39, it was
3 All further section references are to the Penal Code unless
otherwise specified.
4 The trial court granted Montgomery’s motion for judgment
of acquittal as to count 21 pursuant to section 1118.1.
6
alleged he personally used a firearm (§ 12022.5), and that a
principal personally and intentionally discharged a firearm.
(§ 12022.53, subds. (b)–(e).) A gang enhancement was also
alleged as to all counts. (§ 186.22, subd. (b)(1).)
The jury found Montgomery guilty of counts 3 through 8,
10, and 41, and not guilty on counts 1, 2, 9, and 39. As to counts
2 and 9, the jury found him guilty of the lesser included offense of
misdemeanor assault (§ 240). The jury also found true the
allegation that a principal used a firearm as to counts 3,
5 through 8, and 41, but found not true the allegations that
Montgomery personally used a firearm. The gang enhancement
allegations were found not true.
The trial court sentenced Montgomery to a determinate
term of eight years plus an indeterminate term of life in prison
with a minimum parole eligibility of seven years. He timely
appealed.
DISCUSSION
I. Jury Instruction Issues
Montgomery asserts the trial court erred when it instructed
the jury regarding accomplice testimony and torture as a natural
and probable consequence of conspiracy to commit residential
burglary. Montgomery also contends the trial court erred when it
failed to instruct the jury regarding assault by means of force
likely to commit great bodily injury and felony battery as lesser
included offenses of torture.
The People contend Montgomery has forfeited these issues
by failing to raise them below. Montgomery acknowledges he did
not object to the challenged instructions at trial. “ ‘Generally, a
party forfeits any challenge to a jury instruction that was correct
in law and responsive to the evidence if the party fails to object in
7
the trial court.’ [Citation.]” (People v. McPheeters (2013) 218
Cal. App. 4th 124, 132.)
Montgomery, however, argues these issues are cognizable
because they affect his substantial rights. (§ 1259.) California
courts have equated “substantial rights” with reversible error
under the test stated in People v. Watson (1956) 46 Cal. 2d 818.
(People v. Lawrence (2009) 177 Cal. App. 4th 547, 553, fn. 11;
People v. Felix (2008) 160 Cal. App. 4th 849, 857.) “Ascertaining
whether claimed instructional error affected the substantial
rights of the defendant necessarily requires an examination of
the merits of the claim. . . .” (People v. Andersen (1994) 26
Cal. App. 4th 1241, 1249.) As a result, we address Montgomery’s
contentions on the merits to determine whether any instructional
error affected his substantial rights.
A. Standard of Review
“We review a claim of instructional error de novo.
[Citation.] The challenged instruction is considered ‘in the
context of the instructions as a whole and the trial record to
determine whether there is a reasonable likelihood the jury
applied the instruction in an impermissible manner.’ ” (People v.
Rivera (2019) 7 Cal. 5th 306, 326.) We presume the jurors were
able to understand and correlate all the instructions given.
(People v. Sanchez (2001) 26 Cal. 4th 834, 852.) When
instructions are claimed to be conflicting or ambiguous,
“we inquire whether the jury was ‘reasonably likely’ to have
construed them in a manner that violates the defendant’s rights.”
(People v. Rogers (2006) 39 Cal. 4th 826, 873.) If reasonably
possible, instructions are interpreted to support the judgment
rather than defeat it. (People v. Franco (2009) 180 Cal. App. 4th
713, 720.)
8
B. The Court Properly Instructed the Jury on
Accomplice Testimony
Montgomery asserts the trial court misled the jury to
believe all of Davis’s testimony required corroboration when it
was required only for his accomplice testimony. He also faults
the prosecutor for compounding the problem because, during his
closing argument, he described Stewart as someone who was not
an accomplice and whose testimony did not require corroboration
yet described Davis as an accomplice who did require
corroboration. Montgomery’s argument is baseless because the
trial court specified that only the portion of Davis’s testimony
regarding the residential burglaries required corroboration.
Section 1111 provides: “A conviction can not be had upon
the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the
commission of the offense . . . An accomplice is . . . defined as one
who 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.” “Exculpatory testimony, by
definition, cannot be said to support a conviction and, thus, need
not be corroborated.” (People v. Smith (2017) 12 Cal. App. 5th 766,
780 (Smith).)
At trial, Davis provided exculpatory testimony as to
Montgomery; he testified Wilson attempted to sell him a gun
matching the description of the one used in the Hirt robbery and
told him Washington, not Montgomery, used it to shoot someone
during a home invasion. Indeed, Davis stated he did not know
Montgomery. However, Davis also provided inculpatory
testimony regarding the other residential burglaries in which he
was an accomplice. Davis’s exculpatory testimony did not require
9
corroboration, but his inculpatory accomplice testimony did.
(Smith, supra, 12 Cal.App.5th at p. 781.)
The court properly instructed the jury with CALCRIM No.
335, which provided, in part: “If the crime of residential burglary
was committed, as charged in Count Eleven, Twelve and/or
Thirteen, then Wasani Davis was an accomplice to that crime.”
The trial court then went on to instruct the jury it could use the
statement or testimony of an accomplice to convict the defendant
only if the accomplice’s statement or testimony was supported by
independent evidence that tended to connect the defendant to the
commission of the crime. Further, the court instructed that
accomplice testimony “that tends to incriminate the defendant”
should be viewed with caution.
Montgomery acknowledges he was not charged in counts 11
through 13. Those counts relate to the residential burglaries in
which Montgomery did not participate. Given that the court
instructed the jury that corroboration was needed only for those
counts with which Montgomery was not charged, it is not
reasonably likely the jury applied the instruction in an
impermissible manner. The trial court did not err when it
instructed the jury as to Davis’s accomplice testimony.
Moreover, the prosecutor’s closing statements do not
impact our analysis. “The court’s instructions, not the
prosecution’s argument, are determinative, for ‘[w]e presume that
jurors treat the court’s instructions as a statement of the law by a
judge, and the prosecutor’s comments as words spoken by an
advocate to persuade.’ [Citation.]” (People v. Mayfield (1993)
5 Cal. 4th 142, 179.)
10
C. The Trial Court Correctly Instructed the Jury
Torture Is a Natural and Probable Consequence of
Conspiracy to Commit Residential Burglary
Montgomery next argues the trial court erred when it
instructed the jury that it could find him guilty of the torture of
Diana and Samuel if it found torture was a natural and probable
consequence of conspiracy to commit residential burglary.
Montgomery takes issue with CALCRIM No. 417, which advised
the jury that attempted murder, aggravated mayhem, torture, or
assault with a firearm were natural and probable consequences
of conspiracy to commit residential burglary or home invasion
robbery.5 According to Montgomery, torture may never be a
natural and probable consequence of a conspiracy to commit
residential burglary and it is therefore a legally incorrect theory
on which to base his conviction for torture.
We disagree and conclude torture is a reasonably
foreseeable consequence of an armed residential burglary such as
the one that occurred at the Hirt residence. As a result, the
alternate theories of culpability for torture, whether under a
direct perpetrator theory or under a natural and probable
consequences theory, were both legally correct and no error
resulted.
1. Proceedings Below
The trial court instructed the jury that Montgomery could
be found guilty of conspiracy as either a direct perpetrator or as a
coconspirator under a natural and probable consequences theory.
5 Montgomery does not dispute that torture may be a natural
and probable consequence of a conspiracy to commit home
invasion robbery.
11
The trial court instructed the jury with CALCRIM No. 417 as
follows:
“A member of a conspiracy is criminally responsible for the
crimes that he . . . conspires to commit, no matter which member
of the conspiracy commits the crime. [¶] A member of a
conspiracy is also criminally responsible for any act of any
member of the conspiracy if that act is done to further the
conspiracy and that act is a natural and probable consequence of
the common plan or design of the conspiracy. This rule applies
even if the act was not intended as part of the original plan.
Under this rule, a defendant who is a member of the conspiracy
does not need to be present at the time of the act.
“A natural and probable consequence is one that a
reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is
natural and probable, consider all of the circumstances
established by the evidence. [¶] A member of a conspiracy is not
criminally responsible for the act of another member if that act
does not further the common plan or is not a natural and
probable consequence of the common plan.
“To prove that a defendant is guilty of the crimes charged
in Counts One, Two, Three, Four, Eight and Nine, as a
coconspirator, the People must prove that: [¶] 1. The defendant
conspired to commit . . . Residential Burglary (as to Count Ten)
and/or Home Invasion Robbery (as to Count Forty-One); [¶] 2. A
member of the conspiracy committed Attempted Murder,
Aggravated Mayhem, Torture, or Assault with a Firearm to
further the conspiracy; [¶] AND [¶] 3. Attempted murder,
aggravated mayhem, torture, or assault with a firearm were
12
natural and probable consequences of the common plan or design
of the crime that the defendant conspired to commit.”
2. Applicable Law
“When 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. [Citations.]”
(People v. Chiu (2014) 59 Cal. 4th 155, 167.)
A defendant may be guilty of a crime as the direct
perpetrator of the crime or as a coconspirator. (People v.
Canizalez (2011) 197 Cal. App. 4th 832, 851.) “The law has been
settled for more than a century that each member of a conspiracy
is criminally responsible for the acts of fellow conspirators
committed in furtherance of, and which follow as a natural and
probable consequence of, the conspiracy, even though such acts
were not intended by the conspirators as a part of their common
unlawful design. [Citations.] [¶] . . . [¶] The question whether
an unplanned crime is a natural and probable consequence of a
conspiracy to commit the intended crime ‘is not whether the aider
and abettor actually foresaw the additional crime, but whether,
judged objectively, [the unplanned crime] was reasonably
foreseeable.’ [Citation.] To be reasonably foreseeable ‘ “ ‘[t]he
consequence need not have been a strong probability; a possible
consequence which might reasonably have been contemplated is
enough . . . ’ [Citation.]” ’ [Citation.] Whether the unplanned act
was a ‘reasonably foreseeable consequence’ of the conspiracy
must be ‘evaluated under all the factual circumstances of the
individual case’ and ‘is a factual issue to be resolved by the jury’
[citation], whose determination is conclusive if supported by
13
substantial evidence. [Citations.]” (People v. Zielesch (2009) 179
Cal. App. 4th 731, 739–740.)
3. Analysis
Montgomery contends torture, as a matter of law, may
never be a natural and probable consequence of a conspiracy to
commit residential burglary. According to Montgomery, his
convictions for torture must therefore be reversed because we
cannot determine under which theory the jury found him guilty of
the torture of Diana and Samuel—as a direct perpetrator or as
part of a conspiracy to commit residential burglary or home
invasion robbery.
Montgomery fails to provide any authority to support his
contention. The cases on which he relies address the relationship
between target and unplanned crimes that are different from the
ones in this case. (People v. Leon (2008) 161 Cal. App. 4th 149, 161
[witness intimidation was not the natural and probable
consequence of vehicle burglary or illegal possession of a
weapon]; People v. Rivera (2015) 234 Cal. App. 4th 1350, 1355
[first degree murder was not a natural and probable consequence
of uncharged conspiracy of discharging a firearm at an occupied
vehicle].) Those cases are thus distinguishable and provide no
support for Montgomery’s position.
Moreover, the factual circumstances of this case support a
finding that torture was a reasonably foreseeable consequence of
the conspiracy to commit residential burglary. The evidence
showed Washington, Wilson, and Montgomery were all armed
with loaded handguns and zip ties when they entered the Hirts’
home. This demonstrated they understood someone may be home
at the time of the burglary who could resist the taking of his or
her valuables. It was therefore reasonably foreseeable that one of
14
the crew would fire his gun, beat, and torture the occupant of the
home to persuade the occupant to tell them where his or her
valuables were in order to further the conspiracy to commit
burglary.
Montgomery does not dispute this is a reasonable inference
to draw. He instead presents an alternative theory as to why he
and his coconspirators were armed. He posits a fearful or
cautious burglar may bring a gun inside a residence to defend
himself from the occupants’ use of lethal force against him, not
necessarily to persuade or coerce. That Montgomery can conceive
of an alternative theory for bringing guns and zip ties into the
home does not disprove that they might reasonably have been
used inside the residence to physically harm the victims in order
to coerce them to disclose the location of their valuables. “ ‘[T]o
be reasonably foreseeable ‘[t]he consequence need not have been
a strong probability; a possible consequence which might
reasonably have been contemplated is enough . . . .” [Citation.]’ ”
(People v. Medina (2009) 46 Cal. 4th 913, 920.) Here, torture was
a consequence which was reasonably contemplated by the
coconspirators.
D. The Trial Court Was Not Required to Instruct the
Jury on Assault by Means of Force Likely to Commit
Great Bodily Injury or Felony Battery as Lesser
Included Offenses of Torture
Montgomery next asserts the trial court had a sua sponte
duty to instruct the jury regarding assault by means of force
likely to commit great bodily injury and felony battery as lesser
included offenses of torture. We disagree.
While California law requires a trial court, sua sponte, to
instruct fully on all lesser included offenses supported by the
15
evidence, there is no such requirement for lesser related offenses
or offenses which are not necessarily included in the charged
offense. (See People v. Taylor (2010) 48 Cal. 4th 574, 622.)
Here, neither crime is a lesser included offense of torture.
(People v. Hamlin (2009) 170 Cal. App. 4th 1412, 1456 (Hamlin)
[“assault by means of force likely to produce great bodily injury is
not a lesser included offense of torture.”]; People v. Lewis (2004)
120 Cal. App. 4th 882, 888 (Lewis) [“battery is not a lesser
included offense of torture under either the elements test or the
accusatory pleading test and the court was not required to
instruct the jury on battery as a lesser included offense of
torture.”].)
Montgomery asserts Hamlin and Lewis were wrongly
decided because torture merely requires the infliction of great
bodily injury. According to Montgomery, any crime which inflicts
great bodily injury, whether by use of force or not, is a lesser
included offense of torture. We are unconvinced.
Both Hamlin and Lewis rejected this argument. Lewis
reasoned, “The statutory definition of torture does not require a
direct use of touching, physical force, or violence, but instead is
satisfied if the defendant, directly or indirectly, inflicts great
bodily injury on the victim. Thus, a defendant may commit
torture without necessarily committing a battery.” (Lewis, supra,
120 Cal.App.4th at p. 888.) Similarly, Hamlin explained,
“Torture requires actual infliction of great bodily injury, but it
does not require that the injury be inflicted by any means of
force, let alone by means of force likely to produce great bodily
injury. For example, a caretaker would be guilty of torturing an
immobile person in his care if the caretaker, acting with the
intent to cause extreme suffering for a sadistic purpose, deprived
16
that person of food and water for an extended period, resulting in
great bodily injury to the person. In such a circumstance, the
caretaker would have inflicted great bodily injury without using
any force and thus would not be guilty of committing assault by
means of force likely to produce great bodily injury.” (Hamlin,
supra, 170 Cal.App.4th at p. 1456.) We are persuaded by Hamlin
and Lewis and follow their holdings.6 The trial court had no duty
to instruct on these offenses.
II. The Trial Court Did Not Abuse Its Discretion When It
Denied Montgomery’s New Trial Motion
Lastly, Montgomery argues the trial court abused its
discretion when it denied his new trial motion as to the torture
convictions in counts 3 and 4. Montgomery contends that since
the trial court granted the motion as to Green, he should have
received the same treatment. Because the two held different
roles in the home invasion robbery, we discern no abuse of
discretion.
A. Proceedings Below
In his sentencing memorandum, Montgomery argued
counts 3 and 4 must be vacated for lack of sufficient evidence.
He later joined in Green’s new trial motion as to the same counts.
Green argued there was insufficient evidence as a matter of law
6 We note the court in People v. Martinez (2005) 125
Cal. App. 4th 1035, 1043 stated in dicta that “an assault by means
of force likely to produce great bodily injury is arguably an
included offense within the crime of torture . . .” However, as
Montgomery concedes, Martinez did not decide the issue and we
do not view this statement, which was made in passing with no
analysis, to offer any precedential value. In any case, we agree
with the reasoning in Hamlin, as discussed above.
17
to prove she had the requisite knowledge, intent, or foresight
required to aid and abet in the crime of torture.
The trial court granted Green’s new trial motion as to the
torture counts but denied Montgomery’s. It explained:
“To say I’ve given a lot of thought to this is to not
accurately convey the amount of thought I’ve given to this, and
it’s because of the seriousness of the charges that were found true
by the jury, specifically with respect to counts 3 and 4, and how
they impact Mr. Montgomery and Ms. Green.
“[¶] . . . [¶]
“[T]he jury made certain findings with respect to weapon
use that were inconsistent, to say the least, with respect to the
12022.53 allegation. But they also made a finding with respect to
the 12022.5 allegation concerning Mr. Montgomery and did not
find that there was sufficient evidence that he personally used a
firearm.
“That being said, Mr. Montgomery, the evidence
established that the jury found [Mr. Montgomery] went into the
home. . . . Mrs. Hirt testified that all three of the people who
went into the home had guns, and one of those three people shot
Mrs. Hirt. Two of the other people, it appears, beat up Mr. Hirt.
The jury found that Mr. Montgomery is one of those people.
“So I don’t see it as much as a natural and probable
consequence situation with respect to Mr. Montgomery, rather as
a direct perpetrator of the conduct either as the person who shot
Mrs. Hirt or one of the two of them who beat up Mr. Hirt.
“Now, Ms. Stewart testified that it was Mr. Montgomery
who shot Mrs. Hirt. The jury did not credit her testimony to
make that finding beyond a reasonable doubt; but it was one of
the three, according to the jury’s finding. And I don’t think that
18
their verdict with respect to him being one of the three was
without substantial basis.
“So I see them in different situations. Ms. Green wasn’t
one of the people who went into the home. And as to her, there’s
a different issue with respect to the foreseeability of what went
on in the house.
“And it’s my job to look at the evidence in terms of what she
knew when she was outside the home with respect to what was
going on inside the home, and whether she knew that one of the
perpetrators inside the home would use a firearm in the manner
that he did, or whether the perpetrators inside the home would
beat up Mr. Hirt in the manner that they did, or whether the
perpetrators inside the home intended to commit torture.
“Because as an aider and abettor, the jury had to have
found that she knew that a perpetrator intended to commit
torture. And I’m focusing on counts 3 and 4, because I think
those are the ones that are really in issue.
“[¶] . . . [¶]
“And then finally, with respect to Ms. Green, whether or
not torture was a natural and probable consequence of the
conspiracy in which the jury found she participated. So I see it
differently between the two of them.
“And I quite frankly don’t think that there was sufficient
evidence with respect to Ms. Green on counts 3 and 4 to justify
the jury’s verdict. I am not finding that as a matter of law.
I’m finding that the evidence was not sufficient to justify a
verdict.
“And I’m granting the motion for new trial on counts 3 and
4 as to her. And I’m denying it as to counts 3 and 4 as to Mr.
Montgomery.”
19
B. Standard of Review
A trial court may grant a new trial “[w]hen the verdict or
finding is contrary to law or evidence . . .” (§ 1181, subd. (6).)
A trial court has broad discretion in ruling on a motion for a new
trial, and there is a strong presumption that it properly exercised
its discretion. (People v. Davis (1995) 10 Cal. 4th 463, 524.)
“ ‘The determination of a motion for a new trial rests so
completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion
clearly appears.’ ” (People v. Williams (1988) 45 Cal. 3d 1268,
1318, abrogated on a different ground by People v. Diaz (2015) 60
Cal. 4th 1176, 1190; accord People v. Carter (2005) 36 Cal. 4th
1114, 1210; People v. Coffman and Marlow (2004) 34 Cal. 4th 1,
128.)
C. Analysis
Montgomery asserts the trial court abused its discretion
when it denied his motion for a new trial. So far as we can
discern, his argument on this subject attempts to refute the
reasoning articulated by the trial court.7 Montgomery appears to
argue there was insufficient evidence he was the direct
perpetrator who shot Diana because the jury found him not guilty
of count 39, which alleged possession of a firearm by a felon, and
found not true the allegation that Montgomery personally used a
handgun in count 3, which alleged the torture of Diana.
7 The entirety of his argument spans two pages in his 49-
page opening brief, including a recitation of the procedural
background, and another two pages of his reply brief. His
arguments are not fully developed. For example, he argues a
limited remand should be ordered, but fails to explain what
further proceedings are necessary.
20
According to Montgomery, and contrary to what the trial court
believed, his culpability for the nontarget offense of torture arose
only if torture was the natural and probable consequence of the
target offenses of conspiracy to commit residential burglary or
home invasion robbery. Therefore, Montgomery asserts the trial
court was wrong when it distinguished his and Green’s
circumstances. Montgomery asserts he was “in the same position
as Green” as a coconspirator and not a direct perpetrator. Given
his parity with Green, he argues he should have also been
granted a new trial. We disagree.
First, the jury’s firearm findings do not contradict a finding
that Montgomery was one of the individuals who beat Samuel
rather than the individual who shot Diana. Further, the trial
court explained very cogently the difference between Green and
Montgomery. Green was the driver, who never entered the Hirts’
residence. Montgomery, on the other hand, entered the Hirts’
residence and either participated in shooting Diana or beating
Samuel. It was not reasonably foreseeable for the driver who was
located outside of the home to “kn[o]w that one of the
perpetrators inside the home would use a firearm in the manner
that he did, or whether the perpetrators inside the home would
beat up Mr. Hirt in the manner that they did, or whether the
perpetrators inside the home intended to commit torture.” On
the other hand, as discussed above, the factual circumstances of
this case support a finding that torture was a reasonably
foreseeable consequence of the conspiracy to commit residential
burglary or home invasion robbery for someone like Montgomery,
who had entered the Hirts’ home with two other people armed
with guns and plastic ties. In sum, we find the trial court did not
abuse its discretion when it denied the new trial motion.
21
In his reply brief, Montgomery argues the trial court
applied an erroneous legal standard when it granted Green’s new
trial motion. Montgomery asserts the trial court erred when it
found insufficient evidence to support Green’s conviction for the
unplanned crime of torture in counts 3 and 4 based on what she
knew as the driver, rather than what a reasonable person would
know. Montgomery argues foreseeability of the unplanned crime
must be viewed from an objective standpoint, not a subjective
one. (People v. Zielesch (2009) 179 Cal. App. 4th 731, 739 [“The
question whether an unplanned crime is a natural and probable
consequence of a conspiracy to commit the intended crime ‘is not
whether the aider and abettor actually foresaw the additional
crime, but whether, judged objectively, [the unplanned crime]
was reasonably foreseeable.’ ”].)
We fail to see how this argument helps Montgomery.
Whether the trial court improperly granted Green’s new trial
motion based on an erroneous legal standard has no relevance to
whether Montgomery’s motion was properly denied.
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J.
We Concur:
GRIMES, J. WILEY, J.
22