People v. Gonzalez CA2/1 ( 2021 )

Filed 10/22/21 P. v. Gonzalez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304723
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA471725)
v.
JESUS ESGARDO GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig E. Veals, Judge. Affirmed.
Tracy L. Emblem and Susan Wolk, under appointments by
the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Appellant Jesus Esgardo Gonzalez was one of two men
jointly charged with severely injuring David Acosta during a
group assault at a large evening gathering. Gonzalez’s defense
was that Acosta attacked him. Neither Gonzalez nor codefendant
Martin Lararosas testified. The jury convicted Gonzalez of
assault and found true a special circumstance finding that he
personally inflicted great bodily injury. The jury hung on all
counts as to Lararosas.
On appeal, Gonzalez claims prosecutorial misconduct.
Primarily he argues that the prosecutor committed reversible
error by accusing defense counsel of “coaching” Jose V., an 11-
year-old witness and defendant’s nephew, who in about 90
minutes of direct examination failed to identify the victim Acosta
as an attacker of Gonzalez, but immediately reversed his
testimony after a lunch recess when he identified Acosta as
having attacked Gonzalez.
A prosecutor may permissibly and vigorously comment on
the credibility of witnesses and try to persuade the jury that a
witness is unworthy of belief. Here, the prosecutor was entitled
to point out the sudden, unexplained change of testimony by Jose
with respect to his identification of Acosta. However, he did not
accuse the defense attorney or anyone else of “coaching.” His
comments were based on the evidence, and do not represent
reprehensible or deceptive conduct. Gonzalez’s cases are
inapposite because they address situations involving specific and
egregious allegations of defense counsel “coaching.”
The prosecutor’s argument about the significance of
injuries sustained by Gonzalez (and another assault participant)
during the attack was also based on a reasonable inference to be
drawn from witness testimony and did not constitute misconduct.
2
So, too, was the prosecutor’s questioning of Gonzalez’s wife over
her knowledge of Acosta’s injuries in order to test her credibility.
He did not overstep his bounds when using video clips taken by
police.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
A. The Assault
The brawl took place at a quinceañera on the evening of
September 15, 2018. Acosta, the victim of the attack, arrived at
the party around 8:00 p.m., accompanied by his wife, Maria
Solorzano, and their 11-year-old son, Antonio. Approximately
150 to 200 people were in attendance.
Around midnight, Acosta and Solorzano heard an
argument, and soon saw about 20 people fighting near the
entrance. Because Antonio was playing outside, Solorzano told
Acosta to find him so they could leave.
Shortly after Acosta located his son outside, Lararosas, who
was involved in the fight, stopped and confronted Acosta, who
replied he was looking for his son. At that moment another man,
Lararosas’s cousin, pushed Acosta to the ground and the assault
commenced.
While on the ground being kicked—Acosta estimates over
50 times by four individuals—he heard his son yell at his
attackers to stop. Acosta also heard someone yell, “Die bitch,”
“Hit the faggot more. This motherfucker needs to die,” and “That
faggot. Don’t let him get up.” After Solorzano attempted to
intervene, Acosta saw the faces of two people, Gonzalez and
Lararosas; he also saw Lararosas hit Solorzano.
Solorzano testified that she saw Lararosas and Gonzalez
repeatedly kick Acosta and then saw two or three other people
3
join in the assault. Solorzano later testified that all of the men
were kicking Acosta “everywhere” and that she pushed the men
aside to get to Acosta.
Acosta’s son Antonio also observed the fight. From
approximately five feet away, Antonio saw three people kick his
father, including Gonzalez. He estimates Gonzalez kicked his
father more than 10 times. Although Antonio screamed at
Gonzalez and the other men to stop kicking his father, they
continued the assault. After Solorzano intervened, Antonio again
saw that Gonzalez was one of the attackers.1
Acosta was hospitalized for three days. Dr. Jim Seraj
testified that Acosta suffered bruises, an eighth rib fracture, a
possible ninth rib fracture, and a possible right apical
pneumothorax (air outside the lung), which could have caused
death from obstructed breathing. The beating also affected
Acosta’s vision, requiring him to begin wearing glasses.
After learning that Acosta had been injured and was
headed to the hospital, Acosta’s sister, Melissa, went to the
hospital at approximately 1:00 a.m. Antonio told Melissa (who
had not attended the quinceañera) that the Gonzalez brothers,
meaning Gonzalez and Lararosas, had been involved in the
brawl.
A few days later, Melissa showed Antonio a Facebook
photograph depicting Gonzalez, Lararosas, and two other men.
Antonio identified Gonzalez and another man, Gonzalez’s brother
Sebastian, as two of Acosta’s assailants. Melissa wrote the
1 Upon their arrival the police interviewed Antonio. One of
their body cameras filmed the interview, which was later
admitted as People’s Exhibit 1 and played before the jury.
4
names “Martin,” “Esgardo” (Gonzalez’s middle name), and
“Sebastian” on the back of the photograph, later showing it to
Acosta himself, who identified Gonzalez as one of his assailants.
At trial, Acosta testified that he was “One hundred percent”
certain he had been attacked by Gonzalez and Lararosas and
positively identified Gonzalez as his assailant while on the stand.
He also related his identification of his assailants at the hospital,
telling Melissa that the ones who assaulted him were “Jesus’s
sons,” meaning Gonzalez and Lararosas.2
Eleven-year-old Jose, Gonzalez’s nephew, who also
attended the quinceañera, was called as a witness by the defense
and testified on his initial direct examination for approximately
90 minutes. Among other topics, Jose testified about what
happened at the party, who was with him, what happened at the
end, how the fight started, how many people were fighting, and
where he was located during the fight.
While leaving the party with his mother, Jose observed
several drunken men who were cursing and combative. While
Gonzalez was holding his daughter, five men approached and
began to attack Gonzalez. Jose did not see Gonzalez fight back.
Toward the very end of his direct examination, Jose was
shown several photographs of Gonzalez’s supposed assailants,
but failed to identify Acosta as one of them. As this occurred
immediately prior to a lunch break, defense counsel approached
2 Acosta was impeached on his positive identification of
Gonzalez. At Lararosas’s preliminary hearing, Acosta testified
that he did not know his assailants, did not see them, and only
learned of their names at a later date. Acosta explained that he
did not provide a description of his assailants when questioned on
the night of the brawl because he was unable to breathe.
5
the bench and told the court she wanted to continue the
examination after lunch and show Jose a screen shot from a video
“and ask the witness if he recognizes an additional witness.”
The court inquired who was that witness, and defense
counsel replied he was “[t]he complaining witness,” i.e., Acosta.
The court observed that it “defies any sense of credulity” that
defense counsel could have Jose on the stand for “90 minutes,”
“and something as important as that” never be raised.
Nevertheless, the court allowed her to proceed with her
additional examination.
After the lunch break, Jose changed his testimony,
immediately identifying Acosta as one of the men involved in the
attack on Gonzalez.
B. Information and Conviction
On April 29, 2019, the People charged Gonzalez in a two-
count information with assault with force likely to produce great
bodily injury in violation of Penal Code section 245, subdivision
(a)(4) (count 1),3 and misdemeanor battery in violation of section
242 (count 2). As to count 1, the information further alleged that
Gonzalez personally inflicted great bodily injury in violation of
section 12022.7, subdivision (a).
Gonzalez pled not guilty and was tried by jury together
with Lararosas. On September 10, 2019, the jury found Gonzalez
guilty as charged on count 1; and the jury found the special
allegation to be true. The jury hung on the misdemeanor battery
offense (count 2).4
3 All further statutory references are to the Penal Code,
unless otherwise specified.
4 The jury hung on both counts as to Lararosas.
6
The court sentenced Gonzalez to three years in state
prison. The court imposed the middle term of three years on
count 1, but struck the great bodily injury enhancement
(§ 12022.7, subd. (a)) for sentencing purposes only.
Gonzalez timely appealed.
DISCUSSION
Gonzalez asserts prosecutorial misconduct on various
issues, primarily his closing argument directed toward the
credibility of Jose (improperly implying “coaching” on the part of
defense counsel and impugning her character), his distortion of
Jose’s testimony (wrongly implying that it corroborated the
People’s case), and his cross-examination of Gonzalez’s wife,
Larissa (alleging that it was only intended to inflame the jury).
A. Standards of Review
A prosecutor’s comments constitute “reversible misconduct
if he or she makes use of ‘deceptive or reprehensible methods’
when attempting to persuade either the trial court or the jury,
and when it is reasonably probable that without such misconduct,
an outcome more favorable to the defendant would have resulted.
[Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 157,
disapproved on other grounds in People v. Doolin (2009) 45
Cal.4th 390, 421.)
A trial court’s refusal to give a limiting or curative
instruction is similarly reviewed for prejudice under People v.
Watson (1956) 46 Cal.2d 818, 836. (People v. Cavitt (2004) 33
Cal.4th 187, 209.)5
5 Although Gonzalez identifies the federal standard for
evaluating prejudice in his opening brief (Chapman v. California
(1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 75), the errors
7
B. The Prosecutor Did Not Commit Misconduct
Gonzalez called Jose, in an effort to demonstrate that it
was Acosta who beat him. Defense counsel examined Jose for
approximately one-and-a-half hours and, toward the end, showed
him several photographs while asking Jose whether he could
identify the persons depicted in them as people who attacked
Gonzalez. Although Jose identified two of Acosta’s friends, he
failed to recognize Acosta.
“[Defense Counsel]: One more person. Just take a look at
it and tell me if you – if you recognize that person from the night
of the quinceañera or not.
“[Jose]: No.
“[Defense Counsel]: Okay. All right. Are you telling us the
truth today?
“[Jose]: Yes.
“[Defense Counsel]: Okay. Has anybody told you what you
should say?
“[Jose]: No.”
Immediately following that testimony (at the lunch break),
defense counsel asked the court outside the presence of the jury
whether she could show Jose a screen shot from a video “and ask
the witness if he recognizes an additional witness.”
The court inquired who was that witness, and defense
counsel replied he was “[t]he complaining witness,” i.e., Acosta.
The court responded that it “defies any sense of credulity” that
defense counsel could have Jose on the stand for “90 minutes,”
“and something as important as that” never be raised.
argued here involve state law only and Gonzalez does not argue
otherwise in his reply brief.
8
Nevertheless, after colloquy, the court stated it would allow
additional examination on the identification of alleged
perpetrators after lunch.
Once court resumed, Jose promptly changed his testimony
and readily identified Acosta as one of the supposed attackers of
Gonzalez, his uncle:
“[Defense Counsel]: Okay. I just want to show you a
couple more photos, three more photos. Can you take a look at
them and see if you recognize this person or not? And then I
might show you a video as well.
“[Jose]: Yes. I remember [Acosta].”
During his closing argument, the prosecutor minimized the
credibility of Jose: “Then you heard from Jose yesterday. And I
think you all saw what happened with him. You all saw what I
saw, why he said what he said. All due respect, adorable little
dude. But the words he’s using are not his. What he’s telling is
not what he saw. It’s just not.”
In rebuttal argument, the prosecutor continued:
“And then the defense brought in Jose . . . . We’re going
through two weeks, not a single person, not one person here came
and said that Mr. Acosta had done anything wrong that night.
Not one witness, not a scintilla of evidence was introduced that
Mr. Acosta was at fault. Then Jose took the stand. And then
Jose was shown a lot of photographs, and he was asked a lot of
questions. . . . He’s brought to court, and he’s asked about this
photograph. He’s asked who he recognizes. He said he
recognized the person in the cowboy hat, then the photo was
published on the Elmo. Then he was asked do you recognize
him? Do you recognize him? Zooming all the way. He said no. I
don’t recognize him. It was defense [Exhibit] N. I even made a
9
record of it. And then finally that photo was placed here and says
do you recognize him? Do you recognize him? No. I don’t
recognize him. I don’t recognize him. And then there was lunch
break. Do I have to say more? Voila. I recognize him.”
Immediately after the jury retired to begin deliberation,
defense counsel asked the court to instruct the jury with the
following written instruction:
“A prosecutor is held to the highest ethical standards to
ensure the defendants receive a fundamentally fair trial. This
prosecutor violated his ethical standards and committed
misconduct.
“The prosecutor committed misconduct when he argued
that defense counsel have no defense, and . . . ‘they are blowing
smoke’ . . . . Publishing a slide with those words was also
misconduct. He further committed misconduct when he
suggested counsel had done something over the lunch break to
cause Jose . . . to identify the person shown to him in a new set of
photographs. When he implied that the defense put forth a sham
defense, and that the defense counsel is dishonest, he violated his
ethical obligation and committed misconduct.
“Further, he engaged in deceptive and misleading
argument when he argued that Jose . . . testified that his uncle
suffered from cracking feet after the quinceañera without
explicitly mentioning that the witness testified that it was his
uncle Sebastian, not the defendant . . . Gonzalez who had injuries
to his feet. Finally he committed misconduct by deliberately
withholding his arguments about the defense witnesses until
10
after both defense counsel had finished their only opportunity to
respond to his arguments.”6
It is well established that a prosecutor is free to give an
opinion on the state of the evidence and has “wide latitude” to
comment on its quality and the credibility of witnesses, as long as
it is a fair comment on the evidence and/or are reasonable
inferences to be drawn therefrom. (People v. Bonilla (2007) 41
Cal.4th 313, 336-337; see also People v. Martinez (2010) 47
Cal.4th 911, 957 [prosecutors “are allowed ‘a wide range of
descriptive comment’ and their ‘ “ ‘argument may be vigorous as
long as it amounts to fair comment on the evidence’ ’’ ’ ’’].)
Moreover, “it is a truism that the prosecutor may try to persuade
the jury, on the strength of the evidence, that a witness is
unworthy of belief. Although such locutions as ‘coached
testimony’ are to be avoided when there is no evidence of
‘coaching’ . . . .” (People v. Thomas (1992) 2 Cal.4th 489, 537.)
The sudden change in Jose’s testimony over the lunch
break gave the prosecutor ample ammunition with which to
legitimately question Jose’s credibility. However, in doing so he
never mentioned the word “coaching” or personally accused the
defense attorney of doing anything wrong. Telling the jury that
6 Although the court rejected this instruction, it had
previously admonished the jury during the prosecutor’s closing
argument, upon defense counsel’s contemporaneous objections, as
follows: “You must base your decision on the facts and the
law. . . . If anything concerning the law said by the attorneys in
their arguments or at any other time during the trial conflicts
with my instructions on the law, you must follow my
instructions.” The court similarly admonished the jury two
additional times to the same effect.
11
“the words he’s using are not his” or “then there was lunch break.
Do I have to say more? Voila. I recognize him,” is a far cry from
Thomas, wherein the California Supreme Court held that even a
specific prosecutorial locution on a “ ‘coached’ ” witness “did not
reach the level of prejudicial misconduct.”7 (People v. Thomas,
supra, 2 Cal.4th at p. 537.)
Gonzalez’s cases are similarly distinguishable because they
address situations involving far more specific and egregious
“coaching” violations. (See People v. Bain (1971) 5 Cal.3d 839,
845, 847 [prosecutor repeatedly accused defense counsel of lying
in connection with presentation of evidence]; People v. Woods
(2006) 146 Cal.App.4th 106, 116 [prosecutor argued that defense
witnesses “ ‘were conjured up’ ” “ ‘over the weekend’ ” by defense
7 There is no record of what transpired during the lunch
break, although we note multiple individuals other than
Gonzalez’s defense attorney could have come into contact with
the 11-year-old witness. During his direct and cross-
examination, Jose admitted that he talked with Gonzalez and
Lararosas “almost every day.” His mother, i.e., Gonzalez’s sister,
was the one bringing him to and from court every day, and
mother and son sometimes talked about the brawl at the
quinceañera. He had previously spoken not only with Gonzalez’s
defense attorney but also, in a group, with her, Lararosas’s
defense attorney and a defense investigator. Since the record
does not show the jury was ever told about defense counsel’s plan
to speak with Jose and show him additional pictures, and since it
is silent about anyone who might have come into contact with
him during lunch, the record does not support Gonzalez’s
inference that defense counsel was at fault for “coaching” Jose’s
testimony. (See People v. Molina (2000) 82 Cal.App.4th 1329,
1335-1336 [appellate courts will not infer prejudice from a silent
record].)
12
attorney]; People v. Herring (1993) 20 Cal.App.4th 1066, 1073
[prosecutor implied defense counsel had suborned perjury by
arguing, among other things, that defense counsel “has to tell [his
witnesses] what to say [and] . . . does not want you [the jury] to
hear the truth”].)8
The prosecutor was entitled to point out the sudden,
unexplained change of testimony by Jose on the identification
issue, and his comments to the jury do not evidence reprehensible
or deceptive conduct. (People v. Bonilla, supra, 41 Cal.4th at
pp. 336-337; People v. Thomas, supra, 2 Cal.4th at p. 537.)9
Gonzalez’s remaining claims of additional prosecutorial
misconduct also fail. There was no misconduct when the
prosecutor argued that the injuries Jose observed on Gonzalez
8 Following closing argument, defense counsel proposed a
strongly-worded instruction condemning the prosecutor’s
misconduct. (At pp. 10-11, ante.) The trial court was in the best
position to assess the need for additional instruction, and it did
not err in rejecting the proposed defense instruction in favor of
several curative admonitions it gave while the arguments were in
progress. (Ante, fn. 6.) Further, no Watson prejudice has been
demonstrated.
9 For similar reasons, we reject Gonzalez’s assertion that
the prosecutor overstepped his bounds by using PowerPoint
slides implying that defense counsel was “making up the
defense,” coaching witnesses and using smoke and mirrors. (See,
e.g., People v. Stitely (2005) 35 Cal.4th 514, 559 [referring to
defense counsel’s argument as “ ‘ridiculous’ ” and a “ ‘legal smoke
screen’ ” was not misconduct]; People v. Cunningham (2001) 25
Cal.4th 926, 1002 [a prosecutor’s statement that defense
counsel’s job was “to create straw men” and “put up smoke, red
herrings” was not misconduct].) The trial court appropriately
cautioned the jury on the use of these slides.
13
(and another uncle named Sebastian) the day after the attack
supported the inference that they—not Acosta—were the ones
perpetrating the attack. Three percipient witnesses—Acosta,
Solorzano, and Antonio—testified at trial that they witnessed
Gonzalez kicking Acosta in the ribs. The prosecutor’s argument
was based on a reasonable inference to be drawn from Jose’s
testimony. (See People v. Bolton (1979) 23 Cal.3d 208, 212
[“Closing argument presents a legitimate opportunity to ‘argue
all reasonable inferences from evidence in the record’ ”].)10
Nor did the prosecutor overstep his bounds when he cross-
examined Gonzalez’s wife Larissa by, in part, using clips of body-
camera footage taken by police after they arrived at the brawl.
The footage portrayed police questioning witnesses, including
Acosta and his son, about the brawl and the extent of the victim’s
injuries. Larissa was present at the scene, may have observed
the fight, and could have heard Lararosas or his brother
Sebastian speak about it. Moreover, the prosecutor was entitled
to probe Larissa’s knowledge of Acosta’s injuries in order to test
her credibility.11
10The trial court characterized this argument as “making
such a mountain out of a mole hill.”
11 In a supplemental letter brief, Gonzalez argues the
prosecutor committed misconduct by inviting the jurors to place
themselves in the shoes of Acosta. However, defense counsel did
not object to this argument at trial, and it is forfeited. (People v.
Rundle, supra, 43 Cal.4th at p. 157.)
14
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
15