Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC643081.
McAdams, J.
In 2008, a jury convicted defendant Timothy William Brown of the 1979 murder of Virginia Correa. (Pen. Code, § 187, subd. (a).) The jury also found true the allegation that defendant had personally used a dangerous and deadly weapon (a knife) in the commission of the offense, and the special circumstances that the killing had occurred during the commission of kidnapping and rape. (§§ 12022, subd. (b), 261, 207.) The court sentenced defendant to life without the possibility of parole, consecutive to a one-year determinate term for the use of the knife.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On appeal, defendant contends that the collection of his blood while he was in prison for inclusion in the State’s DNA database violated his Fourth Amendment right to be free from unreasonable searches and seizures. He also contends that his right to a fair trial was incurably compromised by a witness’s remark that he was “in jail part of the time” that he lived in the home he shared with the witness and her mother. Finally, he contends the prosecutor committed Griffin error and trivialized the reasonable doubt standard in his closing argument, and that the combined effect of the misconduct was so prejudicial as to require reversal. We will affirm.
Griffin v. California (1965) 380 U.S. 609.
STATEMENT OF THE FACTS
Discovery of the Body and the Autopsy Findings
Virginia Correa’s body was found on Sierra Road, in the hills above San Jose, at 6:00 a.m. on January 15, 1979. She had been stabbed seven times in the abdomen; the wounds penetrated her liver, pancreas, kidney and aorta. Some of the stabs wounds went all the way through her body, to her back. She also had several bruises on her face, and bruises on her arm, thighs, knees, ankles, and hands. The bruising on her face was consistent with getting punched with a fist. The abrasions on her knuckles were consistent with “a struggle on her part.” Her clothes were intact but askew and she had a large deposit of semen in her vaginal cavity. Her underpants and pantyhose were found in her pockets. Her blood alcohol level was.08.
The autopsy findings pinpointed the time of death between 1:00 and 2:00 a.m., and indicated that Correa had sexual intercourse while she was lying down and “within a short time of her death.” The pathologist opined that “the “interval between the sexual assault and the stabbing” was “of just a few minutes.” “The sexual activity occurred first with her in that position, then the stab wounds were delivered. She didn’t do anything, she didn’t move.”
Virginia Correa’s remains were identified by her sister, Nellie, who had reported her missing to the police. She described the condition of her sister’s body: “Half of her hair was gone. She had beautiful long hair, she had long nails, most were broken like she fought and broke her nails and her face, I mean, you couldn’t even see it, it was all bruised up.”
Events on the Evening Before Correa’s Disappearance
On Sunday, January 14, 1979, Virginia Correa and her friend Lina Martinez went to a local club known as the Amber Room which was going to broadcast on a Spanish-language radio station a contest for amateur Mariachi singers. Correa loved to sing Mariachi music. That evening, she was the last contestant to sing. Afterwards, Correa and Martinez drove to Blocker’s, another Mariachi bar where Correa sang regularly. Blocker’s’ regular customers were exclusively of Mexican ancestry. Correa and Martinez left Blocker’s sometime after midnight. They decided to stop to buy cigarettes before going home. Correa normally smoked Salem brand cigarettes. However, when they couldn’t find a store that was open, they drove back to Blocker’s. Martinez went inside to ask someone for cigarettes while Correa parked the car in front. When Martinez emerged with only two cigarettes, Correa complained that two were not enough, and said she would buy some more after she dropped Martinez off at home. Then Correa drove Martinez home. Martinez’s son opened the door to let her in. Martinez never saw her friend again.
That evening, Correa and Martinez had talked about Correa’s wedding plans. She was engaged to be married to Jesse Vera, a childhood friend. She mentioned that Vera was away that weekend and was supposed to get back that night, but was not back yet. She told Martinez that she was upset with Vera. She also mentioned to her daughter that she was mad at Vera. However, according to Martinez, Correa was “very much in love” with Vera, even though she was upset with him that evening. Her last words to Martinez were “don’t forget, I’m going to call you” about the wedding plans.
Virginia Correa’s friends and family members testified at trial that the only two men she had dated were her husband of 20 years, whom she had known since she was 13, and from whom she had been divorced for five years; and her other childhood friend, Vera, to whom she was engaged to be married. According to these friends and family members, Correa had never dated African Americans, and none of them had ever seen, heard of, or met defendant, who is African American.
Jesse Vera had been in Southern California that weekend. The evening of January 14, Vera went to Correa’s house to see her. Correa’s son answered the door and said she was not at home.
Correa’s son became very concerned when his mother did not come home that night; he began calling relatives to locate her. Correa’s sister, Nellie, heard on the news the next day that an unidentified body had been found that morning in the Sierra hills of San Jose. She called the police.
Discovery of the Car
Virginia Correa’s car was found in east San Jose. The parties stipulated at trial that the car was found less than one mile from an address on Capitol Avenue which defendant, “on September 30, 1979, [had] reported to a government agency... that his father resided at.” However, defendant had not, at that time, given a number of the address on Capitol Avenue.
The driver’s seat of the car was pushed back, far from the steering wheel. Correa, who was only 5’2” inches tall, drove with the seat all the way forward, close to the steering wheel. Inside the car, the police found the car keys, 21 cigarette butts (17 Salems, 3 Marlboros, and one possible Winston) in the ashtray, an unopened box of Marlboro cigarettes, and a gold bracelet.
The DNA Evidence
Virginia Correa’s case remained unsolved from 1979 until 2002. Around that time, Virginia Correa’s daughter learned that a new law concerning DNA testing had been passed. She called the police to inquire if DNA evidence existed in her mother’s case that could be used to identify her mother’s killer. The vaginal semen sample could not be found. However, police located the cigarette butts, pantyhose and underwear and submitted those items for DNA analysis. A “cold hit” linked defendant’s DNA to the semen found on Virginia Correa’s pantyhose and to one of the cigarettes found in the ashtray of her car. DNA from two unknown male donors was found on two of the cigarettes. Vera, Martinez’s son, and a third man who owed Correa money were eliminated as donors by the DNA testing.
Evidence Code, § 1108 Testimony
Danette A. testified that she is the daughter of defendant’s former girlfriend. She was born in 1979. When she was seven years old, she left her maternal grandparents’ home and began living with her mother and defendant. When she was a teenager, she had numerous conflicts over disciplinary issues with her mother and defendant. One night in January 1996, when she was 16 years old, defendant made Danette ride with him in his car because she “was in trouble and he wanted to talk to me.” He drove her around all night while he visited various friends of his. He forced her to drink a large quantity of hard liquor until she threw up, and then smoke marijuana, until she passed out. At some point during the night, she awoke feeling paralyzed but aware that one of her pant-legs was off and that something was touching her thigh and penetrating her vagina. Defendant was the only person she heard the whole time, and at one point he told her to put her clothes on. Then she “passed back out.” When she awoke again it was morning, she was alone in the car and she felt sore, her belt was undone, her shoe was off, and her underwear was twisted to the side. She went to look for defendant, who was visiting with friends at a house across the street from where the car was parked. She did not confront him, and the drive home was uneventful. Later that day, she told one of her mother’s friends what had happened. A few days later, she told her mother, who took her to the hospital. That day, she was interviewed by police. Defendant was tried and acquitted of the rape charge arising out of this incident.
The Defense
Defendant did not testify and called no witnesses. His defense theory, as presented by defense counsel in closing argument, was that he might have had consensual sex with Correa after she dropped Martinez off and before her death, but the prosecution had failed to prove that Correa was not killed by an unknown assailant or assailants after she had sex with defendant.
DISCUSSION
DNA Testing and the Fourth Amendment
Defendant was identified as the prime suspect in Virginia Correa’s killing as the result of a “cold hit” in the State’s Forensic Identification Database. His DNA was collected from two blood samples that were taken from him while he was incarcerated. In the trial court, defendant unsuccessfully moved to suppress the DNA evidence linking him to Virginia Correa’s death. In his opening and reply briefs, defendant again argues that the collection of a blood sample for inclusion in the State’s Forensic Identification Database, pursuant to the DNA and Forensic Identification Database and Data Bank Act of 1998 (§ 295 et seq., hereafter “the Act”), violates the proscription against unreasonable searches and seizures embodied in Fourth Amendment to the United State Constitution. Defendant acknowledges several California appellate court opinions rejecting this contention, but argues that these cases were wrongly decided. (People v. King (2000) 82 Cal.App.4th 1363, 1377-1378; Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505; People v. Adams (2004) 115 Cal.App.4th 243, 257.)
On January 10, 2010, after briefing was complete, our Supreme Court decided People v. Robinson (2010) 47 Cal.4th 1104 (Robinson) which similarly concerns the taking of a blood sample from an incarcerated defendant for the purpose of inclusion in the State’s DNA database pursuant to the Act, and involves a defendant whose DNA profile was used to identify him as a suspect and convict him as the perpetrator of several sex crimes. (Robinson, at pp. 1114-1116.) The precise questions decided in Robinson were: “whether the issuance of a ‘John Doe’ complaint or arrest warrant may timely commence a criminal action and thereby satisfy section 800’s limitation period; (2) whether an unknown suspect’s DNA profile satisfies the ‘particularity’ requirement for an arrest warrant; and (3) what remedy exists, if any, for the unlawful collection of genetic material under the 1998 version of the Act.” (Robinson, at p. 1113, fn. omitted.)
We invited the parties to submit supplemental letter briefs on Robinson. In response, defendant maintains that the collection of his DNA violated the Fourth Amendment, but he also acknowledges that “[i]n Robinson, the Supreme Court joined the many courts that have held, contrary to appellant’s position here, that the nonconsensual extraction of biological samples pursuant to [the Act]... does not violate the Fourth Amendment.” “Having decided that a lawfully convicted and incarcerated felon, such as defendant, does not have a Fourth Amendment right to prevent state authorities from collecting a blood sample for DNA profiling, we conclude that the March 2, 1999 blood sample and the DNA test evidence obtained as a result of that sample were properly admitted into evidence at defendant’s trial.” (Robinson, supra, 47 Cal.4th at p. 1123.) We, of course, are bound by our Supreme Court’s decision in this regard and, accordingly, reject defendant’s Fourth Amendment claim. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
Denial of Motion for Mistrial: Danette A.’s testimony
On direct examination, as the prosecutor was attempting to establish the time frame during which Danette A. lived in the home of her mother and defendant, Danette A. inadvertently revealed that defendant had been in jail for part of that time. The following occurred:
“Q.: All right. So then from the age of seven to the age of – up to ’96, rather, did Tim Brown live with your mother and you the whole time?
“A. Yes.
“Q.: Did he come or go or always live there?
“A.: Uh – Well, he was in jail part of the time.
“[Defense Counsel]: Object, your Honor. Move to strike.
“[The Court]: It will be stricken. The jury is admonished to disregard the remark.
“[Defense Counsel]: At some point I would like to approach the bench and make additional motions.
“[The Court]: I understand.”
Outside the jury’s presence, defense counsel moved for mistrial, arguing that, the court’s admonition notwithstanding, the witness’s remark was incurably prejudicial to defendant because the jury would conclude from it that defendant had a disposition to commit both the charged crime and the uncharged Evidence Code section 1108 crime. The court denied the motion, stating: “[C]ounsel is correct that the court on counsel’s immediate objection at the time the statement was made asked that it be stricken and the court struck it. And the court then went on to admonish the jury to completely disregard the statement. The court is satisfied that that was sufficient, that the jury is capable of following the court’s instructions and the motion for mistrial is denied at this time.”
On appeal, defendant contends that the remark was inadmissible, and the trial court’s admonition could not have cured the prejudice inherent in evidence of other crimes. He asserts that but for the witness’s remark, it is reasonably probable that the outcome of the trial would have been different, citing People v. Watson (1956) 46 Cal.2d 818, 836.) We disagree.
We review the denial of a motion for mistrial for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin); People v. Ayala (2000) 23 Cal.4th 225, 282.) “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854; People v. Hines (1997) 15 Cal.4th 997, 1038.) Only when a party’s chances of receiving a fair trial have been irreparably damaged is a mistrial appropriate. (People v. Bolden (2002) 29 Cal.4th 515, 555.) A “blurted out” statement by a witness can “provide the basis for a finding of incurable prejudice.” (People v. Wharton (1991) 53 Cal.3d 522, 565.)
Defendant analogizes his case to one where a police officer volunteered that defendant admitted he was an “ex-convict” (People v. Ozuna (1963) 213 Cal.App.2d 338, 339) and another where a police officer volunteered that defendant admitted he had been charged with contributing to the delinquency of a minor. (People v. Roof (1963) 216 Cal.App.2d 222, 225.) In Ozuna, the trial court admonished the jury to disregard the remarks, but the Court of Appeal reversed. In Roof, defense counsel did not request an admonition, the court did not admonish the jury to disregard the remark, and that Court of Appeal also reversed. In our view, the analogy to these two cases is inapt. In this case, unlike Roof, counsel did object and the court did admonish. In Ozuna, the remark occurred in a retrial following a first trial that ended when the jury was unable to reach a verdict. Since the only difference between the two trials was the offending remark, the conclusion that defendant had been prejudiced by it was inescapable. Furthermore, in this case, the jury actually heard admissible evidence of another crime and was instructed to consider that evidence on the question whether defendant had a propensity to commit sex crimes. That being so, it is difficult to perceive how defendant could have been prejudiced by a single comment that defendant had spent some time in jail, which was not admitted as evidence at all, and which the trial court struck and instructed the jury to disregard.
In our view, the trial court did not abuse its discretion in concluding that the witness’s comment was not incurably prejudicial. First, the comment was brief and was swiftly cut off by an objection that was immediately sustained. This action was followed by a “direct and pointed admonition regarding the volunteered testimony.” (People v. Wharton, supra, 53 Cal.3d at p. 566.) Second, we reject as speculative defendant’s implicit contention that Danette’s comment – “he was in jail part of the time” – could have been understood by the jury as referring to time spent in jail for crimes other than the sexual assault about which she testified, thus increasing the chances that the jury would perceive defendant as a person of bad character. As with prosecutorial misconduct, we will not “ ‘lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the [witness’] statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another point in Doolin, supra, 45 Cal.4th at p. 421.) Here, the jury learned that defendant had been tried and acquitted of the rape charge that arose out of the incident about which Danette testified, and the most logical inference was that defendant spent time in jail awaiting trial on that charge. Nothing else in her testimony suggested that defendant had ever been charged with, much less convicted of, another crime. The trial court judged that the possibility of prejudice from Danette’s fleeting comment could be adequately dispelled by a strong admonition. We cannot say that judgment was unreasonable under these circumstances. We find no error.
Prosecutorial Misconduct
Defendant makes two assignments of prosecutorial misconduct during closing argument. First, he argues, the prosecutor committed Griffin error. Second, he argues, the prosecutor trivialized the reasonable doubt standard. As we explain, we agree that the prosecutor committed error, but we find the errors harmless beyond a reasonable doubt, either viewed singly or in combination.
A. Factual Background
1. Griffin Error
After defense counsel had given his summation, the prosecutor responded in argument by discussing defense counsel’s argument that, so far as the evidence showed, defendant could have had consensual sex with Virginia Correa and that an unknown assailant or assailants could have come upon her and killed her. The prosecutor stated “That particular version, there’s absolutely zero, zero evidence that any of that ever happened.... The only possibility is because the defense said it, but the defense did not take the witness stand and testify.” (Italics added.) Defense counsel interjected: “Objection, Your Honor. Griffin.” The court immediately stated: “I will sustain the objection. Don’t refer to the defense testifying.” The prosecutor responded: “Okay.” Defense counsel then requested an admonishment. The court admonished the jury: “The jury will disregard the last remark.” The prosecutor then clarified: “The defense attorney mentioned it, no other evidence of it, and that’s not even evidence. [¶] Let me address some other points....” The trial court denied defendant’s motion for mistrial.
2. Trivializing the Reasonable Doubt Standard
During the prosecutor’s closing argument, the following occurred:
“[Prosecutor]: Proof beyond a reasonable doubt. That’s my burden of proof and I accept it fully. I want you to hold me to it completely, but don’t make it more than what it is. It’s not proof beyond a shadow of a doubt.... [¶]... It’s not a mathematical rule, it’s not a physical science type rule. If it was, we would have drawn one up and told you here’s the formula. It’s a social science rule made up by people to use in everyday life. (Italics added.)
“[Defense Counsel]: Objection. Misinstructing the jury as to the law, beyond a reasonable doubt. This is not everyday life.
“[The Court]: Ladies and Gentlemen, I’ve instructed you on the law. The attorneys will endeavor to interpret that, but you should follow my instructions. If there are any differences between my instructions and the attorneys’ remarks, you should follow my instructions.
“[Prosecutor]: Bottom line, the words repeat themselves. Reasonable and unreasonable, accept or reject, the point I am trying to make, this is what we do in everyday life, we do the same thing every day. Just because you come through the courtroom doors, that doesn’t mean you step through a looking glass and the world changes. It’s the same. It’s the same burden we use if you got a traffic ticket to whether you’re accused of murder.”
After the prosecutor concluded his remarks, and before defense counsel gave his summation, the court reinstructed the jury on reasonable doubt, prefacing the instruction by stating: “Ladies and Gentlemen, during the course of the People’s argument this morning, the defense attorney made an objection. It’s not at all uncommon for attorneys to make objections during the course of argument; however, the defense attorney’s point is an important point, and it concerned the interpretation by the prosecutor in his argument on the definition of reasonable doubt. [¶] I instructed you to follow my instructions on the law. Just to reemphasize my definition of reasonable doubt and so it’s fresh in your minds, let me repeat a portion of that instruction.”
The trial court declined to give defense counsel’s requested instruction that “proof beyond a reasonable doubt does not equal decisions that you make in your everyday life” and denied defendant’s motion for mistrial.
B. General Principles
“The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey), internal quotation marks omitted.) “ ‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.’ ” (People v. Hill (1998) 17 Cal.4th 800, 829.) “ ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (Smithey, atp. 960.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye, supra, 18 Cal.4th at p. 970.) With these principles in mind, we now turn to the parties’ arguments.
C. Analysis
Griffin error occurs “whenever the prosecutor... comments, either directly or indirectly, upon defendant’s failure to testify in his defense.” (People v. Medina (1995) 11 Cal.4th 694, 755.) Here, the prosecutor’s comment did not, in our view, “impliedly invite[] the jury to consider [the defendant’s] failure to testify as proof that his actions were criminal.” (People v. Guzman (2000) 80 Cal.App.4th 1282, 1288, italics added.) However, we agree with defendant that by drawing the jury’s attention to the defendant’s failure to testify, the prosecutor’s argument could have led some jurors to draw adverse inferences from defendant’s assertion of his Fifth Amendment privilege, even though, as the Attorney General points out, the court had already instructed the jury not to do so in CALCRIM 355. Thus, even though in the context of the prosecutor’s entire argument, it is equally possible that the jury understood the prosecutor’s comments to mean only that defense counsel did not testify, and his argument was not evidence, we conclude that the trial court was correct to sustain the defense objection and admonish the jury because the prosecutor’s comment was an improper, if indirect, comment on the defendant’s right to remain silent at trial, in contravention of the principles set forth in Griffin v. California, supra, 380 U.S. 609.
In our view, however, the error here was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Unlike People v. Guzman, supra, 80 Cal.App.4th 1282, 1290, where the Court of Appeal found the Griffin error there reversible because the prosecutor’s comments on the defendant’s failure to testify were “relentless” and the jury’s split verdict indicated that the jury had doubts about the testimony with which the defendant’s silence was contrasted, in this case the comment was brief, the court’s reprimand was swift and unequivocal, and the prosecutor’s contrition evident to the jury (“Okay”). On the contrary, this case more closely resembles People v. Brasure (2008) 42 Cal.4th 1037, where the comment was brief, ambiguous about to whom it referred, and subject to an immediate and unequivocal admonishment. There, our Supreme Court found the Griffin error harmless beyond a reasonable doubt. (Id. at p. 1060.)
Furthermore, in this case, the DNA and propensity evidence, in combination with the autopsy findings, the pathologist’s testimony, and the evidence concerning the car, strongly refuted the inference that Virginia Correa engaged in a consensual sexual encounter with defendant, or that there was enough time between the sexual assault and the stabbing, for defendant to get away and leave the victim to the mercy of an unknown assassin. Because there was simply no evidence to support such a scenario, the prosecutor’s comment did not “ ‘serve to fill an evidentiary gap in the prosecution’s case, ’ or ‘at least touch a live nerve in the defense, ...’ ” (People v. Vargas (1973) 9 Cal.3d 470, 481.) We conclude the comments “could have had no significant impact upon the jurors and were harmless beyond a reasonable doubt.” (Ibid.)
We also find that the prosecutor’s comment equating the reasonable doubt with decisions taken by ordinary people in everyday life uncomfortably close to the comments condemned in People v. Nguyen (1995) 40 Cal.App.4th 28. Assuming arguendo that the comments misstated the reasonable doubt standard, we first reject defendant’s argument that any error was structural error requiring reversal per se. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281.) In Sullivan, the United States Supreme Court held that a constitutionally deficient reasonable doubt instruction by the court is not amenable to harmless error analysis. (See also People v. Johnson (2004) 115 Cal.App.4th 1169 [trivialization of reasonable doubt standard by judge].) However, the arguments of counsel “should ‘not be judged as having the same force as an instruction from the court.’ ” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21, superseded by statute on a different point as stated in People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 572.) “[A]rguments of counsel generally carry less weight with a jury than do instructions from the court.... Arguments of counsel which misstate the law are subject to objection and to correction by the court. [Citation.] This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court.” (Boyde v. California (1990) 494 U.S. 370, 384-385.) Furthermore, the United States Supreme Court has decided which federal errors are “structural” ones that require automatic reversal, and prosecutorial misconduct is not one of them. (Arizona v. Fulminante (1991) 499 U.S. 279, 307-309.)
Again assuming the error complained of constituted federal constitutional error, in our view, the assumed error was harmless beyond a reasonable doubt in this case. (Chapman v. California, supra, 386 U.S. 18.) First, we are not convinced that the jury was misled into misapprehending the reasonable doubt standard. In our view, the court’s admonishment before defense counsel’s summation that his objection to the prosecutor’s remarks was well taken, and its reinstruction on reasonable doubt, more than adequately dispelled any inference to be drawn from the prosecutor’s argument that diluted the reasonable doubt standard. Furthermore, the court reinforced the primacy of its instructions over the attorneys’ statements at least twice during final arguments.
Nor do we find prejudice. As we explained above with respect to the Griffin error, we view the evidence that defendant kidnapped, raped and killed Virginia Correa as compelling. Whether viewed singly or in combination, we find that the prosecutor’s errors in closing arguments were harmless “beyond a reasonable doubt [in] that the error[s] complained of did not contribute to the verdict obtained.” (Chapman v. California, supra, 386 U.S. at p. 24.)
CONCLUSION
The trial court did not abuse its discretion in denying defendant’s mistrial motion regarding the witness’s remark that defendant had spent some time in jail. We find that the prosecutor did commit Griffin error. Assuming the prosecutor also made a comment that trivialized the reasonable doubt standard, we find the errors, either singly or in combination, harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Premo, Acting P.J., Elia, J.s.