Filed 10/6/22 P. v. Amaral CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALBARO MONTALVO AMARAL,

Defendant and Appellant.

 H049476

 (Santa Cruz County

 Super. Ct. No. 20CR03043)

A jury convicted Albaro Montalvo Amaral of offenses including murder, 

attempted murder, and carjacking after he fatally shot a fellow Sureño gang member and 

fired at two other witnesses. He was sentenced to a total indeterminate term in prison of 

100 years to life and a determinate term of 27 years 4 months. Amaral argues that the 

trial court erred by admitting two bloody photographs depicting one of the victim’s 

injuries on the day of the crime in violation of Evidence Code section 352 and by 

imposing multiple punishments for his convictions for murder and carjacking in violation 

of Penal Code section 654.1 He further argues that the abstract of judgment must be 

corrected to reflect that the trial court stayed the sentences imposed for counts 5 and 6. 

Because we agree with the parties that the trial court erred in imposing sentences for both 

1 Unspecified statutory references are to the Penal Code.
2

murder and carjacking, we reverse the judgment and remand the matter solely for

resentencing. 

I. BACKGROUND

A. The Information

On June 8, 2021, the Santa Cruz County District Attorney filed an information 

charging Amaral with murder (§ 187, subd. (a); count 1), attempted willful, deliberate, 

premeditated murder as to victim T. (§§ 664, 187, subd. (a); counts 2), attempted murder 

as to victim C. (§§ 664, 187, subd (a); count 3), carjacking (§ 215, subd. (a); count 4), 

possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5), and possession of 

ammunition by a prohibited person (§ 30305, subd. (a)(1); count 6). As to counts 1 and 

2, it was alleged that Amaral personally and intentionally discharged a firearm causing 

great bodily injury (§ 12022.53, subd. (d)), and as to count 3, it was alleged that Amaral 

personally used a firearm (§ 12022.53, subd. (b)). The information further alleged that 

Amaral had two prior strike convictions (§ 667, subd. (b)-(i)) and had two prior serious 

felony convictions (§ 667, subd. (a)(1)). 

B. The Trial

1. The Charged Crimes

A member of Komar Vargas Trece, a Sureño criminal street gang, Kevin 

Medina-Lopez confided to his friend, T., that he was concerned about his standing in the 

gang: some members wanted him removed because he was being accused of “putting 

something in [a woman’s] drink” at a party. 

A week later, on June 14, 2020, Medina-Lopez drove T. to Santa Cruz in a newer 

model gray sedan. T. was meeting C. there: the two women had met three months earlier 

while housed together in the same correctional facility, and T. wanted C. to help sort 

through boxes of mail that T. had stolen. 
3

Medina-Lopez left T. with C. but later returned, this time with Amaral. MedinaLopez then drove the group around Santa Cruz, stopping at several stores where C. and T.

shoplifted. Amaral was quiet during much of the car ride and did not join the group’s 

general conviviality, drinking, or drug use. 

Medina-Lopez eventually drove the group north on Highway 17 toward San Jose, 

exiting on Laurel Road. He stopped the car occasionally to let C. and T. try to open 

mailboxes. At one set of mailboxes, C. got out of the car, and T. looked at Amaral in the 

backseat and asked if he was okay: Amaral looked “confused, mad.” Amaral had 

something in his hands, at waist level. As T. resumed talking to Medina-Lopez, she 

heard gunshots, and everything momentarily went black. T. later realized that Amaral 

was shooting at her and Medina-Lopez from the backseat. 

Amaral got out of the car and tried to shoot again at T. When the gun failed to

fire, he started reloading and tried to open T.’s car door. T. dove out of the car and into a 

ditch to hide. T. could feel that she had been shot in the face. 

Medina-Lopez was slumped over, apparently dead. Amaral approached C., who 

held up her hands and said she did not know T. or Medina-Lopez. Out of ammunition,

Amaral reached into the car for a shotgun C. had seen earlier on the driver’s side of the 

center console. C. dove into a bush and heard another gunshot. 

When T. heard the car leave, she emerged and found Medina-Lopez on the 

ground. C. emerged after hearing T. scream her name. T. was in a lot of pain and lost 

consciousness twice. C. applied pressure to T.’s facial wound in an attempt to stop the 

bleeding. T. also had what looked like a bullet embedded in her hand. 

As C. and T. left the scene on foot, a family stopped and gave them a ride to a 

location near Highway 17. 

C. and T. both called friends for help, but they did not call 911. C. was afraid that 

she would be found in violation of her parole; T., affiliated with another Sureño subset,
4

feared repercussions for cooperating with the police. Instead, they went to a nearby

house and asked the homeowner to report to 911 that their friend had been killed. C. and 

T. hid in the bushes on hearing sirens pass by. They came out of hiding when T.’s friend

arrived to pick them up. T.’s friend wanted to drive her to the hospital, but T. refused. 

Surveillance footage obtained from a neighbor who lived on Laurel Road showed

that at 7:59 p.m., a gray sedan pulled up to some mailboxes. About 25 seconds later, the 

car drove off. At 8:03 p.m., the surveillance audio reflected a loud bag consistent with a 

shotgun, followed by another loud bang 10 seconds later. About three minutes later, the 

gray sedan could be seen returning toward Highway 17. 

When officers arrived at the scene of the crime, they found Medina-Lopez lying 

dead on the ground on the shoulder of the road. The coroner determined that Medina 

Lopez had died from gunshot wounds to the head and chest. 

2. The Aftermath of the Crime and the Police Investigation

The day after Medina-Lopez’s murder, an employee was working at his office in 

Scotts Valley when he saw a man standing next to a parked car holding a backpack that

was starting to catch on fire. The employee told the man he was going to get a fire 

extinguisher, and the man appeared evasive. When the employee returned with the fire 

extinguisher, the car was fully aflame, and the man with the backpack was nowhere to be 

seen. 

By the time the fire was extinguished, the car, a 2017 silver Nissan Sentra, was 

heavily burned.2 Inside the car was a partially melted purse that contained a variety of 

mail from different addresses, as well as checks and other items that had C.’s name on 

them. There was also a methamphetamine or marijuana pipe, a wallet with a social 

security card belonging to “Kevin Medina,” and a possible bullet.

2 The car had been reported stolen, and when the registered owner had reported the 

theft, she said that she suspected that her ex-boyfriend, Medina-Lopez, had taken the car. 
5

Surveillance videos showed that the Nissan was parked in the area the evening of 

Medina-Lopez’s murder, and the next day, someone driving a Chevy Impala dropped off 

the man that was seen standing next to the Nissan before it burned. 

On July 9, 2020, Amaral was interviewed by police. He acknowledged he was a 

Sureño and had a tattoo that said “VGS” on his stomach. 

On July 22, 2020, officers searched the residence of one of Medina-Lopez’s 

known associates. During the search, the associate arrived driving a Chevy Impala that 

appeared to be the same car seen on the surveillance videos near the car fire in Scotts 

Valley. The associate’s son recalled that his father woke him up one morning after 

getting a call from Amaral. The same morning, his father drove him to Santa Cruz, and, 

on the way, stopped the car and threw pieces of a gun out into the forest. 

At trial, Amaral’s girlfriend recounted that she had heard a rumor about 

Medina-Lopez being involved in some sort of sexual assault. Amaral’s girlfriend had 

previously told her sister that Medina-Lopez was killed because he had raped someone. 

3. Gang Expert Testimony

San Jose Police Department Officer Stephen Fries testified as an expert in criminal 

street gangs. Fries was familiar with the Kollmar Varrios Trece (KVT) Sureño subset. 

Fries opined that it was consistent for a KVT gang member to have a tattoo that says 

“VGS,” short for “vagos,” on their person. Active Sureño gang members that are found 

to have violated the gang’s bylaws or rules are subject to discipline. One bylaw passed 

down from the Mexican Mafia and likely passed down to Sureño subsets is that gang 

members’ girlfriends and wives are to be treated with respect, and violation of that bylaw 

can result in a gang member’s death. 

C. Verdict and Sentencing

The jury convicted Amaral of all charged counts and found true the allegations 

that he personally and intentionally discharged a firearm causing great bodily injury 
6

(§ 12022.53, subd. (d); counts 1 and 2) and personally used a firearm (§ 12022.53, 

subd. (b); count 3). After a separate court trial, the court found true one of the prior strike 

allegations and noted that the prosecutor had moved to dismiss the second prior strike 

allegation. 

On October 15, 2021, the trial court sentenced Amaral to a term of 50 years to life 

for murder (§ 187, subd. (a); count 1), life for attempted willful, deliberate, premeditated 

murder (§§ 664, 187, subd. (a); count 2), 14 years for attempted murder (§§ 664, 187, 

subd. (a); count 3); and three years and four months for carjacking (§ 215, subd. (a); 

count 4). The trial court also imposed terms of 25 years to life and 10 years, respectively,

for the firearm allegations (§§ 12022.53, subd. (d)) as to counts 1 and 2, and imposed and 

stayed under section 654 two four-year terms for possession of a firearm by a felon 

(§ 29800, subd. (a)(1); count 5) and possession of ammunition by a prohibited person 

(§ 30305, subd. (a)(1); count 6). The trial court struck the remaining prior serious felony 

conviction allegation under section 667, subdivision (a).3In total, Amaral was sentenced 

to an indeterminate sentence of 100 years to life and a determinate sentence of 27 years 

4 months. 

II. DISCUSSION

A. Admission of Bloody Photographs 

Amaral argues that the trial court erred when it admitted two bloody photographs 

that depicted T.’s injuries the night of the murder. He argues that the blood obscured T.’s 

injuries, which misled the jury about the severity of her wounds, and that the photographs 

were more prejudicial than probative under Evidence Code section 352. He argues that 

the allegation that Amaral personally discharged a firearm causing great bodily injury 

3Although the record is silent on this point, we note that it appears that a 

conviction for section 245, subdivision (a)(4), assault by means of force likely to produce 

great bodily injury, does not qualify as a serious felony conviction under section 667, 

subdivision (a). (See § 1192.7, subd. (c) [definition of a “serious felony”].) 
7

should therefore be reversed. We discern no abuse of discretion in the trial court’s 

admission of the photographs.

1. Background

Five photographs of T.’s injuries were admitted into evidence at trial. Three of the 

photographs were stills from a video of T.’s interview with the police taken 10 days after 

the murder. The officer who conducted the interview testified that he thought that T.’s 

injury on her hand was more serious than the one on her face, and her hand appeared 

discolored and swollen. 

The remaining two photographs were taken by one of T.’s friends on the night of 

the shootings. These photographs showed T.’s bloodied hand and face. When the 

prosecutor introduced these two photographs at trial, defense counsel objected, arguing 

that the “bloody” nature of the photographs rendered them more prejudicial than 

probative. Defense counsel also argued that the photographs were unnecessary because 

of the “extensive amount of blood” on T.’s face and hands, and T. could have described 

her injuries in lieu of the photographs. The trial court overruled the objection after 

concluding that the photographs, though bloody, showed T.’s condition at the time. The 

trial court also noted that the earlier testimony had “minimize[d] the injuries” and that the 

photographs were “quite probative.” 

2. Legal Principles

Under Evidence Code section 352, “[t]he court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.” “ ‘[P]rejudicial’ ” 

as used in Evidence Code section 352 “is not synonymous with ‘damaging,’ but refers 

instead to evidence that ‘ “uniquely tends to evoke an emotional bias against defendant” ’ 
8

without regard to its relevance on material issues.” (People v. Kipp (2001) 26 Cal.4th 

1100, 1121.)

On appeal, we review the trial court’s decision on the admissibility of evidence 

under Evidence Code section 352 for an abuse of discretion. (People v. Gonzalez (2021) 

12 Cal.5th 367, 408.)

3. Analysis

Having reviewed the challenged photographs, we conclude that the trial court did 

not abuse its discretion by admitting them. The photographs were probative because they 

corroborated the testimony given by T. and other witnesses about her injuries. That the 

photographs were arguably duplicative of T.’s testimony does not require their exclusion. 

“[P]rosecutors . . . are not obliged to prove their case with evidence solely from live 

witnesses.” (People v. Gurule (2002) 28 Cal.4th 557, 624 (Gurule).) 

Moreover, the trial court was entitled to reject Amaral’s assertion that the 

photographs were merely cumulative of the three video stills. People v. Gibson (1976) 

56 Cal.App.3d 119, upon which Amaral relies, is distinguishable. In Gibson, two 

photographs of the deceased victim were “gruesome, revolting, and shocking to ordinary 

sensibilities” and were only “of slight relevancy” given the admission of “many other 

photographs of the deceased victim.” (Id. at p. 135.) Unlike in Gibson, the prosecutor

here offered only five photographs depicting T.’s injuries, and the two challenged 

photographs were the only ones showing T.’s condition the night of the crime. The video

stills from T.’s interview appear to be of poor resolution and showed the injuries from a 

distance, 10 days into the healing process. The two photographs at issue were more than 

merely cumulative. 

We likewise have no basis to question the trial court’s evaluation of the images’ 

prejudicial effect. “[V]ictim photographs and other graphic items of evidence in murder 

cases always are disturbing.” (People v. Heard (2003) 31 Cal.4th 946, 976 (Heard).) 
9

“[T]hat they are graphic and unpleasant to consider does not render the introduction of 

those images unduly prejudicial.” (Ibid.) The photographs depicted blood but were not 

otherwise gory or of a type likely to “inflame a jury.” (Id. at p. 977 [photographs of 

murder victim’s head laceration, deep enough to expose her skull, and of a footprint on 

her chest were not unduly prejudicial]; Gurule, supra, 28 Cal.4th at pp. 625-626 [autopsy 

photographs were not unduly prejudicial].) That T. was able to appear before the jury—

alive, intact, and physically healed—further mitigates the risk of undue prejudice.

Nor were the photographs misleading in context; the photographs merely 

“illustrated the brutal nature of the attack” upon T. (Heard, supra, 31 Cal.4th at p, 976.) 

Although Amaral argues that the amount of blood obscured the actual injuries 

themselves, any difficulty in identifying the scope or contours of the actual entry wounds 

did not negate the photographs’ probative value. We cannot say it was unreasonable for 

the trial court to impliedly find the amount of blood to be relevant to the jury’s 

consideration of the allegation under section 12022.53 that Amaral, by personally 

discharging a firearm, had inflicted great bodily injury. Moreover, the trial court could 

reasonably have found that the photograph of T.’s hand, though dark in places, appears to 

show the entry wound that was the source of the blood, as well as swelling that could be 

viewed as corroborative of the interviewing officer’s description of detail not visible in 

the video stills. And to the extent that portions of T.’s injuries were obscured by blood, 

the previously admitted video stills showed the wounds days later, allowing the jury to 

draw reasonable inferences as to the seriousness of the injuries, anchored by both sets of 

photographs. 

A trial court’s ruling under Evidence Code section 352 will be upheld “unless [the 

court] exercised its discretion in an arbitrary, capricious, or patently absurd manner.” 

(People v. Thomas (2012) 53 Cal.4th 771, 809.) Given the probative nature of the 
10

evidence, weighed against its potential for undue prejudice, we find no abuse of 

discretion in the trial court’s admission of the two photographs.

Furthermore, even assuming that the photographs were improperly admitted under 

Evidence Code section 352, Amaral’s emphasis on their purportedly cumulative 

probative value prevents him from demonstrating prejudicial error. (See People v. Marks

(2003) 31 Cal.4th 197, 227 [applying “ ‘reasonable probability’ standard” of People v. 

Watson (1956) 46 Cal.2d 818, 836 to error under Evid. Code, § 352].) Even without the 

two photographs, there was ample evidence that Amaral inflicted great bodily injury on 

T., which is defined as “significant or substantial physical injury.” (§§ 12022.7, subd. (f),

12022.53, subd. (d).) T. testified that she lost consciousness twice after she was shot, her 

injuries caused her a significant amount of pain, and her friend wanted to drive her to the 

hospital. C. testified that after the shooting, she applied pressure to stanch the flow of 

blood from T.’s facial wound, while T. had something that looked like a bullet stuck in 

her hand. The officer who interviewed T. 10 days later described the wound on T.’s hand 

as swollen, discolored, and dark. And as Amaral himself points out, multiple witnesses 

testified that they saw blood on T.’s person, although they were unable to see any specific 

injuries. Given the evidence, even if it was error to admit the photographs in question, it 

is not reasonably probable that the jury would in their absence have entertained a 

reasonable doubt as to the great bodily injury enhancement. (People v. Watson, supra, 46 

Cal.2d at p. 836.)

Because we discern no merit in Amaral’s claim that the admission of the 

photographs violated Evidence Code section 352 or that they had any impermissible 

prejudicial effect, we likewise have no basis to conclude their admission violated his right 

to due process. “[T]he admission of evidence, even if erroneous under state law, results 

in a due process violation only if it makes the trial fundamentally unfair.” (People v. 

Partida (2005) 37 Cal.4th 428, 439.) Our conclusion as to the trial court’s balancing of
11

probative value and undue prejudice under state law forecloses a finding of fundamental 

unfairness.

B. Section 654

Because Amaral’s killing of Medina-Lopez and driving off in Medina-Lopez’s 

car were united by a common objective, we accept as well-founded the Attorney 

General’s concession that the trial court erred under section 654 when it imposed 

sentences for both the murder and carjacking convictions.

4

 

Section 654, subdivision (a) prohibits multiple punishments for “[a]n act or 

omission that is punishable in different ways by different provisions of the law.” An 

“ ‘act or omission’ ” within the meaning of section 654 includes “a course of conduct 

encompassing several acts pursued with a single objective.” (People v. Corpening (2016) 

2 Cal.5th 307, 311.) “If all of the offenses were incident to one objective, the defendant 

may be punished for any one of such offenses but not for more than one.’ ” (People v. 

Capistrano (2014) 59 Cal.4th 830, 885, overruled on a different point as stated in People 

v. Hardy (2018) 5 Cal.5th 56, 104.) We review a trial court’s determination that two 

crimes were separate, involving separate objectives for substantial evidence. (People v. 

Brents (2012) 53 Cal.4th 599, 618.) 

Here, the parties do not dispute that the carjacking and murder comprised an

indivisible course of conduct.5 In this case, the prosecution’s theory for the carjacking, 

4 Although Amaral did not object to the imposition of multiple sentences below, “a 

section 654 claim is not waived by failing to object below.” (People v. Hester (2000) 22 

Cal.4th 290, 295.)

5 Section 187, subdivision (a) defines murder as “the unlawful killing of a human 

being . . . with malice aforethought.” Section 215, subdivision (a) defines carjacking as 

the “felonious taking of a motor vehicle in the possession of another, from his or her 

person or immediate presence, or from the person or immediate presence of a passenger 

of the motor vehicle, against his or her will, with the intent to either permanently or 

temporarily deprive the person in possession of the motor vehicle of his or her 

possession, accomplished by means of force or fear.”
12

which was supported by the evidence at trial, was that the carjacking and the murder 

involved the same forcible act —Amaral’s shooting of Medina-Lopez. There is no 

evidence that Amaral’s objective in taking the car was independent of the murder, rather 

than merely incidental to the murder as a means of effectuating his flight from the crime 

scene. To the contrary, Amaral’s torching of the car undermined any inference of an 

independent or pecuniary motive.

Absent any evidence suggesting a separate intent or objective, we conclude the 

trial court’s implied determination that the carjacking and murder constituted a divisible 

course of conduct lacks substantial evidence. (See People v. Nunez (2012) 210 

Cal.App.4th 625, 628-630 [assault was incidental to carjacking as there was no evidence 

the assault was a gratuitous act of violence or motivated by an animus unrelated to the 

taking of the vehicle]; People v. Lowe (1975) 45 Cal.App.3d 792, 795 [robbery and 

murder that share same objective of robbery falls within purview of section 654’s 

prohibition against multiple punishment]; In re McCoy (1968) 266 Cal.App.2d 739, 740 

[defendant could not be punished for both robbery and escape when robbery was “part of 

and intended to consummate a plan of escape”]; People v. Latimer (1993) 5 Cal.4th 1203, 

1216 [defendant could not be punished for both kidnapping and rape when “the evidence 

[did] not suggest any intent or objective behind the kidnapping other than to facilitate the 

rapes”].) The imposition of multiple sentences for both counts thus violated section 654.

As the Attorney General observes, we must accordingly remand the matter for a 

full resentencing so that the trial court may reconsider the entire sentencing scheme. (See 

People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on 

review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so 

the trial court can exercise its sentencing discretion in light of the changed circumstances’ 

”]; People v. Burns (1984) 158 Cal.App.3d 1178, 1183 [if staying a consecutive sentence 

results in a “direct and calculable” decrease in the sentence, remand for resentencing 
13

should be ordered].) We appreciate the Attorney General’s forthright support of remand, 

particularly in view of the position taken by Amaral in reply. 

Amaral argues that remand is not required because staying the consecutive 

sentence imposed for carjacking would result in only a minimal adjustment to his 

sentence—he was sentenced to a term of three years and four months for the carjacking, 

but his total sentence was 100 years to life plus a determinate term of 27 years 4 months. 

Although we express no opinion on the appropriate or likely sentence on remand, 

Amaral’s assumption that the trial court would necessarily elect to stay the sentence

imposed for carjacking does not account for recent ameliorative amendments to section 

654. At the time that Amaral was sentenced, former section 654, subdivision (a) 

provided in pertinent part that “[a]n act or omission that is punishable in different ways 

by different provisions of law shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the act or omission be 

punished under more than one provision.” Effective January 1, 2022, section 654 was 

amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1), 

which no longer requires that the trial court impose the longest prison term. As nothing 

in Assembly Bill No. 518 indicates that the Legislature intended these legislative changes 

to apply prospectively, the amendments apply retroactively to all nonfinal judgments. 

(People v. Sek (2022) 74 Cal.App.5th 657, 673.) Amaral’s case is not yet final, rendering 

the amendments to section 654 retroactive to his case. And under the new version of 

section 654, the trial court would be permitted to sentence Amaral as to either carjacking 

or murder and stay the sentence on the other count. We are unable to presume that a trial 

court—given discretion it lacked at the original sentencing—would decline to give due 

consideration to potential factors in mitigation, if any, that Amaral in his original 
14

sentencing may have had no meaningful incentive to present. Nothing at Amaral’s very 

abbreviated sentencing hearing compels a different conclusion.6 

Accordingly, we conclude that a full resentencing is required in this case. On 

remand, the trial court will be required to apply the current law, which includes the newly 

amended version of section 654. 

C. Correction to the Abstract of Judgment

Finally, both parties agree that the abstract of judgment does not accurately reflect 

that the trial court stayed the sentences for counts 5 and 6 under section 654. We agree 

that the abstract of judgment presently contains a clerical error. Nonetheless, as we are 

remanding the matter for a full resentencing, a correction of the abstract of judgment is 

premature and unnecessary. On remand, the trial court will be entitled to reconsider all 

its sentencing decisions—including whether to stay the sentences under counts 5 and 6 

under section 654 as it originally intended or, under the newly amended version of 

section 654 that is now in effect, stay the sentences imposed for Amaral’s other 

convictions given its newfound discretion. 

III. DISPOSITION

The judgment is reversed and remanded for resentencing. At resentencing, the 

trial court may not impose multiple punishments for Amaral’s conviction of murder and 

carjacking. Following resentencing, the clerk of the court shall prepare an amended 

abstract of judgment and forward a copy to the Department of Corrections and 

Rehabilitation.

6 After Medina-Lopez’s father made a point of expressing his forgiveness of 

Amaral and his compassion for Amaral’s family, the trial court addressed Amaral at some 

length, ultimately concluding: “There’s more to you than what I normally see in people 

given crimes like this. You’re deeper than that. I see something in you that tells me you 

can help others. Hopefully you see the same thing in yourself.” 
15

____________________________

LIE, J.

WE CONCUR:

____________________________

GREENWOOD, P.J.

_____________________________

GROVER, J.

People v. Amaral

H049476