Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. YA 061485, Mark S. Arnold, Judge.
Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant contends the prosecutor’s comments during closing argument constituted Griffin error.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
FLIER, J.
After a jury trial in which he represented himself, appellant was found guilty of attempted second degree robbery. The jury found true the allegation that appellant personally used a firearm in the commission of the attempted robbery. Appellant, who had three prior strikes, received a sentence of 40 years to life.
This appeal followed.
FACTS
1. Prosecution Evidence
Around 9:00 p.m. on April 17, 2005, a man attempted to rob a Carl’s Jr. restaurant located at the corner of Redondo Beach Boulevard and Van Ness Avenue. The man had on a motorcycle helmet with a lowered visor and wore black pants, a black sweater with a hood, gloves and white shoes. He pulled a gun from his pocket and ordered the restaurant shift leader, Mr. Gomez, to open a safe in the back office. Gomez told the man he could not open the safe because it was locked. After confirming the safe was locked, the man began looking for the manager. He went into the back office, remaining there about three minutes, and then left the restaurant.
In the restaurant parking lot, Gomez met Mr. Villalobos, a security guard from the Ralphs supermarket across the street. Villalobos had parked his truck outside the restaurant intending to go inside. As he was getting out of his truck, he saw a man at the cashier area inside the restaurant. When the man saw Villalobos, he left the restaurant. Villalobos noticed that the man was wearing a helmet and black jacket, and he appeared to be carrying something that Villalobos thought was a gun. Fearing he was going to be shot at, Villalobos feigned pulling out a gun of his own. The man turned and began running towards the alley.
Gomez, who had followed the perpetrator at a distance, told Villalobos the man had tried to rob the restaurant at gunpoint. Villalobos got back into his truck and drove towards the alley, which quickly dead-ended. As Villalobos backed out of the alley, he saw a white car pull out of a parking space. No one else, either on foot or in a vehicle, was in the area.
Villalobos began pursuing the white car. He saw the car go through a red light at the first intersection, make a turn and accelerate rapidly. Villalobos followed the car and called 911. He gave the operator the vehicle’s license number and direction of travel. The car drove in an erratic pattern, speeding through stop signs. Villalobos testified that a police car soon appeared and blocked the car’s path. Police officers approached the white car with their weapons drawn, and they ordered the man out of the car.
Later that evening, Villalobos was asked to look at the man driving the white car. He identified the man as appellant. The officers showed Villalobos a white jacket, which, after it was turned inside out to its dark side, Villalobos identified as the one the man at the restaurant was wearing.
Villalobos assisted police officers in retracing the route appellant had taken from the restaurant. In doing so, they found a black motorcycle helmet resembling the one worn by the perpetrator in a bush.
The helmet, which was in evidence, had distinctive markings.
Officer Osorio of the Gardena Police Department testified that he and his partner saw a speeding white car go past them just after receiving a radio call concerning a possible attempted robbery. They gave pursuit and, at some point, noticed a truck following the car. They eventually caught up to the white car and pulled it over by activating the police lights and siren. Officer Osorio identified appellant as the person driving the white car.
Sergeant Roosen of the Torrance Police Department testified that he spoke with appellant at the scene of the stop. Appellant told the sergeant he had just come from his girlfriend’s home near Redondo Beach Boulevard and Yukon Avenue. Appellant gave his girlfriend’s first name but, when questioned further, could not provide her last name or phone number. He told Sergeant Roosen he would not be able to point out her home even if taken to the location.
Sergeant Roosen noticed that appellant was wearing a tank top and was sweating, even though it was a cold night and all the car windows were down. The officer informed appellant he was being detained regarding a possible robbery at Carl’s Jr., at which point appellant declined to talk further.
Victim Gomez was later brought to the scene for a field identification. He was asked to view appellant from a distance of over 20 feet in poor lighting. Gomez was unable to identify appellant as the perpetrator. Appellant was dressed differently than the perpetrator, in black jeans, a muscle shirt and white tennis shoes. At the preliminary hearing, Gomez was shown the stained jeans appellant was wearing upon arrest and testified he did not remember seeing stains on the perpetrator’s jeans. He also had testified the perpetrator was a couple of inches taller with the helmet on than his own five-foot six-inch height. At trial, however, Gomez testified it was still possible that appellant was the perpetrator even though it was apparent that appellant was substantially taller. Gomez believed the perpetrator was Hispanic based on his skin color and accent.
It was stipulated that a glove was recovered from appellant’s car on the evening of the incident and that appellant’s fingerprint was on the black helmet recovered from the bush along the route the white car had driven. It was also stipulated that two videos, one of the charged incident and one of an uncharged incident, were given by the security division of Carl’s Jr. to the Torrance Police Department. The videos were played for the jury.
2. Defense Evidence
Officer Alarcon of the Gardena Police Department testified he drove the police car that caused appellant’s car to stop. He did not speed up and block appellant’s car but rather activated the police lights and appellant pulled over.
Appellant argued to the jury that the evidence against him was circumstantial and he could not have been the perpetrator, because his clothing did not match that of the perpetrator.
DISCUSSION
THERE WAS NO GRIFFIN ERROR
Appellant contends that a statement by the prosecutor during final argument constituted improper and prejudicial comment on his failure to take the witness stand, in violation of Griffin, supra, 380 U.S. 609.
During final argument, the prosecutor told the jury: “I’m the one that’s supposed to prove something. The [appellant] does not have to prove anything to you. I’m the one who has to prove something. . . . [¶] . . . It’s my chance to speak about things that I heard [appellant] say during his own closing arguments. [¶] . . . [¶] If you want to know whether [appellant] is guilty, ask him why he has never explained to you how his fingerprints ended up on this helmet. Now he just gave you an entire closing speech and argument as to why you’re not supposed to find him guilty. And [he] never addressed the glaring fact that his fingerprints are sitting on this helmet minutes after the same helmet is seen inside a Carl’s Jr. on a guy who is trying to rob it. [¶] He can’t change that fact. He can’t change the fact that when you look at that video, you’re going to see gloves, and one of the gloves that was found in his car is the same. . . . So if you want to know if he’s guilty, just ask yourself why is there no explanation for this piece of hard evidence.” The prosecutor went on to address other trial evidence and other comments made by appellant during his closing argument.
At the conclusion of the prosecutor’s argument, appellant asked the court if he could “object to something.” The court said no, but he could do so after the jury retired. After the jury retired, the court asked appellant what his objection was. Appellant said, “Nothing anymore. I understand. I don’t want to object.”
Subsequently, appellant’s reappointed counsel made a motion for new trial, one of the grounds of which was prosecutorial misconduct. Defense counsel based the motion on the prosecutor’s comments regarding appellant’s failure to call his girlfriend, not the helmet and fingerprints. The trial court found no error. On appeal, appellant contends the prosecutor committed misconduct for which reversal of his conviction is required.
Respondent contends that appellant never objected to the prosecutor’s comment at issue. A failure timely to object to prosecutorial misconduct under Griffin on the basis argued on appeal, or to request an admonition to cure any perceived harm, fails to preserve the claim for appeal. (People v. Lewis (2001) 25 Cal.4th 610, 670 (Lewis); People v. Berryman (1993) 6 Cal.4th 1048, 1072 (Berryman).) We need not determine this issue because we find the claim of prosecutorial misconduct lacks merit.
Appellant concedes that he may not raise the issue of ineffective counsel at trial since he chose to represent himself at trial.
1. The Prosecutorial Misconduct Claim Lacks Merit
Under the Fifth Amendment of the United States Constitution, made applicable to the state by the Fourteenth Amendment, a prosecutor is prohibited from commenting directly or indirectly on a defendant’s invocation of the constitutional right to silence. A prosecutor runs the risk of inviting the jury to consider a defendant’s silence as evidence of guilt by directing the jury’s attention to the defendant’s failure to testify at trial. (Lewis, supra, 25 Cal.4th at p. 670; Griffin, supra, 380 U.S. at pp. 614-615.) However, the prosecutor is permitted to comment on the state of the evidence, including any failure of the defense to introduce material evidence or call witnesses. (Lewis, at p. 670.) When comments made by the prosecutor before the jury are at issue, the relevant question is whether there is a reasonable likelihood that the jury construed or applied the remarks in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th 795, 841; Berryman, supra, 6 Cal.4th at p. 1072.)
Here, appellant contends the prosecutor’s statement to the jurors in rebuttal that they “should ask [a]ppellant why he had never explained how his fingerprints got on the helmet” was a thinly veiled comment on his failure to testify and improperly suggested appellant somehow had a duty to prove his innocence. Appellant argues the jury could only have understood the prosecutor’s comments to refer to appellant’s failure to testify, because there were no other witnesses who could have explained the presence of appellant’s fingerprints on the helmet.
When viewed in context, it is clear the prosecutor’s remark was merely a comment on the evidence. His statement was immediately preceded by his telling the jury that “I’m the one that’s supposed to prove something. The [appellant] does not have to prove anything to you.” The prosecutor was not commenting on appellant’s failure to testify but merely responding to appellant’s argument that there was only circumstantial evidence of his guilt. The prosecutor simply pointed out that appellant’s argument had failed to address how his fingerprints could have been found on a helmet that had only minutes before been seen on the person attempting to rob the restaurant. In denying the motion for a new trial, the court noted appellant had admitted in argument that the helmet was his and his prints were on it, and it was not improper for the prosecutor to say there was no explanation for the helmet.
We find no error in the ruling. Appellant was acting as his own attorney. The prosecutor was calling attention to the defense’s failure to provide an innocent explanation for appellant’s fingerprints appearing on the helmet. This was nothing more than a fair comment on the state of the evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1338.) A reasonable juror would not have construed the prosecutor’s argument as a comment on appellant’s failure to testify, or an exhortation to the jury to infer guilt from that silence. (People v. Medina (1995) 11 Cal.4th 694, 755-756.)
There is therefore no reasonable likelihood that the jury was improperly influenced by the prosecutor’s comments.
2. Appellant Has Not Shown Prejudice
In any case, the prosecutor’s isolated statement was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) “ ‘[I]ndirect, 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. [Citations.]’ ” (People v. Bradford, supra, 15 Cal.4th at p. 1340, quoting People v. Hovey (1988) 44 Cal.3d 543, 572.)
We conclude there was no possible prejudice that could have resulted from the prosecutor’s comment.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.