# People v. Gonzalez

> California Supreme Court · December 3, 1990 · 51 Cal. 3d 1179

URL: https://www.frixlaw.com/law-library/cases/9792474

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. JESSE EDWARD GONZALEZ, Defendant and Appellant; In Re JESSE EDWARD GONZALEZ on Habeas Corpus; THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JESSE EDWARD GONZALEZ Real Party in Interest
- **Court:** California Supreme Court
- **Decided:** December 3, 1990
- **Citations:** 51 Cal. 3d 1179; 275 Cal. Rptr. 729; 90 Daily Journal DAR 13736; 800 P.2d 1159; 90 Cal. Daily Op. Serv. 8746; 1990 Cal. LEXIS 5233
- **Precedential status:** Published
- **Opinion:** Concurrence by Arabian
- **Judges:** Eagleson, Arabian, Mosk
- **Cited by:** 439 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by In Re Steele, 10 Cal. Rptr. 3d 536 (2004).
- Negative treatments: 4
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9792474

## How later opinions describe it (automated extraction)

- declining to fault Gonzales’s attorney for failing to discover additional evidence to impeach Acker

## Opinion text

ARABIAN, J., Concurring.
Although I concur fully in Justice Eagleson’s thorough and well reasoned majority opinion, I am constrained to state separately my views concerning the prosecutor’s use of a homemade scale during penalty phase argument. This issue is the principal basis of a dissent by Justice Broussard.
*1262 I agree with the majority’s conclusion that, viewed in context, the jury was not misled as to the scope of its sentencing discretion. (People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ].) The use of the scale and the prosecutor’s accompanying remarks could not reasonably have confused a jury otherwise informed that counsel’s remarks were not evidence, that the deliberative process involved a “weighing” rather than a “counting” of relevant factors, and that the jury itself was to assign values to those factors and to impose the sentence it deemed “just and fair.”
It is not enough, however, simply to dismiss the scale illustration as harmless. The use of such demonstrative evidence, even in good faith, strikes at the core principles on which our system is founded. Fair play and substantial justice are the articles of faith to which all involved in the administration of criminal justice subscribe and to which all are constitutionally bound. Prosecutorial tactics such as those exhibited here push against the very limits of acceptable behavior under this rubric. While I am persuaded that the line was not crossed, I am equally certain that this court’s tolerance for such tactics nears its brim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792474. Public record. Not legal advice.