People v. Montes, D062949

CourtCalifornia Court of Appeals
Decision Date08 April 2014
Docket NumberD062949
PartiesTHE PEOPLE, Plaintiff and Respondent, v. GERARDO MONTES, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent,
GERARDO MONTES, Defendant and Appellant.



Filed: April 8, 2014


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. JCF26154)

APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores Jr., Judge. Affirmed as modified.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Gerardo Montes of one count of first degree murder (Pen. Code, § 187, subd. (a)) and found true three firearms-related sentencing enhancements (Pen. Code, § 12022.53, subds. (b), (c), and (d)). Following his conviction, the trial court sentenced

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Montes to an indeterminate term of 50 years to life imprisonment for the murder charge and the firearm enhancement found under Penal Code section 12022.53, subdivision (d). The court imposed and stayed terms of imprisonment for the firearm enhancements found under Penal Code section 12022.53, subdivisions (b) and (c).

Montes appeals, contending (1) that the trial court erred by not instructing the jury sua sponte that a witness at trial was a potential accomplice; (2) that the evidence was insufficient to corroborate the accomplice testimony offered at trial; (3) that his counsel was ineffective in failing to request accomplice instructions, failing to request a limiting instruction for a potential accomplice's guilty plea, and failing to object to improper testimony on the veracity of another trial witness; (4) that the trial court erred by denying Montes's motion for a new trial based on alleged jury misconduct; and (5) that the judgment should not have included a fee for Montes's court-appointed attorney. We modify the judgment to strike the court-appointed attorney fee. As modified, the judgment is affirmed.


In the morning of August 29, 2010, a dove hunter scouting locations for the upcoming season discovered the body of 25-year-old Adrian Chee in an agricultural field near Winterhaven, California. Chee had been shot twice, once in the chest and once in the chin. The chest wound was fatal and caused Chee's death. Tire tracks were observed in the area surrounding the body, and Chee's leg appeared to have been run over. A vehicle also appeared to have damaged a nearby concrete canal wall. Near Chee's body, sheriff's department investigators found an open pack of Marlboro Red cigarettes. Investigators also found a used Marlboro Red cigarette butt between Chee's legs. The cigarette butt contained DNA from at

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least two male contributors. After testing, Montes could not be eliminated as a contributor to the DNA found on the cigarette butt. Such a situation would be expected to occur at random in 1 in 2.1 billion African Americans, 1 in 75 million Caucasians, and 1 in 46 million Hispanics.

A witness living near the field in Winterhaven reported hearing a gunshot two nights prior to the discovery of Chee's body. Earlier on the night of the gunshot, Montes's house in Yuma, Arizona, was burglarized. Montes's wife, Sonia, called police and reported the burglary. When officers arrived, the door to the Montes's house had been forced open and the interior was ransacked. The officers spoke with Montes's wife; Montes himself was not present. Electronics, jewelry, and some amount of cash had been stolen. Montes's wife later provided an itemized list to police for insurance purposes.

Montes had been in prison with a man named Ernesto Valera, and after prison they remained friends. According to Valera, Montes called him on the night of the burglary. Valera asked Montes for some drugs, and Montes said he could get methamphetamine. A few hours later, Montes picked up Valera at Valera's house. Adrian Chee was with Montes in his Cadillac when Montes arrived at Valera's. Montes, Chee, and Valera bought some methamphetamine and proceeded to get high.

They then drove in Montes's Cadillac to Paradise Casino in Winterhaven to meet Valera's girlfriend, Melissa Barraza. Barraza had additional methamphetamine, but the men had broken the pipe they used to smoke methamphetamines earlier. Montes, Chee, and Valera, along with Barraza, went to the house of Shavon Mendez, also in Winterhaven, to get another pipe. Mendez was Montes's girlfriend. Montes went inside to ask for a pipe. Mendez confirmed to investigators that Montes had been at her house that night between 2:00 a.m. and

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5:00 a.m., but at trial she testified she was at her mother's house all weekend and did not see Montes.

After leaving Mendez's house, Montes asked Valera to drive and directed him to a nearby agricultural field. After they parked, Montes accused Chee of burglarizing his house and wearing his watch. They stepped out of Montes's car and began to argue. Valera got out as well, but Barraza remained in the car. Montes pulled out a gun and aimed it at Chee. Chee said that he was not scared and that Montes would not shoot him. Montes fired, first at Chee's chest and then, as Chee was falling, at Chee's face. After Chee fell, Montes knelt down and took the watch from Chee's wrist.

Montes told Valera to get back in the car. Valera got in the driver's seat, and Montes got in the back seat. Valera backed up, ran over Chee, and hit a concrete irrigation canal. Montes angrily told Valera that he would drive. Montes then drove to Barraza's house, and the group used methamphetamines again. Montes changed into clothes provided by Barraza, and Valera and Montes buried the gun in Barraza's backyard. Montes called his wife, and she came to Barraza's house. Montes told her what had happened. Eventually they drove away, with Montes driving his Cadillac and his wife in a pickup truck.

The following day, Valera and Montes removed the tires from Montes's Cadillac and replaced them with used tires. Valera and Montes went to a local Walmart to look for tires, where they were captured on security cameras. Montes gave the old tires to Barraza to settle a drug-related debt. Barraza was later arrested on drug charges after trying to sell the tires to an undercover police officer. When questioned by investigators, Barraza recounted the events of

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the evening, including that Montes had shot Chee. She said she did not report the murder because Montes had threatened her and she was afraid.

Valera and Montes eventually retrieved the gun from Barraza's backyard, and Valera broke it into pieces. Valera and Montes contacted two cousins, Delia Hayes and Meredith Barley, and offered them drugs to take the gun to Mexico and throw it away. Barley agreed and attempted to drive Montes's Cadillac across the border with the gun. Valera and Montes followed her in a separate car. Valera and Montes were going to Mexico to escape the country. Barley was turned back at the border because the Cadillac had only temporary "paper" license plates. After exiting the other car, Montes and Valera made it to Montes's brother's house in San Luis, Mexico on foot. Valera left the house at some point, and Montes's wife later convinced Montes to return home to Arizona.

Valera, Hayes, and Barley eventually disposed of the gun in a ditch on the U.S. side of the border. When investigators recovered the gun, they found two long black hairs on the handle, but no useful forensic testing could be performed on the gun or the hairs.

With information about his involvement, investigators interviewed Montes for approximately two hours. Montes confirmed that the Cadillac was his car and that no one other than he and his wife drove it. Montes denied knowing anyone in Winterhaven, and he said he had only been there in the morning to look for automotive parts at a junkyard. Montes was evasive when asked whether he knew Valera or Chee, but Montes eventually acknowledged that Chee looked familiar and that he knew Valera. Montes was also evasive when he was asked if he was at Paradise Casino at Winterhaven on the weekend of the murder. He initially said no, but then claimed he could have been there but been passed out. He

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reported drinking heavily. Montes denied that Chee had ever been in his car or that he was involved in Chee's murder.

Montes was arrested and charged, along with Valera, with Chee's murder. Barraza was charged with being an accessory after the fact. Valera later reached a cooperation agreement with the prosecution. Valera agreed to testify at trial against Montes and plead guilty to being an accessory. The prosecution agreed to dismiss the murder charge against Valera. Barraza pled guilty to her accessory charge.

At Montes's trial, the prosecution called Valera and Barraza, among other witnesses. While Valera provided substantive testimony in accordance with his cooperation agreement, Barraza claimed not to remember the events surrounding...

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