COURT UPHOLDS MURDER CONVICTION.

Byline: KAREN MAESHIRO Staff Writer

PALMDALE -- An appeals court refused to throw out the murder conviction of an ex-convict who shot a man to death while on a crack cocaine binge financed with a $149,000 settlement from the LAPD's Rampart scandal.

The 2nd District Court of Appeal rejected Roy Montes' contention that the trial judge should have told the jury to consider whether he acted in `honest' self-defense by shooting the man, because he was hallucinating that the man pointed a gun at him.

``Because there was no evidence that defendant's perception of the need to defend himself was hallucinatory -- indeed, the subject of hallucination was not even mentioned in defense counsel's argument, and only briefly mentioned by the prosecutor -- it is not reasonably probable that defendant would have obtained a more favorable outcome in the absence of the assumed error ... ," the ruling said.

Montes was sentenced to 40 years to life in prison last November after being convicted of second-degree murder in the May 2004 slaying of 58-year-old Travis McMillon of Palmdale. Prosecutors said McMillon was unarmed.

Montes had moved to a Lancaster motel about two weeks before, living off the money the city of Los Angeles paid him after he claimed drugs were planted on him by Los Angeles Police Department ex-officers Rafael Perez and Nino Durden. Montes' payout was part of the $70 million paid to settle lawsuits that alleged misconduct or brutality by LAPD officers working in the Rampart division.

McMillon was shot to death in the garage of a Palmdale apartment belonging to a woman whom Montes had met the previous day through a drug dealer known only as ``Country,'' the ruling said.

Montes testified during his trial he was addicted to crack cocaine and had a $100-a-day habit. With money left over from the Rampart settlement, he paid Country $10,000 to keep him supplied with drugs, the ruling said. Montes still had $10,000 in cash left and had the money and a .38-caliber revolver with him at the time of the shooting. High on alcohol and crack cocaine, Montes said he entered the dark garage, where McMillon was sitting in a chair. He said McMillon said something like, ``Do you have the money?'' or ``What about the money?'' the ruling said. Montes claimed McMillon pulled out a pistol and pointed it at him, so he shot him three times.

Montes' appeal said the trial judge should have permitted the jury to consider ``whether (defendant's) hallucinatory state caused him to harbor an honest belief, albeit unreasonable, in the need to use deadly force in self-defense in order to negate the malice component of murder and reduce the offense to voluntary manslaughter.'' Even if there was an error, the defendant suffered no prejudice, the ruling said.

``There was no evidence that defendant's perception of the need to defend himself -- most particularly, his perception that McMillon asked him about money and produced a gun in the darkened garage -- was the product of drug- and alcohol-induced hallucination,'' the ruling said. ``Further, defendant testified that he knew `exactly what was happening' when he shot McMillon. He never mentioned being delusional at any time before or after the shooting, and there was no evidence that he was.''

karen.maeshiro(at)dailynews.com

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