Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. 07F00606
SIMS, J.This case arises from a fixed harness race on May 5, 2006, at the Cal Expo racetrack in which two jockeys agreed to finish no better than fourth place. Harness racing involves standardbred horses pulling drivers who ride in two-wheel carts. A jury convicted defendant Daniel Ray Maier of conspiracy to commit grand theft by fixing a horse race (Pen. Code, § 182, subd. (a) & 487), grand theft by false pretenses (§ 487, subd. (a)), and bribing a player not to use his best effort (§ 337b).
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends that the prosecutor committed Griffin error during closing arguments by commenting on his failure to testify about his betting strategy for the fixed race. (Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] (Griffin).) Defendant also argues that the trial court erred by failing to dismiss the jury pool after two prospective jurors made remarks about fixed races at Cal Expo, and that the order of probation should be corrected.
We agree with defendant that the prosecutor committed Griffin error, and that the error was prejudicial. Accordingly, we shall reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
In December 2007, the California Attorney General’s Office filed an amended information charging defendant and Todd Ratchford with conspiracy to commit grand theft by fixing a horse race (§§ 182, subd. (a) & 487), and grand theft by false pretenses (§ 487, subd. (a)). Defendant was also charged with bribing a competitor not to use his best effort in a sporting event (§ 337b), and Ratchford was additionally charged with accepting a bribe (§ 337c).
Evidence adduced at trial showed that defendant was one of the biggest betters at the Cal Expo racetrack, sometimes betting 10 percent of the entire pool. The large wagers placed by defendant would sometimes change the odds so that his payouts upon winning were lower than they would have been with a larger betting pool. According to one horse owner and breeder at Cal Expo, defendant was a “lunatic” better who had “his own unique style” of placing wagers.
Raymond Burt was a driver and trainer at the Cal Expo harness races in May 2006. On May 3, 2006, defendant asked Burt to fix an upcoming race by not finishing “in the trifecta.” A trifecta consists of the first three racers across the finish line. In exchange for throwing the race, defendant promised to pay Burt $1,200. Defendant also told Burt, “Don’t worry about Todd.” Burt understood this to mean that Todd Ratchford had also agreed not to finish in the trifecta. Burt agreed to the plan, considering it “easy money.”
On the morning of May 5, 2006, defendant again spoke with Burt to confirm the plan. Defendant stated that his brother, Jason Maier, was going to win the race. Burt then made two bets placing Jason Maier’s horse in first place and excluding his and Ratchford’s horses from the trifecta.
Defendant placed 44 trifecta bets that included every combination of horses except for the two driven by Burt and Ratchford.
As Burt led his horse to the starting gate, he asked Ratchford, “Have you spoken to the kid or not?” Defendant’s nickname among racers was “the kid.” Burt received a confirming smirk from Ratchford.
During the race, Burt did not drive aggressively. Instead, he rode to the outside of Ratchford to “put up a wall” that would make it hard for any other horse to pass them. Burt finished fourth and Ratchford finished in fifth place.
After the race, defendant gave Burt the promised $1,200 plus an extra $60 for “doing a good job.” Burt then cashed in his winning tickets for a gain of $1,596. For winning trifecta bets, the payout was “too low.” Payouts were halted soon after Burt received his winnings, and he realized that he faced trouble.
On May 11, 2006, Burt confessed to Fred Kuebler, the race secretary for the Sacramento Harness Association, that he had accepted a bribe from defendant and had helped fix a race. Later that day, Burt met with Ratchford, defendant, and defendant’s father in a hotel room. The four of them decided to deny fixing the race and sought to fabricate a single, credible story. At his next meeting with Kuebler, Burt claimed not to remember anything about his earlier confession.
Burt subsequently pled guilty to accepting a bribe from defendant. In exchange for being allowed to reapply for his racing license upon successful completion of probation, Burt agreed to testify against defendant and Ratchford.
At trial, the prosecution called Jeremy Linnell as an expert on wagering analysis. Linnell compared the wagering data from the first harness race on May 5, 2006, with other races at Cal Expo to reach two conclusions. First, Linnell concluded that the wagering data from the first race indicated deliberate odds manipulation. Defendant’s early betting on Burt’s and Ratchford’s horses skewed the published odds to make them seem favored to win. Having changed the odds displayed to the public, defendant cancelled the bets five minutes later. Defendant then bought his 44 trifecta tickets, which excluded Burt and Ratchford from the top three finishers.
Second, Linnell concluded that it made no sense for defendant to place the large number of trifecta bets unless he was “absolutely sure” that Burt and Ratchford would finish no better than fourth place. Defendant placed trifecta bets for every combination of horses to place in the top three except for Burt’s and Ratchford’s. The size of defendant’s bets relative to the small betting pool at Cal Expo significantly reduced the normally expected payouts for winning trifecta bets. Such “overbetting” would be rational only if defendant was certain that Burt and Ratchford would not finish in the trifecta.
Linnell noted that his conclusions derived solely from a statistical analysis of the wagering data from Cal Expo, and could not account for any personal or unique betting strategies that defendant might have employed.
The jury convicted defendant on all counts, and acquitted Ratchford on all charges.
On January 25, 2008, the trial court suspended imposition of judgment and sentence, and placed defendant on formal probation for five years with various terms and conditions, including a one-year jail term.
DISCUSSION
I
Defendant argues that the prosecutor twice committed Griffin error during closing arguments by expressly referring to his failure to testify at trial. “Under the rule in Griffin v. California, supra, 380 U.S. 609, error is committed whenever the prosecutor or the court comments upon defendant's failure to testify.” (People v. Vargas (1973) 9 Cal.3d 470, 475 (Vargas), parallel citations omitted.) Defendant asserts that the Griffin error was prejudicial because the prosecutor’s comment focused on a key piece of evidence, i.e., the trifecta bets he placed immediately before the first race on May 5, 2005. Although we disagree with defendant that the first challenged comment constituted Griffin error, we agree that the prosecution later erred by commenting on his failure to testify. We cannot declare that the error was harmless beyond a reasonable doubt. Accordingly, we shall reverse.
A
During closing arguments, the prosecutor emphasized that Linnell’s statistical analysis indicated that the trifecta bets could be explained only by defendant’s certainty that both Burt and Ratchford would not be among the first three finishers. To this end, the prosecutor argued: “And there’s all these allusions to different strategies, different betting strategies, and [defense counsel] even read to you from a handicapping book that there can be all kinds of strategies. The defense never tells you what [defendant]’s strategy is when he’s wagering those bets. You never hear about what kind of gamble he’s making.
“[Defense counsel]: I’m going to object your Honor. That’s inappropriate. There’s an instruction a defendant can rely on the evidence. This is giving –- I just object to that. I don’t think that’s an appropriate argument.
“THE COURT: Counsel, you want to approach.
“(A sidebar conference was held off the record.)”
After the sidebar conference, the prosecutor continued her final summation. Toward the end of the summation, the prosecutor argued: “It’s [defendant] who we’re wondering about. [Defendant] sure doesn’t make a mistake. He sure doesn’t accidently leave Ratchford on the ticket. So Burt screws up. He admits he screws up. But that’s not really the point. [Defendant] doesn’t screw up. [¶] And by the way, he never explains why he places those $250 worth of wagers at the beginning. He never explains why he places those five bets in the win pool directly on the 1 and the 4. He never explains those.” Shortly thereafter, the jury was instructed and retired for deliberations. Outside the presence of the jury, defense counsel objected to the prosecutor’s argument as follows:
Burt also placed wagers on the race, intending to bet on Jason Maier and against himself and Ratchford. Burt’s initial bet, however, mistakenly left Ratchford on one of the tickets. Burt realized his mistake, cancelled the ticket, and placed a new trifecta bet that left Ratchford off the ticket.
“[Defense counsel]: Your Honor, I just would –- I was waiting till the end of [the Prosecutor]’s close, but I want to object again to the ending of her closing where she brought up, again, I believe a direct attack on [defendant] for not testifying by bringing up we never got any reason for why these bets on the 1 and 4 were cancelled.
“I think that’s inappropriate. I think we already –- I had already objected earlier to that. I think that could only be an attack on him not testifying when they said that those tickets trace back to him, and I think that’s a –- you know, I mean, grounds for a mistrial.
“THE COURT: [Prosecutor]?
“[Prosecutor]: Your Honor, I think he’s trying to make a Doyle objection. This doesn’t fall under that because I didn’t refer to the defendant not testifying or his right not to testify. I commented on the defense’s –- and I said defense, not defendant –- the defense’s failure to explain the incriminating conduct, which is entirely appropriate.
Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91]. In Doyle, the United States Supreme Court addressed the issue of a defendant’s silence following the advisement of rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]. The Doyle court held that the defendant’s exercise of right to remain silent could not be used to impeach his trial testimony. (Doyle, supra, at p. 611.) Because this case does not involve post-Miranda silence, the prosecutor probably meant to refer to Griffin.
“THE COURT: As to both of the objections, the earlier one that is left unruled, [defense counsel] went ahead and proceeded with her line, and as to this one, the Court overrules the objections.”
On appeal, defendant challenges the trial court’s ruling on both of his objections to the prosecutor’s argument.
B
We begin with the Attorney General’s threshold argument that defendant did not preserve the issue because he failed to make a timely objection and request for admonition of the jury. The Attorney General points out that defense counsel never requested an admonition, and waited until the jury began deliberating before objecting to the second challenged statement. We disagree that the issue has been forfeited.
Defense counsel objected immediately after the first challenged statement. An unreported sidebar conference ensued, and the prosecutor was allowed to continue the argument. After the second challenged statement, defense counsel did not immediately object. The trial court’s later ruling, however, indicated that an immediate objection would have been futile. The trial court ruled that both challenged statements were not error. Even if defendant’s objection was tardy, it served to show that the trial court did not perceive the prosecutor’s reference to defendant’s lack of explanation about his betting strategy to be error. A defendant is not required to make a futile objection in order to preserve an issue for review. (People v. Hill (1998) 17 Cal.4th 800, 820.)
In asserting forfeiture, the Attorney General urges us to follow the “indistinguishable” case of People v. Lancaster (2007) 41 Cal.4th 50. Lancaster, however, is distinguishable because the defense in that case failed to make any objection to the prosecutor’s argument. (Id. at p. 84.) The defendant in Lancaster never called on the trial court to rule on the asserted error or admonish the jury. (Ibid.) So, too, the defendants in the other cases cited by the Attorney General failed to make any objection to comments later challenged as Griffin error. (People v. Cornwell (2005) 37 Cal.4th 50, 91, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22 [no objection]; People v. Mesa (2006) 144 Cal.App.4th 1000, 1006 [same].)
The forfeiture rule serves to encourage counsel to object and give the trial court an opportunity to correct the error. (Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124-1125.) In the event of Griffin error, timely objection allows the trial court to admonish the jury that it may not assign any probative value to a defendant’s failure to testify. (See People v. Cornwell, supra, 37 Cal.4th at pp. 90-91.) Here, however, the trial court’s ruling that the comments did not amount to Griffin error was elicited by defendant’s objections. Any failure to request that the jury be admonished cannot be held against defendant because the record shows that the trial court would not have admonished the jury after finding no error in the prosecutor’s argument. The issue is preserved for review, and we proceed to consider the merits of defendant’s argument.
C
As the California Supreme Court has explained, “Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence. Directing a jury's attention to a defendant's failure to testify at trial runs the risk of inviting the jury to consider the defendant's silence as evidence of guilt. (Griffin v. California, supra, 380 U.S. at pp. 614-615; People v. Frye [1998] 18 Cal.4th [894,] 1019 [disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421 & fn. 22].)” (People v. Lewis (2001) 25 Cal.4th 610, 670, parallel citation omitted.) The Griffin rule rests on “the principle it is fundamentally unfair for the state to afford defendants the right to remain silent and then use that silence against them.” (People v. Champion (2005) 134 Cal.App.4th 1440, 1449.)
The rule against commenting on a defendant’s invocation of the right to remain silent, however, is not unbounded. “It is now well established that although Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule ‘does not 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.’” (Vargas, supra, 9 Cal.3d at p. 475, quoting People v. Burns (1969) 270 Cal.App.2d 238, 247.) “The Fifth Amendment protects defendant's right to remain silent. It does not protect his effort to exploit his silence by requiring the government also remain silent.” (People v. Austin (1994) 23 Cal.App.4th 1596, 1612-1613, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 861.) If the prosecution makes “no attempt to suggest defendant's invocation of his right to remain silent was substantive evidence of guilt,” the rationale of Griffin does not apply. (Id. at pp. 1612-1613.)
Here, the first comment claimed by defendant to constitute Griffin error falls into the category of permissible argument regarding the state of the evidence. The prosecutor did not refer to defendant’s failure to testify at trial when noting that “[t]he defense never tells you what [defendant]’s strategy is when he’s wagering those bets.” With this comment, the prosecution sought to draw the jury’s attention to the fact that defense counsel’s reading from a book of betting strategies did not explain how defendant’s own betting strategy could have made any kind of logical sense. The prosecutor’s comment on the failure of “the defense” to explain the trifecta betting strategy permissibly responded to defense counsel’s earlier argument.
Defendant argues that only he could have explained his subjective betting system, and thus the comment on the failure to elucidate the basis for the trifecta bets could have referred only to his silence at trial. In support, defendant relies on the case of People v. Murtishaw (1981) 29 Cal.3d 733 (Murtishaw), superseded by statute on other grounds as noted in People v. Boyd (1985) 38 Cal.3d 762 at pages 773-774. In Murtishaw, the California Supreme Court declared that it is error “‘for the government to say, in summation to the jury, that certain evidence was “uncontradicted,” when contradiction would have required the defendant to take the stand, drew attention to his failure to do so, and hence was unconstitutional.’” (Id. at p. 757, quoting United States v. Flannery (1st Cir. 1971) 451 F.2d 880, 881.) In Murtishaw, the prosecutor committed error by arguing that the statements of a coconspirator were “uncontradicted” because only defendant’s testimony could have refuted them. (Id. at 757.)
Defendant’s reliance on Murtishaw is unfounded because the prosecutor’s first comment on the failure to explain defendant’s betting strategy was aimed to cast doubt on the handicapping book quotations’ applicability to this case. The prosecution was entitled to point out weaknesses in defense counsel’s closing argument. (People v. Vargas, supra, 9 Cal.3d at p. 475.) The first challenged comment did not amount to Griffin error.
The prosecution’s second comment on defendant’s betting strategy, however, constituted Griffin error. This comment referred to the defendant personally. It was preceded by the prosecution’s reference to Burt’s testimony at trial in which “[h]e admits he screws up.” Continuing in the same vein, the prosecutor turned to defendant’s failure to testify as to his betting strategy. The prosecutor argued that “he never explains why he places those $250 worth of wagers at the beginning. He never explains why he places those five bets in the win pool directly on the 1 and the 4. He never explains those.”
The prosecutor’s use of the pronoun “he” could have referred only to defendant himself. Only defendant, and not defense counsel, placed the bets to which the prosecutor referred. By referring to defendant personally and emphasizing his failure to explain his betting strategy, the prosecutor committed Griffin error. (People v. Lewis, supra, 25 Cal.4th at p. 670.)
Having determined that the second comment on defendant’s silence as to his betting strategy constituted Griffin error, we must assess whether the error proved prejudicial.
D
As with other violations of a federal constitutional right, Griffin error requires reversal of the judgment unless we are able to declare the error harmless beyond a reasonable doubt. “The applicable test for determining whether an error which violates federal constitutional principles is reversible error is set forth in Chapman v. California, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824], wherein the court held that ‘before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ This determination ‘must be based on our own reading of the record and on what seems to us to have been the probable impact of the... [errors] on the minds of an average jury.’ (Harrington v. California [1969] 395 U.S. 250, 254 [23 L.Ed.2d 284, 287-288, 89 S.Ct. 1726].)” (Vargas, supra, 9 Cal.3d at p. 478, parallel citations omitted.)
We cannot conclude beyond a reasonable doubt that the prosecution’s drawing attention to defendant’s silence as to his betting strategy did not affect the jury’s verdict.
The prosecution’s case against defendant relied primarily on testimony by Burt and Linnell. Burt testified that defendant had bribed him and told him that Ratchford also was going to throw the race. Burt’s credibility, however, was undermined by his admission that he had bet against himself on “numerous” prior occasions. Another rider at Cal Expo testified that Burt was a “desperado” who was willing to cheat for financial gain and would say anything to get himself out of trouble. After the May 5 race, Burt confessed to Kuebler only to deny the confession shortly thereafter. Burt then pled guilty to throwing the race and hoped to secure a favorable result by testifying against defendant. The fact that defendant’s co-defendant, Ratchford, was acquitted on all charges indicates that the jury lacked complete confidence in Burt’s testimony. Burt had testified that he received a telling smirk from Ratchford, indicating Ratchford’s participation in the conspiracy to fix the race.
The linchpin of the prosecution’s case was Linnell’s testimony. The statistical analysis presented by Linnell indicated that defendant’s exotic trifecta betting constituted “overbettting” that skewed the odds against him. Such overbetting, combined with defendant’s particular combination of 44 trifecta bets, made rational sense only if he was “absolutely sure” that neither Burt nor Ratchford would finish in the top three. Thus, the trifecta bets were used to prove the grand theft by indicating defendant knew Burt and Ratchford had agreed to throw the race. Moreover, the statistical analysis also suggested the existence of the conspiracy itself because it demonstrated defendant’s confidence in the outcome.
Linnell’s evidence was highly probative on all charges against defendant. By arguing that defendant failed to explain his betting strategy at trial, the prosecution supplemented the limitations of Linnell’s analysis with defendant’s silence. The inability of the statistical analysis to account for subjective, irrational, or intuitive betting strategies was filled in by pointed reference to defendant’s failure to explain his actual strategy for the trifecta bets.
Defendant introduced testimony showing that he was considered a “lunatic” better who regularly placed wagers that were large enough to skew the payout odds against him. Defense counsel also read to the jury from a handicapping book that explained many betters had individual and subjective strategies. The comment on defendant’s silence improperly sought to tip the scale on a vigorously contested issue of betting strategy by taking the focus off of the conflicting evidence introduced by both sides and putting it on defendant’s silence. The Griffin error went to the crux of the case.
Burt’s problematic credibility and the inherent limitations of statistical analysis in establishing the necessary intent for theft and bribery lead us to conclude that the prosecutor’s emphasis on defendant’s failure to testify prevented the error from being harmless beyond a reasonable doubt. (People v. Glass (1975) 44 Cal.App.3d772, 780 [Griffin error held to be prejudicial where defendant’s silence used to “supplement” the prosecution’s case when the evidence of guilt was not strong].) We conclude that the Griffin error requires reversal of the judgment.
II
Having determined that the judgment must be reversed, we need not address defendant’s other contentions that the jury pool should have been dismissed after two jurors commented on races at Cal Expo being rigged, or that the probation order needs to be corrected as to custody credits and delete a conviction for which he was not charged.
DISPOSITION
The judgment is reversed.
We concur: SCOTLAND , P. J., RAYE , J.