Filed 8/25/26 P. v. Montgomery CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A171475
v.
(San Francisco City & County
JONATHAN DAVID
Super. Ct. No. CRI-24008322)
MONTGOMERY,
Defendant and Appellant.
Jonathan David Montgomery (appellant) appeals from his conviction,
following a jury trial, for attempted second degree robbery (Pen. Code, §§ 211,
664).1 His sole challenge on appeal is that the trial court prejudicially erred
in refusing to instruct the jury that a mental disorder may be considered to
determine whether he had the requisite intent. We reject the challenge.
BACKGROUND
Prosecution Case
On May 6, 2024, about 10:15 a.m., appellant handed a Wells Fargo
bank employee a plastic bag and told him to put money in the bag. When the
1 All undesignated statutory references are to the Penal Code.
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employee called over his manager, appellant repeated his demand and said
he had a bomb in his pocket and was “going to blow this place up.” The
manager instructed customers to leave and the employees moved to a secure
area. When police arrived eight to ten minutes later, appellant was gone.
About 6:45 p.m. the same day, appellant approached a peace officer
outside a county jail and said, “ ‘People might be looking for me. I was at
Wells Fargo today.’ ” Appellant was arrested.
Defense Case
Appellant testified in his own defense. He had served in the Navy and
received disability checks from the Department of Veterans Affairs.
In 2018, appellant was kidnapped by an outlaw biker gang associated
with his ex-father-in-law. Appellant explained, “My ex-wife, I believe her dad
was an outlaw biker, and she was sleeping with the police chief of Nashville,
which is Steve Anderson. And I got a civil rights case with him, so it’s all tied
in together.” He escaped the kidnappers by jumping out of a moving car, but
continued to be harassed by the biker gang and by police. When he called
911 and accused the police of colluding with the bikers, they took him to a
hospital for a psychiatric evaluation. Because of this harassment, appellant
left his home in Mississippi and traveled to Phoenix and then the Philippines,
but the biker gang followed him to both locations and repeatedly threatened
him.
Appellant left the Philippines and came to San Francisco, but again the
biker gang followed him. Appellant explained, “[W]alking the streets here,
you know, I had people, you know, drive by and say stuff to me. Play songs
like all -- that blues song, think I’m going to die or something.” He initially
stayed in housing for veterans but left because he believed other residents
were connected with the biker gang. Appellant concluded the biker gang
2
“had the town on lockdown on me”: when he booked a hotel room online,
“there was something always wrong. They didn’t have the room, or they
overbooked it or something”; “[b]uses wouldn’t take me certain places, you
know, or would just pass on by or just quit running when they stopped”; and
“I’d go to a restaurant, the only thing they let me order was chicken.”
Appellant went to Wells Fargo to get the FBI’s attention so he could
enter witness protection.2 He did not wear a mask or gloves because he
“wanted to get caught.” He did not intend to take any money. He believed
that he needed the bank teller to place money into a bag to trigger the alarm
to have federal agents come. He did not initially intend to say that he had a
bomb, but ultimately felt he had to “so I could get money in the bag and, you
know, get the attention of the feds.” Appellant waited a few minutes after
the bank was cleared out, then decided to leave so as not to continue scaring
people who thought he had a bomb.
As he left the bank, appellant saw “a couple motorcycle cops come by,
and then a couple bikers right beside them, so I thought that was them
telling me they were with the bikers. But -- and then a couple people came
by and said, ‘Pick him up immediately,’ but that was those people just
following me around. They said that and I thought, ‘Okay. They know where
I’m at,’ and I just I sat there.” After “a few hours,” appellant turned himself
in.
DISCUSSION
Appellant argues the trial court erred in refusing his request to
instruct the jury, pursuant to CALCRIM No. 3428, that they may consider
evidence the defendant may have suffered from a mental disease or disorder
2 He did not go in person to an FBI office because he was concerned the
security guards there were part of the biker gang.
3
“for the limited purpose of deciding whether, at the time of the charged crime,
the defendant acted with the intent or mental state required for that crime.”3
The jury was instructed that an element of attempted robbery was, “When
the defendant used force or fear, he intended to deprive the owner of the
property permanently.” (See CALCRIM No. 1600.)
Appellant argues his testimony provided substantial evidence that he
was suffering from delusions at the time of the charged crime. We need not
decide whether the trial court erred in refusing the instruction because any
error was harmless under People v. Watson (1956) 46 Cal.2d 818. (See People
v. Ervin (2000) 22 Cal.4th 48, 91 (Ervin) [characterizing the CALJIC version
of the same instruction (CALJIC No. 3.32) as a pinpoint instruction and
applying Watson prejudice standard].)4
Specifically, the issue was squarely presented to the jury during closing
arguments, when both attorneys acknowledged appellant’s possible mental
health issues and discussed them in the context of whether he possessed the
3 CALCRIM No. 3428 states, “You have heard evidence that the
defendant may have suffered from a mental (disease[,]/ [or] defect[,]/ [or]
disorder). You may consider this evidence only for the limited purpose of
deciding whether, at the time of the charged crime, the defendant acted [or
failed to act] with the intent or mental state required for that crime.
“The People have the burden of proving beyond a reasonable doubt that
the defendant acted [or failed to act] with the required intent or mental state,
specifically:
property,” or “knowledge that …”>. If the People have not met this burden,
you must find the defendant not guilty of
4 Appellant argues the failure to instruct deprived him of due process
and therefore the federal constitutional prejudice standard applies. As
appellant concedes, we are bound by the California Supreme Court’s holding
in Ervin, supra, 22 Cal.4th at page 91.
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requisite specific intent. The prosecutor argued, with respect to intent, that a
“reasonable conclusion is that [appellant] is paranoid, and maybe so, but this
is what he wanted. [¶] He wanted, by his own testimony, to get arrested that
day. So why, when you’re waiting in line about to execute a plan in order to
go into witness protection with the FBI, are you so nervous? Does that make
any sense, right? You’re in the bank. There’s witnesses, everybody -- there’s
the cameras that he said makes him feel comfortable. There’s a security
officer, but, no. He’s sitting there pacing back and forth, looking over his
shoulder, grabbing his sweatshirt that has some kind of bulge in it because
he knew what he was about to do was commit a crime. [¶] You know, when
we saw him testify yesterday -- and I think we all can draw conclusions from
his testimony that maybe there’s some underlying issues that are going on
with [appellant], but he was very comfortable on the stand when he was
talking about this incident, right?” The prosecutor later continued,
“[Appellant], . . . despite his clearly having some possible mental health
underlying issue, was at least clever enough to downplay any of his part in it,
right? All his testimony benefited him in a way.”
Defense counsel argued that whether appellant had “the specific intent
to commit robbery or theft . . . is probably the biggest issue you’re going to
spend most of your time talking about in the back.” Counsel continued,
“[T]he only evidence that could ever exist about what someone was thinking
at a specific time would come from that person. And [appellant] told you
exactly what he was thinking in the Wells Fargo. Direct evidence that he did
not intend to take that money. He intended to get help from the FBI.” After
discussing additional evidence, defense counsel argued, “[Appellant]
courageously told you everything that has happened to him. He told you his
truth. What has been happening to him, and, yes, you may think it’s crazy.
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You may think it’s not based in actual reality. You can think whatever you
want about it, but that doesn’t mean he doesn’t believe that it’s true. There
is enormous evidence that you have seen that he believes all of this is
happening to him.”
Appellant now argues, “Without guidance from CALCRIM No. 3428,
the jury had no legal framework to connect this evidence of mental health
disorder to the specific-intent element of attempted robbery. They were
effectively left to assume that because he entered the bank, demanded
money, and frightened employees, he must have intended to steal when his
mental health disorder could have negated that element entirely.” The
closing arguments above belie this contention. It is not reasonably probable
that, had the jury been instructed with CALCRIM No. 3428, a more favorable
outcome would have resulted.
DISPOSITION
The judgment is affirmed.
SIMONS, Acting P. J.
We concur.
BURNS, J.
CHOU, J.
(A171475)
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