THE PEOPLE, Plаintiff and Respondent, v. JUAN ALEJANDRO MONTANO et al., Defendants and Appellants.
F079222 (Super. Ct. Nos. BF169286A–C)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 6/22/22
Charles R. Brehmer, Judge.
CERTIFIED FOR PARTIAL PUBLICATION*
OPINION
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Juan Alejandro Montano.
Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant Jose Antonio Montano.
Paul Couenhoven, 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.
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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
In the published part of the opinion, we hold Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which amended
In the unpublished part of the opinion, we address defendants’ claims of insufficient evidence, improper admission of evidence, instructional error, and sentencing error.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
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 рreviously 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.
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 adjacent to the Ford Bronco and the Lincoln pickup truck.
The girlfriend discussed how Jose went to the liquor store and returned alleging Rubio had confronted him again, this time with “all his homies.” She
Jose‘s girlfriend identified Jasso and Juan from the surveillance images. She confirmed they had visited Jose that evening, which she admitted was “weird” because Juan, who lived in Bakersfield, rarely travelled to Lamont. She had suspected the visit had something to do with Rubio and claimed to have warned Juan, “[Y]ou better not do nothing stupid.” She further alleged Jose later confided to her that Juan was the shooter.1
Juan was arrested on the same day as Jose. It is unclear from the record whether he submitted to custodiаl interrogation.
On September 5, 2017, detectives recontacted Jose‘s girlfriend and arranged to speak with her younger sister, who was a juvenile. Jose‘s girlfriend had previously identified her sister as an eyewitness to the shooting. The sister denied this and claimed she was inside with Jose when the shots were fired. However, the sister admitted to having let Jose use her mobile phone earlier that day. The detectives photographed her call log, which showed calls to and from Juan‘s phone between 5:10 p.m. and 6:32 p.m. The sister denied placing those calls herself or recognizing the phone number.
In January 2018, while speaking with a sheriff‘s deputy, the sister reportedly claimed to have seen Juan shoot Rubio. According to the deputy, the sister admitted to being untruthful with the homicide detectives and alleged unspecified family members “had told her to lie to try to protect Juan.” The sister allegedly believed Juan shot Rubio because Rubio “had kicked in his door and robbed him and ... had committed crimes against him in the past.” In the prior interview with detectives, she claimed to have heard Jose say he feared Rubio because Rubio “said he was gonna get a gun to shoot him.”
As to Juan only, two prior convictions were alleged for purposes of the “Three Strikes” law. (
Defendants were jointly tried before a jury in early 2019. The prior conviction allegations against Juan were decided in a subsequent bench trial. Jasso filed multiple unsuccessful motions to be tried separately from Jose and Juan. Jasso also filed a motion, in which Jose and Juan joined, to bifurcate all “gang counts and gang allegations.”2 The requests for bifurcation were denied.
Prosecution Case
The People‘s case included testimony from homicide detectives and a gang expert. The expert opined Jose, Juan, and Jasso were all active members of a criminal street gang called Varrio Bakers at the time of the shooting. The opinion was based on defendants’ criminal history, tattoos, and content found on their social media accounts. The gang evidence is summarized in the Discussion, post.
Jose‘s girlfriend and her sister were examined as hostile witnesses. Redacted recordings of their interviews with detectives, as well as the interviews of Jose and Jasso, were admitted into evidence. Several crime scene photographs were also admitted.
All parties agreed to a jury view of the crime scene. This occurred on the third day of evidence presentation. In addition to walking along the relevant
The restaurant‘s surveillance video was, in the People‘s words, “the keystone of the prosecution‘s case.” Over three hours of footage was admitted into evidence. A 24-hour clock on the video showed the time of day down to one-thousandth of a second, but it was reportedly off by about two minutes. All times noted herein are approximated without the two-minute adjustment and primarily stated in a 12-hour format for ease of reference. Summarized in the light most favorable to the judgment, the video depicted the following events.
At 5:07 p.m., Rubio walked southbound on Velma Avenue and veered slightly west at the intersection of Paradise Road. He continued southwest toward Jose‘s residence, which faced Paradise on the opposite corner of the intersection. After gesturing to someone at or near Jose‘s property, Rubio moved in front of the Ford Bronco and lingered there for about 25 seconds. At 5:08 p.m., Rubio took a few steps toward Jose‘s house and appeared to enter the driveway. He then disappeared from the camera‘s view for about one minute. The prosecutor alleged this was the initial dispute described by Jose and his girlfriend in their recorded interviews.
At 5:09 p.m., Rubio walked away from Jose‘s residence. He stopped in front of the Ford Bronco for about 45 seconds, during which time he was obscured from view. He eventually proceeded west, past the Bronco and Lincoln truck, and moved toward the sidewalk on the southern side of Paradise Road. At 5:10 p.m., he stopped at the alley and turned back toward Jose‘s residence as if calling out to someone. He then turned around and continued walking toward the restaurant. His fists were clenched as he passed by the camera and out of view.
At 5:11 p.m., Jose exited his driveway and walked into the street. He looked west, in the direction Rubio had just gone, and appeared to be on a phone call. This was consistent with the call log of Jose‘s girlfriend‘s sister‘s phone, which showed a call placed to Juan at 5:10 p.m. At 5:13 p.m., Jose left his house and walked west on Paradise Road. He was off camera for about five minutes and reappeared shortly before 5:19 p.m., heading east on Paradise before disappearing from view near his house. As indicated by the call log, Jose then placed a second call to Juan.
At 6:15 p.m., Jose walked out to the middle of Paradise Road. He appeared to be on a phone call, which corresponded to the call log showing an outgoing call to Juan‘s phone at 6:14 p.m. Jose eventually strolled westbound on Paradise, then came jogging back toward his house at 6:18 p.m. Moments later, Jasso, Juan, and Kasey Villegas drove up in Jasso‘s black Honda Civic, stopping in front of the restaurant. Jose walked to the north side of the street and gestured for the car to drive north through the alley running parallel to Velma Avenue. The car pulled away from the curb and drove up the alley. Jose walked off along the northern side of Paradise, disappearing from the camera‘s view after turning north on Velma.
A black sedan, which the People alleged was Jasso‘s car, circled through the area again at 6:29 p.m. At 7:09 p.m., the car turned west onto Paradise Road from northbound Velma Avenue and parallel parked along the northern curb, directly across from Jose‘s residence. Jasso exited the car alone, crossed the street, and disappeared from view into Jose‘s driveway. Jose, Juan, and Kasey Villegas had evidently gone to the house on foot at some earlier point in time.4
At 7:14 p.m., Jose, Juan, Jasso, and Kasey Villegas exited Jose‘s driveway on foot and proceeded west on Paradise Road. They returned four minutes later, heading east, and Jose was now carrying a bulging plastic grocery bag. All four men appeared to be scanning the area as they walked, turning their heads and looking in various directiоns before moving into Jose‘s driveway and out of view.
The prosecutor theorized defendants had roamed the neighborhood in search of Rubio for about an hour. Unable to find him, they decided to wait outside of Jose‘s residence. At 7:32 p.m., Jasso walked out to the middle of Paradise Road, paused, and then returned to Jose‘s driveway. At 7:47 p.m., Juan came out of the driveway, proceeded west, and stood between the Ford Bronco and Lincoln pickup truck for approximately 15 seconds. He then continued west on Paradise, stopped at the alley next to the restaurant, and stood watch for about 45 seconds before returning to Jose‘s driveway.
At 8:00 p.m., Rubio walked past the restaurant along the southern curb of Paradise Road. He was holding a bottle of beer in his left hand.5 Shortly before moving past the alley, he entered the street and continued on a northeastward trajectory toward Velma Avenue, taking a swig of his beer while passing by the Lincoln pickup truck. At virtually the same moment (20:00:57 on the video clock), Jasso exited the driveway and walked in front of the Ford Bronco. Six seconds later, Juan appeared on camera.
Juan also stepped in front of the Bronco, but he was closer to it than Jasso. Rubio suddenly turned to his right (i.e., toward Juan), took a step backwards while extending both arms out from his waist, then staggered farther backwards and fell down in between the Bronco and the pickup truck. He ceased to be visible at approximately 20:01:07 on the video clock.
Jasso had first come into view at approximately 20:00:57 and remained in front of the Bronco until approximately 20:01:09. Juan came into view at approximately 20:01:03, disappeared in front of the Bronco at 20:01:05, and reappeared at 20:01:10 running toward Jasso‘s parked car across the street. Meanwhile, Jose and Kasey Villegas stepped out of the driveway and into the camera‘s view at 20:01:07. Kasey turned back around almost immediately, and Jose did the same approximately one second later. Jasso, from his position in front of the Bronco, very briefly moved in the direction of Jose and Kasey but then turned and ran across the street to his car (arriving there a few steps behind Juan). A few seconds later, Kasey ran after Juan and Jasso and fled with them in Jasso‘s vehicle.
Jasso drove west on Paradise Road at 8:01 p.m. His vehicle disappeared from the camera‘s view when the video clock hit 20:01:30. At 8:02 p.m., Jose and his girlfriend exited the driveway. Jose jogged over to where Rubio lay, knelt down for a few seconds, then stood up and jogged back to his house. Jose‘s girlfriend walked around the Bronco and momentarily looked down at Rubio before moving in between the vehicles and out of view for about 30 seconds. Unidentified onlookers began to approach the scene and watched from a distance as Jose‘s girlfriend paced back and forth near Rubio‘s body, appearing to talk on a phone.
At 8:04 p.m., a person later alleged to be Jose‘s neighbor walked in between the vehicles and disappeared from the camera‘s view. About 24
Defense Case
Jasso‘s defense was mere presence during the shooting. He testified on his own behalf. His attorney introduced photographs of Rubio displaying “gang signs” with his hands and fingers, which had been uploaded to Rubio‘s Facebook account one day prior to his death. Defense counsel also introduced what had reportedly been Rubio‘s Facebook “cover photo” in November 2015, i.e., two years prior to the shooting. It is described in the record as “a photograph of two semi-automatic pistols with the words ‘May God have mercy on my enemies because I won‘t.‘”
Jasso preemptively stipulated to being “an active participant in the Varrio Bakers” and to “knowingly sell[ing] illegal narcotics for a profit with other members of the Varrio Bakers.” He alleged Jose, Juan, and Kasey Villegas were fellow Varrio Bakers members. Jasso also admitted to having made false statements during his custodial interview.
Regarding the day of the shooting, Jasso testified, “Juan had called me, told me he wanted to go visit with Jose and his kids. [Jose] had just moved into his new house.” Jasso agreed to drive Juan to Lamont in his Honda Civic. Kasey Villegas joined them.
Jasso testified there was never any discussion among the group about Rubio or the possibility of a confrontation in Lamont. His expectations for the trip were to “have a couple of beers, smoke a blunt, [and] catch up with Jose.” Rubio was a person completely unknown to him, even at the time of the shooting. He stated, “I never knew who he was. The first time I heard аbout him was when I got arrested for this case.”
In his initial telling of the events, Jasso omitted nearly an hour‘s worth of activity. He testified to arriving in Lamont with Juan and Kasey, smoking marijuana with them while parked in front of Jose‘s house, getting out and socializing with Jose in the front yard “for a little bit,” and then walking to the store to purchase some Tecate beer. Jasso confirmed the video footage at 7:14 p.m. and 7:19 p.m. showed the four of them on their beer errand.
On cross-examination, Jasso admitted that the video showed him exiting his parked car alone at 7:09 p.m. and walking to Jose‘s residence. The prosecutor asked where he had been “for almost an hour, 51 minutes about, after you first arrived in Lamont[?]” Jasso testified to dropping Juan and Kasey
Jasso gave the following testimony about the shooting: “As I‘m—as we‘re walking out of the gate, I had to leave early to go pick up my girl from work and as we‘re walking out, I don‘t know. I guess I thought it was one of Jose‘s friends or something. He just—Jose told him like, ‘I told you I‘m not trippin.’ [¶] [Rubio] goes, ‘I don‘t give a fuck. I‘m keeping my palabra [word].‘”
After follow-up questions about Jose‘s and Rubio‘s exact statements, Jasso continued: “Yeah, it was something like that because me and Kasey were walking out. We were talking. I heard Jose say something about, ‘I already told you I‘m not trippin.’ The car is right here. As I come around, I see someone approaching us. [¶] He‘s already saying, ‘I don‘t give a fuck. I already told you. I keep my palabra’ ....”
Jasso‘s attorney asked, “Did you see [Rubio] with something in his hand?” Jasso answered, “Yes, well, he grabbed—he went under his shirt. He pulled out like those little—you know those guns off the side races, those little black revolvers from the movies that they show when they start the race.” Defense counsel then asked, “You saw him with a small handgun?” Jasso replied, “Yeah, it‘s like a revolver.”6
Describing the sequence of events, Jasso testified: “So I seen him pull it out. I dodged behind the car. I just heard four pops, so I thought we were getting shot at and [Jose‘s child] was outside. [¶] ... [¶] So I ran to the gate and closed the gate and then when I turned baсk around, it was just like [Rubio] wasn‘t standing there no more so we took off.”7
Jose rested his defense case without introducing any evidence. Like Jasso, he relied on a theory of mere presence. His trial counsel argued Jose had truthfully told detectives that he did not see who fired the shots. Counsel also disputed the People‘s theory of aiding and abetting, claiming the evidence allowed for a reasonable doubt on the element of intent. Jose‘s attorney did not argue self-defense.
Juan did not call any witnesses, but his attorney introduced additional content from Rubio‘s Facebook account to argue Rubio was a Varrio Chico Lamont gang member or associate. Building upon Jasso‘s testimony about Rubio being armed, Juan‘s counsel alleged certain video footage showed a black handgun in Rubio‘s waistband. Counsel offered multiple alternative defense theories during closing argument, including self-defense and defense of others.
Verdicts and Sentencing
The jury deliberated for approximately 14 hours over the course of three days. On the third day, toward the end of its deliberations, it submitted questions about
Juan was sentenced to life in prison without the possibility of parole (LWOP) for first degree murder committed by means of lying in wait. Sentencing on count 1 included consecutive terms of 25 years to life for the firearm enhancement, 10 years for the gang enhancement, and 10 years for
Jose‘s count 1 sentence was LWOP plus a consecutive term of 25 yeаrs to life for the firearm enhancement. Because the latter term was imposed pursuant to
Jasso‘s count 1 sentence was LWOP plus 25 years to life for the firearm enhancement. The gang enhancement was omitted from the pronouncement of judgment without explanation. Punishment for count 2 was stayed pursuant to
DISCUSSION
I. Sufficiency of the Evidence*
Jasso‘s murder conviction was based on a theory of aiding and abetting. He seeks reversal of count 1 for insufficient evidence. The People dispute the claim.
A. Standard of Review
“On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt.” (People v. Boyer (2006) 38 Cal.4th 412, 479.) We construe the record in the light most favorable to the judgment and presume “‘the existence of every fact the jury could reasonably have deduced from the evidence.‘” (People v. Mendez (2019) 7 Cal.5th 680, 702.) “‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.‘” (People v. Grant (2020) 57 Cal.App.5th 323, 330.)
Notes
Juan additionally contends that