(Super. Ct. No. MF030251A) (Super. Ct. No. MF030668A)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
An unexpected visit by family members devolved into a melee involving a swinging flashlight and resulting in bloody injuries. Defendants Daniel Allan Gordon and Doreen Marsha Gordon were charged with residential burglary, conspiracy to commit murder, attempted murder, and assault with a deadly weapon. (Pen. Code, §§ 459, 182, subd. (a)(1), 664/187, 245, subd. (a)(1).)*fn1 Daniel was also charged with aggravated mayhem. (§ 205.)
The trial court granted defense motions for acquittal of the burglary, conspiracy, attempted murder, and mayhem charges. The jury found Daniel guilty of assault with a deadly weapon with personal infliction of great bodily injury, and Doreen guilty of assault with a deadly weapon.
Defendants filed a motion for a new trial, arguing the prosecution's argument constituted impermissible comment on defendants' failure to testify in their own defense. The trial court granted the motion. The People appeal. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As accustomed as we have become to accounts of senseless violence, the present case is even more puzzling than most. While the aftermath is clear, as attested to by investigators and medical personnel, the motive and method are mystifying. What is known about the crime itself comes from the testimony of the two victims, Cheryl and Samuel Vincent; Cheryl's sister and brother-in-law, defendants, did not testify. According to Cheryl and Sam, defendants arrived unexpectedly at the Vincents' home. Out of the blue, Daniel struck Sam repeatedly with a metal flashlight. Doreen's sister Cheryl believed it might have been a conspiracy by the couple to kill her and her husband and steal their baby.
An information charged defendants with residential burglary, conspiracy to commit murder, attempted premeditated murder of Sam, and assault with a deadly weapon likely to produce great bodily injury. The information charged Daniel with aggravated mayhem, and alleged personal infliction of great bodily injury and the personal use of a deadly weapon. (§§ 12022.7, subd. (a), 12022, subd. (b)(1).)
The following evidence was produced at trial.
Sam, Cheryl, and their 11-month-old son lived in the family home in Lathrop. In December 2006 Sam learned he was to be laid off at the end of the month. Sam had not told Doreen or Daniel about the impending layoff.
That evening, Sam and Cheryl planned to attend a Hanukkah celebration at Cheryl's parents' house. Doreen and Daniel arrived unexpectedly at the Vincents' home, saying they needed to use the bathroom.
Sam went outside to his car to retrieve a Hanukkah gift for Cheryl. When he returned, Daniel told him Cheryl was upstairs with the baby. Daniel asked for a glass of water. Sam complied.
Daniel told Sam there was a leak next to the refrigerator. As Sam looked down, he was hit on the head and blacked out for a few seconds. When Sam came to, Daniel began striking him in the head with a metal flashlight about 10 inches long. Daniel held the flashlight by its head and hit Sam with the tail end.
Sam fell to the floor and tried to protect himself with his hands. Sam asked Daniel why he was doing this, but Daniel screamed and hit him harder. Sam started yelling for Cheryl to call 911. He began crawling to the dining room as Daniel continued to hit him on his head, shoulders, and back.
Sam got up and ran for the door and Daniel screamed, "He's trying to escape." Daniel pushed the door shut and hit Sam harder. Daniel came at Sam with the flashlight, saying, "He's hurting me. He's hurting me."
At some point, Sam grabbed the flashlight, but Daniel was able to pull it away and hit Sam even harder. Sam sought refuge between the couch and the wall, shielding himself with his hands. Daniel continued to hit him with the flashlight. Sam never struck Daniel.
Sam heard Cheryl screaming at Daniel to stop; he also heard Doreen yelling. Daniel stopped hitting Sam, who went into the entryway. Sam saw Cheryl and Doreen. The women were in the kitchen talking. Daniel said, "Doreen this is your plan. Why aren't you helping?"*fn2 Doreen whispered something in Daniel's ear and he calmed down.
Cheryl and Doreen continued to talk, including talk about calling 911. Daniel lifted the flashlight toward Doreen, who was holding the baby. Sam stood up and Daniel moved toward him. Sam sat back down and Daniel moved back toward Cheryl.
Sam called 911. During the call, Doreen began dabbing Sam's chest with a towel. Sam said, "Please don't touch me, please." Sam asked for an ambulance and Cheryl locked herself in the bathroom with the baby and the phone. Daniel told Doreen, "She's got a phone."
Neighbors came to the front door, and Cheryl came out and asked them to take the baby somewhere safe. Officers arrived soon after.
Cheryl Vincent's Testimony
The day of the incident, Cheryl exchanged telephone messages with Doreen several times but was not sure if her sister would be coming over that evening. They finally spoke, and shortly after that telephone conversation, the doorbell rang. When Cheryl answered the door, Doreen said, "Surprise."
Doreen told Cheryl she needed to tell her a secret, so the pair went to the upstairs bedroom. Doreen turned on the television and turned the volume up. The baby was crying, so Cheryl asked Doreen to turn off the television. Doreen complied, but turned on the radio instead. Doreen and Cheryl discussed the living situation of their sister.
Cheryl heard screaming and crashing from downstairs. Doreen went downstairs to find out what was happening. As Cheryl called 911, Doreen returned and said Sam was startled when Daniel came out of the bathroom. According to Doreen, "Sam flipped out and got in a fight with Danny but everything is okay and -- but Sam is on the floor, he fell."
Doreen told Cheryl she would finish the 911 call. Cheryl went downstairs and Doreen told the 911 operator that someone had fallen down the stairs but seemed to be all right. Doreen told the operator they did not need an ambulance.
Cheryl, walking down the stairs, saw Daniel hitting Sam, who was covered in blood, with a flashlight. Cheryl screamed for Daniel to stop, but Daniel continued. As he struck Sam, Daniel looked up at Cheryl and said, "He's hurting me." Sam grabbed the flashlight, but Cheryl never saw Sam hit Daniel.
Doreen stood near the bottom of the stairs but did nothing to help as Daniel continued to hit Sam. Doreen said, "Why is this happening? What do you think is going on?" and calmly asked Cheryl to go into the kitchen to talk about it.
Cheryl told Doreen they needed to stop Daniel. Doreen moved toward Cheryl and said, "Just give me the baby, and everything will be okay. Just give me the baby." Cheryl yelled at Doreen not to touch the baby.
Cheryl saw Daniel close the front door as he continued to strike Sam. Daniel screamed, "He's trying to get away. He's going to kill me." Sam crawled into a small space between the couch and a wall. Doreen, in a dazed voice, said, "Oh, why is this happening, why is this happening."
Cheryl put the baby in a playpen and jumped on Daniel, pulling the flashlight out of his hand. She did not recall hitting Daniel. As Cheryl saw Doreen approaching the baby, Daniel grabbed the flashlight back. Cheryl picked up the baby as Daniel came toward them with the flashlight raised. Sam tried to stand up, and Daniel turned back to him. Daniel went back and forth between Sam and Cheryl.
Sam and Cheryl told Daniel they loved him and that everything would be all right. Doreen also told Daniel to stop. Doreen and Cheryl told Daniel to sit down, but he kept getting back up.
Cheryl screamed that Sam needed medical help and she wanted to call 911. Doreen said there was no need to call, since help was on the way. Cheryl said it was taking too long and wanted to call again. Cheryl told Daniel to leave, but neither he nor Doreen did so.
Doreen said she would call 911. Daniel asked Doreen, "Why aren't you helping me?" Cheryl did not hear Daniel say it was Doreen's plan.
Doreen called 911 and asked for an ambulance, saying her sister's husband was bleeding. Doreen told the operator he was not in a fight but tripped when he entered the house: "We thought he was asleep, but now he's bleeding a lot more and he's not okay."
Cheryl took the phone and went into the garage. Daniel yelled, "She's got a phone." Cheryl called her parents. When she went back into the house, Daniel and Doreen were "very deep in conversation."
Cheryl grabbed her camera from the dining room table and took the baby into the bathroom. Daniel yelled, "She's got a camera." At that point, Sam was on the phone with a 911 operator. He motioned for Cheryl to come get the phone; she went to him, grabbed the phone, and ran back into the bathroom. Cheryl finished Sam's 911 call, telling the operator, "my baby will die if I answer questions." When the doorbell rang, she answered it, saw her neighbors, and asked them to take the baby.
At the hospital, Cheryl sought treatment for an injured wrist. She believed it happened when Daniel grabbed the flashlight.
Sheriff's Deputy Marcus Smith was the first officer to arrive on the scene shortly after the second 911 call. Smith found Sam lying in the front entry with a bloody forehead. Cheryl said Daniel was inside and had a metal flashlight.
Smith found Daniel in the kitchen, walking in circles and appearing confused. Smith pointed his gun at Daniel, told him to lie on the floor, and handcuffed him. Smith noticed blood splatter on the floor, the couch, and a wall. Daniel said his head was injured. ...