Opinion
D073728
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. DESIREE MONTOYA, Defendant and Appellant.
Law Office of Sharon J. Brunner and Sharon J. Brunner for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1303142) APPEAL from a judgment of the Superior Court of San Bernardino County, Harold T. Wilson, Judge. Affirmed. Law Office of Sharon J. Brunner and Sharon J. Brunner for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Desiree Montoya guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) (count 1) and assault with a firearm (§ 245, subd. (a)(2)) (count 2). With respect to count 1, the jury also found true an allegation that Montoya committed the attempted murder willfully, and with deliberation and premeditation. In addition, with respect to count 1, the jury found several firearm allegations to be true, including that Montoya personally used and discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)). With respect to both counts, the jury found true an allegation that Montoya inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). The trial court sentenced Montoya to an aggregate term of 32 years to life in prison.
Unless otherwise specified all subsequent references are to the Penal Code.
The jury also found true firearm allegations alleged pursuant to section 12022.53, subdivisions (b) and (c) and section 12022.5, subdivision (a).
On appeal, Montoya contends that there is insufficient evidence in the record to support the jury's verdicts finding her guilty of the charged offenses. Specifically, Montoya contends that there is insufficient evidence of her identity as the perpetrator of the offenses. Montoya also contends that defense counsel provided ineffective assistance by engaging in an act of improper sexual conduct with her that led to a breakdown of communication and counsel's abandonment of his role in selecting the jury. We reject Montoya's contentions and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On July 23, 2013, in the early afternoon, Montoya was at a residence in San Bernardino on East 27th Street (East 27th Street residence) at which Montoya's aunt resided. Victim C.R. was living at the residence. Montoya angrily told C.R., as well as several other people who were staying at the residence, that if they were not going to help Montoya's aunt pay her bills, they would have to "move the fuck out." Montoya also told the group that if she had to return to the residence, "it wasn't going to be nice."
That night, after dark, C.R. returned to the East 27th Street residence, after running an errand. C.R.'s friend, Ismael Jara, was standing outside of the residence. Just as C.R. arrived at the residence, another person approached C.R. in the dark and said something to C.R. about needing to "get out." C.R. could not fully see the other person, but she recognized the voice as Montoya's. Shortly thereafter, Montoya fired three gunshots at C.R. from close range, striking C.R. in the chest, below her armpit, and in the back.
Jara called 911. When a police officer arrived at the residence, C.R. told the officer that Montoya had shot her. Police arrested Montoya that same evening.
III.
DISCUSSION
A. There is sufficient evidence in the record to support the jury's verdicts finding Montoya guilty of attempted murder and assault with a firearm
Montoya claims that there is insufficient evidence in the record to support the jury's verdicts finding her guilty of attempted murder and assault with a firearm. Specifically, Montoya contends that there is insufficient evidence that she is the person who shot C.R.
1. The law governing sufficiency claims
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)
" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, . . . .' [Citation.] Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction." (People v. Elliott (2012) 53 Cal.4th 535, 585 (Elliot).)
2. Application
C.R. testified that on the night of the shooting, she approached the East 27th Street residence on a bicycle. Jara, was standing outside the residence. As she approached, another person said something to C.R. C.R. could not recall exactly what the other person said, but she believed that the statement was something about C.R. needing to "get out." C.R. could not fully see the other person because it was "pitch-black" outside, and the person was wearing something that was covering the person's face. However, C.R. agreed with the prosecutor that she "instantly recognized" the voice as Montoya's. C.R. repeatedly testified that she was certain that the voice of the shooter was Montoya's. C.R. explained that she was familiar with Montoya's voice, having heard Montoya speak on numerous occasions in the past, including on the morning of the shooting. After Montoya spoke to C.R., Montoya shot C.R. three times. C.R. testified that Montoya was approximately five to six feet away from her at the time of the shooting.
The People provided evidence that C.R. had spoken with Montoya on numerous occasions over a period of several years. Based on this testimony, the jury could reasonably find that C.R. was very familiar with Montoya's voice.
C.R.'s testimony, summarized above, described facts that were neither "physically impossible or inherently improbable." (Elliott, supra, 53 Cal.4th at p. 585.) Accordingly, C.R.'s testimony regarding the shooting, was, by itself, sufficient to support the verdicts. (See ibid.) However, C.R.'s testimony was far from the only evidence on which the jury could reasonably rely in finding Montoya guilty of the charged offenses.
Jara testified that he was in front of the 27th Street residence just before the shooting. It was extremely dark and the area was not well lit. A female passed by Jara and said, loudly, " 'Who the fuck are you? Get the fuck out of here.' " C.R. arrived at the residence shortly thereafter, and the same female said to C.R., " 'Bitch, get the fuck out of here.' " C.R. responded, " 'What?' " Jara then heard a gunshot. Immediately thereafter, C.R. stated, " 'What are you going to do with that, shoot me?' " Jara heard a second gunshot, and could see a female extending her arm forward, holding a gun. According to Jara, the female shooter was approximately five-foot three, 140 to 150 pounds, and had black hair. Jara stated that the shooter "sounded" Hispanic, and that she was wearing black pants and a black hoodie.
Although the parties do not describe evidence in the record indicating that this physical description matched Montoya, the jury was able to view Montoya in court.
Hours after the shooting, after detaining Montoya, police asked Jara to look at Montoya in order to determine whether Jara could identify Montoya as the shooter. After viewing Montoya, Jara told police that he had not seen the shooter's face but that Montoya's body type was the same as the shooter's.
C.R.'s testimony that Montoya had shot her was also supported by evidence that C.R. identified Montoya immediately after the shooting, both to people at the East 27th Street residence as well as to a responding police officer.
The jury could also reasonably rely on evidence of Montoya's motive for committing the crimes, including the testimony of several witnesses (including C.R.) that Montoya had engaged in an angry confrontation with C.R on the morning of the shooting. For example, according to Walter Mayes, on the morning of the shooting, Montoya told C.R. and several other people who were in the backyard of the 27th Street residence that they had to leave. Mayes testified that "[Montoya] said that everyone had to leave or when she -- if she had to come back, it wasn't going to be nice." According to Mayes, Montoya was "[v]ery angry."
Mayes was also "staying" at the East 27th Street residence.
Further, the jury could consider evidence that supported a finding that Montoya had concocted a false alibi. "Evidence the defendant used a false alibi is relevant to prove consciousness of guilt." (People v. Vu (2006) 143 Cal.App.4th 1009, 1029.) The People presented evidence that Montoya had testified at a prior proceeding that she was at her Aunt Jaqueline's residence at the time of the shooting. However, cell phone evidence supported a finding that Montoya was not at that residence at the time of the shooting.
The prior proceeding was a prior trial in the matter that resulted in a mistrial after the jury was unable to reach a verdict.
Montoya's arguments in support of her contention that there is insufficient evidence to support the jury's verdicts are not persuasive. Montoya contends that C.R.'s testimony was unreliable in light of C.R.'s drug use, mental state, and "overall credibility." It was up to the jury to determine C.R.'s credibility, and we may "not substitute our evaluation of a witness's credibility for that of the fact finder." (See Smith, supra, 37 Cal.4th at pp. 738-739.) For a similar reason, we reject Montoya's contention that Jara's "partial identification," of her as the shooter was unreliable because Jara made the identification only after hearing C.R. identify Montoya as the shooter in the minutes after the shooting. It was up to the jury to weigh the reliability of Jara's testimony in light of all of the evidence presented. (See Smith, supra, 37 Cal.4th at pp. 738-739 [" ' "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 on which that determination depends" ' "].)
Montoya also notes that neither C.R. nor Jara testified that they could determine by sight that Montoya was the shooter, "[t]he vehicle or getaway [sic] was not described," "[n]o firearm was ever linked to [Montoya]," and "[n]o . . . other property connected [Montoya] to the crime." The fact that certain types of evidence were not presented does not establish the insufficiency of the evidence of Montoya's guilt that was presented. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1010 [rejecting as "analytically incorrect" sufficiency argument premised on absence of evidence found in other cases].)
Accordingly, we conclude that there is sufficient evidence in the record to support the jury's verdicts finding Montoya guilty of attempted murder and assault with a firearm. B. Montoya has not established that the judgment should be reversed due to ineffective assistance of counsel
Montoya claims that the judgment should be reversed due to trial counsel's ineffective assistance. Specifically, Montoya contends that defense counsel engaged in an act of improper sexual conduct with her, which led to "minimal communication" between them from that point on during defense counsel's representation of Montoya. Montoya further contends that due to defense counsel's "fear of having his inappropriate conduct reported by [Montoya,] [defense counsel] allowed [Montoya] to select the jury."
1. Governing law
In order to prevail on a claim of ineffective assistance of counsel, Montoya must demonstrate both " ' " 'that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant.' " ' [Citation.] A reasonable probability, the high court has said, 'is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (In re Champion (2014) 58 Cal.4th 965, 1007.) " '[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (Ibid.)
2. Factual and procedural background
During a January 28, 2015 Marsden hearing held several months after the jury rendered its verdicts, Montoya requested that the trial court appoint new counsel to represent her. As relevant here, Montoya asserted, "I am respectfully requesting new counsel that I can trust so that I can get a fair trial without having to show my breasts to the attorney or having to promise sexual favors." As a separate complaint, Montoya stated, "Let's see. He wouldn't let me pick my own jurors. I'm trying -- concentrating hard on picking my own jurors."
(People v. Marsden (1970) 2 Cal.3d 118 (Marsden).)
The trial court asked defense counsel to respond to Montoya's contention that she was not "able or not involved in the jury selection process." Defense counsel responded by stating:
"Not only was she involved in the jury selection process, I turned it completely over to her to pick any jurors that she wanted to, any and all jurors that she wanted to. And I'm quite certain that there were three jurors I had concerns about and she wasn't kicking them after she had used about, in the range of 15 to 17 of our 20, she finally kicked the two or three that I thought that we should kick.
"We had one gentleman, who was a senior aged gentleman, nothing against senior aged people. He was a senior aged gentleman with a daughter who worked for the sheriff's department, and I believe, in homicide. And then he had another son that worked for the sheriff's department. I didn't think that was necessarily a good juror to keep because of the sheriff's department connections. I wanted to excuse that gentlemen. She didn't want to do it. I completely turned the jury selection over to Ms. Montoya because of exactly this issue. I didn't want her to come back at a later time and say oh, he kept jurors that I didn't want or he didn't let me play a part in the jury selection process.
"There was another gentleman, I believe that was in [Juror] Seat No. 5. And I believe that he had said that his brother had been shot when he was . . . about ten years old, his older brother or some relative had been shot and he had a real problem with a gun issue. And I thought that we should eliminate, and he said he didn't think he could be fair or he didn't know if he could be fair. That was one I think that also -- because these allegations are just being made now, I'm responding from recollection. I do believe there were at least two gentlemen that I thought should go and she didn't agree with me. I told her finally after we used about 15, I think she finally did agree to getting rid of those two.
"But, the point is, in response to the allegation that I didn't let her participate in jury selection, not only did I let her participate, I essentially turned it over to her. If she wanted to ask me any advice, I gave it, but what I gave advice to [sic] was those two I referenced. I think there was a third one, but I would have to go back through the list."
With respect to Montoya's assertion that defense counsel had asked her for sexual favors, counsel stated that Montoya's statement was "an absolute bold-faced lie." Defense counsel continued, "I have never, never, never, ever requested to see her breasts . . . ." Defense counsel described an incident during which Montoya revealed her breasts to him while the two were in an interview room, outside of the courtroom, separated by a glass window. Defense counsel stated:
"Without me knowing anything as to why. . . . She said something to the effect of, I've been wanting to do this for quite some time or I have thought about doing this for quite some time or I've intended to do this for quite some time. It was something to that effect along that line. For a fraction of a second, I'm thinking, well, what are you talking about? I didn't ask her, because it was all so instant. What she did on the other side of the glass was to reach down to the bottom of her clothing, her upper body clothing, and without any warning to me just (indicating) fully lifting all of her clothing up over her breasts, and her breasts were naked in front of me on the other side of the window. I want the Court to know what happened.
"And I never, never -- I was so shocked and so aghast at her doing that, that I stood to my left. I turned to my left and walked immediately toward the door. And then as I looked back, she had pulled her clothing down. That is the full, sum, substance. I spoke to her minimally from that point on. I said, 'This is not the time and place to do anything like that,' something to that effect. I can't represent exactly what I said. I said something to that effect. This is not the time or place for that, for anything like that.
"I didn't stay much longer. I got up and came back out. I did not report it to Deputy Burris. I didn't want to get her into a problem or into trouble with anything of that nature. I was just absolutely
shocked about the whole thing and I wanted the Court to know and I wanted to respond.
"Never, never, never, ever have I suggested any sexual favors as she has said. Never, never, never asked, requested, suggested anything relative to seeing her breasts."
At the conclusion of the Marsden hearing, the court asked defense counsel whether he could continue to represent Montoya. Counsel responded, "I do not believe I can, your Honor."
The trial court stated that it would relieve defense counsel but that it "is not for inassistance [sic] of counsel or giving any credibility to Ms. Montoya's claims. [¶] The court is not taking a position as to those claims right now. The Court understands there's a difference, so that issue is not before the Court. So the record is clear, that is, [defense counsel] is not being relieved because of the giving [of] any credence to the allegations of misconduct."
3. Application
To begin with, there is nothing in the record indicating that the trial court found that defense counsel requested to see Montoya's breasts or that he asked her for sexual favors. To the contrary, the trial court specifically stated that its decision to appoint new counsel was "not . . . [due to] giving any credibility to Ms. Montoya's claims." Absent a finding that defense counsel in fact requested sexual favors of Montoya, we have no basis for concluding that defense counsel provided ineffective assistance by engaging in such sexual misconduct.
Moreover, there is no evidence that the incident involving Montoya revealing her breasts to defense counsel resulted in counsel failing to communicate with Montoya throughout the trial. While the meaning of defense counsel's remark during the Marsden hearing that he "spoke to her minimally from that point on" is not entirely clear, Montoya has not demonstrated that any lack of communication that may have occurred after the incident affected trial preparation and the record is clear that defense counsel communicated with Montoya during the second trial. Contrary to Montoya's contention in her brief, there is no evidence that the incident resulted in defense counsel permitting her to select the jury. Neither defense counsel nor Montoya stated as much in the Marsden hearing.
During the same Marsden hearing, defense counsel also stated that he had "emphasized . . . probably two dozen times," to Montoya the likelihood that she would "die in prison" if she were to go to trial. Defense counsel also stated at the same Marsden hearing that he had "explained fully everything to [Montoya] about her opportunity to testify."
Defense counsel stated at the Marsden hearing that he believed that the breast revealing incident occurred "near the conclusion of the last trial." During the same hearing, defense counsel discussed communicating with Montoya during jury selection in the second trial, which occurred after the breast revealing incident.
To the extent that Montoya's briefing on appeal may be read as contending that, irrespective of defense counsel's motivation, counsel provided ineffective assistance in permitting her to select the jury, we reject this contention. To begin with, Montoya fails to establish that defense counsel did not in fact participate in the jury selection. Defense counsel expressly stated at the Marsden hearing that he provided Montoya with advice during the jury selection process and that Montoya ultimately followed his advice. Further, Montoya fails to demonstrate any prejudice with respect to counsel's representation of Montoya in this regard, as is required to establish a claim of ineffective assistance of counsel. (In re Champion, supra, 58 Cal.4th at p. 1007.) While Montoya attempts to demonstrate prejudice in her reply brief by asserting, "[t]he first jury hung; the second jury selected by appellant returned a guilty verdict," she fails to establish that the manner by which defense counsel represented her during voir dire had any effect on the outcome of the case. In fact, Montoya fails to demonstrate that the jury that she purportedly selected on her own differed in any way from the one that defense counsel would have selected. While defense counsel stated during the Marsden hearing that he had concerns about the manner by which the defense was exercising its peremptory challenges during voir dire, defense counsel also stated that Montoya "finally kicked the two or three that I thought that we should kick."
As noted in part III.B.2, ante, Montoya's contention at the January 2015 Marsden hearing was that defense counsel had failed to permit her to participate in the selection of the jury.
As noted in footnote 6, ante, a prior trial in this matter resulted in a mistrial.
Accordingly, we conclude that Montoya has failed to establish that the judgment should be reversed due to ineffective assistance of counsel.
In her reply brief, Montoya contends that, after the incident involving the revealing of her breasts, defense counsel had a duty to either withdraw from representing her or inform the court of the incident. Montoya failed to raise this claim in her opening brief as a separately captioned argument, and failed to present any explanation for why the contention was being raised for the first time in reply. Accordingly, we decline to consider the contention. (See People v. Tully (2012) 54 Cal.4th 952, 1075 ["It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party"].) --------
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.