People v. Denard
195 Cal. Rptr. 3d 676
Cal. Ct. App.2015Background
- Defendant Tony Denard was convicted by a jury of second-degree commercial burglary (Pen. Code § 459) based on surveillance video and eyewitness ID; sentenced to an aggregate 11 years (high term doubled for a prior strike + five one-year priors).
- Surveillance video showed the burglar entering via a wall meter box, disabling cameras, and removing ~$15–16K wholesale merchandise; one camera captured the burglar’s face when a shirt slipped.
- A police officer later recognized Denard from a bulletin and photographed him; his long-time ex-wife Maria Rosa identified him from the photo and the video at multiple times despite emotional reluctance.
- In closing rebuttal the prosecutor argued Denard “does not want to take responsibility” and had “put it upon [Rosa] to testify,” language the court later found to be a comment on Denard’s silence.
- At a bifurcated hearing the trial court found two Florida prior convictions (burglary of a dwelling and second-degree felony manslaughter) to be strikes under California’s Three Strikes law; the appellate court reviews the validity of those strike findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutor’s rebuttal comment: did it violate Griffin v. California (comment on silence)? | Prosecutor argued comments addressed Rosa’s credibility and the state of the evidence, not defendant’s silence. | Comments impermissibly referred to defendant’s failure to testify and thus violated Fifth Amendment (Griffin). | Court: Remarks constituted Griffin error but were harmless beyond a reasonable doubt given overwhelming ID evidence (Chapman standard). |
| Do Denard’s Florida burglary documents prove a California "strike"? | Prosecution relied on Florida record of conviction (information, judgment, sentence) to show prior burglary of a dwelling qualified as a strike. | Denard argued Florida statute is broader than California’s first-degree burglary and record lacks facts showing elements (intent at entry; inhabited dwelling). | Court: Reversed — Florida burglary conviction, as documented, did not, under the least-adjudicated-elements test, establish a California strike. |
| Do Denard’s Florida manslaughter records qualify as a California "strike"? | Prosecution relied on a Florida probable-cause affidavit to show facts supporting voluntary manslaughter (which would be a strike). | Denard argued the Florida statute covers voluntary and involuntary manslaughter; the affidavit is not part of the record of conviction and reliance on it violates Sixth Amendment (Apprendi/Descamps). | Court: Reversed — affidavit was not part of the record of conviction; using it to find facts that increase punishment violated the Sixth Amendment under Descamps; manslaughter strike finding unsupported. |
Key Cases Cited
- Griffin v. California, 380 U.S. 609 (1965) (prohibition on prosecutorial comment on defendant’s silence)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-beyond-a-reasonable-doubt standard for constitutional errors)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing prescribed statutory maximum must be submitted to a jury)
- Descamps v. United States, 570 U.S. 254 (2013) (limits judicial factfinding about prior convictions when elements are broader than the generic offense)
- People v. McGee, 38 Cal.4th 682 (2006) (record-of-conviction limitations when proving priors for sentencing)
- People v. Woodell, 17 Cal.4th 448 (1998) (foreign convictions qualify as strikes only if the foreign offense includes California elements)