Filed 2/26/21 P. v. Shrofe CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BRYAN WAYNE SHROFE,

Defendant and Appellant.

 D076844

 (Super. Ct. Nos. SCD275604-04,

 SCD278606-02)

APPEAL from a judgment of the Superior Court of San Diego County, 

Runston G. Maino, Judge. Affirmed.

Alex N. Coolman, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha 

Cortina, Alan L. Amann and Christopher P. Beesley, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

I.

INTRODUCTION

Defendant Bryan Wayne Shrofe appeals from a judgment entered in 

Superior Court case Nos. SCD275604-04 and SCD278606-02. In case 

No. SCD275604-04, a jury convicted Shrofe of one count of burglary. In case 

No. SCD278606-02, Shrofe pled guilty to one count of unlawful possession of 

firearms ammunition and one count of unlawful possession of a firearm by a 

felon.

With respect to his conviction for burglary, Shrofe contends that the 

prosecutor committed misconduct during closing arguments by (1) improperly 

shifting the burden of proof to Shrofe, and (2) mentioning a specific item of 

evidence only in rebuttal, thereby “sandbagging” the defense and also 

improperly commenting on Shrofe’s failure to testify by suggesting that he 

failed to explain the existence of that evidence. We conclude that no 

prosecutorial misconduct occurred.

Shrofe also requests that this court review the transcript of an in 

camera hearing held in response to Shrofe’s motion to unseal, quash, and 

traverse a search warrant that was executed in connection with the case in 

which Shrofe pled guilty to unlawful possession of firearms ammunition and 

unlawful possession of a firearm. Shrofe asks this court to review the in 

camera hearing transcript and any documents presented to the court during 

that hearing to determine whether the search warrant was properly sealed. 

As we explain further in the discussion section of this opinion, we have 

conducted the requested review and conclude that the trial court did not err 

in denying Shrofe’s motion.
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II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

Late in the morning on February 1, 2018, a truck with out-of-state 

license plates and a trailer attached to it parked in front of H.V.’s home on 

Westwood Street in San Diego. Both H.V. and another neighbor, E.C., who 

lived around the corner from H.V. on Ablemarle Street, saw five people 

emerge from the truck, including Shrofe, who had been driving. H.V. and 

E.C. each watched Shrofe and the group as they walked from the truck 

toward a home on Ablemarle Street that was almost directly across from 

where E.C. lived. The house that the group was approaching was 

unoccupied. The home had previously been owned by Robert and Janet Graf. 

The Grafs had both passed away, and none of the people who had come to 

lawfully own and possess the house—Martha Jimenez and her children, 

Fredy Barrios and Lucelle Guerra—had moved into the house at the time of 

this incident.1

Although no one was living in the house on February 1, 2018, Barrios 

had performed property maintenance on the home. According to Barrios, he 

was the only person who had been in the house since Janet Graf’s death; 

Barrios testified, “There was no entrance of the house. Nobody went in there 

whatsoever.” At that point in time, the Grafs’ possessions, including Janet 

Graf’s collection of owl themed “jewelry, watches, statues, [and] ceramics” 

remained in the house.

1 Janet Graf, who had survived Robert Graf, passed away in December 

2017. Janet bequeathed the house to Jimenez, who gave it to Barrios and 

Guerra. Barrios eventually moved into the house sometime after February 1, 

2018. Given this sequence of events, for clarity, we will refer to the residence 

as “the Graf residence.”
4

H.V. and E.C. each watched as Shrofe and the group walked along 

Ablemarle Street before turning into the driveway of the Graf residence. The 

group approached the house and entered it through a door that was locked 

with two deadbolts and required a key for entry. E.C. was aware that no one 

other than Jimenez and her family had keys to the home, so she called 

Barrios. Barrios told E.C. that he was not at the house and that no one was 

supposed to be there; E.C. then called 911. E.C. watched the home as she 

waited for police to respond. E.C. did not observe anyone exit the house from 

the front of the residence before police arrived.

Police officers arrived within a few minutes and secured the perimeter 

of the Graf residence. A few minutes later, Shrofe, Samantha Clark, Sergio 

Ortega, Lance Richardson, and Anna Vargas emerged from the home. One of 

the police officers testified that the defendants all appeared “shocked and 

surprised” to see him outside the residence. He observed Vargas immediately 

go to the side of the house, where she appeared to put something down on the 

ground next to the garage before returning to the front of the house. The 

officer also observed Richardson walk to a nearby retaining wall that was 

next to the garage, where he appeared to squat or bend down, and then 

return to the group. At that point, the officers detained the group at 

gunpoint and handcuffed them.

Shrofe and the other members of the group claimed that they were 

“ ‘movers.’ ” However, they had no moving truck or moving supplies, were not 

wearing uniforms, and otherwise did not appear to the police to be movers.

When police searched the area on the side of the house where they had 

seen Vargas place something, they found Janet Graf’s purse. The purse 

contained Janet Graf’s silver revolver, firearms ammunition (both live and 

spent), bottles of prescription medication with Janet’s name on it, Janet’s 
5

wedding ring, an owl pin and necklace, various military pins, Robert Graf’s 

engraved lighter, as well as a credit card, a debit card, and a medical 

identification card, all with Robert’s name on them. In bushes near the 

retaining wall, police found a chrome revolver that had its serial number 

removed.

The police searched Shrofe and the other members of his group. In 

Shrofe’s pants pockets, police found a set of keys, a wallet, some change, 

another lighter that had belonged to Robert Graf, and assorted earrings, 

rings, and necklaces, most of which had belonged to Janet Graf. Vargas was 

in possession of a pair of blue latex gloves and an iPhone. Richardson was in 

possession of several pocket watches, a “chain that looked like an owl,” a coin 

box, a liberty coin, a flashlight, some keys, and Janet Graf’s Costco card. 

Clark was found to be wearing a wig and construction work-type gloves; in 

her pocket she had six cards, one of which was an identification card that had 

belonged to Robert Graf.2 Ortega was found with a set of keys in his pocket 

that had belonged to Janet Graf and had been left inside the house after 

Janet’s death. The set included keys to multiple exterior doors of the 

residence.

Police obtained Shrofe’s consent to search the truck in which the group 

had arrived. In the truck, police found a box of blue latex gloves on top of the 

dashboard, identical to the ones that Vargas had in her possession. On a seat 

in the rear of the truck’s cab, police found a purse containing a military 

identification card and two credit cards, all in Clark’s name. In the bed of the 

truck, police found an owl earring that was partially covered by a duffel bag.

2 A detective testified that stolen identification cards are commonly used 

to conceal one’s identity or for purposes of committing identity theft.
6

Police inspected the exterior of the Graf residence and noticed a kitchen 

window that appeared to have been forced in. The screen had been removed 

from the window, and there was a wire cage placed underneath the window 

that had apparently been used to assist in gaining entry through the window. 

Inside, police found the house in a state of “disarray.” An officer testified that 

the house was “messy” and “looked like it had been ravaged through.” 

Another officer testified that the home “appeared to [have] be[en] ransacked.” 

There were “piles of clothes and jewelry and other property” that appeared to 

have been “taken out and . . . thrown on the floor.”

When Jimenez and Barrios later went inside the house, they observed a 

marked change in the state of the residence from the last time each of them 

had been there. The home had previously been “intact,” with “stuff . . . 

properly put away where it needed to be.” After February 1, 2018, the home 

was “trashed,” “every room had been ransacked,” and there were “items in 

piles throughout the house and in rooms.” Barrios testified that he noticed 

that exterior doors had been “pried open,” and that an air conditioning unit 

that had previously been fitted into a window had been kicked in.

Police conducted DNA testing on the two handguns that were found 

outside the Graf residence. The results of this testing with respect to one of 

the guns was inconclusive as to Richardson, Clark, and Vargas, and excluded 

Shrofe and Ortega. The results for the other gun were inconclusive as to 

Ortega and Richardson, and excluded Shrofe, Clark, and Vargas.

At trial, Barrios testified that he did not know any of the individuals 

who were part of the group that entered the Graf residence on February 1, 

2018. He further testified that “[t]here was nobody that was supposed to be 

there [in the house],” and that, apart from him and his mother, no one had 
7

been given a set of keys to the house and no one had permission to have a set 

of keys to the house.

All five defendants were tried together. Clark was the only defendant 

who testified at trial. She testified that she and Shrofe, who was her 

boyfriend at the time, worked together in a business called “BNS Transport,” 

and that they transported components of trucks and vehicles that had been 

damaged, to auction yards. According to Clark, on the morning of February 

1, 2018, she, Shrofe, and Richardson—whom Clark had met for the first time 

that morning—were en route to a job in Shrofe’s truck when Shrofe stopped 

by Ortega’s house. There, they picked up Vargas and Ortega. Shrofe told 

Clark that he, Clark and Richardson were “going to go help [Ortega and 

Vargas] with something that [Ortega] was hired for,” and that “a family 

member had asked or hired them to come down and pack up the home.” 

Clark testified that pursuant to that arrangement, “We were not to remove 

anything out of the home.” Shrofe parked his truck, and the five of them 

walked to the Graf residence, where, she said, Ortega opened the door with a 

key. Clark testified that once she was inside the house, she started packing. 

She denied having seen anyone in the group take anything. While inside, she 

heard a commotion outside, and when she went outside, she and the others 

were detained by the police.

B. Procedural background

Shrofe and his four codefendants were charged with burglary (§ 459)

and grand theft of a firearm (§ 487, subd. (d)(2)) in case No. SCD275604-04.3

3 Richardson, Ortega and Shrofe were also originally charged with illegal 

possession of a firearm by a felon. (§ 29800, subd. (a)(1).) However, that 

charge was dismissed as to Ortega and Shrofe prior to trial.
8

Shrofe and codefendant Ortega were convicted of burglary. The jury 

deadlocked as to the remaining count with respect to Shrofe and Ortega, and 

as to both counts with respect to the remaining codefendants. The trial court 

declared a mistrial as to the charges on which the jury deadlocked.

In a separate case, case No. SCD278606-02, Shrofe subsequently pled 

guilty to possession of firearms ammunition (§ 30305, subd. (a)(1); count 1) 

and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). He also 

admitted the truth of an allegation that he was on bail at the time he 

committed these offenses (§ 12022.1, subd. (b).)

The trial court sentenced Shrofe to a term of two years in prison on 

each case, to be served concurrently. Shrofe filed a timely notice of appeal.

III.

DISCUSSION

A. The challenged comments by the prosecutor during closing arguments did 

not amount to misconduct

Shrofe raises two arguments for reversal based on statements made by 

the prosecutor during closing arguments. First, Shrofe contends that during 

the prosecutor’s closing argument, the prosecutor made two statements that 

improperly shifted the burden of proof to Shrofe by commenting on the 

defense’s failure to call certain witnesses. Second, Shrofe argues that by 

waiting until rebuttal to suggest that Shrofe had failed to explain the 

existence of the owl earring in the bed of his truck, the prosecutor 

“sandbagged” the defense and engaged in error under Griffin v. California

(1965) 380 U.S. 609 (Griffin) because the prosecutor’s statements amounted 

to a comment on Shrofe’s failure to testify.

We conclude that the prosecutor’s comments did not amount to 

misconduct.
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1. Additional relevant background

Shrofe’s defense was that he had not entered the Graf residence with 

the intent to commit theft, as would be required for a burglary conviction, 

because he believed that he and the group had been hired, indirectly, by 

someone, through Ortega, to pack the belongings in the Graf residence and 

that he therefore believed that he had permission to enter the house.4 

Shrofe’s counsel commented in closing that the question of “whoever hired 

these people to go there, how did they get there” was the “million-dollar 

question we have in this case.” Shrofe’s attorney then made a reference to 

Clark’s testimony, and asked the jury to “look at the facts, at the 

circumstantial evidence and see if it actually fits and it’s reasonable.”

In addition to arguing that the defendants believed that they had been 

hired to pack up the items in the Graf residence, counsel for Shrofe and his 

codefendants also suggested that someone else had broken into the house at 

an earlier point in time. The defense intimated that a person identified as 

“Louie,” who was a neighbor of the Grafs and purportedly of disrepute, had 

planned to break into the Graf residence. This line of argument also 

suggested that Louie may have “hired” Ortega, Shrofe, and the rest of the 

group to pack the Grafs’ belongings, possibly in an attempt to “dupe[ ]” them 

into taking the fall for a break-in that Louie had committed.

In rebuttal, the prosecutor noted that Clark, the only defendant who 

testified at trial, was not credible, and that her testimony was designed to 

give herself “plausible deniability,” because her story permitted her to claim 

4 Shrofe’s codefendants asserted the same defense.
10

complete ignorance of the details of the purported hiring arrangement.5 

Moreover, Clark’s contention that the defendants had simply been hired to 

pack up the Grafs’ belongings was contradicted by the fact that all five 

defendants were found with various items that had belonged to the Grafs on 

their persons, including identification cards, jewelry, keys, and even a 

firearm. The prosecutor also pointed out that Clark’s testimony was not 

credible because the group had brought no boxes or other packing materials 

to the home, and they had not parked the truck in front of the home, as would 

have been expected of individuals who had been hired to do a job at the home.

The prosecutor argued that there was no evidence that would 

corroborate or otherwise substantiate Clark’s claim that someone had hired 

Ortega, and by extension, the others in the group, to pack up the Grafs’ 

belongings. On this point, the prosecutor argued:

“Another detail from this story, this family member, this 

mystery person who supposedly hired them and essentially 

hired Sergio Ortega, who then hired everyone else. Well, 

the only people that matter in this case in that regard are 

Martha [Jimenez] and Fredy [Barrios], who have no idea 

who any of these people are. Janet and Robert who are 

deceased. And [E.C.] who has no legal ownership of the 

house still said, I have no idea who these people are.

“So who is this person? This is their alibi witness. This 

person that hired Sergio Ortega and all of these defendants 

indirectly, this is their alibi witness. And these defense 

attorneys have absolutely no burden, no burden to produce 

evidence, no burden to call witnesses. But they can’t then 

5 Clark testified that she was not privy to any discussion relating to the 

claimed hiring arrangement, either because she was not with Shrofe and 

Ortega during their discussions or because she had fallen asleep in the back 

of the truck. Because of this, she claimed, all she knew was what Shrofe had 

told her—i.e., that “we were just going to go and pack up a house.”
11

ask you to believe something without supporting it with 

evidence.

“They can’t ask you to speculate what would this mystery 

person who doesn’t exist have testified to? You don’t think 

that in 18 months, this alibi witness would have been made 

known by one of the defense attorneys? They have 

resources. They are able to conduct their own 

investigations.”

At this point, the trial court overruled a defense objection, but also 

admonished the jury by stating, “The defense attorneys have absolutely no 

obligation to produce any evidence for you whatsoever.” The prosecutor 

continued:

“And so, they are asking you to believe an alibi witness that 

you never heard from and you never heard about. Because 

this person doesn’t exist. This person is a phantom. The 

one person that can exonerate all of them and you have no 

idea who that person is.”

Finally, the prosecutor argued that the defendants’ claim that someone 

had hired them to pack up the belongings in the house did not make sense 

given another item of evidence that had been presented at trial—the owl 

earring that was found in the back of Shrofe’s truck. Addressing this piece of 

evidence, the prosecutor stated:

“[The defense claim of a hiring arrangement] is the story. 

That is the lie they are trying to sell you. And the one 

thing that none of them, none of the defendants can explain 

to you is that [Shrofe] has never been to that house. And 

no one exited that house between the time that they 

entered and the time they were contacted by police. And 

there is an owl earring in the trunk [sic] of that bed it 

doesn’t add up, ladies and gentlemen. The lie doesn’t add 

up.”
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The prosecutor argued that this aspect of the story did not make sense, 

and when considered with the fact that the defendants did not have any 

moving materials, had parked the truck around the corner, and “accidentally 

put these things in their purse[s],” it demonstrated that Shrofe and his 

codefendants “didn’t go in [the Graf residence] with the intent to pack up a 

house. They didn’t go in there with the intent to move. They went there with 

the intent to steal from that house.”

The prosecutor also addressed the defense’s suggestion that it was 

possible that “Louie” had hired the group in order to frame them for his own 

burglarizing of the residence. The prosecutor argued that no evidence had 

been presented that implicated Louie in the group’s burglary of the Graf 

residence:

“And now, throughout the course of this trial you heard 

about Louie. Louie this, Louie that. Louie is a neighbor. 

Louie is a bad guy. Louie stole a truck. Louie, Louie. You 

don’t know anything about Louie. You know he is the back 

neighbor. But ask yourselves, what evidence is there of 

Louie? Again, had the opportunity to interview Louie—”

At that point, there was a defense objection on the ground that the 

prosecutor was improperly burden shifting, which the trial court sustained. 

The prosecutor continued:

“You don’t know anything about Louie. And you’re never 

going to hear anything about Louie. Because Louie is the 

person who they are trying to put on trial. Louie is the 

person who is not here with an attorney, who doesn’t have 

a voice in this courtroom. And they are hoping that you can 

speculate as to what Louie did in this case.

“You have no idea. All you know is that two people may or 

may not have tried to cut through the fence on the back 

side of where Louie lives, had a pair of bolt cutters. And 

this was all a week later. What does any of that have to do 
13

with February 1st, 2018? Louie wasn’t contacted coming 

out of that house. Louie didn’t have Janet and Robert 

Graf’s property in his pockets. And they’re trying to claim 

that Louie set them up.

“What evidence do you have of that? You have no evidence. 

And take this to the logical conclusion. Let’s say that Louie 

hired them to pack up this house. How does Louie benefit 

from that? What was Louie going to do? Louie is the back 

neighbor. If he is smart enough to cut through a fence, 

don’t you think that he would have been able to go in the 

house and steal on his own?

“Why would he need to implicate other people to do his 

dirty work for him? Ladies and gentlemen, it does not 

make sense. The other alternative is that Louie is the 

mastermind behind this and they all had the intent to 

commit theft. And Louie also had the intent to commit 

theft. So Louie is also guilty of a crime. But Louie again is 

not on trial.

“You can’t speculate. It’s more speculation.”

2. None of the Prosecutor’s Statements Constitute Misconduct

a. Relevant legal standards

“ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the 

federal Constitution when it infects the trial with such unfairness as to make 

the conviction a denial of due process. Conduct by a prosecutor that does not 

render a criminal trial fundamentally unfair is prosecutorial misconduct 

under state law only if it involves the use of deceptive or reprehensible 

methods to attempt to persuade either the trial court or the jury.’ ” (People v. 

Gonzales and Soliz (2011) 52 Cal.4th 254, 305, quoting People v. Morales

(2001) 25 Cal.4th 34, 44.)

“ ‘As a general rule a defendant may not complain on appeal of 

prosecutorial misconduct unless in a timely fashion—and on the same 
14

ground—the defendant made an assignment of misconduct and requested 

that the jury be admonished to disregard the impropriety.’ [Citation.]”

(People v. Rangel (2016) 62 Cal.4th 1192, 1219 (Rangel).)

“ ‘When attacking the prosecutor’s remarks to the jury, the defendant 

must show’ that in the context of the whole argument and the instructions 

there was ‘ “a reasonable likelihood the jury understood or applied the 

complained-of comments in an improper or erroneous manner.” ’ ” (Rangel, 

supra, 62 Cal.4th at p. 1219.) “ ‘In conducting this inquiry, [the courts] “do 

not lightly infer” that the jury drew the most damaging rather than the least 

damaging meaning from the prosecutor’s statements.’ ” (People v. Centeno

(2014) 60 Cal.4th 659, 667.) Indeed, “prosecutorial commentary should not be 

given undue weight in analyzing how a reasonable jury understood . . . 

instructions. Juries are warned in advance that counsel’s remarks are mere 

argument, missteps can be challenged when they occur, and juries generally 

understand that counsel’s assertions are the ‘statements of advocates.’ Thus, 

[a prosecutor’s] argument should ‘not be judged as having the same force as 

an instruction from the court. And the arguments of counsel, like the 

instructions of the court, must be judged in the context in which they are 

made. [Citations.]’ ” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21, 

superseded by statute on another ground as stated in In re Steele (2004) 

32 Cal.4th 682, 691.) Finally, “[a] criminal prosecutor has much latitude 

when making a closing argument. Her argument may be strongly worded 

and vigorous so long as it fairly comments on the evidence admitted at trial 

or asks the jury to draw reasonable inferences and deductions from that 

evidence.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1330.)
15

b. The prosecutor’s comments that the defense had failed to produce

evidence regarding the “mystery person” or “Louie” did not 

improperly shift the burden of proof to the defense

Shrofe contends that the prosecutor improperly shifted the burden of 

proof to him and his codefendants to prove their innocence by pointing out to 

the jury, during rebuttal closing argument, that the defense had failed to 

produce any evidence regarding either the “ ‘mystery person who supposedly 

hired them,’ ” or “Louie,” a neighbor who the defense suggested may have 

either hired the group or was himself planning to break into the Graf 

residence.

A prosecutor “may not suggest that ‘a defendant has a duty or burden 

to produce evidence, or a duty or burden to prove his or her innocence.’ ” 

(People v. Young (2005) 34 Cal.4th 1149, 1195–1196.) However, a prosecutor 

may comment upon a defendant’s failure to introduce material evidence or 

call logical witnesses (People v. Gonzales (2012) 54 Cal.4th 1234, 1275; People 

v. Bradford (1997) 15 Cal.4th 1229, 1338–1340 (Bradford); People v. Wash

(1993) 6 Cal.4th 215, 263), and such comments do not impermissibly shift the 

burden of proof to the defendant (People v. Rhoades (2019) 8 Cal.5th 393, 448 

(Rhoades); Gonzales, supra, 54 Cal.4th at p. 1275; see People v. Alaniz (2017) 

16 Cal.App.5th 1, 7 [“a jury’s consideration of the defense’s failure to call 

logical witnesses is proper and does not impermissibly shift the burden of 

proof”]). Indeed, “ ‘it is neither unusual nor improper to comment on the 

failure to call logical witnesses.’ ” (Rhoades, supra, at p. 448.)

For example, a prosecutor may permissibly comment on a defendant’s 

failure to “call witnesses who might logically explain” the presence of an 

inculpatory vehicle at or near the crime scene. (People v. Cornwell (2005) 

37 Cal.4th 50, 90–91, disapproved on another ground in People v. Doolin

(2009) 45 Cal.4th 390, 421, fn. 22.) It is also permissible for a prosecutor to 
16

comment on a defendant’s failure to produce family members as mitigating 

character witnesses, where the prosecutor’s comments did not “suggest[ ] . . . 

a legal burden to present family members in mitigation” but merely drew 

attention to, “as is permitted, . . . defendant’s failure to call logical witnesses.” 

(People v. Zambrano (2007) 41 Cal.4th 1082, 1173, disapproved on another 

ground in Doolin, supra, at p. 421, fn. 22.)

Shrofe contends that the prosecutor “inverted” the burden of proof by 

suggesting to the jury that the defense had failed to support their alibi 

defense. As Shrofe points out, in fact, no alibi defense was presented; Clark 

merely testified that she believed that the group had been hired to do a job at 

the residence. No defendant or defense witness testified that someone had, 

in fact, hired Ortega to pack up the home and no defense witness purported 

to know who that person might be. It appears that the prosecutor may have 

misunderstood the precise nature of the defense’s argument regarding having 

been “hired” to do a job at the residence, as reflected in his argument that the 

defense had presented no evidence regarding who had hired them. Rather 

than asserting that they had, in fact, been hired, such that they actually had 

permission to be in the home, the defense contention was that the defendants 

believed that they had been hired and, thus, that they were lawfully in the 

residence with the owner’s permission, thereby raising reasonable doubt 

about whether they had the requisite intent to be convicted of burglary. 

According to Shrofe, because there had been no specific assertion by the 

defense that implied that certain evidence existed that would be logically 

available to them to produce, the prosecutor’s comment was not a fair 

comment on the defense’s failure to produce evidence.

However, as the People point out on appeal, the existence of a person 

who had purportedly hired Ortega was relevant and material to the question 
17

whether the defendants actually harbored that belief, regardless of whether 

the defendants’ beliefs were correct or whether they had somehow been 

tricked. Thus, to the extent the prosecutor was pointing out the failure to call 

a nondefendant logical witness who could have testified that someone had, in 

fact, hired the group to pack up the Grafs’ belongings, such a comment was a 

fair statement on the failure to call a logical witness. Further, the failure to 

call anyone else to corroborate the claim that the defendants believed they 

had been hired undercut the veracity of that claim and was something that 

the prosecutor could fairly point out. (See Rhoades, supra, 8 Cal.5th at p. 448

[permissible to point out the failure to call logical witnesses].)6

Even if the prosecutor may have misapprehended the nuances of the 

defense contention that the defendants may not have actually been hired but 

may have believed that they had been hired to do a job at the Graf residence, 

his comments did not inappropriately shift the burden of proof to the defense. 

Specifically, the prosecutor did not suggest to the jury that the defendants 

had a duty to produce evidence; the prosecutor specifically noted in his 

argument that the defense had “absolutely no burden, no burden to produce 

evidence, no burden to call witnesses.” In addition, during this line of 

argument, the trial court repeated the admonition that it had given to the 

jury at the conclusion of the prosecutor’s case-in-chief, telling the jury that 

the defense had “absolutely no obligation to produce any evidence for you 

whatsoever.” Given this context, it was not reasonably probable that the jury 

6 If the only evidence that could have corroborated the defense that the 

group believed they had been hired was Ortega’s testimony, or the testimony 

of other defendants, this would have been problematic. However, the defense 

left open the possibility that there may have been someone else who had 

“duped” the group into entering the home.
18

understood the prosecutor’s comments as implying that the defense had a 

duty to produce evidence.

Similarly, although Shrofe complains about the prosecutor’s comments 

regarding the defense’s failure to call the neighbor, Louie, as a witness, those 

comments, too, went to the failure to call a logical witness and were proper. 

The defense vaguely insinuated throughout the trial that Louie, a neighbor of 

the Grafs, may have been responsible for the fact that Shrofe and his 

codefendants were caught inside the Graf residence. To the extent that the 

defense was suggesting that Louie might have been involved in a ruse to 

make the defendants believe that they had permission to enter the residence, 

Louie would have been a logical and material witness to call to testify to the 

role, if any, that he played in connection with Shrofe’s and his codefendants’ 

entry into the Graf residence. But the defense never called him. The 

prosecutor’s argument regarding Louie was a comment on the fact that the 

defense had not subpoenaed Louie as a witness, even though they could 

have, despite the fact that he would have been a logical witness to 

corroborate the defense’s suggestions that he may have been involved in 

convincing the defendants to enter the home. These comments were thus 

directed at the state of the evidence, and did not suggest to the jury that 

Shrofe or any of his codefendants had the burden to produce evidence or 

prove their innocence.

We conclude that in view of the entire record, there is no likelihood that 

the jury would have understood the prosecutor’s comments as imposing any 

burden on Shrofe; therefore, the prosecutor’s comments did not amount to 

misconduct. (See Bradford, supra, 15 Cal.4th at p. 1340 [rejecting 

defendant’s claim of impermissible burden shifting, where “[the prosecutor] 

reiterated that the prosecution had the burden of proof by sufficient evidence 
19

to establish defendant’s guilt, and that defendant had no duty or burden to 

produce any evidence”]; People v. Ratliff (1986) 41 Cal.3d 675, 691 

[prosecutor’s comment that defendant had presented “[a]bsolutely zero” 

evidence was not improper burden shifting, as it did not “suggest[ ] that 

defendant had a burden of proof which he failed to carry,” the court’s jury 

instructions confirmed that the prosecution bore the entire burden of 

establishing guilt, and the prosecutor acknowledged that the defendant 

“ ‘doesn’t have to prove a darn thing’ ”].)

c. There is no reasonable likelihood that the jury understood the 

prosecutor’s comments regarding the owl earring to refer to 

Shrofe’s failure to testify, and the prosecutor’s comments 

pertaining to the owl earring did not constitute unfair 

“sandbagging” of the defense

Shrofe contends that the prosecutor violated Griffin, supra, 380 U.S. 

609, by commenting on the defense’s failure to “ ‘explain to [the jury]’ ” the 

owl earring found in the bed of the truck that they drove to the Graf 

residence. He further contends that the prosecutor’s referring to the earring 

for the first time in rebuttal impermissibly “sandbagged” the defense by 

depriving them of the opportunity to respond to the prosecutor’s argument.

Shrofe did not raise an objection to the prosecutor’s comments under 

Griffin. As a result, he has forfeited the issue. (See People v. Beck and Cruz

(2019) 8 Cal.5th 548, 657.) However, Shrofe also raises a claim of ineffective 

assistance of counsel, and we will therefore consider the contention on its 

merits. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [reviewing 

court may consider merits of appellant’s argument to forestall an ineffective 

assistance of counsel claim].) Even on the merits, we find the argument 

lacking.
20

Under Griffin, the Fifth Amendment bars a prosecutor from 

“ ‘suggesting to the jury that it may treat [a] defendant’s silence as 

substantive evidence of guilt.’ ” (United States v. Robinson (1988) 485 U.S. 

25, 32, citation omitted; see Griffin, supra, 380 U.S. at p. 615.) “[I]t 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.” (People v. Hughes (2002) 

27 Cal.4th 287, 371–372, citation omitted (Hughes).) However, the Griffin

prohibition “ ‘ “does not extend to comments on the state of the evidence or on 

the failure of the defense to introduce material evidence or call logical 

witnesses.” ’ ” (Hughes, supra, at p. 372.) The prohibition of Griffin is 

violated only where there is a “ ‘reasonable likelihood that any of the 

[prosecutor’s] comments could have been understood, within its context, to 

refer to defendant’s failure to testify.’ ” (People v. Sanchez (2014) 228 

Cal.App.4th 1517, 1523.)

Shrofe argues that the prosecutor’s comments regarding the owl 

earring impermissibly suggested to the jury that Shrofe should have testified 

to explain the presence of the earring in the bed of his truck. Again, the 

prosecutor’s rebuttal commentary about the owl earring was as follows:

“[The defense claim of a hiring arrangement] is the story. 

That is the lie they are trying to sell you. And the one 

thing that none of them, none of the defendants can explain 

to you is that [appellant] has never been to that house. 

And no one exited that house between the time that they 

entered and the time they were contacted by police. And 

there is an owl earring in the trunk of that bed[;] it doesn’t 

add up, ladies and gentlemen. The lie doesn’t add up.”

In considering the prosecutor’s comments regarding the owl earring, we 

conclude that there is no reasonable likelihood that the jury understood the 
21

prosecutor’s comments to be referring to Shrofe’s failure to testify. First, 

there was no express comment regarding Shrofe’s failure to testify. Further, 

although Shrofe contends that the prosecutor’s comment was an indirect 

reference to his failure to testify, it seems clear that the prosecutor’s 

comment was directed at the state of the evidence and was made in response 

to the defense’s suggestion that Shrofe and his codefendants had entered the 

Graf residence pursuant to an alleged belief that they had been hired to pack 

up the belongings in the home. The prosecutor was arguing that the presence 

of the owl earring in the bed of Shrofe’s truck was factually incompatible with 

the defense story that these defendants believed they had been hired to 

complete a packing job, which included the implication that they had never 

been at the Graf residence before. The prosecutor noted the incongruity 

between the defense story and this piece of evidence, and argued that 

Shrofe’s defense was simply not credible, stating, “The lie doesn’t add up.”

These comments went to the state of the evidence and were not a 

comment on Shrofe’s failure to testify; there is no reasonable likelihood that 

the jury understood them as such. The prosecutor’s comment about the owl 

earring therefore did not constitute a violation of Griffin. (See, e.g., People v. 

Lancaster (2007) 41 Cal.4th 50, 84 [prosecutor’s comment that the defense 

failed to explain how defendant’s fingerprints were found on a bottle was a 

“fair comment on the state of the evidence, rather than a comment on 

defendant’s failure to personally provide an alternative explanation”]; 

Hughes, supra, 27 Cal.4th at pp. 374–375 [prosecutor’s rhetorical question, 

“ ‘Why do you bring a knife if you don’t intend to use it,’ ” was “read . . . as a 

fair comment on the evidence, not as a veiled attempt to highlight 

defendant’s failure to testify”]; People v. Medina (1995) 11 Cal.4th 694, 755–

756 [prosecutor’s comments to jury that the defense “ ‘did not explain’ ” and 
22

failed to give a “ ‘rational explanation’ ” for a defendant being seen in 

possession of a handgun during the times of various robberies was not Griffin

error, because the comments “were directed to the general failure of the 

defense to provide an innocent explanation as to why defendant was armed,” 

and “contained no references, express or implied, to defendant’s own 

silence”].)

We also reject Shrofe’s contention that the prosecutor’s comments about 

the owl earring constituted improper rebuttal argument that “sandbagged” 

the defense. It is true that a prosecutor may not wait until rebuttal to 

present the bulk of the prosecution’s argument in order to gain an unfair 

advantage. (People v. Hill (1967) 66 Cal.2d 536, 565; People v. Robinson

(1995) 31 Cal.App.4th 494, 505 [prosecutor committed misconduct by giving 

perfunctory, three and one-half page initial argument “designed to preclude 

effective defense reply,” which was then followed by a 35-page rebuttal 

argument].) Here, however, the prosecutor’s comment did not amount to 

sandbagging. The prosecutor’s initial closing argument comprised 28 pages, 

while his rebuttal comprised 12. Further, the comment about the owl earring 

was specifically responsive to the argument made by the defense to the effect 

that the defendants’ story about being hired to pack the belongings in the 

house was sufficiently plausible to raise a reasonable doubt. The fact that 

the prosecutor did not mention the owl earring in his initial closing argument 

but did so in rebuttal did not deprive Shrofe of a fundamentally fair trial, nor 

did it constitute a deceptive or reprehensible method, and thus it did not 

amount to prosecutorial misconduct.
23

B. Our independent review of the transcript of the trial court’s in camera 

review does not reveal any abuse of discretion in the court’s conclusion 

that the warrant had been properly sealed and should remain sealed

In connection with the sealed search warrant that was executed in case 

No. SCD278606-02, Shrofe filed a motion under People v. Hobbs (1994) 

7 Cal.4th 948 on February 19, 2019, in which he requested that the trial 

court conduct an in camera review to determine whether the warrant had 

been, and remained, properly sealed.

The trial court conducted an in camera hearing on March 12, 2019. At 

the conclusion of the hearing, the court found that the warrant had been 

properly sealed and that it should remain sealed.

Shrofe has asked this court to “independently review the transcript of 

the in camera hearing and any materials reviewed in that hearing” to 

determine whether the warrant was property sealed and properly remained 

sealed. Having reviewed the transcript of the hearing,7 we conclude that 

7 A Clerk’s Certificate was filed by the Clerk of the Superior Court, 

certifying that a deputy clerk “looked through the case file and there are no 

known materials that were reviewed by the tr[ia]l court during th[e in 

camera] hearing.” Our review of the transcript of the hearing does not lead 

this court to question the Clerk of the Superior Court’s certification on this 

matter.
24

there was no abuse of discretion in the court’s determination that the original 

sealing of the warrant was proper and that continued sealing was proper.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DATO, J.