People v. Merriman

Decision Date18 August 2014
Docket NumberNo. S097363.,S097363.
CourtCalifornia Supreme Court
PartiesThe PEOPLE, Plaintiff and Respondent, v. Justin James MERRIMAN, Defendant and Appellant.

60 Cal.4th 1
332 P.3d 1187
177 Cal.Rptr.3d 1

The PEOPLE, Plaintiff and Respondent,
v.
Justin James MERRIMAN, Defendant and Appellant.

No. S097363.

Supreme Court of California

Aug. 18, 2014.



See 4 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Pretrial Proceedings, § 237 et seq.

[177 Cal.Rptr.3d 16]

Glen Niemy, under appointment by the Supreme Court, for Defendant and Appellant.


Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

CANTIL–SAKAUYE, C.J.

In 2001, a jury convicted defendant Justin James Merriman of the 1992 first degree murder of Katrina Montgomery (Pen.Code, § 187, subd. (a)),1 and found true the special circumstance allegations that the murder was committed while defendant was engaged in the commission of rape and oral copulation ( § 190.2, subd. (a)(17)(C), (F)), and the allegation that defendant personally used a deadly weapon (former § 12022, subd. (b)). The jury also convicted defendant of numerous noncapital crimes that occurred subsequent to the murder, including multiple counts of sexual assault and witness dissuasion. After a penalty phase trial, the jury returned a verdict of death. Defendant moved for new trial (§ 1181), and for modification of his sentence to life without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motions and sentenced

[177 Cal.Rptr.3d 17]

him to death. 2 Defendant's appeal is automatic. (§ 1239, subd. (B).) For the reasons that follow, we affirm the judgment.

I. Facts
A. Guilt Phase Evidence
1. Prosecution evidence


a. The murder of Katrina Montgomery


i. Katrina's prior interactions with defendant

Katrina Montgomery was 16 years old in 1989 when she started dating Mitch Sutton, one of the founding members of a Ventura County White supremacist gang called the Skin Head Dogs (SHD). Defendant, who also was 16 years of age at that time, belonged to the same gang. Sutton brought Katrina along to SHD parties where she socialized with his fellow gang members and their wives and girlfriends, some of whom became close friends of hers.

Early in Sutton and Katrina's relationship, Sutton enlisted in the Army and was sent to Germany. Katrina moved to Germany for eight months to be with him. By the time Sutton returned from his three years of military service in 1992, he and Katrina had broken up. On his return, Sutton officially left the SHD gang, although he continued his friendship with defendant.

Meanwhile, between January 1990 and March 1992, Katrina was corresponding and conversing with defendant on a regular basis while he was in custody in various juvenile detention facilities and in state prison. In the beginning, defendant's letters encouraged Katrina to “stick with Mitch Sutton” and he asked her to send him “neat pictures” of herself. Defendant's subsequent letters, which sometimes referenced Katrina's breakup with Sutton, became more sexually explicit and suggested that he believed Katrina was interested in him. In August 1990, for example, defendant mentioned a photograph Katrina had sent him, indicating that he wanted to “play with the toys you must have under that buttercup suit.” In February 1991, defendant asked Katrina for more photographs “of ... your fine self so I have something to drool over and think about touching up one great day.” In March 1992, defendant wrote to Katrina after she had visited him in prison, saying, “You know deep down inside you enjoy[ed] saying I was ‘your’ long lost locked-up hubby ..., secret lover but a real faithful ‘boyfriend.’ ” In the same letter, defendant apologized for his “crude and rude but

[177 Cal.Rptr.3d 18]

lewd sexual gestures” during the visit and promised next time “not to toss you around like one of them blowup sex dolls.”

From these and defendant's other letters it can be inferred that Katrina had sent defendant revealing photographs of herself, and that she had had physical contact with him during a prison visit. But the correspondence also suggested that Katrina had told defendant she wanted to resume her relationship with Mitch Sutton and that she considered defendant only a friend, which were sentiments that appeared to both confuse and anger defendant. For example, in March 1992, shortly before defendant's release, he wrote “That shit about you need me for a friend just doesn't cut the mustard anymore,” and he confronted Katrina with his suspicion that she was using him as a means of reigniting her relationship with Sutton. Defendant also wrote, “I'm burned on the third-grade game and the thought of you trying some kind of snake move like there's something you have to gain but you're stringing me along until the time's right....” Later in the same letter, defendant stated, “I feel you're up to something and it sure isn't me....”

Notwithstanding Katrina's apparent indications to defendant that she wanted to be his friend but not his girlfriend, defendant had communicated to others that he was interested in her. According to Scott Porcho, one of SHD's founding members and a friend of both defendant and Katrina, it was common knowledge that defendant expected Katrina would be his girlfriend after he was released from prison. Porcho's wife at that time, Apryl, also was close to Katrina. She knew that Katrina did not want to become involved with defendant.

Shortly after defendant's release from prison in the spring of 1992, Katrina and a high school girlfriend drove in Katrina's truck to defendant's home in Ventura where he lived with his mother and sister. Katrina went inside to “straighten out a couple of things” while her friend waited in the truck. When Katrina returned, there were red marks around her neck and she said defendant had attacked her. Katrina told her friend she was angry not only with defendant but also with defendant's mother, who had witnessed the attack and done nothing to help her.

The prosecutor presented evidence at trial that Katrina disclosed to her mother another incident at defendant's house after his release from prison, during which he had forced himself upon her. According to Mrs. Montgomery, Katrina told her that she had gone to visit defendant in Ventura. When the evening grew late, defendant's mother suggested to Katrina that she spend the night in their guest room so that she would not have to drive all the way back to Los Angeles at that hour. Katrina accepted the offer and went to sleep in the guest room but later was awakened by defendant, who had climbed into bed with her and was making sexual advances. When Katrina asked defendant to stop, he refused, saying, “You know you want it.” Katrina told defendant she felt sick and needed to use the bathroom, and he did not prevent her from getting up. Instead of going to the bathroom, however, Katrina ran from the house, got into her truck, and drove away. When defendant realized she had fled, he went outside and ran after her, yelling angrily.

The prosecutor also presented evidence that the incident in the guest room was not the first time defendant had forced himself upon an unwilling partner. According to a former girlfriend, Corie G., when defendant was 15 years old, he held her against her will in the camper shell of a pickup truck until she submitted to having sexual intercourse with him, notwithstanding that

[177 Cal.Rptr.3d 19]

she repeatedly attempted to leave and was yelling for her friends to help her.

ii. Thanksgiving weekend party at the Porchos' house

Katrina spent most of Thanksgiving Day, Thursday, November 26, 1992, celebrating the holiday with her family in Los Angeles. She had plans to meet her parents at another family gathering in Santa Barbara on Saturday, November 28. On Friday, Katrina left Los Angeles in her truck in the late afternoon to attend a party at the North Oxnard home of SHD gang leader Porcho and his wife Apryl. The couple had invited Katrina to spend the night at their house and she had brought with her an overnight bag in addition to her purse. According to Porcho, Katrina was one of the first guests to arrive at the gathering, and she was already drunk at that time.

Several other SHD gang members and their wives and girlfriends attended the party. SHD founding member Mike Wozny drove his girlfriend and defendant to the gathering. Although defendant was not one of SHD's original members, he had joined the gang when he was 14 years old and, now 20 years of age, was considered a leader by the gang's younger members.

Other partygoers included members of a White supremacist gang called the Sylmar Peckerwood Family (Sylmar Family). The SHD and the Sylmar Family were on very friendly terms, almost “like one gang.” Five of the Sylmar Family members who came to the party, including Ryan Bush and 16–year–old Larry Nicassio, lived together at a “crash pad” in Sylmar.

Partygoers gave varying accounts regarding the interactions between defendant and Katrina during the evening. Bush saw them hugging and joking with each other about sexual matters. Nicassio noticed that they were initially interacting normally but after a while seemed not to be getting along. According to Porcho, however, defendant did not want Katrina anywhere near him and had asked Porcho to keep her away. Defendant twice summoned Porcho to remove Katrina from his side. On one of those occasions, Katrina had her arm around defendant.

Everyone at the party was drinking alcohol throughout the evening, and some of the partygoers smoked marijuana and ingested LSD. Several arguments and fights occurred. For example, defendant kicked a member of the Sylmar Family in the face for disrespecting their hosts by shaking a can of beer and spraying its contents around the kitchen.

At one point during the evening, defendant said to Nicassio that he wanted Nicassio to “get” Katrina and handed Nicassio a steak knife. Nicassio did not take defendant...

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