Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. BAF005976 Roger A. Luebs, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
A jury convicted defendant Miguel Angel Rivas of attempted extortion (count 1—Pen. Code § 524), conspiracy to commit extortion (count 2—§§ 182, subd. (a)(1), 518), and extortion by posing as a kidnapper (count 3—§ 210). In addition defendant admitted an allegation that he was out on bail on another charged offense when he committed the instant crimes. (§ 12022.1.) The court sentenced defendant to an aggregate term of three years’ incarceration.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant makes three contentions: (1) the prosecutor committed Wheeler/Batson error in utilizing a peremptory challenge to excuse the only African-American from the venire panel; (2) the prosecutor committed reversible error by failing to provide defendant with timely statutory discovery of the testifying FBI agent’s report until after he had already begun testifying; and (3) the prosecutor committed prejudicial misconduct in her rebuttal argument by commenting on defendant’s failure to testify. We affirm the judgment in full.
People v. Wheeler (1978) 22 Cal.3d. 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
FACTUAL AND PROCEDURAL HISTORY
On March 7, 2008, Juan Carlos Gonzalez contacted his brother-in-law, Eleazar Fernandez, to inform the latter that Gonzalez had been contacted by someone claiming to have kidnapped Gonzalez’s wife, Sandra Fernandez, and requesting a ransom. Gonzalez gave his phone to Eleazar and requested that Eleazar relay to the kidnappers that $50,000 plus two cars were available to pay the ransom. Gonzalez told Eleazar that he was going to Mexico to attempt to obtain more money.
For ease of reference, and with no disrespect, Eleazar and Sandra Fernandez will be referred to by their first names.
After discussing the matter with his sisters, Eleazar decided to report the situation to the police. He contacted officers at the Beaumont Police Department and relayed the story of Sandra’s alleged kidnapping. Eleazar and some police officers went to Sandra’s residence to check on her; the home was locked and no one was inside. Eleazar later heard from family that Sandra had been dating someone who lived in Moreno Valley. Eleazar also discovered that Sandra’s last known destination was a nail salon at the Rio Rancho Mall in Moreno Valley. He called Sandra’s cell phone, but it went straight to voice mail.
On March 8, 2008, Eleazar received a ransom call. The caller asked for $750,000. Eleazar heard Sandra moan her husband’s name in background; she sounded as if she were tired and had been crying. Eleazar informed the police of the call. He received another call on March 9, 2008. He informed the caller that $50,000 and two cars were available to pay the ransom. The caller became upset and told Eleazar that he was not “playing games.” Eleazar subsequently received approximately two calls per night during which the caller continued to ask for money and became angry. Every time he received a call, Eleazar informed the police.
As the People correctly point out, Sandra later testified that she and Gonzalez were not technically legally married as their relationship had never been formally solemnized. Nonetheless, she had been with him for 14 years and had three children with him; therefore, she considered herself married.
On March 10, 2008, two FBI agents were at Eleazar’s house investigating, recording calls, and assisting him with the calls. That night he received a call during which he informed the caller that the family was attempting to arrange a loan on their home to pay the ransom. The caller told him that he was not playing games and that he was going to start sending Sandra to Eleazar in pieces. The caller hung up, but called back 15 minutes later. In contrast to the previous calls, the calling number came up on caller ID. Over the next two days Eleazar received a number of calls from the ostensible kidnapper. During these calls, the kidnapper informed Eleazar that Sandra was in “bad shape” and repeated his threat to send her to Eleazar in pieces.
The officers reviewed security video footage of the mall where Sandra was last known to have been headed. The footage showed Sandra arriving at the nail salon on March 5, 2008, and later leaving with defendant. The phone number that showed up on Eleazar’s caller ID was traced to an address at a gas station in Hacienda Heights. Officers reviewed security video of the gas station recorded at the time of the ransom call. The footage showed a champagne colored Cadillac Escalade pull up next to one of the gas pumps. Three Hispanic males exited the vehicle. Two walked towards the payphone while the other went inside the minimart. The latter individual was identified as defendant. The vehicle belonged to defendant.
Officers obtained and reviewed the call records of Sandra’s cell phone. They noted one cell phone number, which had been involved in frequent, long-duration calls to Sandra’s phone prior to the kidnapping. On March 10, 2008, they obtained a location for that cell phone by conducting a “ping.” A “ping” is where “one of the [cell phone company’s] technicians will actually send a signal to the phone that we have requested. That signal will get received by that phone. And the phone will provide its location to [the cell phone company].” The result was a location on Filaree Avenue in Moreno Valley. It corresponded with defendant’s current address.
Officers also obtained the records of the cell phone on which the ransom calls were received. From those records they were able to obtain the number from which most of the ransom calls were made. The subscriber records for that number reflected a name other than defendant’s; however, the address on the records was defendant’s previous address. Officers then had a “ping” conducted on one of defendant’s cell phone numbers, which reflected the location on Filaree Avenue in Moreno Valley. An officer later conducted surveillance on Filaree Avenue. There, he witnessed a vehicle matching the one seen in the gas station video footage. Officers arrested defendant on March 13, 2008. No ransom calls were received after defendant’s arrest.
Sandra was detained at the United States-Mexico border on March 14, 2008. She was picked up by Beaumont police officers and brought to their station. Sandra initially informed the officers that she had been run off the road and kidnapped by a Hispanic male. However, later that day she related the events to which she testified at trial. Sandra was arrested that day. Prior to trial she entered into a plea agreement in which she pled guilty to charges relating to the kidnapping in return for probation with a requirement that she testify truthfully.
At trial Sandra testified that she had known defendant for several months. On March 5, 2008, she went to the Rio Rancho Mall to get her nails done. Defendant met her there; they left together. They went out for drinks and obtained a hotel room thereafter. They engaged in sexual intercourse over the course of two nights at the hotel.
Sandra informed defendant she was afraid to return home to her husband after her two-day absence. Defendant suggested that he kidnap her. He said he knew the procedure because he knew someone in Tijuana who had done it before. Defendant suggested that he call Sandra’s husband and request a ransom. He inquired regarding Gonzalez’s financial status so as to determine how much ransom to request. Sandra relayed to defendant her husband’s financial situation. Sandra agreed to go along with a “pretend” kidnapping. She gave defendant all the phone numbers he would need to call.
Another individual whom defendant knew came to the hotel room and began planning the kidnapping with defendant. Yet another individual took Sandra to Tijuana, Mexico; defendant stayed in the United States. Sandra maintained contact with defendant via a walkie-talkie for the first couple of days, but lost contact with him thereafter. Things soon took an undesirable turn. A third individual unknown to Sandra locked her in an apartment; he had a gun. Her cell phone, purse, and credit cards were taken from her. The latter individual was making the ransom calls. At one point she screamed out her husband’s name during a call after the individual punched her in the chest. Sandra became scared and hungry.
Sandra was in Tijuana for five to six days. She was let go after being informed that her husband would not pay anything for her, though she was told they now had her son. Sandra made her way to the border where she was detained because she did not have a passport.
DISCUSSION
A. Wheeler/Batson Motion
1. Facts
During voir dire, in response to question No. 9 on the juror questionnaire, prospective juror No. 3 stated: “Well, I would say yes. Like number 9, you know, it says, will I have any difficulty. I think I have some difficulty if I disagree, but I’ll still work with it, sure.” Later, when asked whether he would be able to follow the law even if he thought it was ridiculous, prospective juror No. 3 stated, “If I disagree, I think I could still work with it.”
Juror questionnaire, question No. 9 read: “Will you have any difficulty following the law as given to you by the judge, even if you disagree with it?”
Prospective juror No. 3 informed the court that he was an accountant at a Christian church and school. He indicated that, while he was not attending church where he worked, he did attend elsewhere. When given a hypothetical by defense counsel regarding whether the jurors would be able to evaluate a witness’s testimony dispassionately despite knowing that the witness had committed adultery, prospective juror No. 3 replied, “There is such a thing as a sin, a sin and a crime is not the same thing. The Bible says infidelity is a sin. That is what I understand and there is a difference between a sin and a crime.” He further expounded: “Personally for me I don’t mind listening to a person. I don’t have a problem listening to the case once presented. Because a sin was committed, I can still sit and listen, because I’m about justice. I understand we live in a land where we have to deal with justice.” When directly asked whether he would disregard a witness’s testimony because of a personal flaw, he replied that he would not.
Thereafter, the People exercised a peremptory challenge to excuse prospective juror No. 3. Defendant’s counsel instantly challenged the People’s peremptory challenge by an oral Wheeler motion. Defense counsel noted that prospective juror No. 3 was an African-American. The court noted that defense counsel was African-American, prospective juror No. 3 was African-American, and that defendant was Hispanic. The court then stated, “With respect to [prospective juror No. 3], does seem to me that there may be a prim[a] facie case has been made. He is the only African American up there. He is being kicked for no apparent reason as far as I can see. The People have some explanation as to why?” The People responded, “I do, your Honor. I have in my notes that when [prospective juror No. 3] was initially questioned he specifically stated that he would have difficulty following the law if he disagreed with, but, quote, he would still work with it. I felt uncomfortable with that statement. In addition, [prospective juror No. 3] kind of got into, and I understand it was in response to another juror’s comment, but he did get into sin versus, you know, criminal activity. And I felt a little bit like he was lecturing. And I didn’t feel comfortable with how he would be with other jurors deliberating. That was my basis, those two reasons.”
The court replied “Well, I have no problem with you—I was surprised he was kicked as well given the totality of his answers, but given your comments I could see where some prosecutor might reasonably feel that those issues made him an unsuitable juror. I’m going to find that you did have sincere, honest good faith belief that he was an inappropriate juror from your perspective unrelated to his ethnicity. So I’ll deny the Wheeler motion at this time.” (Underscoring omitted.)
Defendant contends the court erred in denying his Wheeler motion. We disagree.
2. Analysis
“Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. [Citations.]” (People v. Watson (2008) 43 Cal.4th 652, 670.)
“There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.] To do so, a defendant must first ‘make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial... exclusion” by offering permissible race-neutral... justifications for the strike[.] [Citations.] Third, “[i]f a race-neutral... explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful... discrimination.” [Citation.]’ [ Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341, quoting Johnson v. California (2005) 545 U.S. 162, 168.)
If the trial court concludes that the defendant has made a prima facie case, and if the prosecutor offers a race-neutral justification, “‘the trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily....’ [Citation.]”’ [Citation.]” (People v. Watson, supra, 43 Cal.4th at p. 670.) “‘[T]he critical question... is the persuasiveness of the prosecutor’s justification for his peremptory strike.’ [Citation.] The credibility of a prosecutor’s stated reasons for exercising a peremptory challenge ‘can be measured by, among other factors... how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 469.) “‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 613.) “Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions.” (Ibid.)
Notably, the court never explicitly found that defendant had demonstrated a prima facie showing of discriminatory purpose. Rather, the court merely indicated that a prima facie showing “may” have been made. “Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult. [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.) Here, prospective juror No. 3 was the only African-American dismissed from the venire. Although, the People had dismissed a single Hispanic potential juror also, additional Hispanic jurors remained on the panel to which the People expressed no opposition. Thus, it is not at all clear that defendant even made a prima facie showing in the first instance.
Moreover, substantial evidence supports the trial court’s determination that the People’s excusal of prospective juror No. 3 was properly motivated by trial tactics and not impermissible group bias. Prospective juror No. 3 answered that he would have difficultly following the law given him by the judge if he disagreed with it. His statement that he would “still work with it” could reasonably be construed as an indication that he would merely attempt to set aside his disagreement with the law rather than confirmation that he could absolutely do so. Indeed, as later questioned regarding the matter, prospective juror No. 3 stated “I think I could still work with it.” (Italics added.) This statement even further solidified the nebulous status of prospective juror No. 3’s ability to set aside his own beliefs and follow the law. Although a contrary inference could be drawn from his statements, we do not reweigh the evidence to determine which inference is stronger. (People v. Bean (1988) 46 Cal.3d 919, 932-933 [trial court’s inference must be upheld if supported by substantial evidence].) Thus, the People’s stated reason for dismissing him was persuasive and credible.
Because we find the prosecutor’s first stated reason sufficient to support the trial court’s ruling, we find it unnecessary to address the People’s second ground.
B. Statutory Discovery
1. Facts
Prior to voir dire, the prosecutor announced in open court that she had informed the defense a few weeks earlier that she believed there was some new discovery she had yet to obtain. The prosecutor believed the discovery dealt with the tracing of various telephone numbers conducted by a FBI agent. The prosecutor indicated she had a meeting with the agent the next day and would obtain his files then. Defense counsel responded “And just for the record, I’ve advised my client of this new discovery that is outstanding. It is his position he is prepared to go forward. And, quite frankly, I don’t think it will [a]ffect the theory of our case.”
Two days later the People called FBI agent Chad Hoffman to the stand. The defense requested a side bar. The defense objected to Hoffman’s testimony on the basis that it had yet to receive his report: “I know that I believe that Agent Hoffman created his own report. A report that I didn’t mind receiving late if I had received it. I still haven’t received that. And I don’t know if he is going to be testifying to a report that he made personally or to just his involvement in the investigation, which is documented in a couple of other reports, but it was my understanding that he has his own separate report. And if he is going to testify to anything he has written in his own report, I have not had an opportunity to review that. And I certainly would want to review it before he should testify to any of it.” The People responded that they did not believe Agent Hoffman had a report. The prosecutor indicated that although she had not specifically asked Agent Hoffman whether he had compiled a report, she believed that his files contained only phone records. The court indicated that it would be shocked if Agent Hoffman had not written a report; nonetheless, it permitted the People to proceed with direct examination; the court decided to deal with the issue of any report if and when it came up.
Agent Hoffman testified that on March 8, 2008, he went to the Beaumont Police Department in response to the instant kidnapping case. He received and reviewed call records of Sandra’s phone. He identified frequent, long-duration phone calls made to Sandra’s phone from another number. A “ping” was conducted on that number reflecting the Filaree Avenue location. Subscriber records were obtained from the phone on which the ransom calls were received and, from those, the records from the phone with which the ransom calls were made. The latter records reflected defendant’s prior address. A “ping” of defendant’s cell phone located it on Filaree Avenue. Agent Hoffman determined that defendant was involved in the alleged kidnapping.
Defense counsel asked Agent Hoffman on cross-examination whether he had written a report. Hoffman replied that he had. Defense counsel then asked whether Hoffman was relying on his report to assist his memory in testifying. He replied that he was. Agent Hoffman indicated the report was approximately four pages long. Defense counsel cross-examined Hoffman for several minutes before indicating, “That’s all I have.” The People then requested a side bar conference.
The People asked whether the court was inclined to take up the issue of the report at that moment. The court indicated that it was disinclined to do anything until and unless someone requested that it do so. Defense counsel then requested that the court “take whatever steps it deems is appropriate including striking the testimony of this particular officer” based on the failure to disclose the report.
The court subsequently engaged in a lengthy rebuke of the prosecutor for her failure to timely disclose the report: “It seems to me on its face there is a discovery violation of a not [in]significant nature.” The prosecutor continued to insist that she had no knowledge of the existence of the report. The court ordered the report immediately distributed to defense, ordered the witness to remain available, indicated its intention to give the jury an instruction regarding the late discovery, requested the presence of the prosecutor’s supervisor, and recessed the matter to permit defense counsel to review the report. At 12:00 p.m., the court recessed for lunch.
At 1:03 p.m. the court recalled the matter. Defense counsel indicated that he had now received and read Agent Hoffman’s four-page report: “[I]t does prompt a few questions for [the agent], but it is largely in line with what he has testified to.” The court then asked defense counsel if he wanted anything other than a juror admonition regarding the late discovery. Defense counsel stated, “No, I think that is appropriate. I know that [the prosecutor] has done what she can to get what she thought she could get. And she did make me aware that something was out there.” Nevertheless, defense counsel indicated he felt “crippled” in his cross-examination of the agent without having the report.
The prosecutor noted that there was nothing material in the report that was not already contained in the multiple police reports that were already provided to the defense. The prosecutor’s supervisor similarly pointed out that Agent Hoffman’s report “was basically kind of a summary of what had been contained in the other reports, which is the reason why I guess there is no new material facts that defense is saying, hey, I just found this in this report.” The court permitted defense counsel to reopen its cross-examination of Agent Hoffman with “great liberality in terms of the scope of that reopen[ed] cross.” Defense counsel then further cross-examined Agent Hoffman. After completion of trial, the court instructed the jury with a modified form of CALCRIM No. 306.
The instruction read: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose: the report prepared by FBI Agent Hoffman [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
After the jury rendered its verdict, defense counsel filed a motion for new trial based in part on the discovery violation. At the hearing on the motion, defense counsel indicated that, in retrospect, he did not have sufficient time to review Agent Hoffman’s report to appropriately prepare for cross-examination. The court denied the motion.
Defendant contends the prosecution’s late provision of Agent Hoffman’s report requires reversal of his conviction. We disagree.
2. Analysis
“[T]he reciprocal discovery statute independently requires the prosecution to disclose to the defense, in advance of trial or as soon as discovered, certain categories of evidence ‘in the possession of the prosecuting attorney or [known by] the prosecuting attorney... to be in the possession of the investigating agencies.’ (§ 1054.1.) Evidence subject to disclosure includes ‘[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged’ (id. at subd. (c)) and ‘[a]ny exculpatory evidence’ (id. at subd. (e)). Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)” (People v. Zambrano (2007) 41 Cal.4th 1082, 1133 (Zambrano), overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Under federal constitutional due process provisions, the duty to disclose extends to evidence that is materially favorable to the accused regardless of whether the prosecutor acted in bad faith or whether the prosecutor’s office actually knew of or possessed the material so long as it was known to others acting on the government’s behalf. (Zambrano, at p. 1132.)
“A trial court may enforce the discovery provisions by ordering immediate disclosure, contempt proceedings, continuance of the matter, and delaying or prohibiting a witness’s testimony or the presentation of real evidence. (§ 1054.5, subds. (b) & (c)[.]) However, the exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial. [Citation.]” (People v. Jordan (2003) 108 Cal.App.4th 349, 358.) Appellate courts generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) Reversal is not warranted for any violation of California’s reciprocal discovery statute unless it is reasonably probable that the omission affected the result at trial. (Zambrano, supra, 41 Cal.4th at p. 1135.)
Here, we can discern no abuse of discretion in the trial court’s proffered remedies. The court ordered immediate disclosure of Agent Hoffman’s report. The court recessed the matter to give defense counsel sufficient time to review the report. The court ordered Agent Hoffman to remain available for further cross-examination. Counsel indicated that he had sufficient time to read the report. He stated the report was essentially in line with the substance of the agent’s testimony. The court then permitted defense counsel to reopen cross-examination with “great liberality in terms of the scope.” Upon completion of trial, the court instructed the jury that it could consider the People’s late disclosure of the report in evaluating Agent Hoffman’s testimony. The trial court’s proffered remedies to obviate any prejudice from the late disclosure were well within its discretion.
Indeed, it is readily apparent that the contents of the four-page report contained no materially exculpatory evidence or even evidence unknown to defendant beforehand. The People had forewarned defense counsel weeks prior to trial that some discovery, specifically regarding its witness Agent Hoffman, was forthcoming. Immediately prior to trial the People stated on the record that they had still not received that material. Defense counsel candidly stated he was prepared to go forward regardless because he did not anticipate the material would have any effect upon his case. All the information contained in the report apparently already existed in the various police reports provided to defendant. Indeed, Agent Hoffman’s testimony essentially recounted actions he and other officers had taken together. Hoffman largely testified that “we” obtained and reviewed telephone records and had others conduct “pings” of various cell phones. Thus, the substance of Agent Hoffman’s testimony was contained in the other reports. Therefore, defendant suffered no prejudice from the late disclosure, and certainly none which would have affected the result at trial.
Although we hold that the court acted within its discretion in declining to strike Agent Hoffman’s testimony and that defendant suffered no prejudice due to the late disclosure of his report, we are in no way minimizing the seriousness of the People’s violation of its statutory duty to disclose the report. Indeed, as the trial court properly and repeatedly noted, it is simply unfathomable that the People could believe that an FBI agent, who had been a primary participant in the investigation and who would serve as one of the People’s primary witnesses, would not have compiled his own report of that investigation. The People should have asked the agent whether he had prepared such a report, obtained it, and disclosed it well before trial. In other circumstances, such a failure might readily amount to prejudicial inaction in which suppression of testimony might be the only proper remedy.
Nonetheless, we disagree with the degree of importance that defendant attaches to Agent Hoffman’s testimony. Contrary to defendant’s contention, there is no clear evidence in this case that Agent Hoffman supervised the investigation or obtained most of the telephone records himself. Indeed, as noted above, Agent Hoffman testified in some instances that others obtained those records; in some he had acted collectively with the other officers. Another officer obtained the address for the unblocked number that was the source of the ransom call from the gas station. Another officer obtained the search warrants for the various cell phone numbers’ records. Other officers viewed and obtained the various surveillance recordings, and conducted surveillance of the Filaree Avenue residence. None of the other police reports are a part of our record; defendant did not attach them to his motion for new trial. Thus, there is nothing in this record to suggest that any of the information regarding the tracing of the various telephone numbers present in Agent Hoffman’s report were not also contained in the other officers’ reports, all of which were disclosed. Therefore, although Agent Hoffman may have directed or suggested some of the actions taken by the other officers, it is readily apparent that the substance of Agent Hoffman’s testimony could have been reconstructed by the presentation of the testimonies of the other officers who actually performed the substantive tasks.
C. Prosecutorial Misconduct.
During rebuttal argument, the prosecution stated, “But I bet you if he was on trial his dad would come in and testify, and, no, the defense doesn’t have an obligation to call witnesses or to produce evidence, but once the evidence is presented and it shows that the defendant did it and he is involved, if there was something to rebut that, don’t you think it would be presented to you.” Defendant objected. The court sustained the objection, but denied defendant’s request for a “side bar.” Defendant orally moved for a mistrial which the court denied. Defendant’s written motion for new trial filed after the jury rendered its verdict was based in part on the prosecutor’s alleged misconduct in commenting on defendant’s failure to testify. As noted above, that motion was denied.
On appeal, defendant contends the prosecutor’s alleged Griffin error amounted to a prejudicial deprivation of due process. We disagree.
Griffin v. California (1965) 380 U.S. 609.
“In Griffin, ‘the United States Supreme Court declared that the Fifth Amendment prohibits the prosecutor from commenting, either directly or indirectly, on the defendant’s failure to testify in his defense.’ [Citation.] This prohibition does not, however, ‘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.’ [Citations.] Moreover, ‘brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 419-420.) “Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.]” (People v. Hughes (2002) 27 Cal.4th 287, 371-372.)
Here, we hold that the prosecutor’s statement was “nothing more than proper fair comment on the state of the evidence.” (People v. Hughes, supra, 27 Cal.4th at p. 373.) The People’s statement correctly noted that defendant had no burden to produce evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) The People’s statement was a response to an anecdote recounted by defense counsel in his closing argument, relating to how he was once accused of stealing oranges by a neighbor, but was able to produce an alibi in the form of his father who was with him at the time of the theft. Thus, the People’s statement did not focus on defendant’s testimony, but reflected directly on the failure of the defense to introduce logical witnesses, other than defendant, who could support his theory of the case; it did not implicate defendant’s decision not to testify in any manner. Defendant’s theory of the case was that defendant had no involvement in the kidnapping; that the entire scheme was posed and orchestrated by Sandra. Indeed, defendant contended that he was simply a witness to the evolving criminal conduct of Sandra and his friends, but that he did not directly participate in it. Thus, those individuals who Sandra testified actually carried out the kidnapping would be pertinent defense rebuttal witnesses to the People’s version of events, which placed the blame for the kidnapping ploy squarely on defendant. Finally, the prosecution’s statement did not improperly suggest that an inference of guilt should be drawn from the defendant’s failure to produce those witnesses. (Bradford, at p. 1340.) As such, despite the trial court’s ruling on defendant’s objection, the prosecutor’s comment did not amount to misconduct. To the extent that it did, the fleeting nature of the single remark and the tenuous connection between the substance of the comment and defendant’s decision not to testify render any error harmless.
Defendant cites no authority for his proposition that prior to commenting on defendant’s failure to produce such exculpatory witnesses, the prosecution must demonstrate the availability of those witnesses.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI Acting P. J., KING J.