Opinion
D070945
06-18-2018
THE PEOPLE, Plaintiff and Respondent, v. MIKE MONTANA, Defendant and Appellant.
Gregory L. Cannon for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Daniel J. Hilton, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD260902) APPEAL from a judgment of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed and remand with direction. Gregory L. Cannon for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Daniel J. Hilton, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant Mike Montana of the attempted murder of Kyle Kraska (Pen. Code §§ 664, 187, subd. (a), count 1), shooting at an occupied vehicle (§ 246, count 2), making a criminal threat to Lydia Fimbres (§ 422, count 3), and making a criminal threat to Robert Hibler (ibid., count 4). On count 1, the jury determined that the offense was willful, deliberate, and premeditated. (§ 189.) The jury also found true the allegation that Montana intentionally and personally discharged a firearm, proximately causing great bodily injury. (§§ 12022.53, subd. (d), 12022.7, subd. (a).) The trial court sentenced him to life with possibility of parole on count 1, a consecutive term of 25 years to life for the firearm enhancement, and consecutive terms totaling three years and eight months on counts 3 and 4.
All further statutory references are to the Penal Code unless noted.
The court found the great bodily injury enhancement under section 12022.7 and sentencing on count 2 were barred under section 654.
On appeal, Montana raised four contentions: (1) the court admitted statements he made during a jail classification interview in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the court erred by failing to sever the criminal threat counts from the attempted murder count; (3) the first two errors produced cumulative error; and (4) the jury instruction on criminal threats erroneously listed certain elements in the disjunctive. We reject these contentions.
In a supplemental brief, Montana argues his case should be remanded so the trial court can exercise its discretion to strike or dismiss the firearm enhancement pursuant to Senate Bill 620, which became effective on January 1, 2018. The People concede the law applies retroactively, but argue remand is unnecessary. We disagree. We remand to the trial court so it can exercise its discretion as to the firearm enhancement. In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
A. Counts 1 and 2: Shooting of Kyle Kraska
In October 2014, Kraska hired Montana to paint his house. Kraska agreed to pay Montana $800 upfront, and $2,200 upon completion of the work. Montana asked Kraska for additional money on multiple occasions, which Kraska did not provide. One day, Montana told Kraska he could not finish the job, and Kraska finished the work himself.
On February 3, 2015, at 6:30 a.m., Kraska heard a loud pounding on his front door. He did not see anyone, but found a note under his doormat that stated: "Kyle, you're using the paint job I gave to your home, but you owe me $2,200 for it. The work is good enough for you to keep using it. It's in your best interest to pay me the money you owe me. Please mail the check to Mike Montana, [mailing address]. I'll have to use legal action if I don't receive the payment in full, $2,200. Please don't lie to me anymore. ¶ Thanks for your time. Mike." Kraska felt threatened based on the timing and delivery of the note, explaining Montana knew he worked late. He received a voicemail shortly thereafter from Montana saying something like, "You better pay me the money."
One week later, on February 10 at around 2:55 p.m., a homeowner who lived near Kraska was driving home to meet Montana for an estimate. He saw Montana at another house, loading supplies into his van. He did not "look any different" than any other day.
Kraska was leaving for work at his usual time, around 3:00 p.m. As he backed down his driveway, he heard a revving engine and screeching tires. He saw Montana's van in his rearview mirror. Montana parked, blocking Kraska. He approached Kraska's driver side window, motioned for him to lower it, and, once he did, said "You should have paid me my $2,200." He seemed very focused and determined. Montana moved to the windshield and Kraska saw a flash; he thought Montana might have a camera. Montana walked past Kraska to the blind spot, and Kraska heard a loud bang. Montana started walking back past Kraska, and Kraska saw he had a handgun. Montana proceeded to shoot a front tire, fire three shots through the hood, and then point the gun at Kraska. Kraska heard shots and exploding glass. He got out, crouched down, and saw a bullet hole in his leg and blood. Kraska perceived Montana coming around the car and dove back into the driver seat, in a fetal position. He heard additional shots and at some point sensed Montana leaving.
Eleven 9-millimeter casings, as well as bullets and fragments, were recovered at the scene. A criminalist testified that the casings, and the bullets and fragments he could identify, were from the same Smith and Wesson pistol. At approximately 10:00 p.m., police officers contacted Montana at his home. In his room they recovered a calendar with the following note on December 31: "Kyle payback $2,200, he stole from me." They also recovered prescription drug containers, some empty. They were unable to locate the firearm.
The prosecutor introduced Montana's firearm records, and indicated they reflected he had two registered .22 caliber firearms.
Officers transported Montana to a police substation where he was photographed. He followed the photographer's instructions and moved normally. Four police officers who interacted with Montana during and after his arrest testified at trial. They reported he did not appear high, intoxicated, or mentally ill; did not exhibit unusual behavior; and was calm and cooperative.
On February 11, Deputy Jason Weber conducted a jail classification interview of Montana. Weber asked Montana if he knew what his current charges were. Montana said, "Yes, is he still alive?" Weber said he was "being charged with attempted murder, it would seem the victim would be still alive." Weber also told Montana he "read that the victim was shot five times." Montana smiled and said, "He deserved every bit of it," that "he owed him money and hurt his sister"; and that "He may have a pretty face but he was an asshole." Weber testified Montana was smiling and nodding his head, and his facial expression was happy and proud. B. Count 3: Threat to Lydia Fimbres
In November 2014, Fimbres was at work at the Department of Motor Vehicles (DMV) attempting to assist Montana. Montana indicated his registration fees were too much and asked if they could be waived. Fimbres said no. Montana became a little upset and irate, and went to another window to ask if Fimbres had properly determined the amount of fees due. He returned, and Fimbres explained he could not go to just any window and ask questions. Montana said "he could do whatever he wanted to do and he would go home and get his machine gun and come back and blow us all up." Fimbres was scared. No one at the DMV had said anything of this level to her, in her 10 years there. She thought he was on drugs or had a mental illness, noting he was pacing and drained looking. Fimbres reported Montana's statement to her manager, who called 911. When officers arrived, they were unable to locate Montana. Fimbres remained afraid after the incident. C. Count 4: Threat to Robert Hibler
In November 2012, Hibler was doing traffic control for a rowing club race as Montana rode a jet ski through the race course. Hibler waved Montana over and asked him to stay away from the boats, which he said he would. Montana proceeded to a "go fast" area, gunned his jet ski, and collided with a boat, causing a referee to fall down. Montana called Hibler a few days later and complained about the incident with the referee. Hibler felt his comments were threatening, and hung up. Montana repeatedly called and left messages over a six-week period (identified in the record as voicemails or recorded calls). Five were played to the jury, and we note portions of each.
In the first message, Montana stated: "[Y]ou have children . . . and I just think you guys are risking a lot . . . . I'm coming out next weekend and I'm sure you're gonna have you know some kind of answer." He also said "I'm getting my gun on December 7th . . . ." In the second, he talked about "a lady in a boat" who raised her voice, stating he was going to punish her "legally," and continued: "I think that you're just opening up a major can of worms by being disrespectful for me . . . ." In the third message, Montana said Hibler was stalking him, and added: "[W]hatever your plans are on the 9th, I'm gonna be there . . . . So if you wanna go ahead and escalate your situation to where it is bad, you come to the right man." The fourth message, said, in part, that he was just "doing stuff to protect himself." In the final voice message played to the jury, Montana referenced a visit from "your people" and continued: "I'm getting a gun on the 7th and I asked the officer to come by and collect the gun. I don't trust myself. I actually want to shoot you. I'm, not shoot you but the people that showed up, the men, I want to shoot 'em and I want to shoot 'em in the back of the head, you know? I mean I'm a little unstable. I'm on medication . . . . " He noted the gun was a "Smith and Weston [sic] 9 mm."
Hibler believed the threats and felt he was in danger. He carried a firearm, despite not having a concealed carry permit. He also had concern about Montana's reference to medication, and possible mental health issues. On February 10, 2015, Hibler saw on the news that there was a shooting, Montana was the suspect, and he was on the loose. The news "scared the heck" out of him, and he locked his doors and armed himself. D. Defense and Rebuttal Evidence
Pharmacist Aaron Swann testified about Montana's prescription records, which covered September 2003 to January 2015. Relevant here, Montana was prescribed opiates (oxycodone and morphine sulfate), a generic for Paxil (paroxetine), a generic for Seroquel (Quetiapine), and Clonazepam. Dr. Swann indicated these types of medications could result in unconscious behavior at higher doses. Swann acknowledged there was "nothing unusual" about Montana's medications, he was unaware of a correlation between them and a higher incidence of violence, and one could develop a tolerance over time. He also stated "an unconscious person cannot shoot someone."
Montana was prescribed additional medications as well, including Zyprexa (similar to Seroquel).
Psychiatrist Clark Smith also testified, based on his review of Montana's medical records, arrest records for two DUIs, preliminary hearing testimony, and an article provided by defense counsel. Dr. Smith explained that opiate users have decreased inhibitions and can become violent, though he would expect Montana to have some tolerance. He noted Montana was taking the maximum Seroquel dosage, and the drug does not lead to tolerance. He opined that opiates can impair the ability to form specific intent, and each added medication would increase the risk of impairment. He did indicate he had seen the medications prescribed in these combinations. Smith also testified that Montana had a working diagnosis of panic disorder, which results in panic attacks. He opined that panic attacks can impair the ability to form specific intent, and the medications used to treat panic can impair intent as well. Lastly, Smith noted Montana was diagnosed with hypomania, a less severe form of mania, and jail records showed his symptoms ceased when Paxil was stopped. He opined that Montana suffered from mania, Paxil triggered it, and it was unlikely the shooting would have occurred if he had not been in a manic state caused by Paxil.
Defense counsel also presented evidence regarding the DUIs, during which Montana was on medication and the arresting officers saw signs of impairment. Finally, the defense called Peter Fischetti, the San Diego sheriffs' department chief mental health clinician, who met with Montana in jail on February 13, 2015. He read Montana a probable cause declaration, which noted the victim had been shot five times. Montana was very surprised and reacted with shock.
In rebuttal, the prosecutor called toxicologist Erin Crabtrey. She testified there was no clear relationship between opiates and violence, and she was not aware of a link between Paxil and violence. She would not rely on DUI blood tests alone to opine on someone being under the influence, and would need "the other information to show that the person was responding in a way consistent with impairment." She also stated that prescription records were not sufficient to opine on a person's mental status at a particular time. The prosecutor then called an additional officer, who transported Montana to jail. He did not recall Montana having a manic episode during the ride or presenting any difficulty during booking.
DISCUSSION
A. Admission of the Classification Interview Statements
Montana contends the court erred by admitting his statements to Deputy Weber during the classification interview in violation of Miranda.
1. Additional background facts
At the preliminary hearing, the prosecutor called Deputy Weber, and he provided a truncated but consistent account of the classification interview. Defense counsel objected on Miranda grounds. The trial court found there was no interrogation and overruled the objection. The parties again addressed the Miranda objection during in limine motions. The court indicated the statement about the victim being shot five times "seem[ed] more of an issue" than the question about the charges, but found it was unlikely to elicit an incriminating response. The court concluded Montana's statements were voluntary and not in response to interrogation.
While providing this ruling, the court commented that Montana had earlier invoked his Miranda rights. During trial, the court confirmed its ruling and overruled an Evidence Code section 352 objection from defense counsel.
2. Governing principles and analysis
Under Miranda, " 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' " (People v. Elizalde (2015) 61 Cal.4th 523, 531 (Elizalde), quoting Miranda, supra, 384 U.S. at p. 444.)
" '[I]nterrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 301, fn. omitted (Innis).) The United States Supreme Court has recognized a " 'routine booking question' exception which exempts from Miranda 's coverage questions to secure the 'biographical data necessary to complete booking or pretrial services.' " (Pennsylvania v. Muniz (1990) 496 U.S. 582, 601 (Muniz).) In Elizalde, the California Supreme Court explained that "[w]hen booking questions go beyond the basic biographical data contemplated in Muniz, the core concerns of Miranda and Innis are implicated." (Elizalde, supra, 61 Cal.4th, at pp. 536; see id. at pp. 538-539 [holding gang affiliation questions "do not conform to the narrow exception . . . for basic identifying biographical data" and "were reasonably likely to elicit an incriminating response"].)
" 'Clearly, not all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.' " (People v. Dement (2011) 53 Cal.4th 1, 26, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Our task is to " 'determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.' " (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) "The erroneous admission of a defendant's statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 [(Chapman)]. [Citations.] That test requires the People here 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Chapman, at p. 24.)" (Elizalde, supra, 61 Cal.4th at p. 542.)
As an initial matter, although the People argue the booking exception applies, they elsewhere concede Deputy Weber's communications implicated matters beyond biographical information and the reasonable likelihood standard applies. We need not address the booking exception further, and proceed to analyze Deputy Weber's statements under Innis.
Deputy Weber asked Montana if he knew what his current charges were. Telling a suspect about the charges against him or her does not constitute custodial interrogation. (See People v. Huggins (2006) 38 Cal.4th 175, 198 (Huggins) ["telling defendant he was a murder suspect did not call on him to confess"]; see also United States v. Payne (4th Cir. 1992) 954 F.2d 199, 202 (Payne) [Innis is "not so broad as to capture within Miranda's reach all declaratory statements by police officers concerning the nature of the charges against the suspect and the evidence relating to those charges"]; United States v. Conley (1st Cir. 1998) 156 F.3d 78, 83 (Conley) [accord].) Although Deputy Weber's initial statement was in the form of a question, it merely called for a "yes" or "no" response. Indeed, Montana responded with a "yes." He then volunteered a question of his own: "Is he alive?"
Deputy Weber responded to Montana's question. He first explained that "he was being charged with attempted murder," so "it would seem the victim would be still alive." There was nothing problematic about Deputy Weber answering Montana's question or, as discussed ante, describing the charges against him. (See United States v. Briggs (7th Cir. 2001) 273 F.3d 737, 740 ["A police officer's response to a direct inquiry by the defendant does not constitute 'interrogation' "]; People v. Waidla (2000) 22 Cal.4th 690, 727, 731 [noting accused can initiate further communication, and finding spontaneous questions reflected initiation].) However, Deputy Weber then stated he "read that the victim was shot five times."
In People v. Haley (2004) 34 Cal.4th 283 (Harley), a detective informed the defendant his fingerprints were found at the crime scene, said, "[W]e know that you did kill Delores Clement," and the defendant stated, "You're right. I did it" (although the sequence of the statements was unclear). (Id. at pp. 296, 300.) Focusing on the fingerprints comment, the California Supreme Court held the defendant's statements were voluntary. (Id. at p. 302.) The Court explained that "[a] brief statement informing an in-custody defendant about the evidence that is against him is not the functional equivalent of interrogation because it is not the type of statement likely to elicit an incriminating response." (Ibid.) Haley contrasted the officer's statements there with lengthy or detailed police communications. (Id. at pp. 302-303 [discussing People v. Sims (1993) 5 Cal.4th 405, where the "officer launched into a detailed explanation about the defendant's involvement in the . . . crime, providing . . . a detailed account of the evidence," and People v. Boyer (1989) 48 Cal.3d 247, where the officer "launched into a monologue on the status of the investigation"].)
See also, e.g., U.S. v. Moreno-Flores (9th Cir. 1994) 33 F.3d 1164, 1168 (no interrogation where officer told defendant they "seized about 600 pounds of cocaine," he "was in serious trouble," and "was facing a lengthy prison sentence," and the following morning asked "how his night was"); Payne, supra, 954 F.2d at pp. 201, 203 (agent stating they "found a gun at your house" was not interrogation).
Here, Deputy Weber's statement about the victim being shot five times did not constitute interrogation. Both this statement, and his communications as a whole, were brief and devoid of detail. He did not identify Kraska, suggest there was evidence specific to Montana at the scene, or claim he was responsible for the shooting. These communications were far less likely to elicit an incriminating response than the Haley detective's statements that the defendant's fingerprints were found at the crime scene and they knew he killed the victim. (Haley, supra, 34 Cal.4th at p. 296.)
Based on the foregoing, we reject Montana's contention that Deputy Weber's question about the charges and comment about the number of shots were reasonably likely to evoke an incriminating response. His reliance on Elizalde is also misplaced. Elizalde makes clear that where communications during a classification interview fall outside the booking exception, Innis applies. (Elizalde, supra, 61 Cal.4th, at pp. 535-536.) There was no interrogation under Innis here, and thus no Miranda violation.
Even if the court had erred in admitting Montana's statements, he does not establish prejudice under the applicable Chapman standard. He concedes the statements were probably harmless as to his identity as the shooter, but contends there was "very substantial" evidence that his "state of mind at the time of the shooting was adversely affected by mental illness and/or his medications." He specifically contends the expert testimony "supported a finding that [he] was unconscious at the time of the shooting, or was otherwise unable to premeditate and deliberate."
The record provides ample, if not overwhelming, evidence that Montana acted with the specific intent to kill. Montana felt Kraska owed him the $2,200 he had agreed to pay upon completion of the work, as shown by (1) the calendar entry for "Kyle payback" referencing this amount, (2) the early morning note and voicemail seeking it, and (3) his statement before the shooting that Kraska should have paid him his $2,200. On the day of the shooting, his conduct reflected deliberate action, including arriving when Kraska typically left for work; parking to block him in; having him roll down his window to say he should have paid him; disabling the vehicle; and then shooting him. Finally, the police could not locate the weapon when they searched Montana's home, suggesting he disposed of it. Individuals who interacted with Montana that day testified he appeared normal and not impaired. This record is wholly inconsistent with Montana's theory that he was unconscious during the shooting and did not deliberately attack Kraska.
Montana's evidence of impairment is comparatively weak. Dr. Swann did testify his medications could result in an unconscious state (though noting an unconscious person could not shoot someone), and Dr. Smith opined his conditions and medications could impair the ability to form intent. But both experts testified based on records alone, suggested the medications were not unusual, and indicated Montana would have developed a tolerance (at least in part). Further, while Smith testified as to a link between the medications and violence, Swann and toxicologist Crabtrey were not aware of such link. Crabtrey also disputed that DUI or prescription records were sufficient to opine on impairment or state of mind. Finally, Fischetti's testimony that Montana was surprised when told the victim was shot five times provides minimal, if any, proof that he acted unconsciously. Considering the extensive evidence that Montana planned and carried out the shooting, there is no reason to assume the jury would find his surprise was due to being unaware of the shooting (as opposed to, for example, not realizing how many shots connected or some other reason).
On this record, no reasonable juror would have reached a different verdict if Deputy Weber's testimony about Montana's classification interview statements had been excluded. Their admission was harmless beyond a reasonable doubt. B. Defense Motion to Sever the Threat Counts
Next, Montana contends the court erred in denying his motion to sever the criminal threat counts from the attempted murder count.
1. Additional background facts
After the preliminary hearing and before trial, defense counsel filed a motion to sever the criminal threat counts, which the prosecutor opposed. The trial court found there was "some factual cross-admissibility," but not cross-admissible evidence under Evidence Code section 1101, subdivision (b). With respect to intent, the court noted the charged crimes had different intents (e.g., attempted murder requires intent to kill). The court then found no particular charge would inflame the jury, because all were serious acts or threats of violence, and no charge was particularly stronger or weaker than the others. The court concluded that Montana had not established that undue prejudice substantially outweighed the benefits of joinder.
Defense counsel unsuccessfully sought severance again, on Evidence Code section 352 grounds and based on the juror questionnaires. For the latter, he argued that five people in their questionnaire responses indicated the threat charges would impact their ability to be impartial on attempted murder. The court did not believe this was reason to revisit the issue, and also noted that while there was a chance jurors would misuse other incidents, it was presumed they would follow the court's instructions.
2. Governing principles and analysis
Under section 954, "[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court . . . may in its discretion order that the different offenses or counts . . . be tried separately . . . ." Montana does not dispute the charged offenses were of the same class. In the context of properly joined offenses, the "burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." (People v. Bean (1988) 46 Cal.3d 919, 938-939, fn. omitted; People v. Soper (2009) 45 Cal.4th 759, 773 (Soper) [accord].)
On appeal, we review a trial court's decision to deny a motion to sever for abuse of discretion. (Soper, supra, 45 Cal.4th at p. 774.) " '[W]e consider the record before the trial court when it made its ruling.' " (Ibid.) Denial of a motion to sever "may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges . . . ." (People v. Sandoval (1992) 4 Cal.4th 155, 172-173 (Sandoval); see also Soper, supra, 45 Cal.4th at pp. 774-775.)
A fourth factor mentioned in Sandoval—where one of the charges involves the death penalty—is concededly inapplicable here.
"Cross-admissibility . . . is sufficient but not necessary to deny severance." (People v. Ochoa (2001) 26 Cal.4th 398, 423 (Ochoa), abrogated on other grounds as stated in People v. Prieto (2003) 30 Cal.4th 226, 263 fn. 14.) "To discharge his burden of showing prejudice from the joinder of the charges arising from the two incidents, defendant must show that one of the charged offenses was substantially more inflammatory than the other or was supported by significantly stronger evidence." (People v. Elliott (2012) 53 Cal.4th 535, 553.)
"[E]ven if a trial court's ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts or defendants for trial resulted in gross unfairness depriving the defendant of due process of law." (Soper, supra, 45 Cal.4th at p. 783.) "In resolving a claim that joinder resulted in gross unfairness in violation of a defendant's right to a fair trial and due process, . . . a judgment will be reversed on this ground only if it is 'reasonably probable that the jury was influenced [by the joinder] in its verdict of guilt.' " (People v. Merriman (2014) 60 Cal.4th 1, 49.) The defendant bears the burden of demonstrating gross unfairness. (People v. Jackson (2016) 1 Cal.5th 269, 299, 305.)
In ruling on Montana's pretrial motion to sever, the trial court found there might be factual cross-admissibility, but also concluded there was no cross-admissible evidence of intent. On appeal, the parties disagree as to whether there was cross-admissibility. Assuming, without deciding, that there was no cross-admissible evidence at the time the court ruled on the motion pretrial, it is well-established that " 'the absence of cross-admissibility does not, by itself, demonstrate prejudice.' " (People v. Vines (2011) 51 Cal.4th 830, 856, overruled on other grounds by People v. Hardy (May 31, 2018, S113421) ___ Cal.5th ___ [2018 WL 2437532 at *28]; see Ochoa, supra, 26 Cal.4th at p. 423.) We turn to the remaining factors and conclude that the trial court did not abuse its discretion by allowing the counts to remain joined.
First, the offenses themselves were not unusually inflammatory. (People v. Poggi (1988) 45 Cal.3d 306, 322 [no abuse of discretion in denying motion to sever; among other things, "[n]o unusually inflammatory offenses, such as child molestation or gang warfare, were involved"].) While the Kraska shooting involved more extreme facts and injuries than the criminal threats to Fimbres and Hibler, the threats were serious too and produced significant fear in the victims. The trial court reasonably concluded no charge was particularly likely to inflame the jury.
Second, Montana has not shown any significant likelihood of a spillover effect, as the People had strong cases on both attempted murder and the criminal threats. Kraska and Deputy Weber (among others) testified at the preliminary hearing, with Kraska providing eyewitness testimony and helping to establish Montana's actions were deliberate. As for the criminal threats, there was also eyewitness testimony from each victim, as well as corroborating evidence (i.e., the voicemails left for Hibler). The trial court reasonably found there was no spillover effect.
Finally, Montana does not establish that joinder ultimately resulted in gross unfairness at trial, depriving him of due process of law. Although the trial court found before trial that there was no cross-admissible evidence of intent (given different intent requirements), Montana's defense to attempted murder at trial was that his mental illness and/or medications meant he did not deliberately shoot Kraska. In other words, he was essentially contending that his mental illness and/or medications precluded him from forming the intent to commit attempted murder. Evidence that he had previously made violent threats, in responding to perceived conflicts, would have been admissible to negate that defense in a hypothetical separate trial. (Cf. People v. Sapp (2003) 31 Cal.4th 240, 258-259 [evidence of other murders would have been cross-admissible to rebut defense].) Further, the evidence at trial reflected that no count was particularly inflammatory, and that the People had a strong case on each one. (See Ochoa, supra, 19 Cal.4th at pp. 409-410 [no gross unfairness occurred, where "[a]ll of the charges were quite inflammatory"; "the crimes . . . were proved by strong evidence"; and "the evidence . . . was cross-admissible"].)
Montana maintains the threats functioned as character evidence that was prejudicial to his attempted murder defense. We are not persuaded. There was no real dispute he shot Kraska; the focus was on his state of mind, not his character. There was strong evidence at trial that Montana had the specific intent to harm, and little evidence he did not. There was no reasonable probability the verdict would have differed if the threat counts were severed.
Montana acknowledges abuse of discretion review applies to a motion to sever, but contends we should apply Chapman because the joinder denied him a fair trial and due process. As noted ante, the reasonable probability standard applies in this context. (See Merriman, supra, 60 Cal.4th at p. 49.)
We conclude the trial court did not err in denying Montana's motion to sever. C. Cumulative Error
Montana contends the cumulative effect of the asserted errors regarding the classification interview statements and the trial court's failure to sever the threat counts produced an unfair trial, and his attempted murder conviction must be reversed. Because we have concluded that Montana did not establish the claimed errors, this cumulative error argument fails. (See People v. McWhorter (2009) 47 Cal.4th 318, 377 ["We have found no error . . . . Accordingly, there is no cumulative effect . . . ."]; People v. Butler (2009) 46 Cal.4th 847, 885 [rejecting cumulative effect claim, where there was "no substantial error in any respect"].) D. Instructional Error
Montana argues the trial court's jury instruction on the criminal threat counts was erroneous because it stated certain elements in the disjunctive. According to Montana, this permitted the jury to convict him as to both victims, based on evidence as to one, thus reducing the prosecution's burden of proof.
The People argue Montana forfeited this argument failing to object at trial. A defendant may assert on appeal an instructional error affecting his substantial rights. (§ 1259; People v. Coffman (2004) 34 Cal.4th 1, 103, fn. 34.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) We proceed to the merits of Montana's claim.
1. Additional background facts
In instructing the jury on the criminal threat counts, the trial court used CALCRIM No. 1300, modified to apply to both Fimbres and Hibler:
"The defendant is charged in [c]ounts 3 and 4 with having made a criminal threat.
To prove the defendant is guilty of this crime, the People must prove that:
1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Lydia Fimbres as to [c]ount 3 and Robert Hibler as to [c]ount 4;
2. The defendant made the threat orally;
3. The defendant intended that his statement be understood as a threat;
4. The threat was so clear, immediate, unconditional, and specific that it communicated to Lydia Fimbres and/or Robert Hibler a serious intention and the immediate prospect that the threat would be carried out;
5. The threat actually caused Lydia Fimbres and/or Robert Hibler to be in sustained fear for her or his own safety; and
6. Lydia Fimbres's and/or Robert Hibler's fear was reasonable under the circumstances.
The written instructions stated "and/or" in element 4, but the transcript indicates the court said "and." For purposes of our analysis, we assume the court said "and/or."
The trial court separately instructed the jury under CALCRIM No. 207 that the People were not required to prove the crimes occurred exactly on the days alleged, noting when count 3 and count 4 occurred, and provided a unanimity instruction under CALCRIM No. 3500 for count 4. The court also told the jury under CALCRIM No. 3515 that "[e]ach of the counts charged in this case is a separate crime" and they "must consider each count separately and return a separate verdict for each one." In addition, the court instructed the jury under CALCRIM No. 220 that "[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt," and reiterated the burden of proof elsewhere in the instructions.
During closing arguments, the prosecutor stated she was "going to go through the elements of criminal threats . . . once for each victim," and proceeded to do so. She also asked the jury to give guilty verdicts on "criminal threats against Mr. Hibler and against Ms. Fimbres." Defense counsel discussed the threat counts as well, calling them "422s," and stating, "If one element is not present, you have to find not guilty."
2. Governing principles and analysis
We review Montana's claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220 (Hajek), overruled on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) " '[W]e must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' " (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
We conclude the court's instruction on criminal threats was adequate, and did not reduce the People's burden of proof. The introductory language and element 1 indicated the People had to prove Montana threatened Fimbres under count 3, and Hibler under count 4. Elements 2 and 3 did not distinguish between victims, implying the People had to satisfy these elements as to each one. Elements 4, 5, and 6—those at issue here—did identify Fimbres and Hibler, and did so in the disjunctive. However, we can infer the jury would apply them in the same manner as the preceding elements, requiring proof of each element as to each victim in order to convict on that particular count. Moreover, the threats against Fimbres and Hibler were not related in any respect. No reasonable juror would interpret elements 4, 5, and 6 as permitting them to convict Montana of a threat against one, based on evidence regarding the other.
Further, the court's other instructions made clear each criminal threat count had to be proven separately, and beyond a reasonable doubt. Montana's effort to distinguish the other instructions—contending the jury was instructed to follow the instructions as given—is unpersuasive. This contention relies on his erroneous interpretation of the criminal threat instruction, and does not meaningfully address the fact that jury instructions must be read as a whole. (Hajek, supra, 58 Cal.4th at p. 1220.) Any remaining confusion would have been mitigated by the closing arguments. (See, e.g., People v. Garceau (1993) 6 Cal.4th 140, 189 (Garceau) ["[A]ny theoretical possibility of confusion was diminished by the parties' closing arguments"], disapproved on other grounds by People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) The prosecutor went through the elements "once for each victim" and asked the jury to give a guilty verdict as to each one. Defense counsel referred to the criminal threats in the plural ("422s"), likewise making clear two separate counts were at issue.
Although the court's instructions were sufficient here, we recognize use of the disjunctive may be problematic in certain cases. (Compare, e.g., People v. Falaniko (2016) 1 Cal.App.5th 1234, 1244-1245 [attempted murder of multiple people during each of three shooting incidents; single instruction grouping victims by incident and using disjunctive wording permitted conviction without finding of intent for each victim].) --------
Even if the court's instructions were inadequate, Montana does not establish prejudice. The parties disagree on the applicable test. The People contend we review ambiguous jury instructions under a reasonable likelihood standard. (See People v. Moore (2011) 51 Cal.4th 1104, 1140 [" 'For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.' "].) Montana contends the Chapman standard applies and harmless error must be proven beyond a reasonable doubt, because the court's instruction purportedly reduced the People's burden of proof. As we shall explain, Montana does not demonstrate prejudice under either standard.
Montana concedes that use of the disjunctive for element 5 (whether the threat caused sustained fear) probably was harmless in light of the victims' testimony, so we focus on elements 4 and 6. Element 4 required the People to prove the threat was "so clear, immediate, unconditional, and specific that it communicated . . . a serious intention and the immediate prospect that the threat would be carried out." Element 6 required proof that the "fear was reasonable under the circumstances." Montana contends, in substance, that the jury could have relied on the stronger evidence as to Hibler to find these elements were satisfied for Fimbres.
Focusing first on Fimbres, the People provided strong evidence to support elements 4 and 6, and addressed them during closing arguments. Montana's clear statements and actions (i.e., threatening to get his machine gun and blow them all up, and then departing) conveyed both serious intent and the prospect he would act on his threat. (See People v. Butler (2000) 85 Cal.App.4th 745, 752 ["A threat is sufficiently specific where it threatens death or great bodily injury. A threat is not insufficient simply because it does 'not communicate a time or precise manner of execution . . . .' "].) There was also significant evidence that Fimbres's fear was reasonable. Not only was the nature of the threat itself serious, but she also testified that no one had said anything like that in her 10 years at the DMV. Moreover, Fimbres immediately reported the threat to her supervisor, who responded by calling 911. Montana suggests the jury could have found Fimbres's fear was unreasonable because the threat occurred during a single encounter and was directed to everyone in the DMV, but he cites no authority that threats must be repeated or target only a single individual.
Montana has essentially conceded there is no prejudice as to Hibler. Regardless, the record again reflects strong evidence of clear threats and reasonable fear. Montana identified potential victims (including Hibler's children), dates on which he would take action (e.g. "next weekend" and "the 9th"); and a firearm he had acquired. The content and repetition of the threats, along with Montana's graphic language (e.g. threatening to shoot people in the back of the head), support the reasonableness of Hibler's fear.
Montana has not established there is a reasonable likelihood the jury misinterpreted elements 4 and 6, or that the use of the disjunctive could have impacted the verdict on this record. Any error was harmless beyond a reasonable doubt. E. Senate Bill 620
After completion of briefing in this matter, Montana sought to file a supplemental brief concerning the impact of Senate Bill No. 620 on his sentencing. We granted the request. The People filed a responsive brief.
Prior to Senate Bill 620, sections 12022.5 and 12022.53 precluded the trial court from striking the firearm enhancements contained in those statutes. (§§ 12022.5, subd. (c), 12022.53, subd. (h).) The new legislation, which took effect on January 1, 2018, amended the statutes to provide discretion to strike the firearm enhancements: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1-2.)
Montana asserts that because his judgment is not yet final, the law should be applied retroactively under In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66 (Francis). The People concede that Senate Bill 620 applies retroactively to cases not yet final on appeal.
Estrada provides that, absent contrary evidence, we infer the Legislature intends statutory amendments reducing criminal punishment apply retroactively to cases not yet final on appeal. Estrada's rationale has been applied not only to amendments that "revoke one penalty and provide for a lesser one" but also those that "vest[] in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty." (See Francis, supra, 71 Cal.2d at p. 76.) Recently, our Supreme Court applied the Estrada "inference of retroactivity" to a statutory amendment that "ameliorated the possible punishment for a class of persons, namely juveniles" in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308. The same inference of retroactivity applies here. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) We accept and agree with the People's concession.
The People contend that despite this concession, remand is unnecessary. They argue that at sentencing, the trial court was not sympathetic to Montana and did not credit his defense; found "there weren't many" mitigating circumstances and there were aggravating ones, including "an extraordinary level of violence and cruelty"; described him as exhibiting a "high degree of callousness" and having an "evil" mindset; and made other comments along these lines. The People also note the court stated Montana's use of a firearm "significantly aggravate[d] the crime in this case." Because of these statements, the People argue there is no chance the court would strike the firearm enhancement and remand would be unnecessary.
We disagree. Even if we think the exercise of this new discretion is unlikely, "[d]efendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court." (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8, italics added.) The sentencing judge in this case did not say he would not strike the enhancement even if he had the discretion to do so. Neither did he say there were no mitigating factors to consider.
People v. Gutierrez (1996) 48 Cal.App.4th 1894, cited by the People, is distinguishable. There, the trial court stated the maximum term was appropriate and imposed discretionary enhancements, explaining "this is the kind of individual the law was intended to keep off the street as long as possible." (Id. at p. 1896.) While the appeal was pending, the California Supreme Court held courts could exercise their discretion to strike convictions under the three strikes law. (Ibid.) The Court of Appeal determined "no purpose would be served" by remand. (Ibid.) Here, the trial court did not make comparable statements and the record does not clearly indicate it would have imposed the same sentence. Remand is appropriate.
DISPOSITION
The matter is remanded to the trial court for the limited purpose of allowing the court to exercise its discretion under section 12022.53, subdivision (h). The judgment is otherwise affirmed.
DATO, J. I CONCUR:
AARON, J. BENKE J., concurring.
I agree with the majority's conclusion that Montana is entitled to retroactive application of Senate Bill 620. However, I disagree with the majority's reliance on the analysis in People v. Robbins, supra, 19 Cal.App.5th 660 where the court found "Unless there is evidence to the contrary, courts presume that the Legislature intends for a statutory amendment reducing criminal punishment to apply retroactively in cases that are not yet final on appeal." (Id. at p. 678.) I believe the presumption is just the opposite. Penal Code section 3 requires a presumption of prospective application in such situations unless there is evidence the Legislature intended retroactive application. Because the history surrounding Senate Bill 620 supports the retroactive application of its provisions, I agree the changes apply retroactively. (See People v. Arredondo et al. (2018) 21 Cal.App.5th 493.)
BENKE, Acting P. J.