People v. Montano CA2/4

Filed 2/22/22 P. v. Montano 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B302742
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA082558)
v.
MICHAEL ANTHONY
MONTANO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Reversed and
remanded with directions.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________________________
INTRODUCTION
Michael Anthony Montano appeals the trial court’s
denial of his petition to vacate his convictions for murder
and attempted murder under Penal Code section 1170.95
(Section 1170.95). Montano alleged that the jury convicted
him of both crimes under the natural and probable
consequences doctrine, which has since been invalidated as a
basis for murder or attempted murder liability by Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437). After
issuing an order to show cause and holding an evidentiary
hearing, the court denied the petition. The court principally
reasoned that in light of certain language in the jury’s
instruction on the elements of attempted murder, Montano’s
convictions necessarily reflected a jury finding that Montano
was guilty of both charged offenses under a direct aiding and
abetting theory. With respect to the attempted murder
conviction, the court additionally reasoned that Section
1170.95 did not apply to attempted murder. Section 1170.95
has since been amended by Senate Bill No. 775 (2021-2022
Reg. Sess.) (SB 775) to apply expressly to attempted murder
convictions under the natural and probable consequences
doctrine.
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On appeal, Montano contends, and the Attorney
General agrees: (1) the court prejudicially erred in
determining the jury necessarily convicted Montano of
murder and attempted murder under a direct aiding and
abetting theory; and (2) in light of SB 775, the court should
reconsider Montano’s eligibility for relief from his attempted
murder conviction. We agree with the parties on both
points. Accordingly, we reverse the order denying Montano’s
petition, and remand for a new evidentiary hearing on
Montano’s eligibility for relief from both convictions.
BACKGROUND
A. Underlying Judgment
Montano and codefendant Louis Bachicha were each
charged with one count of murder (Pen. Code, § 187, subd.
(a)) and one count of attempted murder (id., §§ 187, subd.
(a), 664), with associated gang and firearm allegations.
(People v. Bachicha (Dec. 13, 2010, B215687) 2010
Cal.App.Unpub. LEXIS 9814, *5 (Bachicha).)
1. Trial Evidence
The following facts were established primarily through
the testimony of surviving victim Anne Marie Martinez: On
an evening in March 2008, while Montano was driving
himself and codefendant Bachicha through territory claimed
by the Puente gang (a rival of the Bassett gang with which
Montano and Bachicha were associated), Montano stopped
his car behind Martinez and her boyfriend Richard Lopez,
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who were on the sidewalk. (Bachicha, supra, 2010
Cal.App.Unpub. LEXIS at *2-*4, *6-*7, *35.) Bachicha
pulled out a handgun, which he struck against the door of
the car. (Id. at *3.) Bachicha demanded to know Lopez and
Martinez’s gang affiliation, said “Fuck Peanuts” (a reference
to the rival Puente gang, according to one of the
prosecution’s gang experts), and repeated the name of the
Bassett gang. (Id. at *3, *35.)
Montano exited the car, approached Lopez while
verbally challenging him, and hit him on the head.
(Bachicha, supra, 2010 Cal.App.Unpub. LEXIS at *3.)
Montano attempted to hit Lopez again, and hit Martinez
when she physically intervened. (Ibid.) After Lopez said he
and Martinez were not associated with any gang, Montano
returned to his car. (Id. at *3-*4.) As Montano drove
himself and Bachicha away, Bachicha fired six to eight shots
toward the victims, killing Lopez and grazing Martinez. (Id.
at *4.)
Montano and Bachicha presented alibi defenses.
(Bachicha, supra, 2010 Cal.App.Unpub. LEXIS at *5.)
Montano did not testify. (Id. at *9, fn. 2.)
2. Judgment and Appeal
With respect to the charges against Montano, the jury
was instructed on both a direct aiding and abetting theory
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1
and a natural and probable consequences theory.
(Bachicha, supra, 2010 Cal.App.Unpub. LEXIS at *33-*34.)
The instruction on the natural and probable consequences
theory (CALCRIM No. 403) stated, in relevant part, “The
People are alleging that the defendant originally intended to
aid and abet either brandishing a firearm or assault with a
firearm. [¶] The defendant is guilty of murder and
attempted murder if you decide that the defendant aided and
abetted one of these crimes and that murder and attempted
murder was [sic] the natural and probable result of one of
these crimes.”
The instruction on the elements of attempted murder
(CALCRIM No. 600) stated the People were required to
prove the defendant intended to kill the victim, and
continued, “A person may intend to kill a specific victim or
1
“[U]nder the natural and probable consequences doctrine,
an accomplice is guilty not only of the offense he or she directly
aided or abetted (i.e., the target offense), but also of any other
offense committed by the direct perpetrator that was the ‘natural
and probable consequence’ of the crime the accomplice aided and
abetted (i.e., the nontarget offense).” (People v. Gentile (2020) 10
Cal.5th 830, 843.) “[T]he natural and probable consequences
doctrine [as applied to murder] authorizes precisely what Senate
Bill 1437 forbids: it allows a factfinder to impute malice ‘to a
person based solely on his or her participation in a crime.’” (Id.
at 847.) In contrast, “Senate Bill 1437 does not eliminate direct
aiding and abetting liability for murder because a direct aider
and abettor to murder must possess malice aforethought.” (Id. at
848, italics added.)
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victims and at the same time intend to kill anyone in a
particular zone of harm or ‘kill zone.’ In order to convict a
defendant of the attempted murder of Anne Marie Martinez,
the People must prove that the defendant not only intended
to kill Richard Lopez but also either intended to kill Anne
Marie Martinez, or intended to kill anyone within the kill
zone. If you have a reasonable doubt whether the defendant
intended to kill Anne Marie Martinez or intended to kill
Richard Lopez by harming everyone in the kill zone, then
you must find the defendant not guilty of the attempted
murder of Anne Marie Martinez.”
In closing argument, the prosecutor advanced both the
direct and natural-and-probable-consequences theories of
Montano’s guilt as an aider and abettor. (Bachicha, supra,
2010 Cal.App.Unpub. LEXIS at *2, *32-*33.) With respect to
the latter, the prosecutor told the jury, “‘There was reference
in the judge’s instructions to you based [o]n what’s called a
natural and probable consequence theory. . . . That means if
you believe . . . that Montano aided and abetted Mr.
Bachicha in brandishing a weapon, committing an assault
with a deadly weapon and that the natural and probable
consequence of using a gun, hitting those kids up on the
street that night in the way in which it was done would
naturally and probably result in a shooting, possibly
resulting in a death, then you can find [Montano] guilty
. . . .’”
Montano and Bachicha were found guilty as charged,
and the special allegations were found true. (Bachicha,
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supra, 2010 Cal.App.Unpub. LEXIS at *5.) Each defendant
was sentenced to imprisonment for 84 years to life. (Ibid.)
On their direct appeals, we affirmed the judgment, as
modified in a manner immaterial to this appeal. (Id. at *50.)
We held, inter alia, “There was substantial evidence to
support Montano’s conviction of murder and attempted
murder under both theories of aider and abettor liability
advanced by the prosecution.” (Id. at *2; see also id. at *42
[holding jury reasonably could find Bachicha’s shooting the
victims was “a natural and probable consequence of the
armed confrontation of strangers in a rival gang’s
territory”].)
B. The Instant Petition
In February 2019, Montano filed a petition for
resentencing under Section 1170.95, alleging that he was
convicted under the natural and probable consequences
doctrine, and that he was not guilty under any theory that
remained valid in the wake of SB 1437. At Montano’s
request, the court appointed counsel for him.
The prosecution opposed the petition, initially relying
solely on the argument that Section 1170.95 was
unconstitutional. In addition to replying to the prosecution’s
constitutional arguments, Montano filed a brief arguing that
Section 1170.95 applied to attempted murder, and that he
was entitled to relief from both convictions because the jury
might have found him guilty pursuant to the natural-and-
probable-consequences instruction. The prosecution filed an
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additional opposition, in which it asserted that Section
1170.95 did not apply to attempted murder, and that
Montano could still be convicted of murder as a direct aider
and abettor.
The trial court issued an order for the prosecution to
show cause regarding whether Montano was entitled to “the
relief sought.” On November 20, 2019, the court held an
evidentiary hearing, at which it considered only the record of
2
conviction. The parties disputed whether the trial evidence
was sufficient to establish Montano’s guilt under any
still-valid theory. Without making an independent finding of
Montano’s guilt, the court denied the petition. With respect
to the attempted murder conviction, the court first reasoned
that under then-current caselaw, Section 1170.95 did not
apply. With respect to both convictions, the court
additionally reasoned that because the instruction on the
elements of attempted murder (CALCRIM No. 600) had
stated the jury could not convict a defendant of the
attempted murder of Martinez unless it found the defendant
intended to kill Lopez and either Martinez specifically or
anyone (including Martinez) within the kill zone, Montano’s
2
In advance of the evidentiary hearing, Montano submitted
a declaration from Bachicha, who stated that he had not formed
the intent to shoot the victims until Montano began driving away,
and that Montano had not known or shared Bachicha’s intent to
shoot. The court declined to consider this declaration, as
Bachicha was unavailable for cross-examination on the date of
the hearing and Montano did not consent to a continuance.
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convictions necessarily reflected a jury finding that Montano
was guilty of both charged offenses under a direct aiding and
abetting theory. Montano timely appealed.
DISCUSSION
A. Murder Conviction
As amended by SB 775, Section 1170.95 permits a
defendant who was convicted of murder or attempted
murder under a natural and probable consequences theory,
but who could not be convicted of murder or attempted
murder because of SB 1437’s changes to the law (including
its elimination of liability for these crimes under the natural
and probable consequences doctrine), to petition the
sentencing court to have the murder or attempted murder
conviction vacated and to be resentenced on any remaining
counts. (Pen. Code, § 1170.95, subd. (a).) Where, as here,
the court finds the petitioner has made a prima facie
showing of eligibility for relief, and the parties do not
stipulate to relief after issuance of an order to show cause,
the court must hold an evidentiary hearing on the
petitioner’s eligibility for relief. (Id., § 1170.95, subds.
(c)-(d).) “At the hearing to determine whether the petitioner
is entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by [SB 1437].” (Id., § 1170.95,
subd. (d)(3); see also, e.g., People v. Garrison (2021) 73
Cal.App.5th 735, 745 [“the trial court, acting as an
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independent factfinder, [is required] to determine beyond a
reasonable doubt whether defendant is guilty of murder
under a valid theory”].)
Here, the parties agree the trial court erred in
determining the jury necessarily found Montano guilty
under a direct aiding and abetting theory, rather than the
natural and probable consequences theory on which the jury
also had been instructed. Although the parties dispute
which, if any, harmless-error standard applies, the Attorney
General concedes the court’s error was prejudicial even
under the standard he advances, viz., the reasonable-
probability standard set forth in People v. Watson (1956) 46
Cal.2d 818 (Watson).
We agree with the parties that the court prejudicially
erred in determining the jury necessarily found Montano
guilty as a direct aider and abettor. As the Attorney General
suggests, the court’s error was understandable in light of
CALCRIM No. 600’s language stating the jury could not
convict a defendant of attempted murder unless it found
beyond a reasonable doubt that the defendant intended to
kill both Lopez and either Martinez specifically or anyone
(including Martinez) in the kill zone. But this language was
inconsistent with the instruction on the natural and
probable consequences doctrine (CALCRIM No. 403), which
authorized the jury to convict Montano on both counts
without finding he acted with intent to kill, stating, “The
defendant is guilty of murder and attempted murder if you
decide that the defendant aided and abetted [brandishing a
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firearm or assault with a firearm] and that murder and
attempted murder was [sic] the natural and probable result
of one of these crimes.” In closing argument, the prosecutor
referred to CALCRIM No. 403 and urged the jury to apply it
to find Montano guilty. Because the jury might have
convicted Montano of both crimes based on CALCRIM No.
403, we conclude the court erred in determining his
convictions necessarily reflected a jury finding that he was
guilty as a direct aider and abettor. (See People v. Gay
(2008) 42 Cal.4th 1195, 1224-1226 [where trial court first
instructed penalty-phase jury that defendant’s guilt had
been conclusively proven, then instructed jury that it could
consider in mitigation any lingering doubt concerning
defendant’s guilt, Supreme Court had “‘no way of knowing
which of the two irreconcilable instructions the jurors
applied in reaching their verdict,’” particularly because
prosecutor relied on first instruction in closing argument].)
We further agree with the parties that the error was
prejudicial. Even assuming, arguendo, that the Watson
standard applies, that standard compels reversal, as there is
more than an abstract possibility that absent the error, the
court would have determined the prosecution failed to meet
its burden to prove Montano’s guilt under a still-valid theory
beyond a reasonable doubt. (See People v. Sandoval (2015)
62 Cal.4th 394, 422 [under Watson standard, error is
reversible if there is a reasonable probability -- meaning
more than an abstract possibility -- that the appellant would
have obtained a more favorable result absent the error].)
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Accordingly, we will reverse the order denying Montano’s
petition, and remand for a new evidentiary hearing.
B. Attempted Murder Conviction
Montano does not challenge the trial court’s conclusion
that Section 1170.95 did not apply to attempted murder at
the time the court made its ruling. (See former Pen. Code,
§ 1170.95, subd. (a).) However, SB 775 has since amended
the statute, expressly specifying that it applies to attempted
murder convictions under the natural and probable
consequences doctrine. (Pen. Code, § 1170.95, subd. (a);
Stats. 2021, ch. 551, § 2.) We agree with the parties that on
remand, the court should reconsider Montano’s eligibility for
relief from his attempted murder conviction. Accordingly,
we will direct the court to hold a new evidentiary hearing on
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Montano’s eligibility for relief from both his convictions.
3
We disagree with the Attorney General’s suggestion that
before the new evidentiary hearing, the trial court must
determine whether Montano has made a prima facie showing
with respect to his attempted murder conviction. The court
implicitly made this determination when it issued an order to
show cause regarding whether Montano was entitled to “the
relief sought,” which included relief from his attempted murder
conviction. In any event, we conclude as a matter of law that
Montano has made a prima facie showing with respect to both
convictions. As explained above, the jury might have convicted
Montano of both crimes under the natural and probable
consequences doctrine. At the prima facie stage, the court was
required to accept as true Montano’s allegations that he was not
(Fn. is continued on the next page.)
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DISPOSITION
The order denying Montano’s petition for resentencing
under Penal Code section 1170.95 is reversed. The matter is
remanded to the trial court with directions to hold a new
evidentiary hearing on Montano’s eligibility for relief from
his convictions for murder and attempted murder.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
guilty under any other, still-valid theory. (See People v. Lewis
(2021) 11 Cal.5th 952, 974.) Thus, Montano has cleared the “very
low” bar set by the Legislature at the prima facie stage. (Id. at
972.)
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