People v. Montoya

• Decision Date: 27 June 1994
• Docket Number: No. S030181,S030181
• Citation: 31 Cal.Rptr.2d 128,874 P.2d 903,7 Cal.4th 1027
• Court: California Supreme Court
• Parties: , 874 P.2d 903 The PEOPLE, Plaintiff and Respondent, v. Rosario MONTOYA, Defendant and Appellant.

Page 128

31 Cal.Rptr.2d 128

7 Cal.4th 1027, 874 P.2d 903

The PEOPLE, Plaintiff and Respondent, v. Rosario MONTOYA, Defendant and Appellant.

No. S030181.

Supreme Court of California In Bank.

June 27, 1994.

Colin J. Heran, Sacramento, under appointment by the Supreme Court, and Mark E. Cutler, Cool, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Edgar A. Kerry, Rosendo Pena, Jr., and Jane Olmos, Deputy Attys. Gen., for plaintiff and respondent.

GEORGE, Justice.

Defendant Rosario Montoya was convicted of burglary of an inhabited dwelling. Under the instructions given to the jury, its verdict could have been premised upon defendant's being found guilty of burglary either as a direct perpetrator or as an aider and abettor.

On appeal, defendant contends his conviction should be reversed on the ground the trial court erred in failing sua sponte to instruct the jury that, in order to be found guilty of burglary on a theory of aiding and abetting, a person (having knowledge of the unlawful purpose of the perpetrator) must have formed the requisite intent to commit, encourage, or facilitate the commission of the burglary prior to or at the time the perpetrator entered the dwelling. The People disagree, maintaining that a person who, with the requisite knowledge and intent, aids the perpetrator, may be found liable on an aiding and abetting theory so long as he or she formed the intent to commit, encourage, or facilitate the commission of the offense prior to the time the perpetrator departed from the dwelling. In addition, the People contend that, in any event, reversal of defendant's conviction would be unwarranted because, in light of the record in the present case, the trial court had no duty, absent a specific request by defendant, to instruct the jury with regard to the point in time by which an aider or abettor must have formed the intent to encourage or facilitate the commission of the offense.

As we shall explain, we conclude the People's contentions are well taken. Accordingly, we affirm the judgment of the Court of Appeal, upholding defendant's conviction.

I

By information, defendant Rosario Montoya and codefendant Raymond Gaxiola were charged with burglary of an inhabited dwelling, in violation of Penal Code section 460, former subdivision 1 (now Pen.Code, § 460, subd. (a)). ¹ Each defendant also was charged with resisting arrest, in violation of section 148. Codefendant Gaxiola subsequently pleaded guilty to both charges and defendant only to the violation of section 148.

Because, in our discussion, we analyze the issue whether under the facts of this case the trial court was required to instruct sua sponte on a particular aspect of aiding and abetting, we consider it necessary to set forth in detail the evidence introduced during the jury trial that ensued on the remaining burglary charge against defendant.

The following evidence was presented during the prosecution's case-in-chief. Alicia Hernandez was a close friend of Dolores Candolita and Anna Salcido, who were sisters. Salcido and her boyfriend, Gaxiola, lived together intermittently, and, during the summer of 1990, the two of them on several occasions visited Hernandez at the two-bedroom apartment on Mount Vernon Street in the City of Bakersfield which she and her children occupied. On another occasion Gaxiola alone visited Hernandez in order to make a repair. Salcido's and Gaxiola's relationship ended in September 1990. On September 17, 1990, after Gaxiola removed his belongings from Salcido's apartment, she observed Gaxiola being driven away by defendant in a green Datsun.

On September 26, 1990, Candolita and her children spent the night at Hernandez's apartment. On the following morning, Candolita drove Hernandez to work and the children to school, returned to the apartment, and departed again at approximately 8:45 a.m. At that time, a pole was in place in the door runway of the sliding glass door (which otherwise had no lock), opening onto a small fenced-in patio at the rear of the apartment. Candolita locked the front door, which had a key lock and dead bolt, using the only key available, which operated the dead bolt. ²

At approximately 10 o'clock that morning, Maria Perez left her apartment, which was located near Hernandez's, and walked through the area behind the apartments toward her daughter's nearby apartment in order to meet her son, Alfred Garza, who was to drive her to work. Perez observed an unoccupied green Datsun automobile (a 210 model) parked in the asphalt parking area behind the apartments, facing a dirt easement (which ran next to the fence enclosing Hernandez's apartment patio and was too narrow for a vehicle). After approximately 10 minutes, Perez and her son, departing from her daughter's apartment, observed that the doors and trunk of the green Datsun had been opened. As they drew near in Garza's automobile, they noticed a man, identified as defendant, standing next to the passenger side of the vehicle, facing the open door, and holding up a map, which obscured his face from their view. Garza noticed another man, identified as Gaxiola, approaching along the dirt easement behind the apartments, carrying a television set. Perez told Garza to stop the automobile so that she could see "what was going on."

Perez approached Gaxiola, who was standing next to the driver's side of the vehicle with the television set in his hands, and asked what he was doing there. Gaxiola informed her "they were moving some things that belonged to his cousin" and would leave shortly. Defendant did not say anything and did not look up while Perez spoke with Gaxiola. When Perez told Gaxiola to move the automobile, he responded that they were leaving. After noticing a Nintendo game and a videocassette recorder inside the Datsun, Perez returned to her son's vehicle and told him to remember the make and license plate number of the Datsun. Perez and her son then drove away.

When Candolita returned to Hernandez's apartment at approximately 10:30 that morning, she discovered that someone had entered the apartment, taken several items of property, and left several knives, peanut butter, jelly, and a loaf of bread on the kitchen table. Candolita telephoned Hernandez to inform her and, at Hernandez's direction, telephoned the sheriff's department and picked up Hernandez at work. At the apartment, Hernandez discovered that a television set, videocassette recorder, Nintendo game, radio, and some items of jewelry were missing. The women noticed a baseball cap on the couch that did not belong to anyone residing in the apartment.

Deputy Sheriff Kenneth Williams and several sheriff's department investigators arrived at Hernandez's apartment shortly before noon. They and the victim observed the sliding glass door leading to the patio was closed, but the pole was not in the door runway, and there were new pry marks and black finger marks on the sliding glass door indicating it had been tampered with. An ice chest cooler had been turned on its side and pushed next to the patio fence at the rear of the enclosed patio area. Across from the cooler, adjacent to the other side of the fence, stood a garbage can, which was some distance from the area in which it normally was stored. There was a drag mark in the dirt easement area outside the patio fence.

The investigators concluded that entry to the apartment had been effected through the sliding glass door. They discovered shoe tracks from two distinct pairs of shoes leading from the dirt easement, just outside the fence, approximately twenty feet to the parking area. Although the investigators were unable to determine that the tracks had been made by the shoes later seized from defendant and Gaxiola, they were unable to exclude that possibility.

After speaking with Garza, and within an hour after arriving at the Hernandez apartment, Deputy Williams departed in his patrol vehicle. He soon noticed a green Datsun, model 210, emerging from an alley in the vicinity of the apartment and observed that the vehicle, its license number, and the persons inside corresponded to the information supplied by Garza. When Deputy Williams pulled his vehicle behind the green Datsun, it accelerated and made several turns. After Deputy Williams activated his red lights, the Datsun pulled into a parking space. As Deputy Williams exited from his vehicle to approach the Datsun, the driver (Gaxiola) suddenly departed on foot. Deputy Williams approached the passenger (defendant) and told him to place his hands behind his back. As the deputy grabbed defendant's left hand, defendant pulled his hand away, pushed the deputy, and ran down the street, with Deputy Williams following on foot. Meanwhile, a citizen pursued and captured Gaxiola. Deputy Williams, having lost sight of defendant, returned and arrested Gaxiola, who told the deputy his name was George Molina.

Deputy Williams subsequently received advice (apparently from Gaxiola) to contact Belia Melendes, with whom defendant lived at an apartment located approximately eight blocks from Mount Vernon Street. After obtaining Melendes's permission to search the apartment, Williams discovered defendant hiding in the attic space, wrapped in a sheet. After being advised of his Miranda rights Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, defendant agreed to speak to Deputy Williams and told him his name was Tony Cruz and that he had not been at Hernandez's apartment.

Later that same day, while incarcerated, Gaxiola made a number of telephone calls to Salcido as well as to Candolita and Hernandez at the latter's residence. Initially, he denied involvement in the burglary, claiming he simply had accompanied friends who said they were moving property belonging to an aunt, and disclaimed knowledge that the apartment was Hernandez's residence. In subsequent...