Filed 9/19/14 P. v. Gonzalez CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B249702

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA086309)
         v.

JESUS GONZALEZ,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of the County of Los Angeles,
Arthur H. Jean, Jr., Judge. Affirmed, as modified, and remanded with directions.
         Law Offices of Allen G. Weinberg and Allen G. Weinberg, under appointment by
the Court of Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for
Plaintiff and Respondent.
                                     INTRODUCTION


       A jury found defendant and appellant Jesus Gonzalez (defendant) guilty on one
count of first degree murder and two counts of attempted murder. On appeal, defendant
contends that the prosecutor engaged in misconduct by commenting on defendant’s
failure to testify in violation of the prohibition against such conduct in Griffin v.
California (1965) 380 U.S. 609 (Griffin). In the alternative, defendant argues that if his
claim under Griffin has been forfeited by his trial counsel’s failure to object to the
claimed misconduct based on Griffin, then he received ineffective assistance of counsel.
Defendant also contends that the sentencing minute order and abstract of judgment must
be corrected by striking references to a $36,235 fine, stayed gang enhancements, and a
$25 administrative screening fee.
       The Attorney General contends that defendant’s claim of prosecutorial misconduct
has been forfeited, that no such misconduct occurred, and any such misconduct was
harmless. The Attorney General also agrees that the references to the stayed gang
enhancements and the $25 administrative screening fee should be stricken, but argues
that the issue concerning the $36,235 fine should be remanded to the trial court for a
clarification of the basis of the fine. The Attorney General further contends, and the
defendant agrees, that the trial court was required to impose a $40 court security fee and a
$30 criminal assessment fee as to each count.
       We hold that because the prosecutor did not comment improperly on defendant’s
failure to testify, he did not violate the prohibition set forth in Griffin, supra, 380 U.S.
609 and therefore defendant did not receive ineffective assistance of counsel. We further
hold that the judgment should be modified by striking the stayed gang enhancement as to
count 1 and by adding that a $40 court security fee and a $30 criminal assessment fee
were imposed as to each count. The sentencing minute order and the abstract of
judgment should be corrected by striking the references to the $36,235 fine, the stayed
gang enhancements, and the $25 administrative screening fee.


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                             FACTUAL BACKGROUND1


       Defendant and Efran Flores (Flores) were members of the West Side Longos, a
Hispanic criminal street gang in Long Beach. On September 14, 2009, two Hispanic
males approached three African-American males who had congregated on the stairs to an
apartment building in Long Beach. One of the Hispanic males asked, “Where you
from?” When one of the African American males responded, “We don’t bang,” the
Hispanic male stated, “Fuck Crabs.”2 One of the Hispanic males then began shooting at
the three men on the stairs, wounding two of them and killing the third.
       One of the surviving shooting victims identified Flores as the shooter. An
investigating detective, who considered Flores and defendant as suspects in the crimes,
prepared a flyer with composite pictures that resembled Flores and defendant and posted
copies of it in defendant’s neighborhood. The detective also went to the home of
defendant’s girlfriend, Maria Hernandez (Hernandez), and handed a copy of the flyer to
her sister. Defendant then came to Hernandez’s home, showed her a copy of the flyer,
and asked her, “Does this look like me?” After discussing the flyer with her sister,
Hernandez told defendant that “the other picture looked like [Flores].” Defendant
replied, “Me and the homie Grouchy[3] did it.” Defendant then left saying, “I am gone.”
       During subsequent telephone calls between defendant and Hernandez that were
tape recorded by the police, she told defendant, inter alia, to change his appearance and to
tell “Grouchy” to “do something with” his eyebrows. She also told defendant to “lose


1
       Because defendant does not challenge the sufficiency of the evidence in support of
his conviction and instead raises issues concerning prosecutorial misconduct during
argument and his sentence, we briefly summarize the evidence in support of conviction to
provide context for the ensuing discussion.
2
      According to the two surviving African-American shooting victims, “Fuck Crabs”
meant “Fuck Crips.”
3
      Hernandez confirmed that defendant and Flores, also known as “Grouchy,” were
West Side Longos gang members.

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some weight.” Defendant told Hernandez in one of those calls that he was “going to
leave” and was heading “south.” In a recorded telephone call with his brother, defendant
said that he was “gonna go to TJ” because “[t]hey’re hot . . . hot after me . . . .” In a
telephone call with an unidentified female, defendant stated, “Grouchy is getting really
panicky” and “I’m gonna disappear” “for a few months.”
       A gang expert testified that defendant and Flores were West Side Longos gang
members. He opined that the shootings were done for the benefit of the West Side
Longos gang.


                            PROCEDURAL BACKGROUND


       In an information, the Los Angeles County District Attorney charged defendant in
count 1 with murder in violation of Penal Code section 187, subdivision (a)4 and in
counts 2 and 3 with attempted murder in violation of sections 664 and 187. The District
Attorney alleged as to all three counts, inter alia, that a principal personally used a
firearm within the meaning of section 12022.53, subdivisions (d) and (e)(1). The District
Attorney further alleged that the crimes were committed for the benefit of a criminal
street gang within the meaning of section 186.22, subdivision (b)(1)(C).
       Following trial, the jury found defendant guilty of first degree murder on count 1
and guilty of attempted, willful, deliberate, and premeditated murder on counts 2 and 3.
The trial court sentenced defendant to an aggregate term of 130 years to life, comprised
of the following: on count 1, a 25-years-to-life term, plus an additional consecutive term
of 25 years to life on the gun use allegation under section 12022.53, subdivisions (d) and
(e)(1); on count 2, a consecutive 15-years-to-life term, plus an additional consecutive
term of 25 years to life on the gun use allegation under section 12022.53, subdivisions (d)
and (e)(1); and on count 3, a consecutive 15-years-to-life term, plus an additional
consecutive term of 25 years to life on the gun use allegation under section 12022.53,


4
       All further statutory references are to the Penal Code unless otherwise indicated.

                                              4
subdivisions (d) and (e)(1). The trial court ordered defendant to pay restitution and
various fees and fines.


                                       DISCUSSION


       A.     Asserted Griffin Error
       Defendant contends that the prosecutor committed so-called “Griffin error” by
commenting during argument about defendant’s failure to testify. According to
defendant, that misconduct by the prosecutor violated his rights under the Fifth and
Fourteenth Amendments.


              1.     Background
       During closing arguments, the prosecutor argued, “But what did you hear, the calls
that were played? You heard admissions. You heard—and the defense never really
addressed those calls. Why is he getting so panicky? Why is he taking off to TJ? Why
is he going to Ensenada? Why is he talking about those flyers? Not just with Maria
Hernandez, but with all of those individuals. That was never even addressed. [¶] The
[flyers] all over the West side. ‘I am gone. I am leaving. Me and the Homie did it.’
Grouchy, Efran, Maria Hernandez. But the calls. ‘Who was with you? Me and
Grouchy. They are after me for a Hot one.’ Where is any kind of explanation for that?”
       During his rebuttal argument, the prosecutor stated, “[the d]efense said Detective
Johnson, you don’t qualify. You can’t participate in this. The only participants are the
people that were involved, the victims in this case. The [two] surviving victims in this
case, . . . . If you can’t believe what they say or if you do believe what they say,
defendant, there is reasonable doubt. [¶] Then are you to throw out everything that
Detective Johnson did on this case? The flyers that went up? The investigation that he
did on the other suspects or possible suspects? All the phone calls that were received, all
of the phone calls that were reviewed? All of the phone calls that you heard? With no
explanation from the defense. Do you throw out that?

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              2.     Legal Principles
       “‘[T]he Fifth Amendment . . . forbids either comment by the prosecution on the
accused’s silence or instructions by the court that such silence is evidence of guilt.’
(Griffin[, supra,] 380 U.S. [at p.] 615 [14 L.Ed.2d 106, 85 S.Ct. 1229].) The prosecutor’s
argument cannot refer to the absence of evidence that only the defendant’s testimony
could provide. (See People v. Carter (2005) 36 Cal.4th 1215, 1266 [32 Cal.Rptr.3d 838,
117 P.3d 544].) The rule, however, does not extend to comments on the state of the
evidence or on the failure of the defense to introduce material evidence or to call logical
witnesses. (See People v. Lewis (2009) 46 Cal.4th 1255, 1304 [96 Cal.Rptr.3d 512, 210
P.3d 1119].)” (People v. Brady (2010) 50 Cal.4th 547, 565-566; see also People v. Miller
(1990) 50 Cal.3d 954, 996-997.)


              3.     Analysis
       Defendant contends that the prosecutor’s closing argument based on defendant’s
statements that “me and homie did it” and “me and Grouchy” violated his Fifth
Amendment right against self-incrimination. According to defendant, by telling the jury
that the defense had provided no explanation for those statements, the prosecutor was, in
effect, commenting on defendant’s failure to testify because he was the only person who
could have explained the statements.
       Defendant’s interpretation of the prosecutor’s closing argument ignores the
context in which the challenged comments by the prosecutor were made. Prior to
referring to the “me and homie did it” and “me and Grouchy” statements that defendant
made to Hernandez, the prosecutor referenced a variety of other evidence against
defendant. When read in that entire context, it is clear that the prosecutor was
commenting generally on the failure of the defense to introduce evidence or call logical
witnesses to explain the prosecution’s strong evidence against defendant. Moreover,
defendant was not the only witness who could have addressed the “me and homie did it”
and “me and Grouchy” statements to Hernandez. For example, the defense could have
called witnesses to testify that Hernandez had a motive to lie about defendant’s

                                              6
statements to her or witnesses who could have provided an alibi for defendant, which
witness testimony, if believed by the jury, would have impeached Hernandez’s testimony.
The defense’s failure to call such witnesses was therefore a legitimate topic for the
prosecutor to address during closing argument to the jury.
       Defendant also contends that the prosecutor’s rebuttal argument suggested that
defendant had failed to explain the various statements he made during the recorded
telephone calls. But when the portion of the prosecutor’s rebuttal is read in context, it is
clear that the prosecutor was not referring to defendant’s failure to testify, but rather to
the defense’s failure to introduce evidence and witness testimony to counter the
prosecution’s case, including the detective’s investigation and the multiple tape recorded
telephone conversations between defendant and various other persons, none of whom
testified except Hernandez. Even as to defendant’s tape recorded statements, defendant
failed to introduce any evidence from the other parties to the telephone conversations that
might have suggested the statements were taken out of context or did not relate to the
specific crimes involved in this case. Under the authorities cited above, the rebuttal
argument in issue did not violate defendant’s Fifth Amendment rights because it was not
reasonably probable that the jury was misled by that argument and drew negative
inferences against defendant based on his failure to testify.


       B.     Ineffective Assistance of Counsel
       As discussed above, the prosecutor did not engage in misconduct during argument,
as claimed by defendant. Therefore, his trial counsel’s failure to object to the
prosecutor’s arguments cannot be the basis for a claim of ineffective assistance of
counsel.


       C.     Sentencing Errors
       Defendant contends that the trial court’s oral pronouncement of judgment did not
mention a $36,235 fine, stayed gang enhancement, or a $25 administrative screening fee,
but the sentencing minute order and the abstract of judgment did contain references to

                                               7
those items. According to defendant, because the oral pronouncement of judgment
controls over any conflicting written court documents, those three items should be
stricken from the minute order and abstract. As discussed, the Attorney General agrees
that the references in the minute order and abstract to the stayed gang enhancements and
the $25 administrative screening fee should be stricken, but argues that the issue about
the $36,235 fine should be remanded to the trial court for clarification.


              1.     Background
       At the sentencing hearing, the trial court orally pronounced defendant’s sentence
as follows: “As to Count 1, defendant is committed to prison for 25 years to life. He is
to serve an additional 25 years to life for the 12022.53, [subdivision] (d)(1)
[enhancement]. The gang allegation is stayed. [¶] He is to serve an additional and
consecutive 15 years to life for Count 2 for wounding David Tripple. He is to serve an
additional and consecutive 25 years to life for the 12022.53 [subdivision] (d)
[enhancement]. [¶] He is to serve on Count 3, a consecutive 15 years to life for
wounding James Gaither, an additional 25 years to life for the 12022.53, [subdivision] (d)
[enhancement], a total of 130 years to life. [¶] He is to receive credit for 1,085 days. [¶]
$10,000 Penal fine, $10,000 restitution fine, $30, $40 and booking fees to be paid.”
       The sentencing minute order, however, stated that defendant was to pay a fine of
$10,000, a state penalty fund assessment of $26,000, a $40 court operations assessment
pursuant to section 1465.8, subdivision (a)(1), a $30 criminal conviction assessment
pursuant to Government Code section 70373, and a $25 administrative screening fee
pursuant to section 1463.07. The minute order initially stated that the total fine imposed
was $36,095. But that amount was then deleted “due to [a] glitch in the computer
system” and replaced with a fine of $36,235. The minute order further stated that “court
operations and criminal conviction assessments are charged per count” and “the court
waives the $30 installment fee.” The minute order went on to state that a $40 court
operations assessment and a $30 criminal conviction assessment were imposed on counts
2 and 3. In addition, the minute order reflected that the trial court imposed a $10,000

                                              8
restitution fine and a $10,000 parole restitution fine and stayed the gang enhancement as
to counts 1, 2, and 3.
       The abstract of judgment reflected that the gang enhancement was stayed as to
count 1, but did not reflect any gang enhancements as to counts 2 and 3. The abstract
also reflected that the trial court imposed a $10,000 restitution fine pursuant to section
1202.4, subdivision (b) and a $10,000 parole restitution fine pursuant to section 1202.45,
which was suspended unless parole was revoked. The abstract also reflected a $40 court
security fee pursuant to section 1465.8, a $30 criminal conviction assessment pursuant to
Government Code section 70373, and a $25 administrative screening fee pursuant to
section 1463.07. And the abstract showed that defendant had been ordered to pay a total
fine of $36,235.


               2.     $36,235 Fine
       Defendant contends that because the trial court’s oral pronouncement of sentence
did not reference the $36,235 fine that is reflected in the sentencing minute order and
abstract of judgment, that fine must be stricken from the minute order and abstract. The
Attorney General disagrees, arguing that the issue should be remanded to the trial court
for a clarification of the basis of the fine.
       We agree with defendant that the oral pronouncement of judgment controls over
any conflict in written court documents. (See People v. Mesa (1975) 14 Cal.3d 466,
471.) Moreover, because the fine in issue does not appear to be mandatory, but rather a
matter of trial court discretion, the failure of the court to orally pronounce it is not
jurisdictional error. (See People v. Walz (2008) 160 Cal.App.4th 1364, 1369 [if trial
court had discretion to impose fine, then the failure to impose it is not jurisdictional but
instead involves a discretionary sentencing choice].) The references to the $36,235 fine
in the sentencing minute order and the abstract of judgment must therefore be stricken.




                                                9
              3.     Stayed Gang Enhancement
       Defendant contends, and the Attorney General agrees, that the stayed gang
enhancements referenced in the oral pronouncement of sentencing, the sentencing
minute order, and abstract of judgment cannot be stayed, but must be stricken, citing
People v. Lopez (2005) 34 Cal.4th 1002, 1004 [“a gang-related first degree murder,
which is punishable by a term of 25 years to life” is not subject to an additional 10-year
enhancement under section 186.22, subdivision (c)(1)(C). Instead, it is subject to a 15-
year minimum parole eligibility term under section 186.22, subdivision (b)(5)].)
       Defendant was convicted of first degree murder and two counts of willful
premeditated attempted murder, and the jury found the gang enhancement alleged under
section 186.22, subdivision (b)(1) and the firearm enhancement under section 12022.53,
subdivision (e)(1) true as to all three counts. Because the prosecutor conceded that Flores
was the shooter, defendant was not subject to a section 186.22, subdivision (b)(1)(C)
enhancement in addition to the enhancement imposed under section 12022.53,
subdivision (e)(1). People v. Brookfield (2009) 47 Cal.4th 583, 590 [when another
principal in an offense uses or discharges a firearm but the defendant does not, the
defendant is not subject to a gang enhancement in addition to an enhancement imposed
under section 12022.53, subdivision (b)(1)].) The references to the stayed gang
enhancement in the trial court’s oral pronouncement of sentence, as well as in the
sentencing minute order and abstract of judgment, must be stricken.


              4.     $25 Administrative Screening Fee
       Defendant contends, and the Attorney General agrees, that the references in the
sentencing minute order and the abstract of judgment to a $25 administrative screening
fee must be stricken because defendant was never released on his own recognizance—
which is a prerequisite to imposition of that fee under section 1463.07—and because that
fee was not mentioned during the oral pronouncement of sentence. Because we agree
with the parties, the references to the $25 administrative screening fee must be stricken.



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              5.     Court Security Fees and Assessments
       The Attorney General contends, and defendant agrees, that the trial court was
required to impose a $40 court security fee under section 1465.8, subdivision (a)(1) and a
$30 criminal conviction assessment under Government Code section 70373 as to each
count. Because we agree, the oral pronouncement of judgment, the sentencing minute
order, and the abstract of judgment must be amended to reflect that the trial court
imposed a total court security fee of $120 and a total criminal conviction assessment of
$90.


                                     DISPOSITION


       The judgment of conviction is affirmed and the matter is remanded to the trial
court with directions to modify the judgment by striking the reference to the stayed gang
enhancement as to count 1 and by adding to defendant’s sentence a total court security
fee of $120 and a total criminal conviction fee of $90. The sentencing minute order and
abstract of judgment should be amended to reflect these modifications and by striking
references to the $36,235 fine, the stayed gang enhancements, and the $25 administrative
screening fee.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                 MOSK, J.
We concur:



              TURNER, P. J.


              MINK, J.


       Retired Judge of the Superior Court of the County of Los Angeles, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.

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