Diaz

*340 Opinion

Defendant David Diaz appeals from a judgment of conviction entered upon a jury verdict finding him guilty of a violation of Penal Code sections 459 and 460, subdivision 1 (burglary of a residence). 1 The court also found defendant had suifered two prior serious felony convictions within the meaning of sections 667 and 1192.7 and sentenced defendant to a total term of fourteen years in state prison.

Since prejudicial error occurred within the meaning of Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ], the judgment of conviction must be reversed.

Statement of Facts

On May 11, 1986, Darlene Gomez was away from her residence from approximately 8 a.m. until 3:30 or 4 p.m. When she returned, the back door was open and her stereo and two speakers were missing. Gomez called the police who arrived within 15 to 20 minutes.

Officer Dario Estrabao was participating in an undercover “sting” operation conducted by the San Jose Police Department on May 11, 1986. At 5:30 p.m. on that date, defendant contacted Estrabao and was videotaped selling the stereo belonging to Gomez to another undercover officer.

The prosecution relied upon the videotape…

I respectfully dissent.

1.

At the outset it must be stressed that defense counsel engaged in serious misconduct. It passes my understanding how the experienced trial judge let her get away with it. In the absence of any evidence to that effect, she stated to the jury in substance that the defendant bought the property from another but could not take the stand to name his seller lest he jeopardize his life. Who can blame the prosecutor for crying out in response: “We have absolutely no evidence whatsoever that says he’s a fence .... The only person that said he was a fence or middleman is his attorney.”

But then the district attorney went too far, and in the twice repeated use of the word “I” (“who testified . . . that I’m a middleman? That I didn’t steal this property . . . ?”) he committed Griffin error (Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ]. But it is the thesis of this dissent that the error was harmless beyond a reasonable doubt.

First, I disagree most emphatically with the majority’s contention that the evidence of guilt was not overwhelming.

I start with the McFarland principle enunciated in more than 70 published decisions that…

Defendant David Diaz appeals from a judgment of conviction entered upon a jury verdict finding him guilty of a violation of Penal Code sections 459 and 460, subdivision 1 (burglary of a residence). [1] The court also found defendant had suffered two prior serious felony convictions within the meaning of sections 667 and 1192.7 and sentenced defendant to a total term of fourteen years in state prison.

Since prejudicial error occurred within the meaning of Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ], the judgment of conviction must be reversed.

On May 11, 1986, Darlene Gomez was away from her residence from approximately 8 a.m. until 3:30 or 4 p.m. When she returned, the back door was open and her stereo and two speakers were missing. Gomez called the police who arrived within 15 to 20 minutes.

Officer Dario Estrabao was participating in an undercover "sting" operation conducted by the San Jose Police Department on May 11, 1986. At 5:30 p.m. on that date, defendant contacted Estrabao and was videotaped selling the stereo belonging to Gomez to another undercover officer.

The prosecution relied upon the videotape which…