36 Cal.App.5th 597
Cal. Ct. App.2019Background
- Defendant Roberto Montalvo and Alicia Ortega posed as undercover police in two separate incidents (a hotel encounter with J.T. and I.A., and a prostitution-sting scheme with J.N.) and took money; rock cocaine and a glass pipe were found in a room where defendant was arrested. Ortega testified and pleaded guilty to one robbery; J.N. did not testify (receiving cancer treatment).
- Charges included first- and second-degree robbery, first-degree burglary, possession of controlled substances, impersonating an officer, and related enhancements for prior strikes, a prior serious felony, and a prior prison term.
- A jury convicted Montalvo of robberies, burglary, possession counts, and impersonating an officer; the trial court found prior conviction allegations true, struck one strike, and sentenced him to an aggregate 25 years plus one year in county jail.
- On appeal Montalvo argued (inter alia) insufficient evidence of force or fear for robbery; that robbery was preempted by more specific statutes (false personation/false pretenses) under In re Williamson; confrontation clause error from admission of a nontestifying victim’s statements; prosecutorial misconduct for displaying rejected instruction language/citation; and multiple sentencing and abstract-of-judgment errors.
- The Court of Appeal (published in part) upheld the robbery convictions, finding insufficient evidence of fear but sufficient evidence of force; rejected Williamson preemption; found the admission of J.N.’s statement to Officer Cardoza violated the Confrontation Clause but was harmless beyond a reasonable doubt; and identified several sentencing errors requiring modification and remand (including striking duplicate §667(a)(1) enhancements, dismissing the §667.5(b) enhancement after Prop. 47 redesignation, staying impersonation sentences under §654, and directing full-term/stay correction for count 3).
Issues
| Issue | People’s Argument | Montalvo’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that takings were “accomplished by force or fear” for robbery convictions | Impersonation of police implied threat of force/arrest and, together with physical acts (pushing/placing victims), supported force or fear element | Victims complied because they believed he was a police officer (civic compliance), not because they feared injury; conduct was theft by false pretenses/personation, not robbery | Fear of injury was not supported by substantial evidence, but there was substantial evidence of force (grabbing, pushing, forcing victims to wall/hood) to support robbery convictions (count 1 and 2) |
| Williamson preemption (whether false personation §530 or false pretenses §532 preclude robbery prosecution) | Robbery is a general statute; but false personation/false pretenses are more specific and therefore should preempt prosecution for robbery here | Conduct did not fit elements of §530/§532 because defendant took property (not received by assumed person) and takings were nonconsensual | Williamson inapplicable: the asserted special statutes do not cover the defendant’s actual conduct, and robbery contemplates more culpable conduct meriting prosecution |
| Admission of nontestifying victim J.N.'s statements to Officer Cardoza (Confrontation Clause) | Statements were nontestimonial (spontaneous statements during an ongoing emergency) and admissible under Evid. Code §1240 | Admission violated Crawford-based confrontation rights because statements were testimonial and J.N. was unavailable for cross-examination | Statements met the spontaneous-statement exception but prosecution failed to prove they were nontestimonial; admission violated confrontation clause but error was harmless beyond a reasonable doubt |
| Prosecutorial misconduct for projecting a rejected instruction quote and case citation (Majors) during closing | Prosecutor may argue law and quote cases; he was permitted to argue theory of implied force and did not mislead jurors because court instructed jurors to follow the court’s instructions | Prosecutor improperly presented rejected legal language as if part of jury instruction and displayed case citation, implying authority; moved for mistrial | Prosecutor committed misconduct by displaying rejected language and citation, but no prejudice: jury was instructed to follow the court’s instructions, written instructions provided, and sufficient evidence supported verdicts |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial out-of-court statements by unavailable witnesses unless prior cross-examination)
- Michigan v. Bryant, 562 U.S. 344 (2011) (factors for determining whether statements were made for primary purpose of addressing ongoing emergency)
- People v. Majors, 33 Cal.4th 321 (2004) (implicit threat of arrest may satisfy force/fear element for kidnapping—discussed and distinguished)
- In re Williamson, 43 Cal.2d 651 (1954) (Williamson rule: specific statutes may preclude prosecution under a more general statute when conduct fits the special statute)
- People v. Sasser, 61 Cal.4th 1 (2015) (prior serious felony enhancement under §667(a)(1) may be added only once to determinate sentence)
- People v. Buycks, 5 Cal.5th 857 (2018) (resentencing under Prop. 47 §1170.18 that redesignates a prior felony to misdemeanor removes that prior as basis for §667.5(b) enhancement)
- People v. Merriman, 60 Cal.4th 1 (2014) (standards for spontaneous-statement hearsay exception under Evid. Code §1240)
- People v. Blacksher, 52 Cal.4th 769 (2011) (Blacksher factors for evaluating primary-purpose/testimonial inquiry)