Opinion
G056877
04-22-2020
THE PEOPLE, Plaintiff and Respondent, v. JAVIER HOMERO MONTOYA, Defendant and Appellant.
Jamie Popper, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Julie A. Harris and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14WF4277) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed as modified with limited remand. Jamie Popper, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Julie A. Harris and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In a single day, Javier Homero Montoya led the police on two separate, high-speed, and extraordinarily dangerous vehicle pursuits along freeways and streets in Orange and Los Angeles Counties. During the course of the first pursuit, Montoya slammed on the brakes of his truck, causing one police vehicle to crash into it, then accelerated quickly and crashed his truck into a second police vehicle before speeding off down a freeway. The second pursuit ended when Montoya lost control of his truck, spun off a freeway embankment, and crashed into a light pole, killing his passenger.
A jury convicted Montoya, as charged, of second degree murder and two counts of aggravated assault on a peace officer. He was sentenced to 30 years to life for murder with a consecutive five-year prior serious felony enhancement and concurrent determinate sentences on the counts for aggravated assault.
Before returning the verdict, the jury submitted a question asking whether it could consider lesser included offenses without first acquitting Montoya of the greater offense of aggravated assault on a peace officer. The trial court's response was the jury could not convict Montoya of a lesser included offense without first acquitting him of the greater offense. This response is the focus of Montoya's appeal. Montoya contends the trial court answered the question incorrectly, the error was prejudicial, and, as consequence, the convictions for aggravated assault on a peace officer must be reversed (he does not challenge the murder conviction).
We conclude Montoya forfeited or waived any claim of error because his trial counsel stipulated to the court's response to the jury's question. Even if Montoya preserved his claim of error, the court's response, if erroneous, was not prejudicial. We therefore affirm, with a limited remand for the purpose of giving the trial court the opportunity to exercise its discretion to decide whether to strike a prior serious felony enhancement under Penal Code section 667, subdivision (a)(1) (all code references are to the Penal Code.) We also modify the judgment to reduce the presentence custody credits on the determinate sentences to 1,383 days.
FACTS
On December 1, 2014, at around 7:00 p.m., Westminster Police Officer Alan Emerson drove to a 24 Hour Fitness parking lot in Westminster in response to several 911 calls about "an aggressive male Hispanic." When Emerson arrived at the parking lot, he pulled up next to a truck matching a description provided by witnesses. Emerson tried to make contact with a man standing next to the truck, later identified as Montoya, but as Emerson approached, Montoya got into the truck and drove off. Emerson turned on the red and blue flashing patrol car lights and followed him.
Emerson called for assistance, and in response, Westminster Police Officers David Skube and Keith Phan joined the pursuit. Montoya drove westbound on Westminster Boulevard then entered the northbound on-ramp to Interstate 405 (the 405). As Montoya got on the freeway, he rapidly increased his speed and turned off the truck's headlights. Emerson followed him, and Skube and Phan were in their respective patrol vehicles behind Emerson. Although no cars were in front of Montoya, he slammed on the brakes and his truck came to a "sudden and immediate stop." Emerson braked and veered to the right, but was unable to avoid colliding into the back end of Montoya's truck.
Skube had enough time to avoid a collision by swerving leftward. His police vehicle slid to a stop next to the driver's side of Montoya's truck. Montoya turned the steering wheel to the left, accelerated quickly, and drove his truck into the passenger side of Skube's police car, leaving a dent and a black mark. The front end of Montoya's truck became airborne and, when it landed, Montoya sped off down the 405. He accelerated to speeds of over 100 miles per hour and weaved between lanes. All three officers tried to pursue Montoya, but lost sight of him.
Later that night, at about 11:30 p.m., Westminster Police Sergeant Richard Mize, working undercover in an unmarked vehicle, encountered Montoya driving his truck in a residential alleyway. Mize followed Montoya. Montoya turned off the truck headlights and drove to a northbound on-ramp for the 405. He turned the headlights back on and accelerated as he merged onto the freeway. Montoya then turned his truck sideways and came to a stop so as to block several lanes of traffic. Montoya backed the truck toward Mize's car, stopped suddenly and, after a few moments, pulled forward to the shoulder.
Two marked police vehicles, with lights flashing and sirens blaring, arrived and pulled in behind Montoya. As they did, Montoya drove off down the 405. The police vehicles pursued him. Montoya again drove at speeds exceeding 100 miles per hour and veered across traffic lanes. He exited the freeway at Seal Beach Boulevard and drove on the wrong side of the road. The police vehicles eventually lost sight of Montoya.
Although police vehicles had lost sight of Montoya, a police helicopter had joined in the pursuit and was able to follow him and broadcast updates of his whereabouts. Cypress Police Officer Michael McBain received such a broadcast and was able to find Montoya and pursue him. Montoya drove over 80 miles an hour along streets having speed limits of 45 miles an hour and passed about 10 vehicles before driving onto the 405 freeway.
A car on the 405 signaled and veered into the lane in which Montoya was driving. Montoya lost control of the truck. It spun around, plunged off an embankment near the 405/710 interchange, crashed into a lamp pole and trees, and caught on fire.
Police officers approached the truck on foot. As Skube was dousing the flames with a fire extinguisher, he saw Montoya, unconscious, with his left foot wedged between the driver's door and the frame of the truck and his upper torso wedged in the rear of the driver's side door. Skube saw another man, later identified as Alberto Marquez, in the truck. His head was resting on Montoya's chest and his body was facing the rear of the truck. Marquez was unresponsive and not breathing.
Montoya was pulled from the truck and taken to a hospital. Blood tests revealed his blood alcohol concentration was between .096 and .097 percent and he had methamphetamine in his system. Marquez died as a result of the collision:. An autopsy determined the cause of death was multiple blunt force traumatic injuries.
JURY VERDICT AND SENTENCING
A jury convicted Montoya, as charged, of second degree murder (§ 187, subd. (a) [count 1]) and two counts of aggravated assault on a peace officer (§ 245, subd. (c) [counts 2 and 3]). Montoya admitted an on-bail enhancement (§ 12022.1, subd. (b)), and the trial court found true a prior serious felony enhancement (§ 667, subd. (a)(1)) and a prior strike enhancement (§§ 667, subds. (d) & (e)(1), 1170.12, subds (b) & (c)(1)).
The trial court sentenced Montoya to a term of 30 years to life in prison for murder, with a consecutive five years for the prior serious felony enhancement. The court sentenced Montoya to concurrent prison terms of eight years for each count of aggravated assault on a peace officer. The on-bail enhancement was stricken for purposes of sentencing.
DISCUSSION
I.
The Trial Court's Response to the Jury's Question
Regarding Lesser Included Offenses
A. Montoya Forfeited or Waived Any Claim of Error.
The trial court instructed the jury on the charged offenses of murder and aggravated assault on a peace officer and, as to the latter offense, on three lesser included offenses: (1) assault with force likely to produce great bodily injury (§ 245, subd. (c)); (2) simple assault on a peace officer (§ 241); and (3) simple assault (§ 240). The court instructed the jury "you will be able to evaluate not only counts 2 and 3, but also the lessers that are inside counts 2 and 3." The court instructed the jury with CALCRIM No. 3517 which, as to the order in which the jury was to consider the crimes, states: "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime."
CALCRIM No. 3517 also instructs the jury, "[i]f all of you cannot agree whether the People have proved beyond a reasonable doubt that the defendant is guilty of the greater crime, inform me that you cannot reach an agreement." The jury could not so agree, and during deliberations submitted a written question asking, "If the jurors are not unan[imous] on the primary assault charge, can we consider the lesser charge or do we have to unan[i]mously find the defendant not guilty first?" The court answered the question by responding: "The court can accept a verdict of guilt of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime." According to the court minutes, both the prosecutor and defense counsel stipulated to that response. Later, after the jury announced it had reached a verdict, both the prosecutor and defense counsel confirmed they "were okay" with that response.
When a jury asks a question during deliberations, the trial court must respond by informing the jury on the desired points of law. (§ 1138.) The court has discretion to respond by referring the jury to the original instructions, if they are full and complete, or by providing additional explanation. (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.)
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
The trial court here chose the latter option. Montoya's trial counsel stipulated to the trial court's response and Montoya thereby forfeited or waived any claim the response was erroneous. "When a trial court decides to respond to a jury's note, counsel's silence waives any objection under section 1138. [Citation] 'The failure of defendant's counsel to object or move for a mistrial upon the court frankly informing him of the court's action might also be construed to be a tacit approval. Approval of the court's action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.'" (People v. Roldan (2005) 35 Cal.4th 646, 729, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
In People v. Salazar (2016) 63 Cal.4th 214, 248-249, the trial court's answer to a jury question was not responsive to it. But defense counsel did not suggest an alternative response and had endorsed the court's proposal. The Supreme Court concluded the defendant's objection had not been preserved. (Id. at p. 249; see People v. Debose (2014) 59 Cal.4th 177, 207 [counsel for defendant forfeited the argument the court erred in responding to a jury question "by affirmatively agreeing with the court's actions"]; People v. Rogers (2006) 39 Cal.4th 826, 877 ["counsel's acquiescence in the trial court's response [to a jury question] forfeits the claim of error on appeal"].)
In this case, the record discloses no objection by defense counsel to the trial court's response to the jury's question. To the contrary, defense counsel stipulated to the court's response and later confirmed that he was "okay" with it. Montoya therefore forfeited or waived any claim the trial court's response to the jury's question was error. Montoya does not make a claim of ineffective assistance of counsel. B. The Trial Court's Response, If Erroneous, Was Not Prejudicial.
Even if Montoya preserved his claim, we would conclude there was no prejudicial error. The court's response, as a proposition of law, was correct: A jury may not convict a defendant of a lesser included offense before acquitting the defendant of the greater offense. (People v. Kurtzman (1988) 46 Cal.3d 322, 324-325.) The problem was the answer was not responsive to the jury's question. The jury asked whether it could consider the lesser included offenses without reaching a unanimous decision on the greater offense of aggravated assault on a peace officer. The correct answer to that question is yes, the jury may consider the lesser included offenses without first reaching a unanimous verdict on the greater offense. (People v. Rivera (2019) 7 Cal.5th 306, 327-328 ["We have observed that an acquittal-first instruction must not prohibit the jury from considering or deliberating on the lesser included offense before returning a verdict on the greater offense"].)
Any error by the trial court under section 1138 in giving a nonresponsive answer to the jury's question is subject to the prejudice standard of People v. Watson (1956) 46 Cal.2d 818, 836; that is, "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (See People v. Roberts (1992) 2 Cal.4th 271, 326.) Montoya argues the court's response left it reasonably probable the jury misapprehended the law by believing it could not even consider the lesser included offenses without first reaching a unanimous decision on the greater offense of aggravated assault on a peace officer. The court's response quite clearly stated the jury could not convict Montoya of a lesser included offense without first acquitting of the greater offense. The court did not foreclose consideration of lesser included offenses. During jury instructions, the court told the jury it was "up to you to decide the order in which you consider each crime and the relevant evidence." After explaining the lesser included offenses and their relationship to each other, the court told the jury "you will have to look at all these menus" and "you will be able to evaluate not only counts 2 and 3, but also the lessers that are inside counts 2 and 3."
We therefore conclude it was not reasonably probable the trial court's response to the jury's question led the jury to convict Montoya of aggravated assault on a peace officer without considering the lesser included offenses. Assuming the jury did misapprehend the law as Montoya contends, it is not reasonably probable the jury would have convicted Montoya of a lesser included offense had the jury considered them.
Of the three lesser included offenses, there was little probability, and certainly no reasonable probability, the jury would have convicted Montoya of assault with force likely to produce great bodily injury or simple assault because there was no question the victims (Emerson and Skube) were peace officers. Given than indisputable fact, only the lesser offense of simple assault on a peace officer was a possible alternative to the greater offense of aggravated assault on a peace officer. The evidence presented at trial leaves little doubt the assaults on Emerson and Skube were not simple, but were made with force likely to cause great bodily injury. Montoya was driving a truck at a high rate of speed. He slammed on the brakes, causing Emerson's police vehicle to collide into the rear of the truck. Montoya came to a stop, then accelerated quickly and slammed his truck into Skube's police vehicle. It is virtually self-evident that driving a truck in such a dangerous way is likely to cause great bodily injury. Further, an element of each form of assault charged was the defendant acted willfully. (See CALCRIM Nos. 860, 875, 900, 915.) If the jury believed, as Montoya asserts, that his truck malfunctioned, then it would have acquitted him of assault altogether.
II.
Prior Serious Felony Enhancement
Montoya argues the matter should be remanded to give the trial court the opportunity to exercise its discretion to decide whether to strike the five-year sentencing enhancement for the prior serious felony conviction. Senate Bill No. 1393 (2017-2018 Reg. Sess.), which became effective January 1, 2019, amended sections 667, subdivision (a) and 1385, subdivision (b) to grant a trial court discretion to strike or dismiss a prior serious felony enhancement for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) As a result, trial courts now have discretion to strike the five-year sentencing enhancement imposed by section 667, subdivision (a). (People v. Dearborne (2019) 34 Cal.App.5th 250, 268.) "The amendment applies retroactively to all cases not final on its effective date." (Ibid.; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
The Attorney General agrees the amendment applies retroactively to this case and requires us to remand for the trial court to exercise its discretion. When the trial court sentenced Montoya, it imposed the five-year sentence enhancement as a matter of course and did not indicate whether it would have struck or dismissed the prior serious felony conviction if it had the discretion to do so. We shall remand for the limited purpose of permitting the trial court to exercise its discretion to decide whether to strike the five-year sentencing enhancement.
III.
Presentence Conduct Credits
The trial court granted Montoya 1,383 days of custody credit for actual days served as to the indeterminate sentence on count 1. The court declined to award conduct credit for that sentence because Montoya had been convicted of murder. The court granted Montoya 1,383 days of actual credit and 1,383 days of conduct credit (total of 2,766 days of custody credit) on the concurrent determinate sentences on counts 2 and 3.
The Attorney General argues the trial court erred by awarding Montoya 1,383 days of conduct credit on the determinate sentences. The Attorney General is correct. Section 2933.2, subdivision (a) prohibits any person convicted of murder from earning presentence conduct or worktime credit. (People v. Chism (2014) 58 Cal.4th 1266, 1336.) This prohibition applies to the offender, not the offense, and therefore bars a convicted murderer of accruing conduct credit for any and all offenses, irrespective of whether they were for murder. (People v. Wheeler (2003) 105 Cal.App.4th 1423, 1432.) "Thus, the import of section 2933.2, subdivisions (a) and (b) is that a defendant convicted of murder cannot accrue postsentence worktime credits even if his or her sentence includes a determinate term, such as would be imposed for a separate offense or an enhancement, in addition to the indeterminate term for the murder." (People v. McNamee (2002) 96 Cal.App.4th 66, 71.)
Montoya argues Proposition 57, which went into effect before his trial, effectively repealed sections 2933.1 and 2933.2 and allows convicted murderers to receive presentence conduct credits. Proposition 57 was passed by the electorate (Ballot Pamp., Gen. Elec. Nov. 8, 2016) and implemented as Article I, section 32 of the California Constitution. Section 32, subdivision (a)(2) of Article I states: "Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements."
Proposition 57 did not repeal or alter section 2933.1 or section 2933.2. Proposition 57 refers only to the Department of Corrections and Rehabilitation's power to award certain credits and does not refer to presentence credit. Nor could Proposition 57 apply to presentence credits: The sentencing court, not the Department of Corrections and Rehabilitation, determines and awards presentence credits. (People v. Brown (2012) 54 Cal.4th 314, 321.) Regulations adopted by the Department of Corrections and Rehabilitation confirm Proposition 57 did not alter the statutory basis for an award of presentence credits: "Credit applied prior to sentencing is awarded by the sentencing court pursuant to sections 2900.1, 2900.5, 2933.1 and 4019 of the Penal Code." (Cal. Code Regs., tit. 15, § 3043.1.)
"The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety." (Cal. Const, art. I, § 32, subd. (b).)
The trial court's award of presentence conduct credit on the determinate sentences was an unauthorized sentence which we can correct in the first instance (People v. Fitzgerald (1997) 59 Cal.App.4th 932, 935-936) notwithstanding the prosecutor's failure to object (People v. Gisbert (2012) 205 Cal.App.4th 277, 280). The People may challenge an unauthorized sentence on a defendant's appeal without filing a notice a notice of appeal of their own. (People v. Rowland (1988) 206 Cal.App.3d 119, 126.) We shall order the judgment modified and the abstract of judgment corrected to reflect 1,383 days of presentence custody credit based on 1,383 actual days.
DISPOSITION
The matter is remanded for the limited purpose of allowing the trial court to exercise its discretion to decide whether to strike the section 667, subdivision (a)(1) enhancement, and, if appropriate following exercise of that discretion, to resentence Montoya. The judgment is modified to reduce the days of presentence custody credit to 1,383 actual days on the determinate sentence. The trial court is thereafter directed prepare and amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation. In all other respects, and as modified, the judgment is affirmed.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.