People v. Montalbo CA6

I. Facts

At about 1:00 a.m. on February 20, 2010, Jeffrey Aana and Yusuf Ali Smith left a bar at Third Street and East Santa Clara Street in downtown San Jose and headed west on East Santa Clara Street toward Aana’s car, which was parked near Santa Clara Street and San Pedro. As they passed 75 East Santa Clara Street, they encountered a group of three Hispanic men and two Hispanic women walking toward them from the opposite direction. One of the women asked if they had a lighter, and Aana said “No. I don’t smoke.” One of the men in the group responded: “ ‘Fuck you then, nigger’ ” or “[p]unk- ass nigger.” Smith is African-American, and Aana is Hawaiian/Filipino. Smith turned around and said “ ‘Excuse me? What?’ ” “ ‘What did you say?’ ” A portion of this first encounter between Smith and Aana and the group of five was captured on video by a surveillance camera. A short man with closely cropped hair and a thick build who was wearing a long- sleeved white sweater approached Smith, repeated his comment, and tried to punch Smith. Smith avoided the punch and punched the man, who was Montalbo. Smith proceeded to fight with “a taller dude” who was slender and whom Smith subsequently

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