(Super. Ct. No. 07F09689)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Richard Montiel, Jr., of recklessly possessing an explosive in a public place (Pen. Code, § 12303.2; undesignated section references that follow are to the Penal Code) and possession of an explosive (Health & Saf. Code, § 12305). The court sustained five prior strike allegations and sentenced defendant to 25 years to life in state prison.
On appeal, defendant contends there was instructional error regarding the burden of proof and he was entitled to additional presentence conduct credits. We affirm the judgment.
On October 10, 2007, Nora C., her daughter, and a friend were in line at a McDonald's on Mack Road when they noticed a man in the line, Fernando Chavez, smelled of gasoline. From their seat in the restaurant, Nora C. and her daughter saw Chavez in the parking lot, kneeling next to an SUV and filling 40-ounce beer bottles with gasoline from a red-spouted container. Chavez handed the bottles to Fernando Nava in the SUV's front passenger seat; a third man was in the driver's seat. Chavez and Nava were ripping rags or towels and stuffing them into the gasoline-filled bottles. After seeing one of the men cover the SUV's license plate with paper, Nora C. reported the situation to the McDonald's manager, who called the police.
The SUV drove to the other side of the McDonald's parking lot, where it parked near Dora B.'s car. Chavez's girlfriend was in the front passenger seat of Dora B.'s car, while the brothers Damien and Adolpho Velasquez were in the backseat. An older man was seated across from Nava in the front passenger seat of the SUV. The Velasquez brothers got into the SUV. Dora B. could smell gasoline from the SUV.
Nora C. pointed out the SUV to police officers, who stopped it at the intersection of Mack Road and Franklin Boulevard. Nava was driving and defendant was in the front passenger seat; Chavez and the Velasquez brothers were in the backseat.
The SUV's floorboard was saturated with gasoline. Three 40-ounce beer bottles filled with gasoline were found behind the driver's seat. Two of the bottles had cloth shoved in them; the third had a cloth or wick protruding from its neck. Styrofoam, which increases the burn time of Molotov cocktails, was found in the SUV. A cigarette lighter and a gold cap from one of the beer bottles were found on the front passenger seat, and another bottle cap was found directly below the front passenger seat.
Defendant presented testimony that he was in the SUV because he needed a ride and his car was not working. The People presented a letter written by defendant while in jail awaiting trial. The letter, addressed to Chavez, indicated it was very important "that I was in the car only because I was getting a ride to my father-in-law's house" and that defendant needed Chavez to back his story.