People v. Montiel CA2/8

Filed 10/12/21 P. v. Montiel CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B308786

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA071398) v.

MARIO MONTIEL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Roger T. Ito, Judge. Affirmed. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent. ____________________

A jury convicted Mario Montiel and two other men of second degree murder for beating a man to death. The trial court instructed the jury on and the prosecutor argued murder liability under the natural and probable consequences doctrine. Montiel filed a petition for resentencing under Penal Code section 1170.95. The trial court denied the petition, finding Montiel could still be convicted of implied malice murder beyond a reasonable doubt. Montiel appeals this denial, arguing he deserves a new jury trial because the trial court instructed his original jury on a now-invalid theory. We affirm. Undesignated statutory references are to the Penal Code. I We recount the factual and procedural background. A In December 2001, Montiel and two other men beat fellow drug dealer Eli Reyes over a debt. The beating lasted for hours and ended with Reyes’s death. The coroner opined Reyes’s injuries were consistent with being kicked and with fist blows. The coroner identified two possible causes of death: (1) multiple blunt force injuries to the head resulting in brain herniation, and (2) a fractured larynx consistent with strangulation. Witnesses identified Montiel as a participant in the beating and testified Montiel made comments about having strangled a man shortly after the beating. At trial, the court instructed the jury on theories of liability for murder including implied malice murder and the natural and probable consequences doctrine. The prosecutor and defense counsel focused on the natural and probable consequences theory in their closing arguments. The jury convicted Montiel and the other two men of second degree murder. (§ 187, subd. (a).)