People v. Montano

• Decision Date: 22 June 2022
• Docket Number: F079222
• Citation: 80 Cal.App.5th 82,295 Cal.Rptr.3d 437
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Alejandro MONTANO et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

80 Cal.App.5th 82

295 Cal.Rptr.3d 437

The PEOPLE, Plaintiff and Respondent,

v.Juan Alejandro MONTANO et al., Defendants and Appellants.

F079222

Court of Appeal, Fifth District, California.

Filed June 22, 2022

Certified for Partial Publication.^*

Sylvia W. Beckham, Carpinteria, under appointment by the Court of Appeal, for Defendant and Appellant Juan Alejandro Montano.

Solomon Wollack, Pleasant Hill, under appointment by the Court of Appeal, for Defendant and Appellant Jose Antonio Montano.

Paul Couenhoven, Santa Clara, under appointment by the Court of Appeal, for Defendant and Appellant Giovanni Thomas Jasso.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.

PEÑA, J.

Juan Alejandro Montano (Juan), his brother, Jose Antonio Montano (Jose), and Giovanni Thomas Jasso (Jasso) (collectively, defendants) appeal from judgments of conviction entered upon jury verdicts of first degree murder with the special circumstance of lying in wait, and unlawful participation in a criminal street gang. Juan was also found guilty of gun possession by a convicted felon. The jury made true findings on various firearm- and gang-enhancement allegations. It hung on a special circumstance allegation of gang murder within the meaning of Penal Code section 190.2, subdivision (a)(22) ( section 190.2(a)(22) ). (All undesignated statutory references are to the Penal Code.)

In the published part of the opinion, we hold Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which amended section 186.22 and added a new statute, section 1109, is fully retroactive to all nonfinal judgments. We further hold section 1109, as currently written, does not apply to gang special circumstance allegations under section 190.2(a)(22). Section 1109, subdivision (a) provides for bifurcation of gang enhancement allegations "charged under subdivision (b) or (d) of Section 186.22." Section 1109, subdivision (b) requires a charge of violating subdivision (a) of section 186.22, i.e., the substantive gang offense, to be "tried separately from all other counts that do not otherwise require gang evidence as an element of the crime." ( § 1109, subd. (b).) Although failure to account for section 190.2(a)(22) may have been an oversight by the drafters of section 1109, it is not our place to rewrite the statute. Such changes must come from the Legislature.

In the unpublished part of the opinion, we address defendants' claims of insufficient evidence, improper admission of evidence, instructional error, and sentencing error. We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On July 21, 2017, victim Abraham Rubio (age 17) was shot while walking on Paradise Road in Lamont. The shooting occurred in front of a house rented by defendant Jose, his girlfriend, and the girlfriend's mother. Jose's girlfriend called 911 after hearing the gunshots and seeing the wounded victim in distress.

A sheriff's deputy arrived soon after the emergency dispatch. Rubio was able to provide his name and age but declined to answer questions about the shooting. He died from internal injuries later that evening. A postmortem toxicology analysis indicated prior consumption of alcohol, marijuana, and methamphetamine.

The deputy had found Rubio in the street lying on his back in between a Ford Bronco and a Lincoln pickup truck. The vehicles were parallel parked along the southern curb of Paradise Road, facing east. The Bronco was parked west of the driveway to Jose's residence, and the Lincoln was parked a few feet behind the Bronco. Four 9-millimeter bullet casings were located northeast of the Bronco, within approximately eight feet of where Rubio had fallen after being shot. Three of the casings were of the same brand, but the fourth was made by a different manufacturer.

Rubio sustained two bullet wounds to the right abdominal area. A third bullet hit his left thigh, close to the knee. The fourth shot apparently missed him. Investigators found a bullet lodged above the front driver's side bumper of the Lincoln truck, close to where Rubio had collapsed.

The events were captured on video by a security camera located outside of a nearby restaurant. The video showed that four people had either witnessed or participated in the shooting. After reviewing hours of footage and conducting further investigation, detectives obtained arrest warrants for Juan (age 22), Jose (age 21), and Jasso (age 19). Search warrants were obtained for defendants' Facebook accounts and "to ping the realtime location" of a phone associated with Juan. Authorities did not seek to arrest the fourth suspect, Kasey Villegas, who was later stabbed to death in an unrelated incident.

On July 27, 2017, a relative turned Rubio's mobile phone over to law enforcement. It was covered in dried blood. The person did not explain how the item was obtained but alleged it had "passed through several different hands." The name of a local gang, "Varrio Chico Lamont," was etched into the back of the device.

On August 4, 2017, Jasso was taken into custody during a traffic stop. He waived the right to remain silent and briefly answered questions about the shooting. Jasso stated that he lived in Bakersfield. He denied knowing anyone in Lamont or being there on the day of the incident.

On August 5, 2017, Jose was arrested at his home. He waived the right to remain silent and submitted to a lengthy interrogation. Jose's girlfriend voluntarily accompanied him to the Kern County Sheriff's Office and, while there, she agreed to answer questions about the shooting. Both interviews were recorded.

Jose told detectives that the victim, Rubio, had previously lived in the house he had rented on Paradise Road. Rubio was also a longtime friend of Jose's girlfriend. The details were vague, but Jose alleged Rubio had shown up at his residence under the influence of narcotics on the day in question. Rubio had wanted to discuss drug dealing, and Jose told him that he did not want any drug trafficking near the house. Jose had been polite, but Rubio was upset by the conversation.

Rubio departed from Jose's residence but confronted him again "like, three more times" that day. The second encounter was outside of a liquor store. Rubio still appeared to be "on drugs," and Jose claimed to have "smelled alcohol on his breath." Rubio challenged Jose to a fistfight, but Jose declined. He had been concerned about Rubio's friends, explaining to detectives that "some of his buddies that he knows that he grew up with, they were right there around him." Jose further claimed to have told Rubio, "[I]f I even touch you, I know you're gonna go tell your friends. And your friends are gonna come try to beat me up." Jose said this incident occurred around 5:00 p.m.

Jose did not recount any further interactions with Rubio prior to the shooting. He claimed to have been asleep when the shots were fired, which was shortly after 8:00 p.m. In Jose's initial story, the sound of gunfire woke him from a nap. He then went outside to investigate and render aid. Jose denied having had any other visitors that day except for his girlfriend's father and someone who came over to see his girlfriend's mother.

A detective asked Jose, "Why are people on the streets sayin' that you and [Rubio] were fightin' over some tagging?" He replied, "Exactly. That was the whole reason." He then explained Rubio had been upset about some graffiti on an abandoned house previously occupied by Rubio's grandmother. Jose alleged the graffiti was placed there five years earlier by one of his friends, but it included Jose's nickname ("Toker"), so Rubio had assumed Jose was involved.

Jose admitted the "tagging" of Rubio's grandmother's house included references to a Bakersfield gang called Varrio Bakers. Jose had previously lived in Bakersfield, but he denied being a gang member and downplayed the significance of a gang-related tattoo on his hand. When pressed about the gang angle, Jose said the dispute with Rubio was not about the graffiti and only concerned Rubio's drug use and drug dealing. The detectives then confronted Jose with still images from the surveillance video.

When Jose was shown images of his brother (Juan), Jasso, and Kasey Villegas, he denied knowing any of them. He stuck to the story about being inside the house when Rubio was shot. Amid repeated denials, Jose remarked, "I could've died too." A detective then asked, "Why, did [Rubio] have a gun?" Jose answered, "I don't know if he had a gun[,] [but] I could've got shot that day he was calling me out." Jose was then asked, "Did he pull a gun on you?" He replied, "No."

Jose eventually admitted to being in his front yard when the shooting occurred but denied seeing who fired the shots. Conceding his prior dishonesty, he said, "I'm sorry that I did fall off the train a little bit. ... But at the same time it's ’cause I have four beautiful kids. ... I didn't want anything to happen to me, to my kids, or, like, to Rubio, or to my family. ... I know I left some parts out about what [Rubio] said. But, like I said, I ain't a bitch or a—a snitch or whatever it is. ... I just don't want, like, you guys think that I'm the one that did it." When asked again if Rubio was armed, Jose continued to deny having seen anything. He later made a comment about knowing "my brother's buddies did it," implying he came to that realization after being shown the surveillance images.

Jose's girlfriend corroborated parts of his story but also contradicted him on important details. She claimed to have witnessed Rubio's initial argument with Jose over the "tagging" of his grandmother's house. Rubio had wanted to "go to the alley and [fight]," referring to an alley intersecting Paradise Road between the restaurant and the home of Jose's neighbor, i.e., the house...