P. v. Gonzalez

Filed 5/15/06  P. v. Gonzalez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

            APPEAL from a judgment of the Superior Court of Los Angeles County.  Arthur M. Lew, Judge.  Affirmed.

            Law Office of Mark A Davis and Mark A. Davis for Defendant and Appellant. 

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Miguel Gonzalez was convicted of rape (Pen. Code,[1] §  261, subd. (a)(2)) with the special allegation found true that he used a firearm in the commission of the offense (§  667.61, subd. (b)).  He appeals his conviction on three grounds:  the trial court did not allow defense witnesses to testify; the prosecutor committed misconduct; and his trial attorney rendered ineffective assistance.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After they met late at night at a taco stand, Gonzalez offered Sylvia C., who was leaving town the following morning, a new home for her dog.  Sylvia C. followed Gonzalez to his place of business, a truck yard, to see if it was an acceptable place for the dog.  Once at the truck yard, Gonzalez lured Sylvia C. into a trailer, where he raped her and threatened her with a rifle. 

Gonzalez was charged with rape (§  261, subd. (a)(2)) and forcible oral copulation (§  288a, subd. (c)(2)), with the additional allegation that he used a shotgun in the commission of the assault (§  667.61, subd. (b)).  After a jury trial, he was convicted of rape and the jury found the special allegation to be true.  Gonzalez was sentenced to 15 years to life in state prison.

DISCUSSION

I.            Alleged Denial of Presentation of Witnesses

Gonzalez testified on his own behalf.  Defense counsel knew that Gonzalez's prior misdemeanor conviction for domestic violence would be used on cross-examination for impeachment, and on direct examination Gonzalez's counsel asked Gonzalez several questions about facts of the prior incident.  Gonzalez testified that he and his wife had an argument in which he struck her; the police were called; he was arrested and pleaded guilty to spousal battery; and he was sentenced to and attended anger management class.

Gonzalez's counsel objected to the prosecutor cross-examining Gonzalez on the incident.  The trial court permitted the prosecutor to question Gonzalez about the facts of the incident because the matter had already come before the jury and because the probative value outweighed any prejudice.  The cross-examination was punctuated by objections, bench conferences, and an unsuccessful motion for a mistrial.  Although he previously had admitted striking his wife and being convicted of domestic violence, Gonzalez denied having punched his wife in the face with his fist and having kicked her approximately four times in the stomach with his boot-shod foot.  He claimed on cross-examination that he had never hit his wife. 

Later, outside the presence of the jury, the court advised the prosecutor that because Gonzalez admitted hitting his wife in an argument, it would not permit the prosecutor to call witnesses concerning the incident.  Defense counsel said, â€