People v. Sarinana CA2/7 ( 2024 )


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  • Filed 5/13/24 P. v. Sarinana CA2/7
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California 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    has not been certified for publication or ordered published for purposes of rule 8.1115.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
    SECOND APPELLATE DISTRICT
    DIVISION SEVEN
    THE PEOPLE,                                                  B325420
    Plaintiff and Respondent,                          (Los Angeles County
    Super. Ct. No. VA152520)
    v.
    FRANK ROBERT SARINANA,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Lee W. Tsao, Judge. Affirmed.
    Richard Lennon and Alice Newman, under appointment by
    the Court of Appeal, for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Senior
    Assistant Attorney General, Ana R. Duarte and Kenneth C.
    Byrne, Deputy Attorneys General, for Plaintiff and Respondent.
    __________________________
    Frank Robert Sarinana appeals from a judgment entered
    after a jury convicted him of kidnapping, two counts of inflicting
    injury on a girlfriend or child’s parent, assault with a firearm,
    possession of a firearm by a felon, delaying a peace officer, and
    making a criminal threat. Sarinana’s sole contention on appeal is
    that the prosecutor committed Griffin1 error when he told the
    jury in closing argument that the victim’s testimony as to one of
    two alleged incidents was not contradicted or disputed. Finding
    no error, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    A.     The Evidence at Trial
    1.    The August 9, 2019 incident
    Valerie Gonzalez testified that she was in an “off and on”
    relationship with Sarinana for two-and-a-half years and they had
    a daughter together. Gonzalez and her daughter lived with
    Gonzalez’s grandmother. On August 9, 2019 Sarinana came to
    the home uninvited, and he found Gonzalez and the daughter in
    the daughter’s room. Sarinana was angry because Gonzalez was
    pregnant with another man’s child. Sarinana and Gonzalez
    argued, and Sarinana grabbed Gonzalez’s left arm, leaving a
    bruise. According to Gonzalez, she was unable to get out of the
    room, but as she described, “my daughter had run out, so my
    daughter told my grandma and . . . .”2 Gonzalez called the police,
    1     Griffin v. California (1965) 
    380 U.S. 609
    .
    2     Gonzalez did not finish her sentence because the prosecutor
    interrupted and asked a follow up question.
    2
    and police officers took photographs of Gonzalez’s injury.3
    2.      The January 3, 2020 incident
    On the night of January 3, 2020 Gonzalez and Sarinana got
    into an argument at Sarinana’s family home. They went outside
    the house, where Sarinana punched and choked Gonzalez,
    causing her to lose consciousness. After Gonzalez regained
    consciousness, Sarinana pointed his shotgun at her and dragged
    her by her sweatshirt to a nearby public park. At some point,
    Sarinana fired his shotgun in the air and struck Gonzalez’s arm
    with the shotgun barrel, causing bruises.
    When they got to the park, among other things, Sarinana
    threw water on Gonzalez, removed her pants and sweatshirt, tied
    her wrist to a pole, then moved her and used a bike chain to tie
    her neck and wrist to a bench. Sarinana threatened to kill
    Gonzalez and her children. Sarinana took photographs of
    Gonzalez chained to the bench and sent one to his sister.
    Sarinana’s family contacted the police, and a family member
    showed a police officer the photograph and Sarinana’s message
    stating, “I’ll fuck this bitch up.” Police officers later found
    Sarinana near the park, hiding under a large tarp.
    Sarinana did not call any witnesses.
    B.    The Verdicts and Sentencing
    The jury found with respect to the August 9, 2019 incident
    that Sarinana was guilty of inflicting injury on a person with
    whom he has or had a dating relationship or the parent of his
    3      Gonzalez identified three photographs taken by police
    officers following the incident that showed the injury to her arm.
    The trial court later admitted the photographs into evidence.
    3
    child (Pen. Code, § 273.5, subd. (a); 4 count 9). With respect to the
    January 3, 2020 incident, the jury found Sarinana guilty of
    kidnapping (§ 207, subd. (a); count 1); inflicting injury on a
    person with whom he has or had a dating relationship or the
    parent of his child (§ 273.5, subd. (a); count 2); assault with a
    firearm (§ 245, subd. (a)(2); count 3); possession of a firearm by a
    felon (§ 29800, subd. (a)(1); count 5); delaying a peace officer in
    the discharge of her office (§ 148, subd. (a)(1); count 8); and
    making a criminal threat (§ 422, subd. (a); count 10).
    As to count 1, the jury found the allegation true that
    Sarinana personally used a deadly or dangerous weapon (the bike
    chain). As to counts 1, 3, and 10, the jury found true that
    Sarinana was armed with a weapon, and that he personally used
    and intentionally discharged a firearm. As to counts 1, 2, 3, 9,
    and 10, the jury found the allegation true that the crimes
    involved great violence, great bodily harm, threat of great bodily
    harm, or other acts of cruelty, viciousness, or callousness, and
    that Sarinana took advantage of a position of trust with the
    victim (as the boyfriend and father of the victim’s child) to
    commit the crimes. The trial court sentenced Sarinana to an
    aggregate term of 25 years in state prison.5
    4      Further statutory references are to the Penal Code. We
    refer to the counts as alleged in the information and reflected in
    the abstract of judgment, as do the parties. Pursuant to the
    parties’ stipulation, the trial court renumbered counts 8, 9, and
    10 of the information as counts 6, 7, and 8 on the verdict forms to
    simplify the counts for the jury.
    5     On count 1, the trial court imposed the middle term of five
    years for kidnapping plus a consecutive 20-year term for the
    firearm enhancement under section 12022.53, subdivision (c).
    4
    Sarinana timely appealed.
    DISCUSSION
    A.    The Prosecutor’s Closing Argument
    The prosecutor told the jury in closing argument, “Now,
    what happened on August 9, 2019? Well, the victim told you she
    was in her home and the defendant entered it without
    permission; he confronted her; she wanted to get away from him;
    she wanted to leave, and he got physical with her and he grabbed
    her by her arm and it resulted in that bruise that you can see on
    her arm. That is count [9]. The August 9th incident, that is
    count [9], and that testimony has not been contradicted or
    disputed in any way. There was no evidence presented to
    contradict that. You’ve seen the photo. You heard her tell all
    about it.” (Italics added.)
    Sarinana’s trial attorney did not object to the prosecutor’s
    statements.
    B.    The Prosecutor Did Not Commit Griffin Error
    “‘In [Griffin v. California (1965) 
    380 U.S. 609
     (Griffin)] . . . ,
    the United States Supreme Court held that the prosecution may
    not comment upon a defendant’s failure to testify in his or her
    own behalf. Its holding does not, however, extend to bar
    prosecution comments based upon the state of the evidence or
    The court imposed concurrent middle terms of three years on
    counts 2, 5, and 9 and a concurrent term of 364 days in county
    jail on count 8. The court stayed the sentences and firearm
    enhancements on counts 3 and 10 under section 654.
    5
    upon the failure of the defense to introduce material evidence or
    to call anticipated witnesses.’” (People v. Thomas (2012)
    
    54 Cal.4th 908
    , 945; accord, People v. Bradford (1997) 
    15 Cal.4th 1229
    , 1339.) “At the same time, ‘we have held that a prosecutor
    may commit Griffin error if he or she argues to the jury that
    certain testimony or evidence is uncontradicted, if such
    contradiction or denial could be provided only by the defendant,
    who therefore would be required to take the witness stand.’”
    (People v. Gomez (2018) 
    6 Cal.5th 243
    , 299; accord, Thomas, at
    p. 945.)
    Sarinana forfeited his claim of Griffin error by failing to
    object to the prosecutor’s statements that Gonzalez’s testimony
    about the August 9, 2019 incident was uncontradicted. (People v.
    Hughes (2002) 
    27 Cal.4th 287
    , 372 [defendant “waived his right
    to complain of asserted Griffin error on appeal” by failing to
    object to the prosecutor’s statements made in closing argument];
    People v. Mitcham (1992) 
    1 Cal.4th 1027
    , 1050-1051 [any Griffin
    error forfeited “[b]ecause a timely objection and admonition
    would have cured any harm caused by these remarks”].)
    Even if Sarinana did not forfeit the issue, there was no
    Griffin error. The daughter was present during the August 9,
    2019 incident, then left and “told [Gonzalez’s] grandma,” but
    Sarinana did not call the daughter as a witness at trial. The
    daughter could have provided testimony that contradicted
    Gonzalez’s testimony that Sarinana was angry, grabbed
    Gonzalez’s arm, and left a bruise on her arm. Because Sarinana
    could have presented another witness other than himself to
    contradict or dispute Gonzalez’s testimony, the prosecutor did not
    commit Griffin error by stating in closing argument that
    Gonzalez’s “testimony has not been contradicted or disputed in
    6
    any way.” (See People v. Gomez, 
    supra,
     6 Cal.5th at p. 299 [no
    Griffin error where prosecutor commented on defendant’s failure
    to introduce evidence he read about murder from newspaper
    because defendant could have presented evidence that he was
    avid reader and subscribed to newspaper]; People v. Hubbard
    (2020) 
    52 Cal.App.5th 555
    , 566 [prosecutor did not commit Griffin
    error where “defendant could have presented other witnesses to
    support his counsel’s version of events”].)
    By contrast, in People v. Vargas (1973) 
    9 Cal.3d 470
    , 474,
    476, relied on by Sarinana, the prosecutor argued there was no
    evidence to contradict a witness’s testimony that she saw the
    defendant and codefendant at the scene of the robbery, and
    “‘there is no denial at all that they were there.’” The Supreme
    Court concluded the prosecutor committed Griffin error because
    “only defendant himself could ‘deny’ his presence at the crime
    scene,” and therefore, “the jury could have interpreted the
    prosecutor’s remarks as commenting upon defendant’s failure to
    take the stand and deny his guilt.” (Id. at p. 476.) As discussed,
    Sarinana was not the only person who could dispute Gonzalez’s
    testimony about the August 9, 2019 incident because Sarinana
    could have called the daughter to support his version of the
    incident.
    7
    DISPOSITION
    The judgment is affirmed.
    FEUER, J.
    We concur:
    SEGAL, Acting P. J.
    RAPHAEL, J.*
    *     Judge of the San Bernardino Superior Court, assigned by
    the Chief Justice pursuant to article VI, section 6 of the
    California Constitution.
    8
    

Document Info

Docket Number: B325420

Filed Date: 5/13/2024

Precedential Status: Non-Precedential

Modified Date: 5/15/2024