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People v. Gonzalez

Court of Appeals of California, Second Appellate District, Division Eight.
Nov 24, 2003
No. B164271 (Cal. Ct. App. Nov. 24, 2003)

Opinion

B164271.

11-24-2003

THE PEOPLE, Plaintiff and Respondent, v. LEONARD GONZALEZ, Defendant and Appellant.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Cochrane and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


Leonard Gonzalez appeals from the judgment entered after a jury convicted him of one count of first degree residential burglary. (Pen. Code, §§ 459, 460, subd. (a).) For the reasons set forth below, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In accord with the usual rules on appeal, we state the facts in the manner most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

When Toshiko Wiggins returned to her South Pasadena home at 6 p.m. on April 13, 2002, she discovered that parts of her house had been ransacked and that various items were missing. The window pane on her homes back door had been removed and "very neatly" placed on the floor. A black hat was on her kitchen floor and a black jacket was on the ground outside. Fingerprints recovered from the pane of glass were later matched to defendant and appellant Leonard Gonzalez.

David Tull lived about a half mile from Wiggins. At 1 p.m. on April 15, 2002, he arrived home and found Gonzalez taking a shovel to the back door of his house. Tull honked his car horn and Gonzalez ran off. Tull phoned the police, who arrested Gonzalez soon after. The arresting officers noted that Gonzalez was bleeding from two cuts on his left hand. The officers also spotted open and festering sores on his arms that appeared to be the result of chronic intravenous heroin use. Gonzalez told the officers that he was unemployed. Tull discovered that an exterior door to his house had been hacked open, that certain window screens had been pried off, that there were blood stains throughout the house, and that various items had been opened and ransacked.

Gonzalez was charged with two counts of residential first degree burglary. (Pen. Code, §§ 459, 460, subd. (a).) A jury convicted Gonzalez of burglarizing Wigginss home, but deadlocked 11-1 on the count arising from the incident at Tulls home. A mistrial was declared as to that count, which the prosecution then dismissed. As the result of Three Strikes (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and other enhancement allegations, Gonzalez received a state prison sentence of 40 years to life.

Gonzalez challenges the judgment, contending that the prosecutor committed Griffin error while arguing the case to the jury because she commented on his failure to testify at trial.

Griffin v. California (1965) 380 U.S. 609.

DISCUSSION

Under the rule of Griffin, supra, 380 U.S. 609, the prosecutor may not comment, either directly or indirectly, on the defendants failure to testify at trial. A prosecutor commits Griffin error when she argues to the jury that certain evidence is uncontradicted or unexplained if the defendants own testimony would be the only possible means of contradiction or explanation. (People v. Hughes (2002) 27 Cal.4th 287, 371-372 (Hughes).) The rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses. (Id. at p. 372.)

Gonzalez contends the prosecutor violated Griffin twice during her opening argument when: (1) while discussing Gonzalezs intent to steal upon trying to enter Tulls house, she said, "Again, theres no question that he did. How else does he explain his presence at this house or in this persons home that he does not know?"; and (2) while discussing the fingerprint evidence showing that Gonzalez was the person who broke into Wigginss house, she said, "theres just no question that the defendant is the person that committed that crime. How does he explain his fingerprints being there?"

According to Gonzalez, these comments drew attention to his failure to testify and explain those matters. We disagree. The first statement about Gonzalezs intent to steal from Tull was the preface to a discussion about various evidentiary matters: Tull did not know Gonzalez, who had no permission to be at Tulls home; Gonzalez pried off window screens and hacked through a door to enter the house; he rummaged through some drawers; he indicated his consciousness of guilt by running away when Tull honked his car horn; and he had a motive to steal to support his heroin habit. All of this evidence bore on the question of Gonzalezs intent to steal. (See People v. Millwee (1998) 18 Cal.4th 96, 133 [intent to steal to support robbery special circumstance for murder conviction could be inferred from evidence that defendant had an immediate need for money, that his father refused to help, and that there was no other reason for defendant to go to parents house]; People v. Wolfe (1967) 257 Cal.App.2d 420, 425-426 [intent to steal supported by evidence that defendant broke rear window to gain entry when victims were not home, and used stolen credit cards to make purchases].)

When viewed in context, the prosecutors question about Gonzalezs explanation for being inside Tulls house was nothing more than a rhetorical device used to bring meaning to the many bits of evidence that showed Gonzalezs guilt. (Hughes, supra, 27 Cal.4th at pp. 374-375 [defendant charged with murder for stabbing victim to death; prosecutor did not violate Griffin by asking during argument why someone would bring a knife if they did not intend to use it when they broke into a home]; People v. Miller (1990) 50 Cal.3d 954, 996 [defendant charged with beating victim to death with a metal pipe; in reference to evidence that placed defendant at the scene with a pipe in his car, the prosecutor argued that the defendant did not try to explain why he was there; no Griffin error for emphasizing incriminating evidence].)

The same is true for the second disputed comment. The prosecutors request for an explanation about the presence of Gonzalezs fingerprints at Wigginss house was part of a larger discussion of all the facts showing that Gonzalez was the person who broke into her home: the fingerprints, the motive to support his drug habit, and the use of gardening tools to break in, as occurred at Tulls house. When viewed in context, her statement was nothing more than a fair comment on all the evidence and the inferences that could be drawn from it. We therefore hold that no Griffin error occurred.

DISPOSITION

For the reasons set forth above, the judgment is affirmed.

We concur: COOPER, P.J. & BOLAND, J.


Summaries of

People v. Gonzalez

Court of Appeals of California, Second Appellate District, Division Eight.
Nov 24, 2003
No. B164271 (Cal. Ct. App. Nov. 24, 2003)
Case details for

People v. Gonzalez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LEONARD GONZALEZ, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division Eight.

Date published: Nov 24, 2003

Citations

No. B164271 (Cal. Ct. App. Nov. 24, 2003)