People v. Montanez CA2/5

[[COURTLISTENER_SUBOPINION {"id":"11086852","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
Filed 6/30/25 P. v. Montanez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B327506

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA425236-04)

JAZMIN MONTANEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel Lowenthal, Judge. Affirmed as modified.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, Yun K. Lee, Deputy Attorney General, for
Plaintiff and Respondent.
Tom Taylor was bludgeoned to death with a metal rod in
the motor home where he lived, which was regularly used as a
place to smoke methamphetamine by defendant and appellant
Jazmin Montanez (defendant), Anthony Paz, David Romero,
Alfredo De La Torre, Diana Sequen, and Jose Alfredo Zolorza.
All but De La Torre were indicted for Taylor’s murder, and
defendant and Paz were tried together and convicted. In 2019,
we affirmed Paz’s murder conviction but reversed defendant’s (for
evidentiary and instructional error) and remanded for a new
trial. (People v. Montanez, et al. (Feb. 26, 2019, B281120)
[nonpub. opn.].) Defendant was again found guilty of murder
upon retrial, and we are now chiefly asked to decide whether
reversal is required for three asserted instructional errors:
because the jury was not instructed accomplices Paz and Romero
could not provide the sole corroboration for each other’s
testimony, because the jury was not instructed it should
determine whether De La Torre was an accomplice to the crime
(and require corroboration for his testimony if so), and because
the jury was not instructed it should view out-of-court statements
by defendant with caution if not written or recorded.

I
Paz, Romero, and De La Torre were the principal witnesses
against defendant at her trial in 2022, and some of the
incriminating testimony provided—particularly with respect to
Paz and Romero—came from recorded out-of-court statements
made closer in time to the murder (the admissibility of which are
uncontested on appeal). The prosecution also introduced in
evidence what it contended was the murder weapon—a metal rod
found by a dive team in the Los Angeles riverbed (Paz told a

2
jailhouse informant in a recorded conversation that he threw the
murder weapon in “the ocean”). We will elaborate on the trial
evidence presented against defendant and then discuss the
manner in which the jury was instructed.

A
In January 2014, Long Beach police officers on patrol in the
area of Magnolia and 17th Street smelled smoke. They followed
the smell and saw a burning motor home in an alley. The officers
called for fire department assistance, and although there was
smoke coming out of the motor home’s windows, the officers were
able to make entry and put out a small fire before the firefighters
arrived.
When fully safe to enter the motor home, police and fire
personnel discovered Taylor’s dead body inside. Taylor’s hands
were tied behind his back, there was a gag in his mouth, there
were injuries to his face and head, and portions of his body were
severely burned. A fire department investigator concluded the
motor home fire was intentionally started, with the point of
origin for the fire being the bed where Taylor’s body was found.
An autopsy later revealed the cause of Taylor’s death was
blunt force head trauma, specifically, multiple skull fractures,
brain hemorrhaging, and lacerations to the back of the head—all
of which were consistent with having been inflicted by blows from
a metal rod. Taylor was also found to have suffered a fracture of
the right ribs. The medical examiner opined the blunt force
injuries caused Taylor’s death before the fire was set.

3
B
The prosecution called De La Torre as a witness at trial
and he testified about the use of Taylor’s home as a place to
smoke methamphetamine and about the events at the motor
home on the day of Taylor’s murder. He admitted he was a gang
member (East Side Longo) and a methamphetamine user at the
time.1
De La Torre explained that, around the time of the murder,
he would go to Taylor’s motor home a few times a week to get
high on methamphetamine. Others, including defendant, Paz,
Romero, and Sequen, also used methamphetamine at the motor
home around the time.
Late in the evening on January 27, 2014, De La Torre
received a phone call from Sequen who was at Taylor’s motor
home and he heard “arguing” on her side of the line; he could not
recall the specifics at the time of trial, but it sounded “urgent
enough” that he headed to where she was. Taylor, defendant,
Paz, Romero, and Sequen were there when De La Torre arrived,
and De La Torre remained outside the motor home but could see
inside.
De La Torre saw “everyone” holding Taylor down near a
table amidst a lot of “commotion,” and defendant and Taylor were
arguing about some of defendant’s “stuff” that had been moved.

1
De La Torre also admitted on cross-examination that he
was nervous when the police interviewed him not long after
Taylor’s murder. He confirmed the police told him, during that
interview, that they would have “no problem putting down that
187 [a murder charge] on your booking sheet and calling it a
night.”

4
De La Torre saw defendant “smack” Taylor two or three times in
the face and heard Taylor “wailing kind of” in pain. De La Torre
also saw defendant shove a sock in Taylor’s mouth, and he heard
her tell the others to “tie him up.”
At some point, De La Torre heard defendant say “let’s end
this” to the others in the motor home, at which point the others
then became more aggressive and held Taylor down “fiercer,
harder.” De La Torre also heard defendant say that she was
“going to finish this motherfucker” (i.e., Taylor) and she appeared
adamant about finishing him—meaning killing him—that night.
De La Torre left the area of the motor home after that and
Romero left with him. De La Torre could still hear a racket and
banging noises coming from the trailer while he was walking
away.
Later on, De La Torre met up with defendant and Romero
at Romero’s apartment. De La Torre heard defendant on the
phone with Paz, seeking confirmation of some sort by asking, “Is
it done?” Later that night or the next day, De La Torre learned
Taylor had died from having his “head . . . bashed in.”

C
Romero testified at defendant’s trial quite reluctantly, and
under a grant of use immunity in connection with an unrelated
case. In response to an initial series of questions, he testified he
entered a plea to assaulting Taylor (without any agreement with
the prosecution) and he recognized who Taylor was. But he
denied even recognizing defendant, Paz, De La Torre, and the
others who used methamphetamine at the motor home; he
variously did not remember or outright denied incriminating
facts about the night when Taylor was killed; and he professed

5
not to remember being interviewed at length by investigating
detectives after Taylor’s murder. The prosecution then played in
court the recording that prior interview with the police, which we
now summarize.
Romero told the interviewing detectives that when he first
arrived at Taylor’s motor home, defendant and Taylor were
arguing and defendant was “blaming him for all kinds of crap[,
l]ike sexual harassment and grabbing her when she didn’t want
to.”2 Paz, Jose Alfredo Zolorza (whom Romero referred to as
“Alfredo” but we will call Zolorza to avoid confusion), De La
Torre, and another woman whose name Romero did not know
were in or around the motor home at the time. The argument
between defendant and Taylor escalated, Romero walked inside
the motor home, and Romero heard defendant say, “He needs to
die.” According to Romero, defendant was standing in front of
Taylor holding a knife when she made that statement.
Some in the group then attacked Taylor. Romero saw Paz
“on top [of Taylor] socking the fuck out of him” in “[m]aybe like
his stomach.” Defendant grabbed “like a piece of bar,” which was
“grayish” and “maybe . . . fourteen, fifteen inches.” According to
Romero, defendant used it to “whack[ ]” Taylor “[s]omewhere
behind his head” while “homeboy was hitting [Taylor] in the
stomach.” Zolorza was helping to hold Taylor while defendant
and Paz were hitting him.
Romero told the police that defendant ordered him to “tie
[Taylor’s] mouth” and Romero did so by tying a rope around

2
Romero said he was affiliated with the West Side Longo
street gang. He was a drug user, but he claimed he “wasn’t even
high” the day Taylor was killed.

6
Taylor’s mouth after defendant put a sock in it. Taylor was
already “pretty bloody” but he was still moving around. At that
point, Romero said he left (with De La Torre) and went back
home.3
Sometime later, according to Romero, defendant arrived at
his house asking him to give her a ride back to the motor home
because she said she wanted to get “her stuff.” Romero declined,
but defendant remained outside his house using her phone.
Defendant told Romero she was talking to Paz.
Romero overheard defendant “telling him [i.e., Paz] to, you
know, basically get rid of him [i.e., Taylor].” Romero recalled
defendant saying “something about . . . light the cake” or “turn
the candles of the cake on,” to signify an order to light the motor
home on fire. Romero believed defendant also used the phrase
“cut the cake” on the call with defendant, which he understood to
mean “to get rid of that person.” About an hour later, defendant
told Romero that Paz called and said Taylor was dead.4
After the prosecution played the recording of the interview
during which Romero made the statements just summarized, the
prosecution resumed questioning Romero in court and he
abandoned his earlier denials and professions of an inability to
remember. Romero explained everything he said he saw during
the police interview was accurate and he initially claimed

3
Romero, like De La Torre himself, said De La Torre never
went inside the motor home.
4
Romero also told the detectives that defendant had claimed
to have “people in the inside” and “could tell someone to do a hit
on somebody,” which he understood to be a claim that she was a
“shot caller” and had ties to the Mexican Mafia.

7
otherwise because he was “affiliated with a gang,” there had been
attempts on his life as a result of testifying in court, and he was
concerned that he was “playing with [his] life by testifying again.”
Romero also sought to explain or justify his participation in the
attack on Taylor by emphasizing defendant had said at the time
that she had been raped.

D
The prosecution also called Paz as a witness (he was still in
custody serving his sentence for murdering Taylor), at least
partly to provide the necessary foundation to admit against
defendant recorded statements Paz made (unbeknownst to him at
the time) to a jailhouse informant going by the name “Lopez”
shortly after his arrest.
Paz testified he was romantically involved with defendant
around the time of Taylor’s murder, he and defendant
“occasionally” lived at the motor home with Taylor and would
smoke “crystal meth” there, and on the day of Taylor’s murder,
Taylor “started arguing with us . . . [asking] why we were there”
because Taylor tried to “evict” Paz the previous day. Paz said he
was angry and he claimed Taylor “started putting hands on me”
and the two then fought for about 15 seconds while defendant
stood nearby. According to Paz, the fight “just stopped”; he
stayed at the motor home while everyone else left; after a time he
left too and went to the “L.A. Canal” to smoke more
methamphetamine—taking with him a roughly 20-inch metal
rod, which he claimed was his; and he left the rod there when he
eventually returned closer to home. Paz denied seeing defendant
hit or even start an argument with Taylor, and he denied hearing
her order others in the group to tie Taylor up or beat him.

8
To impeach Paz’s testimony (and for the jury’s substantive
consideration (Evid. Code, § 1235)), the prosecution played the
full 45-minute-plus recording of Paz’s conversation with inmate
Lopez during its case-in-chief.
Shortly after Paz was placed in the jail cell with Lopez,
Lopez asked if Paz had been to “the joint” already and Paz said
yes, adding “fucking right now, they’re trying to charge me . . . for
murder.” Lopez asked Paz if “[t]hey got you” and Paz responded,
“Nada, fool. No evidence,” but conceded “the only shit[,] the guys,
fucking I live with them.” Paz told Lopez he (Paz) was the only
person “in here,” which prompted Lopez to ask why he had been
arrested if, as Paz claimed, he “didn’t leave no evidence.” Paz
responded, “I didn’t. That’s ‘cause the thing is that there’s me
and the hina fool who live with the old man.”5
Conversation continued about “the hina,” and the following
exchange ensued:
[Paz:] Cause the hina, the main hina . . .
[Lopez:] She’s the one fucking pressing the issue?
[Paz:] Nah, she was the one that started it all.
[Lopez:] Oh, is that right?
[Paz:] I just end up . . .
[Lopez:] Finishing it.
[Paz:] Yeah, cleaning.
[Lopez:] Oh, you had to clean up her mess?
[Paz:] No. I ended up finishing and cleaning her
mess.

5
During his testimony, Paz explained the word “hina” meant
“female.”

9
After this exchange, Paz again returned to the woman who
“lived right there too,” adding “[w]e both lived right there with
the old man” and were “smoking shit.” Paz told Lopez the woman
was “from Longo” and when Lopez asked if “she be calling shots,”
Paz responded, “Big time.” Lopez asked Paz, “[I]f she told you
what to do, you got to do it?” Paz responded, “Me personally, me,
yeah. Me ‘cause like either it’s me or them, fool.”
Paz and Lopez then discussed further the murder charge
Paz was then facing. Paz told Lopez “it came on the news,”
adding “Magnolia and 17th, murder, de-de-de-de. House on fire,
they’re trying to burn him.” Lopez asked Paz whether the fire
was started with gas and Paz responded “[p]ropane.” Lopez told
Paz, “Damn yeah, you’re probably straight then,” and Paz said,
“That’s why I’m not sweating it fool.” When Lopez asked whether
the “whole thing burn[ed],” Paz answered, “Nah.”6
Paz told Lopez that the police “found the old man burned to
death fucking inside his home” and “took everything for
evidence.”7 Lopez asked if “he” (i.e., “the old man”) tried to fight
back, which prompted the following exchange:
[Paz:] Mm-hmm.

6
At another point during the conversation, Lopez asked Paz
if he knew “what that hina’s statements are.” The following
exchange ensued after that: “[Lopez:] Was she standing next to
you when . . . [¶] [Paz:] Nah. We had separate, separate rooms
and shit. [¶] [Lopez:] Nah, like, like, when you guys set that
shit on fire, was she there? [¶] [Paz:] Hmm? [¶] [Lopez:] Was
she with you? [¶] [Paz:] Yeah.
7
At a later point in the conversation, Paz used the name
“Tom” when referring to the “old man” with whom he was
staying.

10
[Lopez:] Yeah? He had hands, huh? Old-ass man had
hand[s]?
[Paz:] ([unintelligible])
[Lopez:] Let me find out that fool beat you up.
[Paz:] Nah, ([unintelligible]) fool. ([unintelligible])
big.
[Lopez:] Like a pipe?
[Paz:] Heavy, boom, boom.
[Lopez:] Yeah, right. Yeah, that’s crazy. That’s a crazy
way. Up, close, and personal.
[Paz:] Yeah, yeah.
After a police detective came to visit Paz in his jail cell and
told him (falsely, in the hope of stimulating further incriminating
statements) that the police had recovered video and DNA
evidence, Lopez expressed surprise (once the detective left)
because Paz said he got rid of everything. Paz responded, “I did
([unintelligible]) I threw it in the ocean . . . right, all the sand and
shit . . . .”
When confronted during his trial testimony with the
statements he made during the jailhouse conversation, Paz
dismissed the statements incriminating defendant and himself as
made up “county jail stories.” Paz did acknowledge, however,
that he was using methamphetamine at the time of Taylor’s
murder and there was “a lot” he did not recall. He claimed to be
sure, however, that defendant did not tell him to kill Taylor.

E
Both Paz and Romero had described the presence of a metal
rod or “bar” at the motor home on the day Taylor was killed; Paz
claimed he merely took the rod with him to the “L.A. Canal” at

11
some point after fighting with Taylor, while Romero said he saw
defendant hit Taylor in the head with the rod. After the police
apprehended defendant and the others following Taylor’s death, a
police dive team recovered a roughly 20-inch metal rod from the
Los Angeles riverbed. Romero was shown a picture of the rod
and said it was “the bar that [defendant] was using to hit [Taylor]
in the head.”

F
At the close of evidence, the parties and the trial court
conferred concerning the instructions that should be given to the
jury.
The parties and the court eventually agreed that
CALCRIM No. 335, concerning testimony from individuals who
are accomplices to the crime as a matter of law, should be given
and name Paz and Romero as accomplices as a matter of law.
The version of CALCRIM No. 335 given to the jury, however,
omitted a bracketed paragraph in the pattern instruction (shown
in italics below) concerning corroboration when more than one
accomplice testifies:
“If the crime of Murder was committed, then Anthony
Paz and David Romero were accomplices to that
crime. [¶] You may not convict the defendant of
Murder based on the statement or testimony of an
accomplice alone. You may use the statement or
testimony of an accomplice that tends to incriminate
the defendant to convict the defendant only if: [¶] 1.
The accomplice’s statement or testimony is supported
by other evidence that you believe; [¶] 2. That
supporting evidence is independent of the

12
accomplice’s statement or testimony; [¶] AND [¶] 3.
That supporting evidence tends to connect the
defendant to the commission of the crime. [¶]
Supporting evidence, however, may be slight. It does
not need to be enough, by itself, to prove that the
defendant is guilty of the charged crime, and it does
not need to support every fact mentioned by the
accomplice in the statement or about which the
witness testified. On the other hand, it is not enough
if the supporting evidence merely shows that a crime
was committed or the circumstances of its
commission. The supporting evidence must tend to
connect the defendant to the commission of the crime.
[¶] [The evidence needed to support the (statement/
[or] testimony) of one accomplice cannot be provided
by the (statement/ [or] testimony) of another
accomplice.] [¶] Any statement or testimony of an
accomplice that tends to incriminate the defendant
should be viewed with caution. You may not,
however, arbitrarily disregard it. You should give
that statement or testimony the weight you think it
deserves after examining it with care and caution
and in light of all the other evidence.”
The parties also discussed whether the court should
instruct the jury with CALCRIM No. 334, concerning testimony
from individuals who may be an accomplice if the jury so finds,
with respect to De La Torre.8 The court opined that it did not

8
The pattern instruction provides guidance on how to
resolve a dispute over whether a witness is an accomplice,

13
hear anything during De La Torre’s testimony that “would
indicate he could be construed as an accomplice.” Defense
counsel agreed with the court’s view, as did the prosecution—
emphasizing De La Torre remained outside the motor home and
was never charged. The court accordingly gave no CALCRIM No.
334 instruction to the jury with respect to De La Torre’s
testimony.
Without objection or comment from the parties, the trial
court also stated it would give CALCRIM No. 358, concerning
evidence of a defendant’s out-of-court statements, to the jury.
The instruction as given, however, omitted a bracketed
paragraph at the end (shown in italics below) that specifies a jury
should consider any non-written or recorded statement by the
defendant with caution: “You have heard evidence that the
defendant made an oral statement before the trial. You must
decide whether the defendant made any such statement, in whole
or in part. If you decide that the defendant made such a
statement, consider the statement, along with all the other
evidence, in reaching your verdict. It is up to you to decide how
much importance to give to the statement. [Consider with
caution any statement made by (the/a) defendant tending to show

explaining that an accomplice is someone “subject to prosecution
for the identical crime charged against the defendant.”
(CALCRIM No. 334.) The pattern instruction further explains
that someone is subject to prosecution if he or she is the direct
perpetrator or an aider and abettor, that the burden is on the
defendant to prove a witness is an accomplice, and that mere
presence at the scene of a crime is neither necessary nor alone
sufficient to establish a witness is an accomplice. (CALCRIM No.
334.)

14
(his/her) guilt unless the statement was written or otherwise
recorded.]”
During closing argument, the prosecution argued the jury
could convict defendant for murdering Taylor either as a direct
perpetrator (emphasizing Romero’s testimony that he saw her hit
Taylor in the head with the metal rod) or as an aider and abettor
(emphasizing defendant’s presence during at least part of the
assault on Taylor, her “orders” to others in the group, her
statements that she wanted Taylor dead, and the evidence
suggesting Paz “finished” Taylor and lit the motor home on fire).
The prosecution did not argue Romero and Paz provided the
necessary corroboration for each other’s testimony, but the
prosecution did argue De La Torre corroborated Paz and
Romero’s recounting of defendant’s statements evincing an intent
to kill Taylor. The defense, during its closing argument,
maintained Paz killed Taylor on his own and the prosecution’s
position that defendant was “some queen pin, some gangster on a
high level that can order grown men to tie up and kill another
man” was “ridiculous.”
The jury deliberated and convicted defendant of first degree
murder. The trial court sentenced her to 25 years to life in
prison.

II
Defendant argues there were three errors in instructing the
jury, but we shall affirm the judgment because there was only
one error and that error was harmless.
The parties agree, as do we, that the trial court should have
instructed the jury with the bracketed paragraph in CALCRIM
No. 335 stating the necessary corroboration for an accomplice’s

15
testimony cannot come from another accomplice’s testimony.
That error did not prejudice defendant, however, because the
necessary corroboration need only be “slight,” and there is no
reasonable possibility the jury would have found insufficient
corroboration for Paz’s and Romero’s testimony in light of De La
Torre’s testimony that tended to connect defendant to commission
of Taylor’s murder.9
We reject defendant’s argument that the court erred in not
giving a CALCRIM No. 334 accomplice instruction as to De La
Torre. There was no substantial evidence presented at trial that
would have allowed the jury to find he was subject to prosecution
for murder by standing outside the motor home (there was no
evidence he ever went inside) on the night Taylor was killed.
Finally, defendant forfeited his claim that the CALCRIM
No. 358 instruction (out-of-court statements by a defendant) was
incomplete by not objecting in the trial court to the instruction
given, and his related ineffective assistance of counsel claim fails
on prejudice grounds.

A
We have already reproduced the CALCRIM No. 335
accomplice-as-a-matter-of-law instruction that was given with
respect to Paz and Romero, and it is undisputed that the
omission of the bracketed portion was error. (See, e.g., People v.

9
In light of this holding, it is unnecessary for us to decide
whether the metal rod provided further corroboration for
Romero’s testimony (including his recorded police interview,
during which he stated he saw defendant hit Taylor in the head
with a grayish metal “bar”).

16
Rangel (2016)
62 Cal.4th 1192, 1222
[“[T]he testimony of one
accomplice cannot corroborate that of another accomplice”].) So
the question is prejudice.
Defendant concedes De La Torre’s testimony could have
“potentially” provided “some corroboration,” and that is right—
albeit understated: De La Torre directly connected defendant to
commission of Taylor’s murder by testifying he saw defendant
arguing with Taylor in the motor home on the night he was
killed, he saw defendant “smack” Taylor multiple times in the
face while “everyone” was holding him down, he saw defendant
shove a sock in Taylor’s mouth and order everyone to tie Taylor
up, and he heard defendant say “let’s end this” to the others and
say that she was “going to finish this motherfucker.” Defendant
argues, however, the corroboration provided by De La Torre is
insufficient for two reasons: because she believes the jury should
have been asked to decide De La Torre was an accomplice too (a
point to which we turn in the next section) and because the jury
may have disbelieved De La Torre because he was a gang
member, methamphetamine user, and gave an “evasive” answer
about why he went to the motor home in the first place.
None of these three proffered reasons leaves us convinced
there is a reasonable possibility the jury would not have found De
La Torre provided the requisite “slight” corroboration for Paz and
Romero. (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 303
[“‘A trial court’s failure to instruct on accomplice liability under
[Penal Code] section 1111 is harmless if there is sufficient
corroborating evidence in the record.’ [Citation.] ‘Corroborating
evidence may be slight, may be entirely circumstantial, and need
not be sufficient to establish every element of the charged
offense’”].) All of the witnesses at the scene of the murder (and

17
defendant) were methamphetamine users at the time of the
crime, and we accordingly doubt the jury would have disbelieved
De La Torre’s testimony just for that reason. Defendant also
overstates matters when she says De La Torre had a motive to
falsely corroborate both Paz and Romero because they were from
the “same gang” (De La Torre testified he was affiliated with the
East Side Longo gang while Romero was from West Side Longo),
and regardless, we see no reasonable likelihood that gang
membership would have caused the jury to disbelieve De La
Torre. To the contrary, there was a great deal of testimony at
trial (some elicited even by the defense) that a gang member
places himself at significant personal risk by “snitching” and
testifying against others—and De La Torre’s testimony
inculpated not just defendant, but also Paz and Romero by
placing them at the scene of the crime and, in the case of Paz, on
the phone with defendant later discussing whether “it” was
“done.”10

B
“[Penal Code] [s]ection 1111 bars any conviction predicated
on ‘testimony of an accomplice unless it [is] corroborated by such
other evidence as shall tend to connect the defendant with the
commission of the offense.’ An accomplice is ‘one who is liable to

10
We also see nothing “evasive” about De La Torre’s answer
about why he went to the motor home—and, apparently, neither
did the defense at trial: it was not a point pursued on cross-
examination and the defense agreed De La Torre could not be
viewed as an accomplice when the parties discussed the jury
instructions that should be given.

18
prosecution for the identical offense charged against the
defendant on trial in the cause in which the testimony of the
accomplice is given.’ (Ibid.) ‘To be chargeable with an identical
offense, a witness must be considered a principal under [Penal
Code] section 31.’ (People v. Lewis (2001)
26 Cal.4th 334, 368-369
[ ]; see [Pen. Code,] § 31 [defining ‘principal’].) In other words,
there must be evidence of that person’s ‘guilt . . . based on a
combination of the direct perpetrator’s acts and the aider and
abettor’s own acts and own mental state.’ [Citation.] [¶] Only
when there is ‘substantial evidence that a witness who has
implicated the defendant was an accomplice’ must the trial court
instruct on ‘the principles regarding accomplice testimony.’
(People v. Houston (2012)
54 Cal.4th 1186, 1223
; see
Lewis,
supra,
26 Cal.4th at [ ] 369 [‘Substantial evidence is “evidence
sufficient to ‘deserve consideration by the jury.’”’])” (People v.
Johnsen,
10 Cal.5th 1116, 1155
; see also
Houston, supra, at 1224
[“An accomplice is someone subject to prosecution for the charged
crimes by reason of aiding and abetting or being a member of a
conspiracy to commit the charged crimes. [Citations.] ‘“An
accomplice must have ‘“guilty knowledge and intent with regard
to the commission of the crime”’”’”].)
Under these well-established principles, giving a
CALCRIM No. 334 accomplice instruction as to De La Torre was
only warranted if there was substantial evidence that he was
subject to prosecution for aiding and abetting Taylor’s murder.11

11
Citing
Rangel, supra,
62 Cal.4th at pages 1222 to 1223, the
Attorney General argues defendant has “waived” the contention
that CALCRIM No. 334 should have been given as to De La Torre
because his trial attorney agreed with the court that such an

19
There was not. The undisputed evidence at trial was that De La
Torre watched the attack on Taylor from outside the motor home
and left the area before Taylor was killed. There was also
evidence he visited Romero’s home later and overheard a
conversation between defendant and Paz. None of that provides
substantial evidence of the actus reus or mens rea that would be
required for De La Torre to be subject to prosecution for murder.
(See generally People v. Curiel (2023)
15 Cal.5th 433, 467
[“‘[P]roof of aider and abettor liability requires proof in three
distinct areas: (a) the direct perpetrator’s actus reus—a crime
committed by the direct perpetrator, (b) the aider and abettor’s
mens rea’—which here includes knowledge that the direct
perpetrator intends to commit the crime or life-endangering act,
‘and (c) the aider and abettor’s actus reus—conduct by the aider
and abettor that in fact assists the achievement of the crime’”];
see also People v. Strickland (1974)
11 Cal.3d 946, 958
; People v.
Pettie (2017)
16 Cal.App.5th 23, 57
[“‘Mere presence at the scene
of a crime which does not itself assist its commission or mere
knowledge that a crime is being committed and the failure to
prevent it does not amount to aiding and abetting’”].)

C
In the trial court, the defense did not object to the
CALCRIM No. 358 instruction as delivered, i.e., without the
bracketed paragraph instructing jurors to consider inculpatory
out-of-court statements by the defendant with caution if not
written or recorded. Because the trial court has no sua sponte

instruction should not be given. We will assume for argument’s
sake that the contention is preserved.

20
obligation to give a CALCRIM No. 358 instruction at all (People
v. Diaz (2015)
60 Cal.4th 1176, 1190
), the absence of an objection
to the instruction as delivered forfeits the challenge to the
instruction that defendant now advances on appeal.
Anticipating the forfeiture problem, defendant argues the
absence of an objection to the instruction in the trial court
constitutes ineffective assistance of counsel. This ineffective
assistance of counsel claim fails too because defendant has not
established the requisite prejudice. (People v. Carter (2005)
36
Cal.4th 1114, 1189
[a defendant has the burden to establish
ineffective assistance of counsel, i.e., representation by counsel
that fell below and objective standard of reasonableness and
resulting prejudice sufficient to undermine confidence in the
outcome of the proceeding]; see also Strickland v. Washington
(1984)
466 U.S. 668, 697
[“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”];
Diaz, supra,
60 Cal.4th at 1196
[“the instructions provided by the
trial court concerning witness credibility informed the jury of the
need to evaluate the witnesses’ testimony for possible
inaccuracies and determine whether the statement was in fact
made. The jury[, as in this case,] was instructed with CALCRIM
No. 226, which sets out the numerous factors the jury may
consider in deciding whether a witness’s testimony is credible.
‘[W]hen the trial court otherwise has thoroughly instructed the
jury on assessing the credibility of witnesses, we have concluded
the jury was adequately warned to view their testimony with
caution’”].)
Defendant believes otherwise because she asserts “a large
portion of the prosecution’s case . . . was based upon her

21
unrecorded out of court statements.” There was quite strong
evidence of defendant’s guilt, however, even apart from those
statements based on what other witnesses saw and said
themselves. Romero saw defendant “whack” Taylor in the head
with a metal “bar” and shove a sock in his mouth at the point
when he was already “pretty bloody.” De La Torre too saw
defendant shoving a sock in Taylor’s mouth, and he saw her
smacking him repeatedly in the face while others were holding
him down. And Paz unknowingly admitted to a jailhouse
informant that defendant was “the one that started it all” and he
had to “finish[ ] and clean[ ] her mess.”

D
Although we have disposed of defendant’s principal
arguments on appeal, two issues remain that require less
extensive discussion. Defendant argues the claimed instructional
errors we have already discussed were cumulatively prejudicial
even if not prejudicial when considered individually. We hold
otherwise; the asserted (and in one case substantiated)
instructional errors did not deprive defendant of a fair trial.
(Chambers v. Mississippi (1973)
410 U.S. 284
; People v. Hin
(2025)
17 Cal.5th 401
, 508.) Defendant also argues the trial court
miscalculated her actual custody credits at sentencing—the
correct figure being 3,217 days of credit—and the Attorney
General fully agrees with defendant. We will order the actual
custody credits corrected accordingly.

22
DISPOSITION
The clerk of the superior court shall prepare an amended
abstract of judgment that gives defendant 3,217 days of actual
custody credit (with any further conduct credit to be calculated by
CDCR). In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM (D.), J.

People v. Montanez CA2/5

AI Case Brief

Ask AI About This Case

Full Opinion

Case Information