Filed 7/8/26 P. v. Gonzalez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084252
v. (Super.Ct.No. FSB23003205)
MARK ANTHONY GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene Sevidal, Assistant Attorney General, Robin Urbanski and Anastasia
Sagorsky, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mark Anthony Gonzalez of going to meet a minor for lewd
purposes. (Pen. Code, § 288.4, subd. (b); unlabeled statutory citations refer to this code.)
1 Gonzalez argues that the trial court prejudicially erred under Griffin v. California (1965)
380 U.S. 609 (Griffin) when it responded to a jury question. Finding no error, we affirm.
BACKGROUND
In September 2023, a criminal investigation officer with the San Bernardino Police
Department created a decoy account on Whisper, a social networking application. The
decoy posed as a 14-year-old girl from San Bernardino. She posted about not having
“‘Saturday school,’” and a user later identified as Gonzalez responded and asked the
decoy to “‘hang out.’” Gonzalez and the decoy exchanged messages in which Gonzalez
solicited the decoy’s phone number, a description of her physical appearance, and her
age. Gonzalez told the decoy that he was a 44-year-old man and that he had arranged
prior in-person meetings through Whisper. He described the prior meetings as “‘[r]eal
chill. Usually talk, maybe get food, make out and sex if there’s a connection.’” Gonzalez
also said that age should not matter and that if they had a connection, then he would kiss
her “‘and go from there.’”
Gonzalez and the decoy later had an unrecorded phone conversation, and the
decoy asked if he had “done it” with people who were the decoy’s age (14 years old).
Gonzalez replied that he had done so approximately 20 times and that his youngest
partner was 13 years old. They returned to exchanging messages on Whisper and
arranged to meet at a park. The decoy asked if Gonzalez was going to bring “protection,”
and she asked him to bring a particular snack chip and energy drink. Gonzalez was
arrested soon after arriving at the park, where the decoy and a detective were waiting.
2 Law enforcement searched Gonzalez’s car and found the snack chip and energy drink that
the decoy had requested.
Gonzalez’s trial took place in April and May 2024. During deliberations, the jury
sent a note to the court asking, “Are there any statements made by the defendant that we
can review?” The court sent a text message to defense counsel and the prosecutor
notifying them of the jury’s question. Defense counsel proposed that the court respond
by saying, “‘You have all the evidence that was presented.’”
The court instead responded to the jury by saying, “All exhibits permitted are
admitted for your review.” The court notified counsel of the response via text message,
and defense counsel replied, “I object.” The court later permitted defense counsel to
make a record regarding his objection. Counsel argued that the court’s response implied
“that there was a statement that they weren’t permitted to see.” He further argued that the
court should have directed the jurors to the instructions regarding Gonzalez’s right not to
testify (CALCRIM No. 355) and Gonzalez’s out-of-court statements (CALCRIM No.
358).1
1 The court instructed the jurors with CALCRIM No. 355 as follows: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.” The court also instructed the jurors with CALCRIM No. 358 as follows: “You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statements. [¶] Consider with caution any statement made by
3 Shortly after the court responded to the jury question, the jurors found Gonzalez
guilty of going to meet a minor for lewd purposes. (§ 288.4, subd. (b).) The court
sentenced Gonzalez to the middle term of three years in state prison.
DISCUSSION
Gonzalez argues that the trial court committed prejudicial Griffin error when it
responded to the jury’s question. He contends that the court’s response was reasonably
likely to draw attention to his failure to testify or offer statements in his defense. The
argument lacks merit.2
Griffin held that the Fifth Amendment right against self-incrimination “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.) The rule
prohibits both direct and indirect comments on the defendant’s failure to testify at trial.
(People v. Tom (2014) 59 Cal.4th 1210, 1223; People v. Medina (1995) 11 Cal.4th 694,
755.) Although Griffin prohibits comments on the defendant’s failure to testify, the rule
permits comments on “the state of the evidence, or on the failure of the defense to
introduce material evidence or to call logical witnesses.” (Medina, at p. 755; People v.
Vargas (1973) 9 Cal.3d 470, 475-476 [“It is now well established that although Griffin
prohibits reference to a defendant’s failure to take the stand in his own defense, that rule
the defendant tending to show his guilt unless the statement was written or otherwise recorded.” 2 The People argue that Gonzalez forfeited the argument by failing to make a specific Griffin objection in the trial court. Gonzalez asserts that any forfeiture was the result of defense counsel’s ineffective assistance. Because we address the merits of the Griffin argument, we need not address Gonzalez’s ineffective assistance claim.
4 ‘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’”].)
We review a claim of Griffin error independently. (People v. Clair (1992) 2
Cal.4th 629, 663.) In determining whether a particular remark constitutes Griffin error,
“[w]e examine whether there is a reasonable likelihood that the jury would have
understood the remark to be a comment on defendant’s failure to testify.” (People v.
Memro (1995) 11 Cal.4th 786, 874; Clair, at p. 663.)
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Filed 7/8/26 P. v. Gonzalez CA4/2 NOT TO BE PUBLISHED IN 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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084252
v. (Super.Ct.No. FSB23003205)
MARK ANTHONY GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene Sevidal, Assistant Attorney General, Robin Urbanski and Anastasia
Sagorsky, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mark Anthony Gonzalez of going to meet a minor for lewd
purposes. (Pen. Code, § 288.4, subd. (b); unlabeled statutory citations refer to this code.)
1 Gonzalez argues that the trial court prejudicially erred under Griffin v. California (1965)
380 U.S. 609 (Griffin) when it responded to a jury question. Finding no error, we affirm.
BACKGROUND
In September 2023, a criminal investigation officer with the San Bernardino Police
Department created a decoy account on Whisper, a social networking application. The
decoy posed as a 14-year-old girl from San Bernardino. She posted about not having
“‘Saturday school,’” and a user later identified as Gonzalez responded and asked the
decoy to “‘hang out.’” Gonzalez and the decoy exchanged messages in which Gonzalez
solicited the decoy’s phone number, a description of her physical appearance, and her
age. Gonzalez told the decoy that he was a 44-year-old man and that he had arranged
prior in-person meetings through Whisper. He described the prior meetings as “‘[r]eal
chill. Usually talk, maybe get food, make out and sex if there’s a connection.’” Gonzalez
also said that age should not matter and that if they had a connection, then he would kiss
her “‘and go from there.’”
Gonzalez and the decoy later had an unrecorded phone conversation, and the
decoy asked if he had “done it” with people who were the decoy’s age (14 years old).
Gonzalez replied that he had done so approximately 20 times and that his youngest
partner was 13 years old. They returned to exchanging messages on Whisper and
arranged to meet at a park. The decoy asked if Gonzalez was going to bring “protection,”
and she asked him to bring a particular snack chip and energy drink. Gonzalez was
arrested soon after arriving at the park, where the decoy and a detective were waiting.
2 Law enforcement searched Gonzalez’s car and found the snack chip and energy drink that
the decoy had requested.
Gonzalez’s trial took place in April and May 2024. During deliberations, the jury
sent a note to the court asking, “Are there any statements made by the defendant that we
can review?” The court sent a text message to defense counsel and the prosecutor
notifying them of the jury’s question. Defense counsel proposed that the court respond
by saying, “‘You have all the evidence that was presented.’”
The court instead responded to the jury by saying, “All exhibits permitted are
admitted for your review.” The court notified counsel of the response via text message,
and defense counsel replied, “I object.” The court later permitted defense counsel to
make a record regarding his objection. Counsel argued that the court’s response implied
“that there was a statement that they weren’t permitted to see.” He further argued that the
court should have directed the jurors to the instructions regarding Gonzalez’s right not to
testify (CALCRIM No. 355) and Gonzalez’s out-of-court statements (CALCRIM No.
358).1
1 The court instructed the jurors with CALCRIM No. 355 as follows: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.” The court also instructed the jurors with CALCRIM No. 358 as follows: “You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statements. [¶] Consider with caution any statement made by
3 Shortly after the court responded to the jury question, the jurors found Gonzalez
guilty of going to meet a minor for lewd purposes. (§ 288.4, subd. (b).) The court
sentenced Gonzalez to the middle term of three years in state prison.
DISCUSSION
Gonzalez argues that the trial court committed prejudicial Griffin error when it
responded to the jury’s question. He contends that the court’s response was reasonably
likely to draw attention to his failure to testify or offer statements in his defense. The
argument lacks merit.2
Griffin held that the Fifth Amendment right against self-incrimination “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.) The rule
prohibits both direct and indirect comments on the defendant’s failure to testify at trial.
(People v. Tom (2014) 59 Cal.4th 1210, 1223; People v. Medina (1995) 11 Cal.4th 694,
755.) Although Griffin prohibits comments on the defendant’s failure to testify, the rule
permits comments on “the state of the evidence, or on the failure of the defense to
introduce material evidence or to call logical witnesses.” (Medina, at p. 755; People v.
Vargas (1973) 9 Cal.3d 470, 475-476 [“It is now well established that although Griffin
prohibits reference to a defendant’s failure to take the stand in his own defense, that rule
the defendant tending to show his guilt unless the statement was written or otherwise recorded.” 2 The People argue that Gonzalez forfeited the argument by failing to make a specific Griffin objection in the trial court. Gonzalez asserts that any forfeiture was the result of defense counsel’s ineffective assistance. Because we address the merits of the Griffin argument, we need not address Gonzalez’s ineffective assistance claim.
4 ‘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’”].)
We review a claim of Griffin error independently. (People v. Clair (1992) 2
Cal.4th 629, 663.) In determining whether a particular remark constitutes Griffin error,
“[w]e examine whether there is a reasonable likelihood that the jury would have
understood the remark to be a comment on defendant’s failure to testify.” (People v.
Memro (1995) 11 Cal.4th 786, 874; Clair, at p. 663.)
The court did not commit Griffin error when it replied to the jury’s question. The
court did not comment directly on Gonzalez’s failure to testify, and there is no reasonable
likelihood that the jurors understood the response to be a comment on that. The jurors
were present for trial and were aware that Gonzalez did not testify. Their question could
not reasonably be construed as asking whether there was any trial testimony by Gonzalez
available for review, so the court’s response directing them to the admitted exhibits could
not reasonably be construed as a comment on the absence of his trial testimony. And
even if the court’s response implied that there was an out-of-court statement that the
jurors were not permitted to review, there was no Griffin error. Griffin prohibits
comments on the defendant’s failure to testify at trial, not the defendant’s failure to
produce other evidence. (People v. Medina, supra, 11 Cal.4th at p. 755.)
The case on which Gonzalez primarily relies, People v. Guzman (2000) 80
Cal.App.4th 1282 (Guzman), does not compel a different conclusion. The prosecutor in
Guzman repeatedly emphasized the victim’s willingness to testify and characterized the
victim as “‘[r]esponsible,’” because he waited for police officers, told them what
5 happened, and testified in court. (Id. at p. 1286.) In contrast, the prosecutor
characterized the defendant’s actions as “‘[c]riminal’” because he fled the scene and lied
to police. (Ibid.) The Guzman court held that the prosecutor’s “comparative paradigm”
had “impliedly invited” the jury to consider the defendant’s failure to testify in violation
of Griffin. (Guzman, at p. 1288.)
The court’s response to the jury question in the instant case was unlike the
prosecutor’s line of argument in Guzman. The court did not emphasize anyone’s
willingness to testify and did nothing else that would “naturally and necessarily” draw the
jury’s attention to Gonzalez’s failure to take the stand. (Guzman, supra, 80 Cal.App.4th
at p. 1289.)
For these reasons, we conclude that the court did not commit Griffin error when it
responded to the jury’s question.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
CODRINGTON Acting P. J.
FIELDS J.