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People v. Marroquin5/1/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Juan Jose Marroquin appeals from the judgment entered following a jury trial resulting in his conviction of felon possessing a firearm (Pen. Code, § 12021, subd. (a)(1)), after he admitted having a prior conviction for the purpose of establishing that element of the offense. He also admitted that he had a prior conviction qualifying as a "strike" under the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and two prior felony convictions for which he had served a separate prison term (§ 667.5, subd. (b)). He made a motion to strike the prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court denied the motion and sentenced him pursuant to the three strikes sentencing scheme to an eight-year term in state prison.
He contends: (1) during closing argument, the prosecutor made remarks amounting to an impermissible comment on his failure to testify; (2) charging the jury with CALJIC No. 17.41.1 requires a reversal; and (3) the court abused its discretion by refusing to strike the prior conviction pursuant to Romero, supra, 13 Cal.4th 497. We reject the contentions and affirm the judgment.
FACTS
At approximately 3:00 a.m. on November 21, 2001, uniformed Los Angeles Police Officers Anthony Ariaz and Michael Messenger were driving eastbound in a marked police car on West 22nd Street in Los Angeles. The crime rate in the area was high. As the officers approached Congress Avenue, they saw appellant walking around the corner westbound toward them. When appellant saw the police car, his eyes became larger and he started to run westbound past the police car. As he ran, he reached with his left hand to his waistband or left pocket and dropped a stainless steel handgun to the ground.
Simultaneously, Ariaz stopped the police car. Messenger got out of the police car and yelled stop. The officers pursued appellant on foot. Messenger stopped momentarily to pick up the handgun. It was a loaded nine-millimeter, stainless steel handgun. Appellant made a sharp turn south into the residences. Ariaz was within feet of appellant and followed as appellant turned, but Ariaz lost his footing in mud and fell. Appellant disappeared into the backyards of the residences.
The officers set up a perimeter around the block, and two K-9 units arrived. Officer Goosby and his dog, Thunder, found appellant alongside a residence on the next street to the south. Appellant was barricaded inside a doghouse and was ordered out. At 4:15 a.m., he was arrested.
In defense, appellant did not testify or put on evidence. During cross-examination, his trial counsel elicited from the officers that appellant had two outstanding misdemeanor traffic warrants and that the officers never examined the handgun for fingerprints.
DISCUSSION
1. Griffin Error
Appellant contends that the prosecutor committed prejudicial Griffin error by urging that there was no "explanation" provided as to why appellant was walking in the neighborhood at 3:00 a.m. (Griffin v. California (1965) 380 U.S. 609 (Griffin).) We disagree.
The following summary of facts sets forth the prosecutor's precise comments in italics in the context of the parties' final argument.
In opening comments, the prosecutor argued that appellant had barricaded hims
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