Filed 5/28/14 CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. STEVEN PETRILLI, Defendant and Appellant. A131141
(San F rancisco City & County Super. Ct. No. 204890

- 01/02362614 )

Late one night, defendant Steven Petrilli drove a stolen mini van around San
Francisco with his wife and two acquaintances . The acquaintances periodically left the van, committed a robber y , and returned to the van . Once they were back inside,
defendant drove away . After the fourth such robbery, police spotted the van , and
defendant drove off at a high speed. The subsequent pursuit ended when defendant rammed the van into a police car, ki lling a police officer in the car. Defendant was convicted of felony murder with special circumstances , as well as four counts of robber y and other crimes. Defendant contends, and the Attorney General concedes, that the felony murder
conviction must be r eversed b ecause of instructional error. We agree. Defendant also contends the trial court erred in admitting the testimony of hi s wife . She had earlier testified under subpoena before a grand j ury investigating the incident, and w hen she sought to invok e the spousal testimonial privilege to avoid testifying at trial, the trial court ruled she had waived the privilege by appear ing before

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certi fied for publication with the exception of parts II.A. and II.C.2

the grand jury. Applying the plain language of Evidence C ode 1 section 973 , which governs waiver of the spousal testimo nial privilege, we conclude a spouse’s testimony before a grand jury does not waive his or her subsequent assertion of the spousal testimonial privilege at a criminal trial

. W e further conclude the admission of defendant’s wife’s testimony was prejudicial in connection with three of defendant’s four robbery convictions. We accordingly reverse defendant’s convictions for special circumstances murder, conspiracy to commit robbery, and three counts of robbery, but we affirm the remainder of defendant’s convi ctions.
I. BACKGROUND Defendant and two others were charged in an indictment, filed April 4, 2008, with special circumstances murder, committed in the course of a robbery

. (Pen. Code, § § 187, 190.2, subd. (a)(17)(A) ; count I. ) The three were also charg ed with implied malice second degree murder alleged to be a serious felony (Pen. Code, § § 187, 1192.7,
subd. (c)(1) ; count II ) ; conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1) ; count III ) ; four counts of robbery , all alleged to be serious and violent felonies (Pen. Code, §§ 211, 667.5, subd. (c); 1192.7, subd. (c) ; counts IV, V, VI, VII ) ; evading a police officer and causing serious bodily injury (Veh. Code, § 2800.3, subd. (a) ; count VIII ) ; and vehicular manslaughter (Pen. Code, § 192, subd. ( c)(1) ; count IX ). Defendant alone was charge d with driving a stolen vehicle. (Veh. Code, § 1 0851, subd. (a) ; count X. )
Defendant was tri ed separately from his two co defendants

. W itnesses testified to four separate robberies in San Francisco on the nig ht of July 26
, and the early morning of July 27, 2006 . Although the details varied
, each robbery was committed by two African

American men

. F ollowing e ach robber y, the men entered a minivan, and the van drove

away

. The victim of the first robbery said a third person was driving the van, but he was unable to provide any identifying information about t h e driver

. The two victims of the second robbery were unable to see the driver of the van at all. A w itness to the third robbery saw a man driving the van, but she , too, was unable to provide any further

1 All statutory references are to the Evidence Code unless otherwise indicated.3

information about him. Two of the se witnesses saw a woman in the passenger seat of the

van. T he victim of the fourth robbery was able to confront the driver of the van, whom

t he victim identified as defe ndant. When defendant threatened h im, t he victim attempted to kick defendant’s face through the open window , but defendant drove the van away

. T h is victim called 911, and two officers arrived in a patrol car within five minutes. After some questions, th e police asked the victim to ride with them in an attempt to locate the van, and the three drove off. The victim eventually s potted a van similar to the one
involved in his robbery in the drive

- through la ne of a McDonald’s restaurant. When the
officers c hecked the license plate of the van , they learned i t had been reported as stolen. After the patrol car made a U

- turn and activated its lights, the van left the drive

- through
l a ne, drove over a curb, and took off at high speed

. The patrol car followed. T he victim

saw defendant in the driv er’s seat

. A reckless, high

- speed chase ensued, on and off the highway , involving several police cars . Eventually, the van left the highway and, at high speed, ran into a patrol car stopped in an intersection , flipping t he patrol car

. The van then weaved into parked cars and came to a stop. Defendant, the two codefendants, and defendant’s wife, Jessica Chamberlain, emerged from the wrecked van. A police officer who was in the driver’s
seat of the rammed patrol car ev entually died as the result of injuries suffered in the
collision.
Chamberlain testified at trial under a grant of immunity. She explained she and defendant took the van to a Burger King restaurant that night to pick up one of the codefendants, who was a mutual friend. 2 With him was the second codefendant, whom
she had not met before. The four rode around for awhile, defendant driving. They end ed up in the parking lot of a Safeway grocery store , where the two codefendants got out of
the van and commit ted a robbery

. When the two returned to the van , defendant drove off.

2 The owner of the van testified it had been stolen a few weeks earlier. There was no testimony explaining h ow defendant came to be in possession of the van.4

Chamberlain then recounted th re e other robberies and the chase, generally confirming the testimony of the other witnesses. Chamberlain said defendant was the driver of the va n through out. Following the last robbery, Chamberlain testified, they drove the van to a McDonald’s restaurant on Third Street, but t he restaurant was closed. Defendant then
drove to a McDonald’s restaurant on Bayshore, where they entered the drive

- through lane
and ordered food. While they were waiting to pick up their food
, Chamberlain saw the police car and alerted defendant. The four at first decided to remain calm and ignore the police vehicle , but just before they were to pa y , the occupants of the van pani cked

. Defendant drove over the curb and took off. A videotape of the four talking together in a room at the jail following the crash was played for the jury. The codefendants made vague r eferences to at least three of the
robberies. One of the codefe ndants told defendant, “ [Y] ou don’t have no robbery on you. All you, all you have is evading the police.” Defendant told them he tried to get the van to go faster, but he could not get it past 85 miles per hour. All regretted stopping at McDonald’s, a d ecision they blamed on Chamberlain. Defendant was found guilty of all charges, and the enhancement allegations were
found true. He was sentenced to a term of life without the possibility of parole on the special circumstances murder charge, as well as a combined consecutive determinate term of 7 years 8 months on the charges of evading a police officer and driving a stolen vehicle. Sentences on the remaining counts were imposed and stayed.
II. DISCUSSION
Defendant raises three claims of error , one of which the Attorney General
concedes to be meritorious

. A. Error i n Instruct

ing o n t he “Escape Rule” The “escape rule” provides that certain crimes terminate when the defendant “ ‘has actually reached a temporary place of safety.’ ” ( People v. Wilkins ( 201 3 ) 56 Cal.4th 333, 341 ( Wilkins ).) T he trial court instructed on the escape rule, but it expressly limited application of the rule to the robbery charges , implicitly excluding the felony murder5

charge

. This was consistent with a use instruction in the CALCRIM standard jury instructions, which cited as authority People v. Cavitt (2004) 33 Cal.4th 187, 208. ( 2 Judicial Council of Cal., Jury Instns. (2012) Bench Not es to CALCRIM No. 3261,

p. 990 .) In closing, the prosecutor relied on this limitation, ar gu ing to the jury
, “ I f you
decide t here is a place of temporary safet y, it does not absolve [defendant] of liability for one continuous transaction of felony murder
, ” and contend ed the felony murder doctrine reached any death that occurred “because of [the underlying] crime.”
In Wilkin s , decided several years after trial, the Supreme Court disapproved the
CALCRIM use instruction and held the escape rule applicable to a defendant’s liability under the felony murder rule . In so doing
, the court affirm ed th at “ ‘[f]elony

- murder liability continues throughout the flight of a perpetrator from the scene of a robbery until the perpetrator reaches a place of temporary safety.’ ” ( Wilkins, supra , 5 6 Cal.App.4th at
pp. 342

– 343, 345.) The court accordingly reverse d the felony murder conviction of a defendant who had caused a fatal traffic accident while transporting appliances burglarized from a home several hours earlier
, in which no escape rule instruction had been given . ( Id. at pp. 338

– 339 , 352.)
Defendant ar gues, and the Attorney General concedes, hi s conviction for first degree murder must be reversed because the jury reasonably could have concluded that
he and his codefendants had reached a place of temporary safety when they drove into the McDonald’s drive

- through lane. W e agree the error was prejudicial on these facts and
reverse the conviction. ( Chapman v. California (1967) 386 U.S. 18, 24; see Wilkins
, supra , 56 Cal.4th at p. 350.)
B. Waiver of the Spousal Testimonial Privilege
Defendant contends the trial court erred in hold ing Chamberlain waived her right to invoke the spousal testimonial privilege by provid ing testimony t o the grand jury.
1. Procedural Background Chamberlain’s testimony was a dmitt ed over a defense objection under the spousal

tes timonial privilege , asserted on Chamberlain’s behalf

. Chamberlain had testified before the grand jury under subpoena
, giv ing testimony materially the same as her eventual6

testimony at trial. During a hearing on defendant’s objection held prior to trial,
Chamberlain explain ed she appeared before the grand jury “ S o I could stay out of jail” and believed she would go to jail if she did not testify. At the time, she claimed, she did not know that the proceeding “had something to do with [defendant].” Had sh e known she was testifying against her husband, she sai d, she would not have appeared

. Chamberlain was represented by appointed counsel in connection with her grand jury testimony. In declarations submitted to the court, t he attorney said he did not rec all discussing the issue of spousal privilege with Chamberlain, since “the focus of my representation of Ms. Chamberlain quickly became her potential exposure to prosecution and ensuring that I protected her Fifth Amendment rights.” The attorney discussed an immunity agreement for Chamberlain with the deputy district attorney, but the deputy “said that he was not going to give [Chamberlain] immunity for her testimony because he did not think she had exposure. However, he promised me that she would not be prosecuted in connection with these events unless she perjured herself before the Grand Jury.” On that assurance, the attorney permitted Chamberlain to testify. The trial court entered a written decision allowing the testimony, basing its
decision on Pe ople v. Resendez (1993) 12 Cal.App.4th 98 ( Resendez ) , which held that a spouse’s testimony at a preliminary hearing waived the assertion of the spousal
testimonial privilege at trial. With respect to Chamberlain’s testimony regarding the
circumstances of her appearance in front of the grand jury
, the court held her grand jury testimony was not “ erroneously compelled ” for purposes of section 973 because
Chamberlain believed providing testimony would preclude criminal charges against her

. 2. Legal Backgro und Resolution of defendant’s claim of error requires a review both of the spousal
testimoni al privilege and the nature of grand jury proceedings

.

a. The Spousal Testimonial Privilege Evidentiary privileges in California are a creature of statute. ( P eople v. Sinohui (2002) 28 Cal.4th 205, 211 ( Sinohui ).) It is generally held that “evidentiary privileges
should be narrowly construed because they prevent otherwise admissible and relevant7

evidence from coming to light.” ( Union Bank of California v. Sup erior Court (2005)
130 Cal.App.4th 378, 392.) “[T]he courts of this state have no power to expand [the statutory privileges] to recognize implied exceptions .” ( Wells Fargo Bank v. Superior
Court (2000) 22 Cal.4th 201, 206.) As relevant here, the spousal testimonial privilege is governed by three statutes. Section 970 states that a married person has a privilege “not to testify against” his or her spouse “in any proceeding.” 3 Similarly, section 971 provides a privilege against being
called as a witness in any proceeding to which one’s spouse is a party. W aiver of the spousal testimonial privilege is governed by its own statute, section 973, rather than the more general statute governing waiver of privilege s , section 912 . Under subdivision (a)
of sectio n 973, “[u]nless erroneously compelled to do so, a married person who testifies in a proceeding to which his spouse is a party, or who testifies against his spouse in any proceeding, does not have a privilege under this article in the proceeding in which s uch testimony is given.” 4 Unlike the confidential marital com munication privilege of
section 980, t he testimonial privilege is personal to the testifying spouse ( People v.
McWhorter (2009) 47 Cal.4th 318, 374 ( McWhorter ) ), but the other spouse has standin g to raise as error a trial court’s refusal to recognize an assertion of the privilege (§ 918)

. T he medieval origin of the spousal testimonial privilege was premised on the “ ‘long

abandoned doctrine [] ’ ” that a wi f e had no separate legal existence from h er husband, but the privilege persists on the belief it “ ‘ “preserve[s] marital harmony,” ’ ‘ “protect[s] marital privacy,” ’ and ‘ “promote[s] the socially beneficial institution of marriage.” ’ ” ( Sinohui , supra , 28 Cal.4th at p p

. 210

– 211.)

3 “Proceeding” is defined broadly to mean virtually any type of hearing at which “testimony can be compelled by law [to be] given,” including grand jury proceedings. (§ 901 & Cal. Law Revision Com. com., 2 9B pt. 3A West’s Ann. Evid. Code (2014 Supp.) foll. § 901, p. 24.)

4 The remainder of section 973 is not relevant here.8 b. The G rand Jury The grand jury is a statutory body empowered to investigat e “public offenses committed or triable” within the county in which it sits. (Pen. Code, § 917.) Because the grand jury is an investigative body , “the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury’s labors, not at the beginning
, ” at least in theory. ( Blair v. United States (1919) 250 U.S. 273, 282; but see Hawkins v. Superior Court (1978) 22 C al.3d 584, 59 1 [noting the “distinct and largely inconsistent functions ” of the grand jury as accuser and impartial fact finder].) 5 Should the grand jury find probable cause to believe a crime has been committed, it prepare s a charging document, known as an indictment , which is presented to an appropriate court . (Pen. Code, §§ 889, 917.) With limited exceptions, the filing of an indictment is one of two ways to commence a felony prosecution. The second is the filing of an information, the name given to a charging document prepared by the district attorney . (Pen. Code, §§ 682, 737, 739, 804; People v. Tideman (1962) 57 Cal.2d 574, 579.)
Given the limitation of its role to investigati on and accusat i o n , the proceedings of the grand jury are distinguished from a ny subsequent criminal prosecution. “It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess
whether there is adequate basis for bringing a criminal charge.” ( United States v.
Williams (1992) 504 U.S. 36, 51.) “ [T]he grand jury serves as part of the charging

process of criminal procedure, not the adjudicative process that is the province of the courts or trial jury.” ( Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026.) “[W]hen engaged in its indicting for crime function, [the grand jury] is in no proper sense a criminal proceeding.” ( M.C.A. v. State of California (1982) 128 Cal.App.3d 225, 237.)

5 Because of doubts about the fairness of the grand jury proceeding, which is typically dominated by the district attorney’s office, Haw kins held that a defendant accused by the grand jury had a right to the equivalent of a preliminary hearing. ( Hawkins v. Superior Court, supra, 22 Cal.3d at pp. 589, 594.) This result was later overturned by the electorate in Proposition 115, now article I, section 14.1 of the California Constitution. ( Bowen v. Superior Court (1991) 1 Cal.4th 36, 39.)9

Accordingly, the procedural rights afforded a defendant in a criminal prosecution are not recognized in connec tion with grand jury proceedings. A person who is t he target of a grand jury inquiry, even if identifiable , has no right to be present or to be represented by counsel at grand jury proceedings, to refuse to appear as a witness before the grand jury,

or to produce witnesses on his or her own behalf. ( People v. Brown (1999)
75 Cal.App.4th 916, 932 ( Brown ) ; People v. Dupree (1957) 156 Cal.App.2d 60, 65; In re
Lemon (1936) 15 Cal.App.2d 82, 91

– 92 ( Lemon ).)
3

. Discussion With that background, we address def endant’s claim of error in the admission of
Chamberlain ’s testimony

. Given the statutory nature of evidentiary privileges, our task is necessarily one of statutory interpretation. In interpreting a statute, “ ‘it is well settled that we must look
first t o the words of the statute, “because they generally provide the most reliable indicator of legislative intent.” [Citation.] If the statutory language is clear and unambiguous our inquiry ends. “If there is no ambiguity in the language, we presume the
Le gislature meant what it said and the plain meaning of the statute governs.” [Citations.] In reading statutes, we are mindful that words are to be given their plain and commonsense meaning. [Citation.]’ [Citation.] Thus, we ‘avoid a construction that

w ould produce absurd consequences, which we presume the Legislature did not intend. [Citations.]’ ” ( Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1394.) We interpret a statute de novo. ( In re Marriage of Cantarella (2011) 191 Cal.App.4th 916, 921.)
S ection 9 7 3 , subdivision (a) provides two ways in which the spousal testimonial privilege may be waived. The nonparty spouse may “ testif[y] in a proceeding to which his spouse is a party” or may “testif[y] against his spouse in any proceeding.”
Im portantly, however, the waiver applies only “in the proceeding in which such testimony is given.” ( I

bi d. ) As a result, under the unambiguous language of the statute, Chamberlain waived her right to assert the privilege at trial only if (1) defendant was a party to the grand jury proceeding and/ or (2) the grand jury proceeding was the same10

“proceeding” as his criminal prosecution. The latter requirement necessarily follows from the restriction of the waiver to the proceeding “in which such testimony is gi ven” ; if the grand jury proceeding was a different proceeding from the criminal prosecution, any waiver from testimony at the grand jury proceeding would not carry over to the criminal
trial. We conclude neither of these requirements was met here.
As dis cussed above, a grand jury proceeding is investigatory, not adversarial . As a result, an indicted person is not deemed to have be en a party to the grand jury proceeding that indicted him or her. ( People v. Johnson (1968) 68 Cal.2d 646, 654 [ “ defendant wa s simply not a ‘party’ to the earlier ( grand jury) proceeding ” ] , overruled on other grounds
as stated in People v. Chavez (1980) 26 Cal.3d 334, 353

– 356 .) “ [N] o person has the status of a party defendant in [a grand jury] investigation which is held merely for the purpose of determining whether any criminal proceeding shall be commenced.” ( Lemon
, supra , 15 Cal.App.2d at p. 85 ; see also In re McDonough (1937) 21 Cal.App.2d 287, 288 ( McDonough ) [at a grand jury investigation, a putative defendant “has but th e status of a witness”] .) Because d efendant was not a party to the grand jury proceeding at which Chamberlain testified, her testimony there did not constitute a waiver of the spousal testimonial privilege under the first part of section 973, subdivision (a). Further, while there is no question a grand jury proceeding is a “proceeding” for purposes of the Evidence Code, it is not the same proceeding as a subsequent criminal prosecution. The grand jury proceeding is not part of “ ‘ t he adjudicative process that is the province of the courts or trial jury.’ ” ( Brown , supra , 75 Cal.App.4th at p. 932.) “[A] grand jury investigation is in no proper sense a criminal proceeding
, ” and “ ‘the examination of witnesses before [the grand jury] .

. . [is] “no part of criminal proceedings against the accused, but are merely to assist the grand jury in determining whether such proceedings shall be commenced.” ’ ” ( Lemon, supra , 15 Cal.App.2d at p p. 85 , 87; see similarly McDonough , supra , 21 Cal.App.2d at p. 288.) As n oted above , a criminal prosecution is not even deemed to exist prior to the filing of an indictment or information.
Such c ommencement of a prosecution “is far from a mere formalism. It is the starting point of our whole system of adversary criminal justi ce. For it is only then that the11

government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified.” ( Kirby v. Illinois (1972) 406 U.S. 682, 689.) Accordingly, there was no waiver under th e second pa rt of section 973, subdivision (a),
because a ny waiver resulting from Chamberlain’s grand jury testimony did not carry over to the criminal prosecution, which was a different “ proceeding ” from the grand jury proceedings. 6 While the Attorney Gen eral concedes defendant was not a party to the grand jury proceedings, she argues, in a conclusory manner and without citation to authority, that the trial court should be affirmed because “the proceedings from investigation to charging document to jury tr ial are part of a continuous proceeding.” For the reasons stated, the argument is inconsistent with virtually all judicial authority governing the respective nature of grand jury and crimin al proceedings. Resendez , on which the trial court relied, is ent irely consistent with our decision

. Resendez ’s holding that a spouse’s testimony at a preliminary hearing waives assertion of the spousal testimonial privilege at trial is undoubtedly correct, since a defendant’s preliminary hearing occurs in the context of the same criminal proceeding as his or her trial, to which the defendant is unquestionably a party, thereby satisfying both prongs of section 973, subdivision (a). ( Resendez, supra , 12 Cal.App.4th at p. 107; see similarly People v. Lankford (1976) 55 C al.App.3d 203, 210 , disapproved on other grounds in

6 We have neither found nor been pointed to any pertinent authority from California or other jurisdictions on this issue. The nature of the spousal testi monial privilege varies from jurisdiction to jurisdiction, making rulings from other courts of limited value. (See In re A Grand Jury Subpoena (2006) 447 Mass. 88, 98, fn. 8 [849 N.E.2d 797, 805, fn. 8] [discussing differences among jurisdictions].) As a particular example, while the court in Croom v. United States (D.C.Ct.App. 1988) 546 A.2d 1006, ruled that an appearance before the grand jury does result in waiver of the spousal testimonial privilege at trial, the decision has no direct application here because the court applied common law waiver principles, rather than the waiver statute with which we are here concerned. ( Id. at pp. 1008

– 1009.) Given the statutory nature of California privileges ( Wells Fargo Bank v. Superior Court
, supra , 22 Cal.4th 2 01, 206), we are bound by the specific language of section 973, subdivision (a), which leads to a result opposite to that in Croom

.12

People v. Collins (1976) 17 Cal.3d 687, 694, fn. 4 .) Given the differences between a preliminary hearing and a grand jury proceeding, however, a different conclusion is mandated regarding grand jury test imony, for the reasons discussed above

. 7 Although our inquiry ends with the unambiguous language of section 973, we note there are sound reasons in policy not to deem a waiver of the spousal testimonial privilege on the basis of grand jury testimony. As discussed above, the proceedings of the grand jury are investigative, not adversarial, and “[i]t need not identify the offender it suspects, or even ‘the precise nature of the offense’ it is investigating.” ( United States v. Williams, supra, 504 U.S. at p. 48 .) While there could have been little mystery about the purpose of the grand jury in seeking Chamberlain’s testimony, that i s not necessarily the case in every instance. A witness before the grand jury might not recognize the impact of
his or her te stimony on the penal interests of a spouse. In addition, the deputy district attorney conducting a grand jury investigation is under no duty to in form witness es o f the
existence and potential availability of the spousal testimonial privilege. (See, e.g.,
McWhorter

, supra , 47 Cal.4th at p. 374 [court has no d uty to inform witness of
testimonial privilege].) At an adversarial hearing, it may be expect ed counsel for the party spouse will e nsure the witness spouse is aware of his or her privilege against giv ing adverse testimony, either directly or by a request for instructions to the court. ( See
McWhorter , at p. 375; Resendez , supra , 12 Cal.App.4th at p. 109, fn. 6.) There are no
similar institutional circumstances to give assurance a witness before the gr and jury will become aware of the privilege. Because the soul of waiver is the knowing relinquishment of a right ( People v. McKinnon (2011) 52 Cal.4th 610, 636, fn. 16), the grand jury

7 The primary focus of the Resendez decision was whether the spouse’s testimony had been “ ‘ erroneously compelled ’ ” under section 973, subdivision (a) because she believed she was required to testify at the preliminary hearing and was not informed of the spousal testimonial privilege. ( Resendez, supra
, 12 Cal.App.4th at pp. 108

– 109.) This discussion is irrelevant here, sinc e our reading of the statutory language compels the conclusion testimony before a grand jury does not give rise to a waiver of the privilege at the time of trial, regardless of whether the grand jury testimony was erroneously compelled.13

structure provides no basis for presum ing testimony by a spouse consti tute d a genuine
waiver of the spousal testimonial privilege

. 4. Prejudice Given the trial court’s error in refusing to recognize Chamberlain’s assertion of the spousal testimonial privilege, defendant is entitled to the reversal of any conviction as to which her testimony was prejudicial. We evaluate harmless error in the admission of
evidence under the standard of People v. Watson (1956) 46 Cal.2d 818 ( Watson ). ( See People v. Fuaiva (2012) 53 Cal.4th 622, 671.) Reversal is required if “the court, ‘af ter an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” ( Watson , at p . 836 .)
We conclude the admission of Chamberlain’s testimony was prejudicial in
connection with defendant’s conviction s on the counts associated with the first three
robbe ries, counts V , VI , and VII

. The witness es to these robberies w ere not able to identify, or even to des cribe, the driver of the van. The various conversations recorded by the prosecution from jail and played for the jury, while suggestive, did not definitively credit defendant with driving the van at the time of any particular robbery. Only Chamberlain’s testimony unambiguously placed defendant in the van at the time of these robberies and explained his presence. While we recognize the jury could have inferred from defendant’s presence in the van later in the evening that he was also driving earlier,
it i s reasonably probable the jury would have acquitted defendant of these charges had
Chamberlain not testified , given the reasonable doubt standard . The same is true of defendant’s conviction for conspiracy to commit robbery; without Chamberlain’s testimony , there is no compelling basis for finding an agreement with the codefendants beyond a reasonable doubt. These convictions must be reversed. With respect to the crimes beginning with the last robbery, however, Chamberlain’s testimony was less critical

. The victim of the final robbery got a good look at defendant during the robbery, even attempting to kick him through the open vehicle window, and identified defendant at trial. The victim again saw defendant in the14

driver’s seat while the van was in line at McDonald’s, and he and two of the testifying police officers watched the van from the time it left that line until it struck the police vehicle, at which time defendant emerged with the others from the wrecked van. Throughout that period, there was no time at which it was reasonably possible that a different person took the wheel. Th e conclusion defendant was driving during this time

was further supported by the comments of the co defendants in the jail and defendant’s
own references to his inability to push the van to go faster during the chase

. The
evidence was therefore very strong that defendant participated in the last robbery and drove the van during the police chase. For the final robbery (charged in count IV ) and
the counts associated with the police chase, evading a police officer and causing serious bodily injury, vehicular manslaughter, and driving a stolen vehicle (counts V III , IX , and
X ), we find no probability of a more favorable result in the absence of Chamberlain’s testimony. The same is true of defendant’s conviction f or second degree murder (count
II ), which was based entirely on the reckless manner in which he drove in causing the
collision. The trial court’s error in admitting Chamberlain’s testimony provides no basis for reversing these convictions.
C. Prosecutorial Misconduct Defendant contends the prosecutor committed misconduct by (1) misstating the law of felony murder, (2) appealing to passion and prejudice in arguing for conviction on the felony murder charge, and (3) m akin g various other improper arguments, as detailed
below. Because they relate only to the reversed felony murder conviction, the first two arguments are moot ed by our reversal of that conviction

. The other improper arguments were harmless. D efendant conten ds (1) the prosecutor committed Griffin 8 error by arguing that if defendant were innocent he would have told his mother during a conversation between the two played for the jury during
rebuttal ; (2) the prosecutor misled the jury in arguing defendant would have told his mother during the same conversation if he had been coerced by his codefendants ; (3) the

8 Griffin v. Califo rnia (1965) 380 U.S. 609 ( Griffin ).15

misled the jury by characterizing defendant as the “lead witness” for the prosecution
, based on his recorded statements in jail ; and (4) the prosecutor r eferred to evidence outside the record in telling the jury the deceased police officer had been “paralleling the pursuit.” Griffin error occurs when a prosecutor comment s “ ‘ upon a defendant’s failure to testify in his or her own behalf ’ ” ( People v. Thom as (2012) 54 Cal.4th 908, 945), and it is a serious matter. Because the prosecutor’s comment related entirely to defendant’s conduct during an out

- of

- court conversation, with no allusion to his failure to testify at trial , it did not constitute Griffin er ror. (See People v. Tully (2012) 54 Cal.4th 952, 1021 .) We decline to decide whether any of the remaining arguments constituted misconduct because they were peripheral to the primary evidence against defendant on the affirmed
convictions. On those count s, the evidence was strong, and the prosecutor’s purported
misconduct was harmless under the standards either of Watson , supra , 46 Cal.2d 818 or Chapman v. California
, supra , 386 U.S. 18.
III. DISPOSITION

Defendant’s convictions on counts I (first degree murder), III (conspiracy to commit robbery), V, VI , and VII ( all robbery) are reversed, a s are the findings on the enhancement allegations associated with these counts . Defendant’s convi ctions on the remaining counts are affirmed. The matter is remanded to the trial court for further proceedings consistent with this decision.

_________________________ Margulies, Acting P.J.

We concur:

_________________________ Banke, J.

_________________________ Becton, J. *

* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Trial Court: San Francisco City and County Superior Court

Trial Judge: Hon. Newton J. Lam

Counsel:
Janice M. Lagerlof , under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant Attorneys General, Catherine A. Rivlin and Allen R. Crown, Deputy Attorneys General for Plaintiff and Respondent.