P. v. Montalvo

Filed 1/6/10 P. v. Montalvo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Barbara J. Beck, Judge. (Retired judge of the Santa Barbara County Sup. Court, assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction^[1]

In Rutland Park in Riverside, David Worman was shot in the abdomen and the head and died on March 16 or 17, 1994.

Defendant John Jason Montalvos jury trials in 2005 and 2007 ended in mistrials.

In 2008, a jury convicted defendant of first degree murder, including a true finding on the firearm use enhancement. ( 187, subd. (a); 1192.7, subd. (c); 12022.5, subd. (a).) The court sentenced defendant to a total indeterminate prison term of 28 years to life.

On appeal, defendant raises issues related to the admission of gang evidence and the sufficiency of the evidence for the first degree murder conviction. We reject his contentions and affirm the judgment.

2. Facts

James Armstrong^[2]had attended school with defendant. In March 1994, Armstrong was a member of a graffiti tagging crew, MDK. Defendant was a former member. Defendant left MDK to form a gang, SRL, meaning Sur Riva Locotes. Armstrong used methamphetamine frequently in March 1994. He agreed he was incorrigible.

On the night of March 16, Armstrong was tagging near the Van Buren bridge and encountered Worman crying and dragging a dead dog that had been struck by a car. The two men placed the dog in the river and then made their way to Rutland Park to acquire some methamphetamine. Armstrong was high and Worman was intoxicated. Worman had money that Armstrong wanted to use to buy drugs.

At Rutland Park, Armstrong and Worman encountered defendant and another man, Eugene Valencia. Defendant pointed a gun inches away from Wormans face and demanded his Walkman. Worman grabbed the gun and, as the two men struggled, it discharged against his abdomen. Defendant threatened Armstrong with the gun and warned him not to snitch. Defendant returned to Worman and shot him again. Defendant and Valencia spit on Worman and threw bottle caps at him.

Armstrong testified he ran to the house of a friend, Randy Cathcart, and told Cathcarts mother what had happened. Cathcarts mother disputed Armstrongs testimony that he had talked to her.

Later Armstrong and his mother decided he should leave the state because they were afraid he and his family were in danger from defendant and SRL.

The autopsy disclosed the victim suffered two gunshot wounds, one to the abdomen and one to the head and brain, both of which were potentially fatal. He was dying from the first wound when the second was inflicted.

Ten years later, in 2004, Armstrong decided to talk to the police because of a change in conscience. Armstrong could not remember what he told Detective Shumway about the number of shots fired. He also testified inconsistently in the 2005 and 2007 trials about how many shots were fired. At trial in January 2008, Armstrong testified there may have been four or five shots fired.

3. Gang Evidence

Armstrong testified that defendant formed the SRL gang. A gang expert testified he interviewed defendant in October 1994 and determined he was the founder and a leader and member of SRL. SRL was a gang in 1994, although SRL did not qualify as a criminal street gang for purposes of an enhancement under section 186.22. SRL claimed Rutland Park as its territory in 1994 and in 2008.

Defendant argued the gang evidence was not relevant and more prejudicial than probative, an argument he made below in a pretrial limine motion and a new trial motion. The prosecution contended the evidence was admissible under Evidence Code section 1101, subdivision (b), to show motive, intent, and identity and to corroborate Armstrongs testimony.

The trial court initially ruled the gang evidence was limited in admissibility to show identity and opportunity: SRL was a gang; defendant was the founder and a leader of SRL; SRL claimed Rutland Park as its territory and defendant had the opportunity to commit the crimes at that location; Armstrong did not come forward after the shooting because he was afraid of defendant and SRL. Later, the court ruled again that the gang evidence was admissible concerning opportunity and Armstrongs state of mind. The court instructed the jury the gang evidence showed Armstrongs state of mind and defendants opportunity to commit the crimes charged.

The trial court has broad discretion to decide whether evidence is relevant. (People v. Gutierrez (2009) 45 Cal.4th 789, 819-820; People v. Weaver (2001) 26 Cal.4th 876, 933; Evid. Code, 350.) Gang evidence is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Consequently, gang evidence may be relevant to establish the defendants motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193.) (People v. Albarran (2007) 149 Cal.App.4th 214, 223.)

In the present case, the evidence both supported Armstrongs testimony that defendant committed the crimes and corroborated Armstrongs testimony that he feared retaliation. (People v. Ruiz (1998) 62 Cal.App.4th 234, 242-243; People v. Burgener (2003) 29 Cal.4th 833, 869-870, citing People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.) The gang evidence presented was brief and limited in scope and hardly inflammatory. The jury was instructed based on CALCRIM No. 303 that Armstrongs testimony was to be considered to show his state of mind and the gang experts testimony as it related to defendants opportunity to commit the crimes. We presume the jury followed its instructions properly. (Olguin, supra, at p. 1368.)

For the same reasons, the admission of gang evidence did not violate defendants right to due process. (People v. Albarran, supra, 149 Cal.App.4th at p. 229.) The jury could permissibly infer that defendant, an SRL leader, had the opportunity to commit the crimes in Rutland Park and that Armstrong was afraid of defendant and the SRL gang. The jury was properly instructed on the limited use of the evidence. Under either standard of review,^[3]the evidence was harmless.

4. Sufficiency of Evidence

Defendant also argues the evidence is not sufficient to establish first degree murder, either on a theory of premeditation and deliberation or of felony murder. Defendant contends the first shot must be treated as accidental and Armstrongs testimony about the second shot was inconsistent and confusing. He also argues that Armstrong, an admitted drug addict, was not a credible or reliable witness.

The standard of review favors the judgment: In a case, such as the present one, based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) (People v. Proctor (1992) 4 Cal.4th 499, 528-529.)

Here, the evidence showed that, after the gun discharged the first time, defendant warned Armstrong not to snitch and then deliberately shot Worman in the head. (People v. Bolin (1998) 18 Cal.4th 297, 331-332; People v. Perez, supra, 2 Cal.4th at pp. 1125-1126.) Although Armstrong was confused about exactly what happened, the evidence is that Worman was shot twice and no evidence implicated anyone except defendant. Armstrong never implicated Valencia in the shooting. The evidence, viewed in favor of the judgment, is sufficient to establish premeditated first degree murder beyond a reasonable doubt.

The evidence also sufficiently established felony murder because the killing was committed while defendant was trying to rob Worman of his Walkman. ( 189; People v. Ainsworth (1988) 45 Cal.3d 984, 1016.) Armstrong testified that defendant first pointed a gun at Worman and demanded the Walkman. During their subsequent struggle over the gun and afterwards, Worman was shot twice.

Defendant is highly critical of Armstrongs testimony. But a jury may find a single witness to be credible even when there are reasons to mistrust him: Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) (People v. Maury (2003) 30 Cal.4th 342, 403; People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) The finding of guilt, based on a theory of felony murder, was also amply supported by Armstrongs testimony.

5. Disposition

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/King

J.

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^[1] All statutory references are to the Penal Code unless stated otherwise.

^[2] The parties stipulated that Armstrong was charged with vandalism in 1993 but the case was dismissed.

^[3]People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.