People v. Montanez (2023) · DecisionDepot

People v. Montanez

Name: California Superior Court Tentative Rulings
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California Court of Appeal May 8, 2023 No. D079296Published

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Holding. The court held that substantial evidence supported the superior court's finding that the defendant was a major participant in the underlying felonies who acted with reckless indifference to human life, thereby maintaining his liability for first degree felony murder under section 1172.6.

Issues

Whether there was sufficient evidence to support the superior court's finding that the defendant was a major participant in the underlying felonies who acted with reckless indifference to human life.

Disposition. Affirmed.

Quotations verified verbatim against the opinion

“we affirm the order.”

Filed 5/8/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079296

Plaintiff and Respondent,

v. (Super. Ct. No. SCD204723)

EDDIE LOPEZ MONTANEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Delores Attig was murdered in a secluded area of Balboa Park in 1986. She was with two male friends smoking and talking in their car when they

were attacked by four male assailants, two of them armed with guns. The assailants bound her friends and robbed them. Delores was led a short distance away, where she was gang raped and then shot once in the head at close range. Her murder remained a cold case for more than 20 years, until DNA analysis of evidence collected from her body led to the arrest of four men

in 2007: Eddie Montanez, his brother Steve Montanez,1 and two juveniles. In 2010, a jury convicted Eddie of the first degree felony murder of

Delores (Pen. Code,2 § 187, subd. (a)), and found true a principal personally

used a firearm (§ 12022, subd. (a)).3 The jury rejected special circumstance allegations that Eddie aided and abetted the murder while engaged in the commission and attempted commission of robbery, rape, sodomy, and oral copulation (§ 190.2, subd. (a)(17)). He was sentenced to an indeterminate term of 25 years to life in prison, plus an additional year for the firearm

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Eddie believed he was the third member of his group to take a “turn.” When he went over to the female victim, Steve was standing by her and pointing the gun at her. She was unclothed, at least from the waist down, and she was shorter than Eddie and “very thin.” Steve told Eddie, “Hurry up. Get on top of her. Get on top of her. Do it.” Eddie testified that he took down his pants but not his underwear. When Eddie lowered his pants, Steve walked 15 feet away, which was “a little bit farther” than “where the guys were at” but close enough that Eddie could see him. Eddie could see that Steve’s back was turned toward Eddie and the female victim. Eddie “got on top of” the female victim. She was on her back. He put his hands on either side of her body in a position that prevented her from being able to get out from under him. He told the victim he was sorry, and she asked him not to hurt her. Eddie was sure he felt the victim’s breasts pressing against him, although he was not “concentrating on that.” He remained on top of her for “a couple of minutes.” He did not penetrate her or ejaculate. Nor did he help her put her clothes on or help her to escape. Eddie testified he “fake[d] it . . . with her so that [Steve] could get off [his] back.” When Eddie finished, he got up and walked over “towards where they were at.” The only time that Eddie left the male victims who were lying on the ground was when he was “fake raping” the female victim. Eddie testified that after he got off the female victim, a fourth assailant also “got on top of [her] and attacked her.” Eddie told detectives he stood 10 to 20 yards away from the female victim while this was happening. He was standing with Steve “between the girl and the men.” After the fourth assailant finished sexually assaulting the victim, Steve told Eddie and the juveniles to run back to the car. Steve stayed behind with the victims as Eddie, Archuleta, and E.C. took off running uphill. As they

killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ [Citations.] Penal Code section 189, as amended, now limits liability under a felony-murder theory principally to ‘actual killer[s]’ (Pen. Code, § 189, subd. (e)(1)) and those who, ‘with the intent to kill,’ aid or abet ‘the actual killer in the commission of murder in the first degree’ (id., subd. (e)(2)). Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were ‘major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of . . . [s]ection 190.2’—that is, the statute defining the felony-murder special circumstance. (Id., § 189, subd. (e)(3).)” (Strong, supra, 13 Cal.5th at pp. 707–708.) Senate Bill 1437 also established a procedure allowing eligible defendants convicted under the former felony-murder law to seek retroactive relief under the law as amended. “Under newly enacted section 1172.6, the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met (id., subd. (b)(1)(A)), including that ‘[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189 made effective January 1, 2019,’ the effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3)).” (Strong, supra, 13 Cal.5th at p. 708.) “After receiving a petition containing the required information, ‘the court must evaluate the petition “to determine whether the petitioner has made a prima facie case for relief.” ’ ” (People v. Guiffreda (2023) 87 Cal.App.5th 112, 122 (Guiffreda).) If the defendant makes such a prima facie showing, the court must issue an order to show cause and “hold an evidentiary hearing at which the prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the

substantial” ’ and they could have foreseen their actions would ‘ “create a grave risk of . . . death.” ’ ” (Banks, supra, 61 Cal.4th at pp. 799–800.) The United States Supreme Court, applying Enmund, affirmed Ricky and Raymond’s death sentences. (Banks, supra, 61 Cal.4th at p. 800.) “Tison described the range of felony-murder participants as a spectrum. At one extreme were people like ‘Enmund himself: the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.’ [Citation.] At the other extreme were actual killers and those who attempted or intended to kill. [Citation.] Under Enmund, Tison held, death was disproportional and impermissible for those at the former pole, but permissible for those at the latter. [Citation.] The Supreme Court then addressed the gray area in between, the proportionality of capital punishment for felony-murder participants who, like the two surviving Tison brothers, fell ‘into neither of these neat categories.’ [Citation.] Here, the court announced, ‘major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.’ ” (Banks, at p. 800.) Banks explained that Enmund and Tison reflect the high court’s “long- standing recognition that, in capital cases above all, punishment must accord with individual culpability.” (Banks, supra, 61 Cal.4th at p. 801.) “With respect to the mental aspect of culpability,” the relevant inquiry is whether the defendant “ ‘ “knowingly engage[ed] in criminal activities known to carry a grave risk of death.” ’ ” (Ibid.) “With respect to conduct, . . . a defendant’s personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder such as Earl Enmund.” (Id. at p. 802.) Somewhere between the facts of Enmund and Tison, “at conduct less egregious than the Tisons’ but more culpable than

with the “major participant” element. (Clark, supra, 63 Cal.4th at pp. 614– 615.) The Clark court explained that reckless indifference to human life has subjective and objective elements. “The subjective element is the defendant’s conscious disregard of risks known to him or her.” (Id. at p. 617.) “ ‘[T]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,’ and he or she must consciously disregard ‘the significant risk of death his or her actions create.’ ” (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) “ ‘Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient’ to establish reckless indifference to human life; ‘only knowingly creating a “grave risk of death” ’ satisfies the statutory requirement.” (Ibid.) The objective component is determined by considering what “ ‘a law- abiding person would observe in the actor’s situation.’ ” (Clark, supra, 63 Cal.4th at p. 617.) “ ‘ “[T]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” ’ ” (Scoggins, supra, 9 Cal.5th at p. 677.) At the same time, “a defendant’s good faith but unreasonable belief that he or she was not posing a risk to human life in pursuing the felony does not suffice to foreclose a determination of reckless indifference to human life under Tison.” (Clark, at p. 622.) Extrapolating from the facts of Tison, the Clark court derived the following nonexclusive list of factors bearing on whether a defendant acted with reckless indifference to human life: the defendant’s knowledge of weapons used in the crime, and their actual use and number; the defendant’s physical presence at the scene of the murder and the events leading up to it,

and opportunity to act as a restraining influence on murderous cohorts or aid the victim; the duration of the felony; the defendant’s knowledge of his cohort’s likelihood of killing; and the defendant’s efforts to minimize the risks of violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618–623; see also Scoggins, supra, 9 Cal.5th at p. 677.) As with the Banks factors, “ ‘[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.’ ” (Clark, at p. 618.) Applying these factors to the case before it, our high court determined Clark did not act with reckless indifference to human life. Clark involved the armed robbery of a computer store. Clark “was the mastermind who planned and organized the attempted robbery and who was orchestrating the events at the scene of the crime.” (Clark, supra, 63 Cal.4th at p. 612.) During the robbery, which was planned to take place after the store closed, one of Clark’s accomplices shot and killed the mother of a store employee who arrived at the store to pick up her son. (Id. at pp. 537, 620.) At the time of the shooting, Clark was not at the store, but he drove there shortly thereafter and fled after seeing the body of a woman lying on the ground, the police approaching, and the shooter fleeing the scene. (Id. at pp. 536–537, 619–620.) Our high court, evaluating the evidence in light of the foregoing factors, found insufficient evidence to support the conclusion Clark acted with reckless indifference to human life. There was only one gun at the scene, and it was not carried by Clark. (Clark, supra, 63 Cal.4th at pp. 618–619.) Clark was absent from the scene of the killing, and the “ambiguous circumstances surrounding his hasty departure” made it “difficult to infer his frame of mind” concerning the victim’s death. (Id. at p. 620.) Although the planned robbery was of substantial duration, it entailed handcuffing any employees in the bathroom while the robbers made away with the store’s merchandise, so

the early morning hours after midnight, in a dark, secluded location where a killing was less likely to be immediately detected. The degree of danger posed to the victims was comparable to Tison, in which the family of four was robbed, captured, and taken to a remote location where they were guarded at gunpoint and then executed. (See Tison, supra, 481 U.S. at pp. 139–141; Banks, supra, 61 Cal.4th at pp. 799–800.) Eddie contends there was insufficient evidence to support a finding that he was aware of any particularly heightened risk of death relative to an ordinary felony. We disagree. By his own admission, Eddie was keenly aware one of the gunmen, Steve, was both explosively violent and capable of committing sudden acts of violence against vulnerable victims. Eddie knew Steve had a reputation for violence among his friends and that Steve had been involved in violent offenses in prison. He personally experienced Steve’s violence, having been the victim of Steve’s beatings as a child and having witnessed Steve “smack[ ]” an unsuspecting victim with a piece of two-by-four lumber. (See In re Harper (2022) 76 Cal.App.5th 450, 461 (Harper) [petitioner “had personal experience with Brown’s violent tendencies, having been the victim of Brown’s beatings”].) Eddie was aware by virtue of his “past experience” of the “conduct of the other participants” (Banks, supra, 61 Cal.4th at p. 803) that committing an armed crime with Steve was a venture that posed a grave risk to the welfare of the victims. Eddie concedes that “unquestionably” Steve was “known to be violent,” but he insists that Steve “was not known to be a killer.” We disagree that Eddie needed proof Steve was a known killer in order to assess that Steve was capable of using lethal force. (See Harper, supra, 76 Cal.App.5th at p. 462 [“ ‘[f]rom the fact that [the cohort] had a shotgun—as well as from defendant’s knowledge of [his cohort’s] violent tendencies—defendant did not

particular role in the death.” (Banks, supra, 61 Cal.4th at p. 803.) In Banks, our high court noted, “In cases where lethal force is not part of the agreed- upon plan, absence from the scene may significantly diminish culpability for death. [Citation.] Those not present have no opportunity to dissuade the actual killer, nor to aid the victims, and thus no opportunity to prevent the loss of life. Nor, conversely, are they in a position to take steps that directly and immediately lead to death, as with the Tisons’ capturing and standing guard over the victims.” (Id. at p. 803, fn. 5.) “As a corollary, there may be significantly greater culpability for accomplices who are present. In Tison, supra, 481 U.S. at page 158, [Ricky and Raymond Tison] were found to be major participants because each ‘was actively involved in every element of the kidna[p]ping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder’ of the victims.” (Loza, supra, 10 Cal.App.5th at pp. 50–51, citing Banks, at p. 803, fn. 5.) Eddie argues that although he knew Steve was dangerous, there is no evidence he was actively involved in all stages of the crimes, or that he “willingly joined a plan to rob and to sexually assault anyone knowing the danger that Steve might pose.” He contends the 1986 events were nothing other than “crimes of opportunity that arose when the group inadvertently stumbled upon the three victims in the park,” that he happened upon the crimes when they were already in progress, and even then, his only role in them was participating in the sexual assault of Delores. We disagree. Eddie’s portrayal of the incident relies on his own self- serving testimony. Eddie acknowledges this but contends there was “no evidence [the incident] occurred any other way” and “no evidence Eddie participated in the events from the beginning or actively participated in the detentions, threats and theft.” He further contends Michael “could identify

onrush of assailants, several things happened in quick succession. As we just discussed, he testified four men “came up to” their car and “hit the front and the back door at the same time.” (Italics added.) The first assailant put the gun to his head as “[t]hree others” came around the other side of the car and “pulled Star and [Delores] out of the way[.]” Michael further testified that the first assailant pressed a gun to Michael’s head and ordered him to crawl out of the car, at the same time that “people” dragged Star and Delores out of the back of the car, and an assailant who was not the first gunman opened the passenger-side front door to facilitate Michael’s exit. That all four assailants overwhelmed and captured the victims in such an immediately coordinated fashion supports the inference they had agreed in advance to detain the victims for the purpose of committing armed crimes against them. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1135 [evidence that when the surviving victim opened the door for an expected female guest (the defendant’s accomplice), two male assailants immediately rushed in and started attacking the victims and coordinated their actions with one another, demonstrated “that the two male assailants agreed and coordinated with each other and with [the female accomplice] to forcibly gain access to the apartment for the purpose of robbing or stealing from the brothers”].) And although Michael was unable to say which assailant played which role, his testimony supports the further inference all four assailants, which again would necessarily include Eddie, took part in overwhelming and capturing the victims, at the very least by helping to “pull[ ]” Star and Delores out of the car so they could be detained. (See Loza, supra, 10 Cal.App.5th at p. 49 [holding that a petitioner whose main role in executing the armed robbery of a store involved holding the door open so the shooter could escape the store was a major participant in the felony].)

Nor was it physically impossible or inherently improbable for the foursome to have planned their assault and capture of the victims in advance. From Eddie’s testimony that it took him a total of 17 minutes to run from the dirt lot back to E.C.’s car, one can infer it took a like amount of time for Steve, Eddie, and the two juveniles to walk from their car to the dirt lot, giving them the time and opportunity to agree to commit a robbery. The crimes occurred in a dark, secluded dirt lot; Michael testified he was playing the car radio, and Delores and Star were talking, before they were attacked; and Eddie testified that during his flight from the crime scene, he could still hear music playing. It is reasonable to infer the foursome did not embark on an innocent midnight hike down a brush-covered hill only to inadvertently stumble upon victims they spontaneously decided to rob, but that they instead heard the victims from a distance and purposely approached them with guns in order to commit armed crimes against them. It was also not inherently improbable the foursome’s armed, itinerant quest for marijuana throughout Southern California would culminate in a decision to rob unsuspecting victims of proceeds that included marijuana. Substantial evidence supports the further conclusion that after Eddie helped his cohorts overwhelm and capture the victims, he helped detain them. Eddie testified that after the male victims were ordered to the ground, he “stood by them” with his eyes open, facing them. A reasonable factfinder could accept Eddie’s description of his actions and infer he was standing guard over the male victims while rejecting his claim that he acted with an innocent mental state. (See Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67–68 [“ ‘[T]he jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus

at the totality of the circumstances as opposed to individual items of evidence in isolation. (See Scoggins, supra, 9 Cal.5th at p. 677.) Even if Steve’s death threats alone did not signal that Steve would kill, a factfinder could reasonably conclude they were one of several warning signs from which a reasonable observer would discern a grave risk of danger to human life. Eddie also argues his failure to stop and aid the victims when he heard the gunshot does not support a finding of reckless indifference. He argues that since there was only one gunshot, he was necessarily aware there were two other victims left who could render aid. He contends he is like the defendant in Clark who saw the murder victim’s body and fled at the same moment that police were arriving at the scene. (See Clark, supra, 63 Cal.4th at pp. 537, 614, 619–620.) There, our high court explained it was difficult to infer the defendant’s state of mind regarding the victim’s death because “unlike in the Tisons’ case, defendant would have known that help in the form of police intervention was arriving.” (Id. at p. 620.) We are not persuaded that the scenario here was as ambiguous as in Clark. In Clark, a first responder was already arriving at the scene when the defendant fled. (Clark, supra, 63 Cal.4th at p. 620.) It was difficult to infer indifference to life from the defendant’s inaction because there was nothing more he could have done to summon aid. But here, no official response was arriving as Eddie fled. Moreover, Eddie inferably would have known the victims, from their physical state when he last observed them, were likely in no position to summon aid or immediately provide it. Although the facts here are less egregious than the facts of Tison, in which the defendants abandoned the four shooting victims, three of whom were killed and one of whom was severely injured (Tison, supra, 481 U.S. at p. 141), neither are they as ambiguous as the facts of Clark in their display of reckless indifference.

People v. Montanez

AI Brief

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079296

EDDIE LOPEZ MONTANEZ,

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