People v. Montes

• Decision Date: 21 May 2014
• Docket Number: No. S059912.,S059912.
• Citation: 58 Cal.4th 809,320 P.3d 729,169 Cal.Rptr.3d 279
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph MONTES, Defendant and Appellant.
• Court: California Supreme Court

58 Cal.4th 809

320 P.3d 729

169 Cal.Rptr.3d 279

The PEOPLE, Plaintiff and Respondent,

v.Joseph MONTES, Defendant and Appellant.

No. S059912.

Supreme Court of California

March 13, 2014.

As Modified on Denial of Rehearing May 21, 2014.

Sharon Fleming, Ben Lomond, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

A Riverside County jury found defendant Joseph Montes guilty of first degree murder ((Pen.Code, §§ 187, 189) (count I)), ¹ KIDNAPPING DURIng the commission of a carjacking ( § 209.5) (COUNT II), carjacking ( § 215) (count III), and being a felon in possession of a firearm (former § 12021, subd. (a)(1), now § 29800, subd. (a)) (count IV). The jury found true three special circumstance allegations, namely, that the murder was committed while defendant was engaged in the commission of a (1) robbery, (2) kidnapping for robbery, and (3) kidnapping. ( § 190.2, former subd. (a) (17)(i) & (ii), now subd. (a)(17)(A) & (B).) The jury also found true the enhancement allegations that a principal was armed with a firearm in the commission of the murder, the kidnapping during the commission of a carjacking, and the carjacking (§ 12022, subd. (a)(1)). After the penalty phase, the jury returned a verdict of death. The trial court denied defendant's motions for new trial (§ 1181) and modification of the penalty (§ 190.4, subd. (e)), and sentenced him to death. This appeal is automatic. ( Cal. Const., art. VI, § 11; § 1239, subd. (b).) We reverse count III and stay the sentence for count II, but affirm the judgment in all other respects, including the death sentence.

Introduction

Responding to a call reporting gunshots in a remote part of Corona, police discovered the body of 16–year–old Mark Walker in the open trunk of his car. Walker had been shot five times at close range. The prosecution's theory was that Walker had been robbed, carjacked, and kidnapped by defendant, by two of his codefendants at trial, Ashley Gallegos and Travis Hawkins, and by Miguel Garcia, who was a juvenile at the time of the murder.² Apparently, the foursome carjacked and kidnapped Walker because they needed a ride to a birthday party for codefendant Salvador Varela. They shoved Walker into his trunk and drove Walker's car to the party in Corona, where they stayed briefly. With Walker still in the trunk, they drove Walker's car to a nearby isolated location, while Varela followed in his van. Once there, a member of the group shot Walker as he tried to get out of the trunk. The group abandoned Walker's car, and Varela drove them back to the party. Several prosecution witnesses, including Varela's brother George, his sister Sylvia, and his girlfriend Kimberly Speck, testified that defendant admitted he shot Walker.³

Defendant, Gallegos, Hawkins, and Varela were tried together, although a separate jury sat for Varela because his admissions to police implicated the other defendants' confrontation rights under People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265( Aranda )and Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476( Bruton ). The prosecution sought the death penalty only against defendant.

I. Facts

A. Guilt Phase

1. The Prosecution's Case

a. The Day of the Murder

On Saturday, August 27, 1994,⁴ 16–year–old Mark Walker was living in Banning with his mother and stepfather. At approximately 5:30 p.m., he asked his mother whether he could go shopping at the mall; she agreed and gave him two $100 bills, which he put in his dark wallet. Walker said he planned to be out most of the evening, visiting friends and listening to a band. His mother told him to be home by 11:00 p.m. or to call if he planned to stay with a friend. At about 6:30 p.m., Walker left in the family car, a gray Buick Regal. Neither his mother nor the friends he planned to visit ever heard from him again.

At dusk, Nathan Hanvey went to Jay's Market in Beaumont. Hanvey attended high school with Walker and knew him as an acquaintance. He saw Walker waiting in line to buy a soda, and they briefly discussed a local football game. Hanvey noticed Walker's dark wallet and saw that it contained a substantial amount of money. Hanvey also noticed five or six “scary looking” Hispanic men waiting in line. Hanvey recognized one of them, Travis Hawkins, and said hello, but he did not know the others. After Walker bought his soda, he left the store; the Hispanic group bought a six-pack of beer and also left. At trial, Hanvey identified defendant, Hawkins, and Gallegos as part of the group at the market.

Salvador Varela lived in an apartment in Corona with his sister Sylvia, his brother George, and George's girlfriend, Marci Blancarte. Between 3:00 and 5:00 a.m. on the day of the murder, defendant, Gallegos, and two or three others dropped by the Varela apartment and spoke with George. Gallegos showed George a black handgun, which George offered to buy, but Gallegos declined to sell. George invited defendant and Gallegos to Varela's birthday party that evening.

During the afternoon, defendant had repeatedly called the Varela apartment seeking a ride to the party from his Beaumont home for himself and Gallegos. George declined to pick them up because it was too far away. Sylvia called Gallegos that afternoon to offer him a ride, but Gallegos indicated he already had one.

Defendant arrived at the party before sunset while Sylvia and other guests were standing on the balcony. The group saw defendant drive up in the Buick. Defendant was accompanied by Gallegos, Hawkins, and Garcia. From the balcony, Arthur Arroyo saw Gallegos bend as he stepped from the front passenger side of the Buick as if he were retrieving something, possibly a gun, which he tucked in his shirt. Another guest, Kevin Fleming, watched the Buick park and saw the four male passengers enter the apartment. Hawkins joined a conversation with Fleming and the Varela brothers, telling them he had been in a convenience store where he could have “smoked” (shot) a clerk who gave him attitude about his clothing.

Within 10 minutes after he arrived, defendant asked George to help him drop off the Buick, which he claimed belonged to a friend. George refused, suspecting the car was stolen. Defendant then turned to Varela for assistance with the car. Varela initially refused, claiming he had had too much alcohol, but eventually agreed. His girlfriend, Kimberly Speck, had hidden his car keys, but relinquished them when Varela insisted he needed them to do a favor for defendant. Varela promised to return soon. Fleming and another guest, Christopher Eismann, offered to drive Varela, but he refused, saying he was “only going around the corner.” Varela left in his van with Gallegos. Defendant, Hawkins, and Garcia left in the Buick.⁵

Around 8:00 p.m. that night, Alexander Silver was in the backyard of his Corona house, talking with his sister, Laura Esqueda. The house, which overlooked Palisades Road, was about three miles from the Varela residence. Silver and Esqueda heard four gunshots. Looking toward Palisades Road, they saw a van parked on the shoulder of the road, facing east, and a car next to the van, facing west. The head and tail lights of the van and the car illuminated the scene. Silver saw three Hispanic men standing near the open trunk of the Buick, one of whom may have extended an arm for an instant. Silver ran inside and called the police, but Esqueda, now joined by her husband, continued to watch. Esqueda saw three males run around the van to the passenger side. Her husband saw two people standing behind the Buick; he watched as they were joined by a third person who approached from the driver's side of the van. The vehicle lights went off, and the couple saw no further movement.

Fifteen to 30 minutes after the five men had left Varela's party, they returned in Varela's van. The Buick did not return. Most of the group stood together, talking on the balcony. Witnesses gave varying accounts of the group's mood after they returned. Fleming testified their demeanor had not changed. Sylvia testified Gallegos and Varela seemed very subdued. Speck testified Varela was pale, worried, and in a panic.

Defendant offered to buy pizza for the party, and asked George for change for a $100 bill. Blancarte saw defendant take $20 bills from a dark wallet to pay for the food.

Many partygoers saw firearms on display that night. Early in the evening, defendant showed Arroyo and others a nickel-plated revolver. Blancarte saw a large black handgun passed around the balcony and later noticed defendant showing a small handgun to two people in the bathroom. Around midnight, Varela and George showed Arroyo a nine-millimeter handgun that had been concealed under the bathroom sink.

Between 10:00 p.m. and midnight, a group that included defendant, Varela, George, Fleming, Hawkins, and Gallegos went to a nearby pool hall. While there, defendant and Hawkins got into an argument. Hawkins removed a small derringer from his pocket, but George told him to put it away. The group later returned to the party, which eventually wound down.

b. The Day After the Party

On Sunday morning, George left the party after 1:30 a.m. with a female companion and spent the night in Long Beach. Around 1:30 or 2:00 a.m., defendant's cousin, Eddie Montes, drove Hawkins and Garcia to Beaumont. Defendant and Gallegos stayed at the Varela apartment all night. Sylvia testified that she, defendant, and Gallegos smoked methamphetamine together and played video games.

Later that morning, Varela and Speck went to a donut shop and bought a newspaper that contained an article about the dead body of a man found in the trunk of a car off Palisades Drive.⁶ Back at...