P. v. Gordon
P. v. Gordon
Filed 9/19/12 P. v.
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
Plaintiff and Appellant,
DANIEL ALLAN GORDON,
Defendant and Respondent.
Ct. No. MF030251A)
Plaintiff and Appellant,
DOREEN MARSHA GORDON,
Defendant and Respondent.
Ct. No. MF030668A)
visit by family members devolved into a melee involving a swinging flashlight
and resulting in bloody
injuries. Defendants Daniel Allan
Gordon and Doreen Marsha Gordon were charged with residential burglary, conspiracy to commit
murder, attempted murder, and assault with a deadly weapon. (Pen. Code, §§ 459, 182, subd. (a)(1),
664/187, 245, subd. (a)(1).) Daniel was also charged with aggravated mayhem. (§ 205.)
The trial court
granted defense motions for acquittal
of the burglary, conspiracy, attempted murder, and mayhem charges. The jury found Daniel guilty of assault with
a deadly weapon with personal infliction of great bodily injury, and Doreen
guilty of assault with a deadly weapon.
Defendants filed a
motion for a new trial, arguing the prosecution’s argument constituted
impermissible comment on defendants’ failure to testify in their own
defense. The trial court granted the
motion. The People appeal. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As accustomed as
we have become to accounts of senseless violence, the present case is even more
puzzling than most. While the aftermath
is clear, as attested to by investigators and medical personnel, the motive and
method are mystifying. What is known
about the crime itself comes from the testimony of the two victims, Cheryl and
Samuel Vincent; Cheryl’s sister and brother-in-law, defendants, did not
testify. According to Cheryl and Sam,
defendants arrived unexpectedly at the Vincents’ home. Out of the blue, Daniel struck Sam repeatedly
with a metal flashlight. Doreen’s sister
Cheryl believed it might have been a conspiracy by the couple to kill her and
her husband and steal their baby.
charged defendants with residential burglary, conspiracy to commit murder,
attempted premeditated murder of Sam, and assault with a deadly weapon likely
to produce great bodily injury. The
information charged Daniel with aggravated mayhem, and alleged personal
infliction of great bodily injury and the personal use of a deadly weapon. (§§ 12022.7, subd. (a), 12022, subd.
evidence was produced at trial.
Sam Vincent’s Testimony
Sam, Cheryl, and
their 11-month-old son lived in the family home in Lathrop. In December 2006 Sam learned he was to be
laid off at the end of the month. Sam
had not told Doreen or Daniel about the impending layoff.
That evening, Sam
and Cheryl planned to attend a Hanukkah celebration at Cheryl’s parents’
house. Doreen and Daniel arrived
unexpectedly at the Vincents’ home, saying they needed to use the bathroom.
Sam went outside
to his car to retrieve a Hanukkah gift for Cheryl. When he returned, Daniel told him Cheryl was
upstairs with the baby. Daniel asked for
a glass of water. Sam complied.
Daniel told Sam
there was a leak next to the refrigerator.
As Sam looked down, he was hit on the head and blacked out for a few
seconds. When Sam came to, Daniel began
striking him in the head with a metal flashlight about 10 inches long. Daniel held the flashlight by its head and
hit Sam with the tail end.
Sam fell to the
floor and tried to protect himself with his hands. Sam asked Daniel why he was doing this, but
Daniel screamed and hit him harder. Sam
started yelling for Cheryl to call 911.
He began crawling to the dining room as Daniel continued to hit him on
his head, shoulders, and back.
Sam got up and ran
for the door and Daniel screamed, “He’s trying to escape.” Daniel pushed the door shut and hit Sam
harder. Daniel came at Sam with the
flashlight, saying, “He’s hurting me.
He’s hurting me.”
At some point, Sam
grabbed the flashlight, but Daniel was able to pull it away and hit Sam even
harder. Sam sought refuge between the
couch and the wall, shielding himself with his hands. Daniel continued to hit him with the
flashlight. Sam never struck Daniel.
Sam heard Cheryl
screaming at Daniel to stop; he also heard Doreen yelling. Daniel stopped hitting Sam, who went into the
entryway. Sam saw Cheryl and
Doreen. The women were in the kitchen
talking. Daniel said, “Doreen this is
your plan. Why aren’t you helping?” Doreen whispered something in Daniel’s ear
and he calmed down.
Cheryl and Doreen
continued to talk, including talk about calling 911. Daniel lifted the flashlight toward Doreen,
who was holding the baby. Sam stood up
and Daniel moved toward him. Sam sat
back down and Daniel moved back toward Cheryl.
Sam called 911. During the call, Doreen began dabbing Sam’s
chest with a towel. Sam said, “Please
don’t touch me, please.” Sam asked for
an ambulance and Cheryl locked herself in the bathroom with the baby and the
phone. Daniel told Doreen, “She’s got a
Neighbors came to
the front door, and Cheryl came out and asked them to take the baby somewhere
safe. Officers arrived soon after.
Cheryl Vincent’s Testimony
The day of the
incident, Cheryl exchanged telephone messages with Doreen several times but was
not sure if her sister would be coming over that evening. They finally spoke, and shortly after that
telephone conversation, the doorbell rang.
When Cheryl answered the door, Doreen said, “Surprise.”
Doreen told Cheryl
she needed to tell her a secret, so the pair went to the upstairs bedroom. Doreen turned on the television and turned
the volume up. The baby was crying, so
Cheryl asked Doreen to turn off the television.
Doreen complied, but turned on the radio instead. Doreen and Cheryl discussed the living
situation of their sister.
screaming and crashing from downstairs.
Doreen went downstairs to find out what was happening. As Cheryl called 911, Doreen returned and
said Sam was startled when Daniel came out of the bathroom. According to Doreen, “Sam flipped out and got
in a fight with Danny but everything is okay and –- but Sam is on the floor, he
Doreen told Cheryl
she would finish the 911 call. Cheryl
went downstairs and Doreen told the 911 operator that someone had fallen down
the stairs but seemed to be all right.
Doreen told the operator they did not need an ambulance.
down the stairs, saw Daniel hitting Sam, who was covered in blood, with a
flashlight. Cheryl screamed for Daniel
to stop, but Daniel continued. As he
struck Sam, Daniel looked up at Cheryl and said, “He’s hurting me.” Sam grabbed the flashlight, but Cheryl never
saw Sam hit Daniel.
Doreen stood near
the bottom of the stairs but did nothing to help as Daniel continued to hit
Sam. Doreen said, “Why is this
happening? What do you think is going
on?” and calmly asked Cheryl to go into the kitchen to talk about it.
Cheryl told Doreen
they needed to stop Daniel. Doreen moved
toward Cheryl and said, “Just give me the baby, and everything will be
okay. Just give me the baby.” Cheryl yelled at Doreen not to touch the
Cheryl saw Daniel
close the front door as he continued to strike Sam. Daniel screamed, “He’s trying to get
away. He’s going to kill me.” Sam crawled into a small space between the
couch and a wall. Doreen, in a dazed
voice, said, “Oh, why is this happening, why is this happening.”
Cheryl put the
baby in a playpen and jumped on Daniel, pulling the flashlight out of his
hand. She did not recall hitting
Daniel. As Cheryl saw Doreen approaching
the baby, Daniel grabbed the flashlight back.
Cheryl picked up the baby as Daniel came toward them with the flashlight
raised. Sam tried to stand up, and
Daniel turned back to him. Daniel went
back and forth between Sam and Cheryl.
Sam and Cheryl told Daniel they loved him
and that everything would be all right.
Doreen also told Daniel to stop.
Doreen and Cheryl told Daniel to sit down, but he kept getting back up.
that Sam needed medical help and she wanted to call 911. Doreen said there was no need to call, since
help was on the way. Cheryl said it was
taking too long and wanted to call again.
Cheryl told Daniel to leave, but neither he nor Doreen did so.
Doreen said she
would call 911. Daniel asked Doreen,
“Why aren’t you helping me?” Cheryl did
not hear Daniel say it was Doreen’s plan.
Doreen called 911
and asked for an ambulance, saying her sister’s husband was bleeding. Doreen told the operator he was not in a
fight but tripped when he entered the house:
“We thought he was asleep, but now he’s bleeding a lot more and he’s not
Cheryl took the
phone and went into the garage. Daniel
yelled, “She’s got a phone.” Cheryl
called her parents. When she went back
into the house, Daniel and Doreen were “very deep in conversation.”
Cheryl grabbed her
camera from the dining room table and took the baby into the bathroom. Daniel yelled, “She’s got a camera.” At that point, Sam was on the phone with a
911 operator. He motioned for Cheryl to
come get the phone; she went to him, grabbed the phone, and ran back into the
bathroom. Cheryl finished Sam’s 911
call, telling the operator, “my baby will die if I answer questions.” When the doorbell rang, she answered it, saw
her neighbors, and asked them to take the baby.
At the hospital,
Cheryl sought treatment for an injured wrist.
She believed it happened when Daniel grabbed the flashlight.
Marcus Smith was the first officer to arrive on the scene shortly after the second
911 call. Smith found Sam lying in the
front entry with a bloody forehead.
Cheryl said Daniel was inside and had a metal flashlight.
Smith found Daniel
in the kitchen, walking in circles and appearing confused. Smith pointed his gun at Daniel, told him to
lie on the floor, and handcuffed him.
Smith noticed blood splatter on the floor, the couch, and a wall. Daniel said his head was injured. Smith noticed “slight abrasions” to Daniel’s
head, but no bleeding.
Doreen walked in
from the garage and Smith directed her to another deputy, who secured her. A few minutes later, Smith found a black
flashlight with what appeared to be blood on it under some boxes in the
garage. An evidence technician
photographed and recovered the flashlight later. The flashlight was covered in human blood
“pretty much from one end of the flashlight to the other.”
After being given
a medical clearance at the hospital, Smith booked Daniel into jail. Smith did not examine Daniel’s hands.
Gonzales arrived at the scene shortly after Smith arrived. Gonzales found Sam being held in place to
protect his spine. Gonzales noted
injuries including a five-inch laceration to the top of Sam’s skull, injuries
to the back of his head, and swelling in the right eye. According to Gonzales, it appeared Sam had
been struck by a large blunt object.
neurological check, Sam was alert and showed no neurological
abnormalities. Sam said his
brother-in-law told him there was water on the floor. He was hit on the back of the head with a
metal flashlight when he bent over to look at it. He was struck many times and blacked out for
a few seconds. He also said there was
tension between him and Daniel.
Emergency Room Testimony
Max Miller, an emergency
room physician, treated Sam. Scans
revealed no brain damage or bleeding, but Sam’s nose was broken. Miller observed five lacerations, four of
which required stitches. The right side
of Sam’s face and his nose were swollen; he had bruises on his right shoulder
and all over his scalp. There was a
significant hematoma under each laceration.
significant force caused Sam’s injuries.
Sam’s eye was injured by a blow to the eye; his pupil did not react, and
there was bleeding in the white of the eye.
Sam suffered a grade 2 concussion, based on Sam’s loss of consciousness. There were injuries to Sam’s hand that were
consistent with using his fist to strike another person. Sam’s injuries were moderate.
Field Evidence Technician Testimony
technician Julianne Morgan photographed the injuries to Sam’s face, head, ear,
back, shoulder, arms, abdomen, and knees.
Morgan observed bruises on Sam’s right shoulder and the back of his
head, and numerous lacerations to Sam’s head and face.
Other Medical Testimony
examined Sam the morning after the incident.
He found blood in Sam’s right eye, which would have resulted from direct
force. Two months later, an optometrist
observed a tear in Sam’s right iris caused by traumatic injury.
A neurologist saw
Sam a month after the incident. Sam
complained of headaches, dizziness, anxiety, and other symptoms. These symptoms were consistent with a head
injury. The neurologist prescribed two
months’ leave from work, pain medication, and a psychiatric evaluation for
posttraumatic and emotional changes.
Schreiber, a criminalist, performed a limited reconstruction of the incident
largely through photographs taken by evidence technicians. The reconstruction was limited because
Schreiber had not responded to the crime scene and had to rely on photographs
taken by someone else.
of the kitchen revealed “rounder, circular drops” of blood on the tile and
carpet, indicating the individual was bleeding while standing. Photographs of a bloody pair of glasses
revealed the victim was wearing them when he was hit, and the glasses
subsequently fell onto the floor.
Schreiber determined the attack began in the kitchen.
Based on the
photographs, Schreiber believed the victim began bleeding in the kitchen and
then moved to a nearby partial wall.
Blood spatters on the wall showed low to medium velocity impacts. The dripping blood revealed significant blood
The victim moved
from the partial wall to the couch.
There was blood on the arm and seat back of the couch. Blood drips on the blinds, wall, and floor
indicated the victim was hit more than once in the corner by the couch.
estimation, the photographs showed the most blood in the entryway. Significant blood stained the tiles, and
there was a heavy transfer of blood on the wall. Blood drops in the entryway indicated the
victim was on or near the ground during that portion of the altercation, while
blood drops on the adjacent carpet indicated the victim was leaning over. There was blood inside and outside the door.
determined the incident began in the kitchen, moved to the wall, then to the
couch area, and concluded in the entryway.
Photographs of Sam’s forehead revealed marks consistent with the pattern
on the flashlight handle.
Evidence of Motive
On the night of
the incident, Cheryl did not know what caused Daniel to attack her
husband. She later postulated two
motives: Doreen’s jealousy, or Doreen
and Daniel planned to kill her and Sam and kidnap her baby. After the attack, Cheryl found three pairs of
gloves left in a bin outside the bathroom.
About a year
before the attack, the relationship between Cheryl and her sister started getting
stranger and stranger. Doreen and Daniel
were “acting suspicious” about a month before the attack. Doreen began making comments suggesting she
was jealous of Cheryl, disinviting Cheryl and Sam to her wedding, and
suggesting she would not invite them to a Hanukkah party.
Daniel would stare
at Cheryl while she nursed her baby. Sam
suggested she not breast-feed when Daniel was present if it made her
that, although he was not close to Daniel, he had no conflicts with him. He knew Daniel stared at Cheryl when she
breast-fed, but he “didn’t think much of it.”
A detective, Linda
Jimenez, testified there was no obvious motive.
She believed motive was unnecessary because it was a simple case, since
Sam was hit from behind. Jimenez noted
there “can be years of underlying issues” in cases involving families.
incident, paramedic Joshua Huffman treated a “John Doe,” later identified as
Daniel, at the scene. Daniel had a large
hematoma, a swelling with blood in it, on his forehead; a headache; blurry
vision; weakness in his arms; and pain.
Daniel reported being dizzy and nauseated.
deputy, Armando Sapata, who met with Daniel at the hospital, noticed slightly
red areas on his hands and forehead. A
registered nurse in the emergency room testified Daniel complained of headache
and nausea, and stated he had possibly lost consciousness. Daniel reported head and neck pain, which he
rated at 10 on a scale of one to 10, 10 being the highest. The nurse noted bruises on the left and right
sides of his face.
The physician who
examined Daniel described him as depressed and quiet. Daniel had multiple contusions and areas of
redness on his scalp. On his forehead,
Daniel had a swollen red mark in a pattern consistent with the flashlight. A CT scan revealed a blood clot under the
skin of Daniel’s right scalp.
At trial, the
physician examined a photograph of Daniel’s hand. The injuries to the hand could have been
offensive or defensive. The injury could
have been caused by a flashlight or could have been caused by hitting a door.
testified that a few days after the incident she saw black and blue bumps on
her son’s forehead. Daniel also had a
swollen nose, bruises on his arm and back, and injuries to his finger.
Evidence of Motive
The night of the
attack, Sam told Deputy Smith that he was hit on the top of the head after
Daniel told him there was some water on the floor by the refrigerator. Approximately six months later, a detective
spoke with Sam on the telephone. Sam
told the detective that while waiting for help to arrive, he overheard Daniel
tell Doreen, “This was your plan. Why
won’t you help me?”
testified that in her initial interview, Cheryl told him she took Doreen
upstairs because Doreen wanted to tell Cheryl a secret. Cheryl later heard Sam screaming and when she
went downstairs, she saw Daniel hitting Sam with a flashlight. Daniel hit Sam 15 or 20 times. Every time Cheryl tried to stop him, Daniel
charged her as if he was going to hit her with the flashlight. There were times Smith could not follow
Cheryl’s version of events and he “had to redirect her.”
Two days later,
Cheryl spoke with another deputy by phone.
Cheryl wanted to clarify her prior statement. Cheryl said Doreen asked her to go upstairs
to tell her a secret. Doreen turned on
the television, upsetting the baby, and later turned on the radio. Doreen did not tell her the secret.
A nurse testified
Cheryl told her she was hurt trying to break up an assault between her husband
and her brother-in-law and was hit with a flashlight. Cheryl had no visible injury on her wrist.
attorney investigator interviewed Cheryl about six months after the
incident. In the interview, Cheryl
stated the couple had “huge credit card bills.”
Cheryl said that, contrary to Doreen’s statements, her parents did not
pay her credit card bills. At trial, Cheryl
denied having large bills and stated the couple paid the bills in full every
An emergency room
physician who examined Cheryl found she had mild wrist strain, which could have
been caused by pulling. Cheryl reported
a history of tendonitis.
Doreen and Cheryl’s younger sister,
Elizabeth, testified that after the attack she was with her parents at a store
where Daniel and Doreen shop to see what the flashlight involved in the
incident looked like. Cheryl had told
Elizabeth she did not own the flashlight used in the attack. Sam told her their flashlight was still in the
Sam was treated
for Valley Fever pneumonia two months before the attack. Sam reported symptoms including fatigue,
irritability, and depression. According
to the doctor, Valley Fever would not cause Sam’s depression. Sam was referred to a psychiatric
professional. None of the medicine Sam
was taking for Valley Fever would cause a patient to act violently.
A long-time friend
and former boyfriend of Doreen testified.
When he attended Doreen’s wedding, she asked him to find Sam for the
wedding photo. Sam seemed uninterested
and told the friend the marriage would not last.
investigator testified he encountered difficulty in serving subpoenas on Cheryl
Motions for Acquittal and Verdict
During the trial,
the court granted motions for acquittal as to the charges of burglary,
conspiracy, attempted murder, and mayhem.
Only the charges of assault with a deadly weapon remained. The jury returned verdicts finding Daniel
guilty of assault with a deadly weapon with the personal infliction of great
bodily injury, and Doreen guilty of assault with a deadly weapon.
Motion for a New Trial
Daniel filed a
motion for a new trial, which Doreen joined.
The court granted the motion. The
People filed a timely notice of appeal.
Motion for a New Trial
The People contend
the trial court erred in finding the prosecution’s argument commented on
defendants’ failure to testify, constituting error under Griffin v. California (1965) 380 U.S. 609, 613 [14 L.Ed.2d 106] (Griffin).) Instead, the People argue, the prosecution
merely made permissible comments on the state of the evidence.
In moving for a
new trial, defendants alleged a number of instances of Griffin error in the prosecutor’s statements during his closing and
rebuttal remarks. During his closing
comments, the prosecutor argued there was undisputed evidence defendants
brought the flashlight into the house.
The prosecutor argued it was undisputed that after Daniel told Sam there
was a leak, Sam bent down and was struck from behind. In addition, the prosecutor stated he had
expected a challenge to the evidence that Daniel said, “‘Help me, Doreen, this
is your plan.’”
the prosecutor stated, “the only people that we have to be able to ask” could
not provide a motive for the attack.
Also during rebuttal, the prosecution argued the defense “could not
provide any direct evidence that [Sam] actually struck Daniel Gordon. So they’re trying to back-door it.” Finally, during rebuttal, the prosecution
claimed the jury had “not heard a single piece of direct evidence” that Daniel
suffered a head injury, and that the opinion of Daniel’s doctor was “by
inference and based on the self-serving statements of Mr. Gordon.”
opposed the motion. The trial court
granted the motion, noting: “The unique
circumstances [sic] of this case was
only four people were at the scene –- the two victims and the two
defendants. [¶] And your rebuttal argument was replete with
references to the defense not proving anything about self-defense, and the only
persons that could have proved that would be the defendants. I thought you were going to argue in your
rebuttal argument that the judge isn’t even going to instruct you on self-defense. That would be proper argument, but by
commenting on the failure to produce any evidence of self-defense –- and it’s
obvious with the limited circumstances of this case, there are only four people
inside the house. It wasn’t in public. All these other cases were open to the
public. They’re either robberies or
murders that occurred in public.
[¶] The Court finds that your
comments were Griffin error.”
suggested he might have been referring to the accident reconstruction witness
and argued Cheryl was not a victim, but a witness. The court replied: “This isn’t your failure to call other
witnesses at all. It’s your comments on
the defendant’s lack of any evidence that only the defendants themselves could
produce. That is per se Griffin and the
Court can’t say beyond a reasonable doubt it didn’t affect the jury.”
argued: “It is fair comment based on the
Court’s own determination that there was no evidence to substantiate
self-defense” and that he could comment on the state of the evidence. He also argued he had only commented on the
defense’s failure to call “logical witnesses,” and invited the court to specify
an improper comment he had made.
replied: “I read the transcript that was
attached to [the] motion. I don’t have
that immediately in front of me. I’m
convinced it was Griffin error, and
so the Court’s going to grant the motion for the new trial.”
We review a trial
court’s ruling on a motion for a new trial for an abuse of discretion. The court’s discretion to grant a new trial,
while broad, is not unlimited. Before
ordering a case retried, the trial court must make an independent determination
both that the error occurred, and that the error prevented the complaining
party from receiving a fair trial. (People v. Ault (2004) 33 Cal.4th 1250,
enjoys wide latitude to comment on the evidence presented at trial and to draw
inferences from such evidence. (People v. Dennis (1998) 17 Cal.4th 468,
522.) “We apply a ‘reasonable
likelihood’ standard for reviewing prosecutorial remarks, inquiring whether
there is a reasonable likelihood that the jurors misconstrued or misapplied the
words in question.” (People v. Roybal (1998) 19 Cal.4th 481,
Amendment to the United States Constitution prohibits a prosecutor from
commenting, directly or indirectly, on a defendant’s decision not to testify on
his or her own behalf. (Griffin, supra, 380 U.S. at pp. 612-613 [14 L.Ed.2d at
pp. 108-109].) However, an indirect
or brief reference to a defendant’s failure to testify, without any suggestion
that the jury should infer guilt from the defendant’s silence, constitutes
harmless error. (People v. Boyette (2002) 29 Cal.4th 381, 455-456.)
The People contend
the most important consideration in determining Griffin error is “whether the prosecutor asked the jury to draw
inferences based on proper evidence,
i.e., the evidence received at the trial, or whether he asked the jury to draw
inferences based on an improper consideration, the fact that defendant did not
testify.” The People contend the
prosecution in the present case invoked only proper evidence during argument,
avoiding Griffin error.
Perhaps the most
striking aspect of this case was summed up by the trial court in granting the
new trial motion: the unique
circumstance that only four people were at the scene –- the two victims and the
two defendants. The court noted the
prosecution made numerous references to the defense’s failing to prove
self-defense, when the only persons who could have provided such evidence were
comments are supported by the record. We
shall briefly consider the instances of alleged misconduct.
argument, the prosecutor noted that Sam and Cheryl heard Danny tell Doreen: “‘Help me, Doreen, this is your plan. Help me.’”
The prosecution went on: “The
interesting thing about this case, and I’ll admit to you, ladies and gentlemen,
I expected that piece of evidence to be challenged, but it wasn’t. I expected that piece of evidence that we
would have some type of evidence to dispute that particular piece of evidence,
the two statements, ‘Doreen, help me.
Doreen, help me.’ The later
statements, ‘He’s trying to escape.
She’s getting the phone.’
[¶] The statement, ‘Doreen, help
me. This is your plan,’ . . .
that’s evidence of a conspiracy. That’s
evidence of a plan. That’s evidence of
premeditation. That’s an individual
looking at another individual who is involved in the particular plan with them
and asking them, why aren’t you helping me?
. . . Again, that piece of evidence is undisputed by any type
of testimony, by any type of exhibits.”
also stated: “When [Daniel] bent to
look, he was struck repeatedly with this object. And again, that testimony, that piece of
evidence is undisputed.” The prosecutor
then quoted Daniel’s remarks, allegedly overheard by Cheryl: “‘Help me, Doreen, this is your plan. Help me.’”
He then stated: “. . . I expected
that piece of evidence to be challenged, but it wasn’t. I expected that piece of evidence that we
would have some type of evidence to dispute that particular piece of evidence,
the two statements . . . .”
During his closing
argument, the prosecutor noted the defense attempted to cast doubt on the
ownership of the metal flashlight. He
pointed out that Cheryl testified the metal flashlight was “never in their home
and did not come into their home until they noticed it being used by Daniel
Gordon. . . . [¶] So what do we have? Again, we have undisputed, uncontroverted
evidence that People’s Exhibit No. 10 was brought into the Vincent home by
either Danny Gordon or by Doreen Gordon.
That, ladies and gentlemen, is evidence of premeditation.”
these remarks, the prosecution led the jury to expect some sort of testimony
refuting Cheryl and Sam’s version of events.
Only four people stood in the room when the statements were allegedly
made, two of them defendants. Only
defendants could have provided testimony about whether or not Daniel asked for
Doreen’s help and stated, “this is your plan.”
The People argue
the defense in its opening statement stated it would prove that Daniel never
made the statement. The defense
presented testimony by the detective who interviewed Cheryl and Sam the night of
the incident, and testified neither mentioned the comments. However, Detective Lenzi testified Sam called
him over six months later and stated he heard Daniel make the comments in
According to the
People, “Under the circumstances, it would be obvious to a reasonable jury that
the focus of the prosecutor’s comment was whether the various items of evidence
that were presented to the jury adequately performed the function promised in
the opening statement.” We think not.
In making his
comments, the prosecutor did not ask the jury to consider “the various items of
evidence that were presented,” or even Sam’s belated recollection. Instead, the remarks focused the jury’s
attention on the prosecution’s claim that the defense failed to challenge the
evidence, a challenge only possible through the testimony of Daniel or Doreen.
As for the
provenance of the flashlight, again, only Daniel or Doreen could have disputed
the claim that they brought the flashlight with them. Again, the prosecution’s focus underscored
the fact that neither Doreen nor Daniel testified to refute the claims.
People argue the prosecutor’s comment was “clearly limited to contrasting
unsupported innuendo by the defense with the circumstantial evidence that
[defendants] brought the flashlight used to attack Sam into the house.” No such limitation appears in the
prosecutor’s comments. Instead, the
prosecution highlighted the “undisputed, uncontroverted evidence,” a phrase
which reminded the jury that defendants failed to testify to dispute the
At the conclusion
of the prosecutor’s closing argument, defense counsel moved for a
mistrial. The court denied the motion,
stating: “It bothers me a little bit
about the comments about evidence, but there were other witnesses that you did
call, and I don’t think it was a direct comment on the Defendants’ failure to
testify, but I agree it’s kind of close, but I’m going to deny the motion for a
rebuttal, the prosecutor discussed Daniel’s injuries, noting, “When Deputy
Smith first got into the house, he found [Daniel] pacing back and forth behind
the kitchen. He subsequently brought him
out from behind the kitchen, put him in handcuffs. When did [Daniel] start complaining of injury? I thought this was a pivotal moment during
Officer Smith’s testimony. [¶] Officer Smith said [Daniel] did not complain
of any injury to his head or any injury otherwise until [Daniel] was put on the
gurney and was being treated by the medics after he had been handcuffed. On his way to the hospital, then there’s, oh,
I’m dazed, oh, I’m confused, oh, my hands don’t work properly, I don’t know
what’s going on. [¶] The reality is, ladies and gentlemen, you
have not heard a single piece of direct evidence that that is the truth. Everything that you’ve heard is by inference
and based on the self-serving statements of [Daniel].”
with Daniel’s injuries, the prosecution discussed the medical workers’
testimony that Daniel’s injuries were consistent with an assault. According to the prosecution, a medical
professional’s use of the word “consistent” means there is a possibility the
injuries resulted from a physical assault.
stated: “But the defense is relying on
that to create an inference in regards to something which is not provided by
the evidence. The reason that [the
defense] provided a motive to you, ladies and gentlemen, was because they could
not provide any direct evidence that Samuel Vincent actually struck Daniel
Gordon. So they’re trying to back-door
One plus one equals two. One does
not equal two. If you don’t have any
evidence of actual striking, you cannot try to create evidence of actual
striking when the only evidence that is before you directly contradicts that
particular piece of evidence. And that’s
what the defense is trying to do in this particular case. It’s not based on the evidence. It’s based on what if, what if, what if, what
if. Well, this is not a what if
situation, ladies and gentlemen. It’s is
there evidence of it?”
prosecutor discussed Daniel’s motivation in assaulting Sam: “In this case, the defense has relied on the
claim that there is no possible motive.
That has been the litany throughout this particular case. It was the litany in voir dire. It was the litany in opening statement. It’s been the litany throughout the
presentation of this case. Why weren’t
you able to come to a conclusion as to what the motive was? [¶]
Detective Jimenez was honest with you, ladies and gentlemen. We don’t need a motive in this case. It’s human nature to want to understand. [¶] We
look at a situation like that, and we believe this is so brutal, this is such a
betrayal. Why? And in
asking why, the only people that we have to be able to ask why cannot answer
that question for us. And that’s the
reality.” (Italics added.)
continued: “We all know that family
relationships are complex. Anything can
set another person off. If we have two
sisters who have a contentious relationship, do we ever know what the final
straw was? Was it the fact that Danny
was not going to be invited to the Hanukkah party? Was it the fact that Cheryl’s family liked
Sam so much? Was it the fact that Sam
was so cool about the fact that he wasn’t [sic]
being fired? Were there some kind of
jokes or animosity or ridicule of Danny Gordon based on the fact that he was
working as Santa Claus? Who knows. The reality is we cannot blame the victims
In his initial
remarks, the prosecutor decried the dearth of “direct evidence” of the reality
of Daniel’s injuries. The only “direct
evidence” of such injuries would be Daniel’s own testimony.
Faced with the
conundrum of the prosecutor’s use of the phrase “direct evidence,” the People
argue direct evidence referred to “evidence that was narrowly focused on a
disputed fact and could therefore either support or rebut it
unequivocally.” Such direct evidence,
the People contend, would be the photographs of Daniel’s injuries. It is almost impossible to believe a
reasonable jury would understand “direct evidence” touted by the prosecution in
this manner. However, it is far more
likely that the jury understood the phrase to mean evidence from the source,
i.e., the injured party. There would be
no reason to describe the lack of medical evidence so cryptically.
with the prosecutor’s comments about Daniel’s injuries, the People contend
these remarks suggested the evidence the defense failed to provide was
“corroborating medical testimony that
would account for the reported symptoms.”
Again, we are not convinced any reasonable jury would construe “direct
evidence” of Sam striking Daniel as anything other than Daniel’s missing
testimony of exactly what took place during the incident.
The People contend
that, when taken in context, the prosecutor’s final comments about Daniel’s
motivation for the assault referred to Detective Jimenez, Cheryl, and other
family members as possible witnesses as to motive. According to the People: “A reasonable jury would not interpret the
prosecutor’s comment as referring to the defendants’ [sic] to address their motive for attacking Sam when the defense
position was that they had not committed the crime in the first place.”
We disagree. A reasonable jury would not construe the
comment that, when it comes to motive, “the only people that we have to be able
to ask why cannot answer that question for us” would refer to anyone other than
the two main players who did not testify:
Doreen and Daniel.
The People cite
several cases in support of their assertion that the prosecution was merely
commenting on the state of the evidence, not impugning defendants’ decision not
to testify. However, in People v. Johnson (1992) 3 Cal.4th 1183
(Johnson), cited by the People, the
Supreme Court noted: “It is true,
as defendant asserts, that a prosecutor errs by referring to evidence as
‘uncontradicted’ when the defendant, who elects not to testify, is the only
person who could have refuted it.
[Citation.] If, however, the
evidence could have been contradicted by witnesses other than the defendant,
the prosecutor may without violating defendant’s privilege against
self-incrimination describe the evidence as ‘unrefuted’ or ‘uncontradicted.’” (Id. at
situation was present in Johnson, in
which the defendant failed to present alibi evidence, evidence which could have
been presented by a third party. (Johnson, supra, 3 Cal.4th at p. 1229.)
In the other cases cited by the People, the “uncontradicted” evidence
could have been supplied by someone other than the defendants. (People
v. Taylor (2010) 48 Cal.4th 574, 633; People v. Mitcham (1992) 1 Cal.4th 1027, 1051; People v. Hughes (2002) 27 Cal.4th 287, 373-375.) Here, the prosecution explicitly referred to
the dearth of direct evidence, evidence only defendants could provide. Such comments run afoul of Griffin.
The People offer
several arguments to counter the trial court’s finding of Griffin error. The People
contend the trial court used the wrong standard in granting the motion and
initially denied the motion for a mistrial.
The People also point out that the prosecution repeatedly emphasized
that the jury was limited to the evidence admitted at trial.
According to the
People, certain comments by the trial court reveal its erroneous judgment “that
indirect comments by the prosecutor that could have reflected on the
defendant’s failure to testify [were] ‘per se Griffin [error].’” The
People contend the proper standard is whether it was reasonably likely the jury
construed the prosecutor’s comments to infer guilt out of defendants’ silence,
and that the trial court’s use of the wrong standard was an abuse of
We disagree that
the trial court applied the wrong standard or abused its discretion. During oral argument on the motion, the
prosecutor suggested his comments referred to witnesses other than
defendants. The court responded: “This isn’t your failure to call other
witnesses at all. It’s your comments on
the defendant’s [sic] lack of any
evidence that only the defendants themselves could produce. That is per se Griffin and the Court can’t say beyond a reasonable doubt it didn’t affect
When taken in
context, the court’s remarks did not reflect its intention to impose a “per se”
standard on the evidence before it.
Instead, the court pointed out the prosecution’s problematic comments
and noted they were “per se Griffin,” in effect the essence of what constitutes
The People also
contend that since the court denied defendants’ motion for a mistrial following
the prosecutor’s closing argument, it “appears that the court granted the [new
trial] motion based on the” rebuttal argument.
The People also claim that the trial court “refused to find Griffin error” based on the
prosecution’s comments about Daniel’s statement to Doreen: “Doreen, help me. This is your plan.”
What the People
overlook in making this argument is that the trial court may have determined
that the cumulative impact of the
prosecution’s arguments, both during closing and rebuttal arguments, amounted
to Griffin error. In effect, one comment in isolation may not
have raised the reasonable likelihood that the jury construed a comment as
raising an inference of guilt based on defendants’ failure to testify, but the
volume of comments regarding an evidentiary lacuna that only defendants’
testimony could fill ultimately amounted to Griffin
People point out the prosecutor emphasized at the beginning of his closing
argument and reiterated at the end of rebuttal that he was criticizing the
defense tactic of relying on speculation rather than evidence. The prosecution also reminded the jury that
it must focus on the evidence presented at trial, which the People contend
“would logically be understood to mean the jury should disregard the
defendants’ failure to testify.”
prosecutor’s general comments regarding evidence cannot immunize or undo the
impact of his very specific comments implicating defendants’ failure to provide
evidence that only they were privy to.
Even considering the prosecutor’s arguments as a whole, the prosecutor’s
numerous references to the lack of direct evidence severely undercut the
prosecutor’s admonitions that the jury consider only the evidence presented at
The People’s most
compelling argument is that even assuming the prosecutor’s comments constituted
Griffin error, the jury instructions
precluded any harm and the evidence of guilt was overwhelming. We are not persuaded.
trial court was in the best position to evaluate the impact of the prosecutor’s
comments on the jury. The court observed
the witnesses who did testify, including Cheryl and Samuel, and also observed the
force and impact of the prosecutor’s comments regarding defendants’
silence. Based on these observations,
the trial court concluded it “can’t say beyond a reasonable doubt it didn’t
affect the jury.”
This case involves
four people. Two of them, Cheryl and Sam,
testified. Two of them, Doreen and
Daniel, did not. The prosecutor’s
comments, which ran afoul of Griffin,
severely undercut the credibility of Doreen and Daniel’s version of
events. Given the murky motive for the
assault, the question of injuries to Daniel, and Sam’s failure for six months
to report Daniel’s comments about a “plan,” the case against defendants, while
convincing, was not overwhelming. The
People’s claim that Griffin error was
harmless, based on the failure of the nontestifying defendants who were
eyewitnesses to provide “persuasive” reasons to reject the testimony of the
only other eyewitnesses, is not itself persuasive.
The judgment is
RAYE , P. J.
HULL , J.
MAURO , J.
 All further statutory references are to the
Penal Code unless otherwise designated.
 On cross-examination, Sam admitted he failed
to report this statement until six months after the incident.
 Defendants introduced evidence of credit card
debt to undermine Sam’s claim that he was not upset about being laid off the
day of the incident. Sam’s former
employer testified Sam was unhappy and a little bit anxious about being laid