People v. Montano CA4/1

INTRODUCTION

A jury convicted Efrain Montano of two counts of robbery (Pen. Code, § 211).

The jury could not reach verdicts on allegations Montano was vicariously armed with a

firearm (Pen. Code, § 12022, subd. (a)(1)), and the court subsequently granted the

prosecution's motion to dismiss these allegations. However, the court found true an

allegation Montano had a prior prison commitment conviction (Pen. Code, § 667.5, subd.

(b)). The court sentenced Montano to four years in prison.

Montano appeals, contending the court prejudicially erred in instructing the jury

with a bracketed paragraph in the CALCRIM No. 400 aiding and abetting instruction

intended for use only when the prosecution is relying on the natural and probable

consequences doctrine, which the prosecution was not relying on in this case. We

conclude the error was harmless and affirm the judgment.

BACKGROUND

Two women were standing in a parking lot talking when a four-door silver sedan

drove in front of them, stopped for a few seconds, and then drove off. A few minutes

later, the sedan returned and stopped near them again. Montano got out of the sedan's left

rear passenger seat, an accomplice…