Filed 3/2/21 P. v. Montgomery CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B301224
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA477272
v.
JASON LEONARD
MONTGOMERY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed.
Sarah M. Javaheri, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Christopher G.
Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Defendant Jason Leonard Montgomery appeals from his
conviction for assaulting and seriously injuring his uncle. He
contends that he was denied the right to present a defense when
the court excluded three defense witnesses; that the prosecutor
committed prejudicial misconduct by disparaging defense counsel
and misstating the burden of proof; and that the trial court did
not understand its discretion to strike his five-year serious-felony
prior. We affirm.
PROCEDURAL BACKGROUND
By information filed May 22, 2019, defendant was charged
with one count of assault with force likely to cause great bodily
injury (Pen. Code,1 § 245, subd. (a)(4); count 1) and one count of
battery with serious bodily injury (§ 243, subd. (d); count 2). As to
count 1, the information alleged that defendant had personally
inflicted great bodily injury on someone other than an accomplice
(§ 12022.7, subd. (a)). The information also alleged that
defendant had previously been convicted of a felony that
constituted both a strike prior (§§ 1170.12, 667, subds. (b)–(j))
and a serious-felony prior (§ 667, subd. (a)). Defendant pled not
guilty and denied the allegations.
After a bifurcated jury trial at which he testified in his own
defense, defendant was found guilty as charged. Defendant
waived a jury trial on the prior-conviction allegations. After a
bench trial, the court found the allegations true beyond a
reasonable doubt.
1 All undesignated statutory references are to the Penal Code.
2
The court granted defendant’s motion to strike his prior
conviction under People v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero), and sentenced him to an aggregate term
of 10 years. The court selected count 1 as the base term and
imposed the low term of two years, plus three years for the great-
bodily-injury enhancement (§ 12022.7, subd. (a)) and five years
for the serious-felony prior (§ 667, subd. (a)), to run consecutively.
The court stayed count 2 under section 654.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
1. Defendant’s Fight with Leonard
On January 13, 2019, April Hurd visited Willie Leonard’s
house. They were sitting on a couch in the living room with
Leonard’s sister Renee when defendant, Leonard’s nephew,
walked in. Defendant was upset and yelling about the family
home. He said he was “going to buy you motherfuckers out.”
Looking at Leonard, he said, “We’ll get rid of you, and we don’t
have to worry.”
Defendant clenched his fists and punched Leonard in the
face six times. Then he grabbed Leonard by the ankles, dragged
him out to the sidewalk, kicked him twice in the ribs, and left.
Hurd and Renee both called 911. Renee wanted defendant
removed from the home, as he was “jumping on my, my uncle”
and had “dumped the food out.” Meanwhile, Hurd said defendant
was “going crazy” and “tearing the house up.” She said defendant
“drug [sic] [Leonard] down the stairs” and “beat his uncle to
death.” Leonard was currently “on the sidewalk with a gash in
his head … bleeding to death.” Leonard’s forehead was “split
open” and “gushing” blood.
3
Los Angeles Police Department Officer Kevin Ruiz
responded to the scene, where he found Leonard lying on the
sidewalk in a puddle of blood. Ruiz noted that Leonard had
several injuries, including a cut forehead, bruised right ear, and
scrapes on his ribs and back. Ruiz called an ambulance, which
arrived five minutes later. He also interviewed Hurd, who told
him defendant had attacked Leonard and ransacked the house.2
When Ruiz went inside, he noted broken items on the floor; it
looked like a fight had happened.
On January 23, 2019, Officer Steve Bejar arrested
defendant as he was walking out of Leonard’s house. Defendant’s
hands and knuckles had scrapes and scarring on them, and his
right hand was more swollen than his left hand. Defendant didn’t
have any cuts on the palms of his hands, however.
2. Defendant’s Testimony
Defendant testified at trial. He had lived with Leonard
since December 2018. On the day of the incident, he got into a
verbal disagreement with Leonard, who had been drinking. As
they argued, Renee intervened and grew agitated. Defendant
responded by uprooting a plant and dumping food onto the floor.
But he and Leonard did not get into a physical fight. Defendant
left the house and did not come back until later that night.
2 Ruiz did not note on his police report that Hurd seemed intoxicated.
Nor did Leonard seem intoxicated when Ruiz spoke to him at the
hospital. At trial, however, Hurd testified that she and Leonard were
both intoxicated that day. Hurd didn’t remember much because she
was “out of it” from drinking too much alcohol while taking psychiatric
medication. But she did remember that Leonard was so drunk he had
trouble balancing and was slurring his words. Leonard is a violent
drunk.
4
Defendant acknowledged Renee told the 911 operator that
he had jumped on Leonard and that Renee is honest and
respected by the family. Defendant also agreed that when he was
arrested, he had a cut on the back of his hand, and his right hand
was swollen. Defendant is right-handed.
DISCUSSION
Defendant contends that he was denied the right to present
a defense when the court excluded three defense witnesses; that
the prosecutor committed prejudicial misconduct by disparaging
defense counsel and misstating the burden of proof; and that the
trial court did not understand its discretion to strike his serious-
felony prior.
1. The court properly ruled that the defense witnesses
were irrelevant.
Defendant argues he was denied his right to present a
defense because the court excluded three proffered defense
witnesses who would have testified that Hurd was a drug user
and Leonard was a violent liar. We conclude the court did not
abuse its discretion by excluding the testimony
1.1. Legal Principles and Standard of Review
Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is “evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency
in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Id., § 210.) The
trial court has discretion to exclude evidence “if its probative
value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or
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(b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Id., § 352.)
Although a defendant has a due process right to present all
relevant evidence that has significant probative value to his
defense, in general, “ ‘the ordinary rules of evidence do not
impermissibly infringe on the accused’s right to present a
defense.’ ” (People v. Jones (1998) 17 Cal.4th 279, 305.) A
defendant is not entitled to engage in an unlimited inquiry into
collateral matters. (People v. Homick (2012) 55 Cal.4th 816, 865.)
Nor is he entitled to attack a witness’s credibility or to prove
another issue relevant to his defense with “time-consuming and
remote evidence that was not obviously probative on the
question” at issue. (People v. Dement (2011) 53 Cal.4th 1, 52,
disapproved on other grounds in People v. Rangel (2016) 62
Cal.4th 1192, 1216.)
We review a court’s decision to admit or exclude evidence
for abuse of discretion, and we will not disturb the court’s
decision “except on a showing the ... court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice [citation].” (People v.
Rodriguez (1999) 20 Cal.4th 1, 9–10.)
1.2. The Excluded Evidence
At a pretrial hearing, defendant notified the court of his
intent to call three impeachment witnesses and to mention their
testimony during his opening statement. The prosecutor objected
to the witnesses on relevance grounds: None of the witnesses
observed the crime; Leonard would not be testifying; and there
was no allegation of self-defense.
The first witness would testify that after he argued with
Leonard one day, Leonard called the police and lied to them,
6
claiming the witness had a gun during the argument. The
witness would also testify that Hurd used drugs.3 Defendant
argued this testimony was relevant to Leonard’s and Hurd’s
credibility.
The second witness was also offered to impeach Leonard’s
credibility. That witness would testify that two years before,
Leonard was upset and fired a gun in the direction of his son.4
The third witness would testify that six years earlier, he
had seen Leonard being beaten up by two people he believed to be
crack dealers. He would testify that Leonard was always drinking
and getting into fights.
The trial court excluded the proffered testimony, finding
Leonard’s credibility to be irrelevant and finding the proffer
regarding Hurd to be insufficient. The court held that defense
counsel could not mention this evidence during opening
statements, but said that if the testimony became relevant in the
future, the court would revisit the issue.5
3Counsel offered that this witness “hung out with her years ago. He
knew her to be a drug user.”
4 It is unclear from the transcript whether Leonard was alleged to have
fired the gun at his own son or at the witness’s son.
5 The People argue, based on this remark, that defendant forfeited this
issue by failing to renew his request during trial. We disagree. The
court ruled that the defense could not “talk[ ] about those
statements … until we have some credibility.” That is, “based on what
I know at this point,” the statements were not admissible. But if “the
door is open at some point and that becomes relevant, maybe.” Put
another way, if the state of the evidence changed—for example, if
defendant testified that he acted in self-defense or the prosecutor
unexpectedly called Leonard to the stand—the court would revisit its
ruling. But the state of the evidence did not change. As such,
defendant had no obligation to renew his request.
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1.3. The court did not abuse its discretion by
excluding the prior-acts evidence.
First, as to Hurd, defendant sought to introduce evidence
that Hurd had used drugs some unspecified number of years
earlier. But counsel did not explain how that prior drug use was
relevant to either Hurd’s credibility or to her ability to observe
the assault. As such, the court properly excluded the testimony.
(See People v. Morrison (2004) 34 Cal.4th 698, 712.) Regardless,
even without that testimony, the jury was invited to consider the
relationship between Hurd’s substance use and her observations
of the assault because Hurd herself testified that she was
intoxicated that day.
Second, defendant also sought to present testimony that
Leonard had lied to the police three years before the assault in
this case. Although counsel argued that evidence was relevant to
Leonard’s credibility, Leonard’s credibility was not an issue.
Leonard was not going to testify at trial, and the prosecution did
not introduce any statements from him.
Third, defendant wanted to introduce evidence of Leonard’s
prior violence. A victim’s propensity for violence is admissible if
the defendant alleges he acted in self-defense. (Evid. Code,
§ 1103, subd. (a)(1).) But here, defendant made no such claim. As
such, Leonard’s past fights were irrelevant. (People v. Gutierrez
(2009) 45 Cal.4th 789, 828 [“Where no evidence is presented that
the victim posed a threat to the defendant,” the trial court may
exclude evidence of the victim’s propensity for violence].)
Because the proffered testimony was irrelevant to the
issues in this case, the trial court did not abuse its discretion by
excluding it—and exclusion of the evidence did not violate
defendant’s right to present a defense.
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2. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct
by disparaging defense counsel and misstating the burden of
proof. We hold that the prosecutor’s comments about defense
counsel did not amount to disparagement, and any error in
defining proof beyond a reasonable doubt was cured by the trial
court’s timely admonishment.
2.1. Legal Principles and Standard of Review
“ ‘The applicable federal and state standards regarding
prosecutorial misconduct are well established. “ ‘A prosecutor’s ...
intemperate behavior violates the federal Constitution when it
comprises a pattern of conduct “so egregious that it infects the
trial with such unfairness as to make the conviction a denial of
due process.” ’ ” [Citations.] Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves “ ‘ “the use of
deceptive or reprehensible methods to attempt to persuade either
the court or the jury.” ’ ” [Citation.]’ [Citation.]” (People v. Hill
(1998) 17 Cal.4th 800, 819.) Here, defendant argues the
prosecutor’s comments violated state law.
2.2. Proceedings Below
During the prosecutor’s rebuttal argument, the following
exchange occurred:
Prosecutor (P): I’m going to conclude with talking about
three broad categories of consideration. The first
is your job as jurors in this trial, which [defense
counsel] also touched on. And your job, the oath
that you took, is to fairly evaluate all of the
9
evidence and only the evidence that was
presented in this case. You have to follow the law
as presented to you, even if you disagree with it,
and you must be judges of the facts. Do the facts
in this case show that a crime happened, and
that the defendant committed it? It is not to
make up a better story, and it is not to speculate
about what other evidence may have been, what
other evidence may have said. You are instructed
repeatedly not to speculate, and it is interesting
that [defense counsel] continues to ask you to do
so.
Defense Counsel (D): Objection.
P: You are not to consider the consequences of any
kind of outcome in this case. You are simply to
decide did a crime happen and did the defendant
commit it.
Moreover, you are not to require an absence of
all doubt. This leads me to the second category,
which is the standard of proof, proof beyond a
reasonable doubt. I’m not going to spend half of
my presentation talking about reasonable doubt,
but I will simply point out as I did to you in jury
selection, that proof beyond a reasonable doubt is
not proof beyond a shadow of a doubt; it is not
proof beyond all doubt; it is not proof to an
absolute certainty.
Even though we heard a good five-minute
presentation on the standard of law, it is true
10
that in this building, in other courthouses in Los
Angeles County and indeed in criminal
courthouses across the United States, juries
convict beyond a reasonable doubt, proof beyond
a reasonable doubt, all the time. It is not an
impossible standard. It is a very practical
standard that’s applied in every criminal case in
this country.
D: Objection, your honor.
Court: Burden of proof is beyond a reasonable doubt.
You have to have an abiding conviction of the
truth of the charge. I don’t want you to minimize
that in any way. It’s not beyond all possible
doubt. But don’t minimize it either. It is to an
abiding conviction of the truth of the charge. You
may proceed.
P: It is proof that leaves you with an abiding
conviction that the charge is true. It is proof that
the lasting understanding of what happened,
that a crime in this case occurred, and that the
defendant committed that crime.
(Italics added.)
2.3. The prosecutor’s remarks did not disparage
defense counsel.
Characterizing defense counsel as a liar can destroy a fair
trial. That’s why a prosecutor commits misconduct in closing
argument if he distinguishes defense counsel’s role of protecting a
client from the prosecutor’s role of seeking the truth. (People v.
Sandoval (1992) 4 Cal.4th 155, 183–184; People v. Bell (1989) 49
11
Cal.3d 502, 538 [improper to imply defense counsel is free to
deceive the jury]; People v. Perry (1972) 7 Cal.3d 756, 789–790
[improper to accuse defense counsel of fabricating a defense].)
But as long as he does not attack counsel personally, a prosecutor
has wide latitude to attack defense counsel’s arguments. (People
v. Benmore (2000) 22 Cal.4th 809, 846; People v. Williams (1997)
16 Cal.4th 153, 221 [“ ‘ “argument may be vigorous as long as it
amounts to fair comment on the evidence” ’ ”].)
Based on the record before us, the prosecutor in this case
“did not engage in such forbidden tactics as accusing defense
counsel of fabricating a defense or factually deceiving the jury.
[Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1154,
disapproved on other grounds by People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) To the contrary, when the remarks are
viewed in context, it is clear “the prosecutor’s comment was
aimed solely at the persuasive force of defense counsel’s closing
argument, and not at counsel personally.” (Zambrano, at p. 1155;
see People v. Cunningham (2001) 25 Cal.4th 926, 1003 [no
misconduct where prosecutor’s argument “would be understood
by the jury as an admonition not to be misled by the defense
interpretation of the evidence, rather than as a personal attack
on defense counsel”].)
Certainly, the statements in this case were no more
disparaging than those the California Supreme Court has
previously upheld. (See, e.g., People v. Stanley (2006) 39 Cal.4th
913, 952 [no misconduct where prosecutor argued counsel
“ ‘imagined things that go beyond the evidence,’ ” was on an
“ ‘imaginary trip,’ ” and told the jury a “ ‘bald-faced lie’ ”]; People
v. Medina (1995) 11 Cal.4th 694, 759 [no misconduct where
prosecutor said counsel can “ ‘twist [and] poke [and] try to draw
12
some speculation, try to get you to buy something’ ”]; People v.
Gionis (1995) 9 Cal.4th 1196, 1215–1216 [argument that defense
counsel was talking out of both sides of his mouth and that this
was “ ‘great lawyering’ ”]; People v. Breaux (1991) 1 Cal.4th 281,
306–307 [argument that law students are taught to create
confusion when neither the law nor the facts are on their side
because confusion benefits the defense]; People v. Bell, supra,
49 Cal.3d at p. 538 [argument that defense counsel’s job is to
“ ‘confuse’ ” jurors and “ ‘throw sand’ ” in their eyes and that
counsel “ ‘does a good job of it’ ”].)
We conclude, therefore, that although the prosecutor
argued defense counsel had asked the jury to speculate contrary
to certain instructions, the remark did not impermissibly
disparage defense counsel.
2.4. Any error in misstating the burden of proof was
cured by the court’s admonition.
As the California Supreme Court has “often explained, ‘it is
improper for the prosecutor to misstate the law generally
[citation], and particularly to attempt to absolve the prosecution
from its prima facie obligation to overcome reasonable doubt on
all elements [citation].’ [Citation.] … To establish misconduct,
[appellant] need not show that the prosecutor acted in bad faith.
[Citation.] However, she does need to ‘show that, “[i]n the context
of the whole argument and the instructions” [citation], there was
a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’
[Citation.] If the challenged comments, viewed in context, ‘would
have been taken by a juror to state or imply nothing harmful,
[then] they obviously cannot be deemed objectionable.’ [Citation.]”
(People v. Cortez (2016) 63 Cal.4th 101, 130 (Cortez).)
13
In Cortez, the prosecutor argued during rebuttal: “ ‘The
court told you that beyond a reasonable doubt is not proof beyond
all doubt or imaginary doubt. Basically, I submit to you what it
means is you look at the evidence and you say, “I believe I know
what happened, and my belief is not imaginary. It’s based in the
evidence in front of me.” ’ Defendant’s counsel objected that these
comments ‘misstate[d] the law.’ Before the court ruled on the
objection, the prosecution added, ‘That’s proof beyond a
reasonable doubt.’ The trial court then overruled the objection.”
(Cortez, supra, 63 Cal.4th at p. 130.)
The Supreme Court first “observe[d] that the challenged
remarks, viewed in isolation, were incomplete at best” in defining
the beyond a reasonable doubt standard. (Cortez, supra, 63
Cal.4th at p. 131.) The court nevertheless found that, “viewing
the challenged statements in context, [there was] no reasonable
likelihood that jurors understood them as defendant asserts,” i.e.,
as lowering the prosecution’s burden of proof. (Ibid.) The court
explained: “Initially, in determining how jurors likely understood
the prosecution’s arguments, we do ‘ “not lightly infer that a
prosecutor intends an ambiguous remark to have its most
damaging meaning or that a jury, sitting through a lengthy
exhortation, will draw that meaning from the plethora of less
damaging interpretations.” ’ [Citations.]” (Ibid.)
In light of that principle, the Cortez court found it
“significant that the trial court properly defined the reasonable
doubt instruction in both its oral jury instructions and the
written instructions it gave the jury to consult during
deliberations. ... As we have explained, ‘[w]e presume that jurors
treat the court’s instructions as a statement of the law by a judge,
and the prosecutor’s comments as words spoken by an advocate
14
in an attempt to persuade.’ [Citation.]” (Cortez, supra, 63 Cal.4th
at p. 131.) Indeed, the trial court had “emphasized in several
ways that jurors should follow its instructions rather than
anything potentially contrary in counsel’s arguments.” (Id. at
p. 132.) The Supreme Court also found it significant that defense
counsel had emphasized the reasonable doubt instructions during
his closing argument, and the prosecutor’s comments on
reasonable doubt had specifically referred the jury to the court’s
instruction on that subject, which made it unlikely that jurors
would have understood the prosecutor’s challenged statement as
a repudiation of the court’s instructions or an invitation to the
jury to disregard them. (Id. at pp. 132–133.)
Our high court concluded: “In summary, given that the
challenged comments were brief and constituted a tiny, isolated
part of the prosecution’s argument, that the prosecution was
responding to defense counsel comments, that the prosecution
expressly referred the jurors to the instruction they had on
reasonable doubt, that both the court and defense counsel
properly defined ‘reasonable doubt’ numerous times, and that the
jury had written instructions during deliberations that properly
defined the standard, we find no reasonable likelihood the jury
construed or applied the prosecution’s challenged remarks in an
objectionable fashion. We therefore reject defendant’s misconduct
claim.” (Cortez, supra, 63 Cal.4th at pp. 133–134.)
In this case, as in Cortez, the court properly instructed the
jury on the burden of proof; defense counsel accurately defined
reasonable doubt; and the prosecutor’s misstatement made up a
small part of his remarks. To be sure, the prosecutor’s comments
minimizing his burden in this case differed from those in Cortez.
Unlike in Cortez, however, the trial court in this case
15
immediately admonished the jury: “Burden of proof is beyond a
reasonable doubt. You have to have an abiding conviction of the
truth of the charge. I don’t want you to minimize that in any way.
It’s not beyond all possible doubt. But don’t minimize it either. It
is to an abiding conviction of the truth of the charge. You may
proceed.” In response, the prosecutor corrected his earlier
statement: “It is proof that leaves you with an abiding conviction
that the charge is true.”
In sum, we conclude that the court’s timely intervention
and the prosecutor’s acknowledgement of the court’s admonition
were sufficient to cure any harm from the prosecutor’s
misstatement. On this record, there is no reasonable likelihood
that the jury applied the prosecutor’s comments in a way that
reduced the burden of proof.
3. There is no evidence that the court misunderstood the
scope of its sentencing discretion.
Finally, defendant contends the court misunderstood its
sentencing options and asks us to remand for the court to
exercise its discretion to strike the five-year serious-felony prior
(§ 667, subd. (a)). Defendant reasons that although the court
exercised its discretion to strike the prior under Romero, supra,
13 Cal.4th 497, it did not explain why it was not also striking it
for purposes of the five-year enhancement, as might be expected
if the court were aware of its discretion. We disagree.
In this case, defendant was sentenced nine months after
Senate Bill No. 1393 (2017–2018 Reg. Sess.) granted courts the
discretion to strike serious-felony priors. (People v. Stamps (2000)
9 Cal.5th 685, 693.) We presume a trial court is aware of its
discretionary sentencing choices. (People v. Gutierrez (2009) 174
Cal.App.4th 515, 527.)
16
Moreover, it appears from the sentencing transcript that
the court was indeed aware of the scope of its discretion. First,
when ruling on the Romero motion, the court said it would strike
the prior strike, and “to that extent, I am going to grant the
Romero motion.” The court’s comment implies that it would not
be granting defendant the full scope of his requested relief.
Second, the court explained it was selecting the low term
for count 1 “because the court is going to impose the five years for
the prior conviction in 667(a) … .” (Italics added.) That remark
indicates the court understood it had the discretion not to impose
the serious-felony prior.
Third, when discussing defendant’s sentence for count 2,
which the court stayed under section 654, the prosecutor asked if
the court planned to impose and stay the five-year prior under
section 654. The court replied that the serious-felony prior “would
run consecutive to the entire sentence because these are
determinate [terms]. So that five-year prior is added to the entire
sentence. That five-year prior is consecutive to whatever is
imposed. Theoretically, his sentence [for count 2] is four [years].
I’m not staying the five. The five is being imposed on count 1.”
Taken together, the record before us does not indicate that
the court misunderstood the scope of its discretion.
17
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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