People v. Montalvo

• Decision Date: 20 June 2019
• Docket Number: C078115
• Citation: 36 Cal.App.5th 597,248 Cal.Rptr.3d 708
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roberto Antonio MONTALVO, Defendant and Appellant.

36 Cal.App.5th 597

248 Cal.Rptr.3d 708

The PEOPLE, Plaintiff and Respondent,

v.Roberto Antonio MONTALVO, Defendant and Appellant.

C078115

Court of Appeal, Third District, California.

Filed June 20, 2019

Certified for Partial Publication.^*

Stephen M. Hinkle, Retained Counsel, Oceanside, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Robert C. Nash, Deputy Attorney General, Eric L. Christoffersen, Supervising Deputy Attorney General, for Plaintiff and Respondent.

MURRAY, J.

Posing as undercover police officers, defendant and a female associate committed two robberies. On one occasion, they took money from a couple at a hotel. On another occasion, they pretended to be conducting a prostitution sting operation and stole money from their target. In a hotel room where defendant was eventually arrested, police discovered rock cocaine and a glass smoking pipe.

Defendant was convicted of various crimes including robbery in the first degree ( Pen. Code, §§ 211, 212.5, subd. (a) )¹ and robbery in the second degree ( §§ 211, 212.5, subd. (c) ). After striking one of two prior serious felony conviction allegations, the trial court sentenced defendant to a determinate term of 25 years in state prison and a consecutive one-year term in county jail.

On appeal, defendant contends: (1) the evidence was legally insufficient to prove the "accomplished by means of force or fear" element of robbery; (2) in the alternative, his robbery convictions should be vacated because his conduct constituted violations of more specific statutes, obtaining money by false impersonation and false pretenses (§§ 530, 532), and thus a prosecution for robbery was preempted under the rule in In re Williamson (1954) 43 Cal.2d 651, 276 P.2d 593 ( Williamson ) (the Williamson rule); (3) the admission of a nontestifying victim's statement to a police officer, as relayed to the jury by the officer, was error because the statement was inadmissible testimonial hearsay, the admission of which violated defendant's right to confrontation; (4) the prosecutor committed misconduct in his closing argument by displaying to the jury a definition of force or fear and a corresponding case citation despite the trial court having expressly rejected that definition; (5) the trial court erred in imposing a prior serious felony enhancement on count 2 and imposing and staying the same enhancement on count 3; (6) the trial court erred in imposing a prior prison term enhancement pursuant to section 667.5, subdivision (b), because the trial court had granted defendant's application to redesignate the underlying conviction a misdemeanor; (7) the trial court erred in failing to stay execution of the sentences imposed on counts 7, 8, and 9 pursuant to section 654; and (8) the abstract of judgment must be corrected to reflect that the trial court stayed execution of the sentence imposed on count 3 pursuant to section 654. Additionally, while this appeal was pending, Senate Bill No. 1393 (Stats. 2018, ch. 1013) (Senate Bill 1393) amended sections 667, subdivision (a), and 1385, subdivision (b), effective January 1, 2019, to give courts the discretion to dismiss or strike a prior serious felony conviction enhancement for sentencing purposes. Defendant filed a supplemental brief urging us to remand the matter to afford the trial court the opportunity to exercise its discretion to strike the prior serious felony conviction enhancement imposed in this case, and in their supplemental brief, the People do not oppose defendant's request.

In the published portion of this opinion, we reject defendant's contention that there was insufficient evidence of the force or fear element of robbery. While we find the evidence of fear insufficient, we conclude the evidence of force sufficient to support the verdicts. We also reject defendant's contention that the assertedly more specific crimes of theft by false impersonation and false pretenses preempted the prosecution for robbery under the Williamson rule because neither of those crimes covers defendant's conduct as established by the evidence.

In the unpublished portion of this opinion, we agree that the admission of the statement of the nontestifying victim given to the investigating officer violated the confrontation clause, but the error was harmless. We also conclude there were sentencing errors, requiring us to: (1) strike the section 667, subdivision (a)(1), enhancements imposed on count 2 and imposed and stayed on count 3; (2) dismiss the section 667.5, subdivision (b), prior prison term enhancement; (3) order that execution of the sentences imposed on counts 8 and 9 be stayed pursuant to section 654; and (4) remand and order that the trial court impose a full-term sentence on count 3 and stay execution thereof pursuant to section 654. Also, given the statutory change in section 667, subdivision (a), we remand for the trial court to consider whether to exercise its discretion to dismiss or strike that enhancement allegation pursuant to section 1385.

As so modified, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

By amended information, defendant was charged with two counts of robbery in the first degree ( §§ 211, 212.5, subd. (a) ; count 1 (victim J.T.)), robbery in the second degree ( §§ 211, 212.5, subd. (c) ; count 2 (victim J.N.)), burglary in the first degree (§§ 459, 460 subd. (a); count 3 (victims J.T. & I.A.)), possession of a controlled substance ( Health & Saf. Code, § 11350, subd. (a) ; count 4), two counts of petty theft with a prior conviction (§§ 484, subd. (a), 488, 666, subd. (b); counts 5 & 6), possession of controlled substance paraphernalia (former Health & Saf. Code, § 11364.1 ; count 7), and two counts of impersonating an officer (§ 146a, subd. (a); counts 8 & 9). In connection with count 3, the information alleged that, during the commission of the first degree burglary, another person not an accomplice to the crime was present in the premises within the meaning of section 667.5, subdivision (c)(21). The information further alleged that defendant had two prior strike convictions within the meaning of section 667, subdivision (e)(2), that he was previously convicted of a serious felony within the meaning of section 667, subdivision (a)(1), and that he served a prior prison term within the meaning of section 667.5, subdivision (b).

The Prosecution's Evidence

The Pacific Adult Motel Incident

In June 2012, J.T. and his wife, I.A., were staying in a hotel in West Sacramento. J.T. and I.A. arrived at the hotel at approximately 10:00 p.m.

They had been at a friend's house, and J.T. had been drinking beer and did not want to drive home. After J.T. and I.A. checked in and went to their room, someone knocked on the door. J.T. opened the door and saw a thin woman with tattoos on her neck. The woman entered without invitation and offered the couple sex. J.T. said he was there with his wife and told the woman to leave. The woman lifted her blouse, displayed a badge, and said that she was an undercover police officer. I.A. testified that the woman also had a gun, but J.T. testified he did not see it.² The woman then spoke into a radio.

Approximately three minutes later, a man came into the hotel room and ordered J.T. to turn around and face the wall. According to I.A., the man identified himself as a police officer, though J.T. testified that the man did not identify himself as a police officer. I.A. testified that the man had a gun. She saw the gun when the man pointed it at J.T.'s back as J.T. was facing the wall. J.T. did not see a gun.

I.A. identified defendant at trial as the man who entered the hotel room. She also testified that his hair had been darker, but by the time of trial, it had "gone quite white." J.T. testified that it was possible that defendant was the man who came into the room, but stated that the man who came into the hotel room had darker hair.

Because J.T. thought defendant was a police officer, he complied with defendant's order to face the wall. The woman "put" I.A. in a corner of the room and told her not to look around. As J.T. was up against the wall, defendant grabbed J.T.'s neck, and, with his feet, spread J.T.'s feet apart. Defendant then searched J.T., saying that he wanted to see if J.T. had any drugs. Defendant asked J.T. if he was "here legally," and J.T. responded that his identification was in his wallet. Defendant removed J.T.'s wallet from J.T.'s pants pocket. J.T.'s wallet contained $ 100, which defendant took. Defendant then placed J.T.'s wallet back in his pants pocket. Defendant told J.T. to stay where he was, not to turn around, and not to leave the hotel room. Defendant and the woman then left. J.T. and I.A. went to the hotel office and asked for help.

Rebecca Bailey was the manager at the Pacific Adult Motel in West Sacramento. She testified that two hotel guests, a man and a woman, approached her at the front desk indicating that they needed her to call the police. Although they did not speak English well, Bailey understood that they were upset. Bailey called the police.

Minutes earlier, Bailey had seen defendant and his girlfriend, Alicia Ortega, walking quickly from the area of J.T. and I.A.'s hotel room. Bailey knew defendant, as he had been a resident of the hotel for a couple of days.

Detective Kenneth Fellows, investigating the incident, learned of a similar occurrence from a fellow officer. Based on that information, Fellows created photographic lineups and showed them to J.T. and I.A. I.A. identified Ortega in one of the photo lineups as the woman involved in the incident. Neither J.T. nor I.A. identified anyone in a photographic lineup containing defendant's photo.

The Prostitution Sting Incident

Officer Manuel Cardoza of the West Sacramento Police Department testified that, at approximately 7:40 p.m. on September 16, 2012, he was dispatched to the corner of West Capitol Avenue and Harbor Boulevard. There, he met J.N.,...