IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID PHILLIP RODRIGUEZ,

Defendant and Appellant.

S251706

Fifth Appellate District

F073594

Kings County Superior Court

12CM7070

May 21, 2020

Justice Groban authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, 

Cuéllar, and Kruger concurred.
1

PEOPLE v. RODRIGUEZ

S251706

Opinion of the Court by Groban, J.

This case presents the question of whether a prosecutor

impermissibly vouched for witness credibility by asserting in

closing argument that two testifying officers would not lie 

because each would not put his “entire career on the line” or “at 

risk” and would not subject himself to “possible prosecution for 

perjury.” The Court of Appeal answered this question in the 

affirmative. The court further held that the error was 

prejudicial and therefore reversed the judgment of conviction. 

We affirm.

I. BACKGROUND

On October 27, 2011, correctional officers Brian Stephens

and Roger Lowder worked at the Substance Abuse Treatment 

Facility at Corcoran State Prison, where defendant David 

Rodriguez was an inmate.

Stephens testified to the following: At around 11:40 a.m.

that day, he was in the prison patio area when he saw Rodriguez 

approximately 12 to 15 feet away inside a connecting hallway. 

Stephens had never seen Rodriguez before. Stephens observed 

Rodriguez with an untucked shirt covering his waist and 

handcuffs on his wrists. At a doorway to the hallway, Stephens 

met Rodriguez and told him to hold on. Stephens looked over 

his shoulder to see if another officer could assist him. He then 

saw a shiny object from his peripheral vision and felt a “[v]ery 

heavy and hard” blow on the back of his head. As far as he knew, 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

2

he was only struck once. A photograph of Stephens’s head was 

taken on the day of the incident and was introduced at trial as 

a defense exhibit. Stephens testified that he sustained neck, 

shoulder, and head injuries, but that the head injury was under 

his hair and he could not see any injuries in the photograph. 

Stephens stated that at the time of trial he had been working 

for the Department of Corrections and Rehabilitation for 

approximately 17 and a half years.

Lowder testified to the following: On the day of the 

incident, at around 11:40 a.m., he heard someone yell “get 

down.” From about 20 yards away, he then saw Rodriguez 

striking Stephens from behind. Rodriguez had handcuffs on his

wrists, but the chain from a waist restraint system was wrapped 

around his hands and another four to six inches of chain was 

hanging from his left fist. Lowder said he saw Rodriguez twice 

raise his hands with chains in them and strike downward onto 

the back of Stephens’s head, neck, and shoulders. Lowder 

testified that several correctional officers ran toward the 

altercation. One sprayed Rodriguez with pepper spray. 

Rodriguez swung the chain within about two feet of another 

officer’s face, but did not hit him. The officers subdued him. 

Lowder stated that at the time of trial he had been working for 

the Department of Corrections and Rehabilitation for 

approximately 22 years nine months.

The jury saw a very low-quality video of the incident. 

Lowder testified that the resolution of the video was too low to 

see Rodriguez striking Stephens. Lowder and Stephens were 

the only witnesses to the incident who testified for the 

prosecution. A third officer testified that he arrived on the scene 

after Rodriguez was down. He said the chains from the restraint 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

3

system that normally go around an inmate’s waist were instead 

under Rodriguez’s body and were only attached at the wrist.

Rodriguez testified on his own behalf. He testified that on 

the day of the incident, correctional officers told him he had to 

go to class after he had been in his cell continuously for three or 

four weeks. Once in class, he got the teacher’s permission to use 

the restroom. After using the restroom, he walked out to the

prison patio area. Rodriguez said that he encountered Stephens 

and “got into a light argument” with him. Rodriguez walked 

past him. Stephens “tried to get out of my way, stumbled back 

and I just kept going forward.” Rodriguez heard an alarm go off, 

then someone said “get down,” and “some shots” were fired. 

Rodriguez “got pepper sprayed and went to the ground.” He

stated that he never struck Stephens with anything. According 

to Rodriguez, the waist restraints were around his waist at that 

time and therefore it was physically impossible to strike anyone 

with them. The parties stipulated that about two weeks before 

the incident, Rodriguez was notified that his father, 

grandmother, and uncle had all passed away within a short 

period of time.

During closing arguments, defense counsel argued that 

“the officers who testified aren’t credible.” Defense counsel went 

on to question the officers’ version of events based upon the 

video. After defense counsel’s arguments, the prosecutor then

argued in closing:

“The jury instructions provided by the Judge list a 

number of factors for you to consider when you are 

evaluating the credibility of witnesses. I want to 

highlight one of those factors for you and that is 

motive to lie. Who in this trial, when they testified 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

4

before you, had a motive to lie, the officers or the 

defendant?

[¶] . . . [¶]

“What did Officer Stephens tell you? He told you 

that he was attacked. He was hit from behind. Now, 

I ask you what motive would he have to lie? Sort of 

anticipating a defense like this, when Officer 

Stephens was on the stand, I asked him, before that 

day, to your knowledge, had you ever seen the 

defendant before? No. Did you know the defendant? 

No. So, you are being asked to believe by the defense 

that Officer Stephens, an officer, I think, with 17 

years of experience with the Department of 

Corrections, for some reason, would put his entire 

career on the line. He would take the stand, subject 

himself to possible prosecution for perjury and lie 

and make up some story and tell you that this guy, 

who he didn’t know, attacked him and hit him on the 

back of the head. For what reason? What possible 

motive would he have to do that?

“But you add to that the testimony of Officer Lowder. 

Officer Lowder testified this guy, the defendant, hit 

Officer Stephens. So, now, we have two officers 

involved in this lie, apparently, according to the 

defendant. Another officer with a long career. His 

was over 20 years. So, we’re supposed to believe 

that, for some reason, Officer Lowder would put his 

entire career with the Department of Corrections at 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

5

risk, subject himself to possible prosecution for 

perjury— ”

At this point, defense counsel objected: “Assumes facts not in 

evidence.” The trial court impliedly overruled the objection: 

“Excuse me. Go ahead. You may continue.” The prosecutor

finished the argument: “To perjure himself before you and, for 

some reason, lie and tell you that this defendant hit Officer 

Stephens on the back of the head. I submit to you what reason 

would he have to do that? There’s no motive to lie that we know 

of.”

The jury convicted Rodriguez as charged with two counts 

of assault by an inmate with a deadly weapon (Pen. Code, § 

4501),1 and one count each of battery by an inmate on a noninmate (§ 4501.5), attempted battery by an inmate on a noninmate (§§ 664/4501.5), and attempting to deter or prevent an 

executive officer from performing a duty (§ 69). Pursuant to an 

agreed disposition, Rodriguez admitted a prior strike (§§ 667, 

subds. (b)–(i), 1170.12, subds. (a)–(d)) and the prosecution 

moved to dismiss prior prison term allegations (§ 667.5, subd. 

(b)).

The trial court sentenced Rodriguez to 14 years eight 

months in prison, consisting of six years for assault by an inmate 

with a deadly weapon, doubled for the prior strike, plus a 

consecutive two years eight months for the other assault by an 

inmate with a deadly weapon conviction. The sentences on the 

remaining counts were stayed pursuant to section 654.

 

1 All further unspecified statutory references are to the 

Penal Code.
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

6

The Court of Appeal reversed. It found that the prosecutor 

committed reversible error with respect to all counts by 

improperly vouching for Lowder’s and Stephens’s credibility

during closing. The court also concluded that the trial court 

committed reversible error with respect to the convictions for 

assault by an inmate with a deadly weapon by failing to instruct 

sua sponte on simple assault as a lesser included offense. The 

Attorney General petitioned for review solely on the question of 

whether the prosecutor’s argument constituted impermissible 

vouching. We granted the petition.

II. DISCUSSION

A. Vouching for the Witnesses’ Credibility

The Attorney General contends that the prosecutor’s 

closing argument did not constitute improper vouching because 

it did not rely on facts outside the record or invoke the prestige 

of the prosecutor or his office.

“ ‘[A] prosecutor is given wide latitude to vigorously argue 

his or her case’ ” (People v. Dykes (2009) 46 Cal.4th 731, 768

(Dykes)) and “ ‘may make “assurances regarding the apparent 

honesty or reliability of” a witness “based on the ‘facts of [the] 

record and the inferences reasonably drawn therefrom.’ ” ’ ” 

(People v. Redd (2010) 48 Cal.4th 691, 740 (Redd).) “Improper 

vouching occurs when the prosecutor either (1) suggests that 

evidence not available to the jury supports the argument, or (2) 

invokes his or her personal prestige or depth of experience, or 

the prestige or reputation of the office, in support of the 

argument.” (People v. Anderson (2018) 5 Cal.5th 372, 415

(Anderson).) Referring to facts not in evidence is “clearly” 

misconduct “because such statements ‘tend[] to make the 

prosecutor his own witness—offering unsworn testimony not 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

7

subject to cross-examination. It has been recognized that such 

testimony, “although worthless as a matter of law, can be 

‘dynamite’ to the jury because of the special regard the jury has 

for the prosecutor, thereby effectively circumventing the rules of 

evidence.” [Citations.]’ [Citations.] ‘Statements of supposed 

facts not in evidence . . . are a highly prejudicial form of 

misconduct, and a frequent basis for reversal.’ ” (People v. Hill

(1998) 17 Cal.4th 800, 828 (Hill), overruled on another ground 

in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) 

We “view the statements in the context of the argument as a 

whole.” (People v. Cole (2004) 33 Cal.4th 1158, 1203.)

Here, the prosecutor’s argument generally asking, “what 

motive would [Stephens] have to lie?” (see ante, at p. 4), was 

proper because it did not “suggest the prosecutor had personal 

knowledge of facts outside the record showing [Stephens] was 

telling the truth” or “invite[] the jury to abdicate its 

responsibility to independently evaluate for itself whether 

[Stephens] should be believed.” (People v. Bonilla (2007) 41 

Cal.4th 313, 337–338.) The prosecutor’s argument immediately 

after that concerning Stephens’s testimony that he had not seen 

Rodriguez before the day of the incident was based upon the 

record and was proper. The prosecutor had asked Stephens on 

direct examination if he had ever seen Rodriguez before the day 

in question. Stephens responded, “Not prior to that day, no.” 

The prosecutor was permitted to point this out.

Furthermore, the prosecutor’s argument concerning the 

length of Stephens’s and Lowder’s careers was based upon the 

record and was proper as well. Lowder testified he had been 

working for the Department of Corrections and Rehabilitation 

for approximately 22 years nine months. Stephens testified that 

he had been working for the Department of Corrections for 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

8

approximately 17 and a half years. The prosecutor was fully 

permitted to argue that Stephens had “17 years of experience 

with the Department of Corrections” and that Lowder was 

“[a]nother officer with a long career. His was over 20 years.”

However, the prosecutor’s arguments that the officers 

would not lie because each would not put his “entire career on 

the line” or “at risk” constitute impermissible vouching. The 

prosecutor’s career-related arguments “convey the impression 

that evidence not presented to the jury, but known to the 

prosecutor, supports the charges against the defendant and can 

thus jeopardize the defendant’s right to be tried solely on the 

basis of the evidence presented to the jury.” (United States v. 

Young (1985) 470 U.S. 1, 18.) The record here does not contain 

any direct or circumstantial evidence about whether the officers 

“would put” their “entire career on the line” or “at risk” by giving 

false testimony. The officers did testify that they had served for 

17 and 20 years, but the length of an officer’s career does not 

supply evidence that the officer would risk the most severe 

career penalty (being fired) for testifying falsely. The 

prosecutor’s arguments on these topics are thus based upon 

matters outside the record that were not subject to 

cross-examination.

The Attorney General responds that the comments are 

proper as matters of common knowledge and inferences 

reasonably drawn therefrom. We disagree. Counsel may “draw 

from matters that are ‘ “ ‘ “not in evidence, but which are 

common knowledge or are illustrations drawn from common 

experience, history or literature.” ’ ” ’ ” (People v. Ghobrial

(2018) 5 Cal.5th 250, 289.) “[F]acts are deemed within the 

common knowledge of the jury only if they are matters of 

common human experience or well known laws of natural 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

9

science.” (People v. Love (1961) 56 Cal.2d 720, 732, disapproved 

on another ground in People v. Morse (1964) 60 Cal.2d 631, 637, 

fn. 2; accord, People v. Davis (2013) 57 Cal.4th 353, 360; see, e.g., 

People v. Perez (1962) 58 Cal.2d 229, 242, disapproved on 

another ground in People v. Poggi (1988) 45 Cal.3d 306, 335.)

Even if true, the fact that a law enforcement officer would risk 

termination for providing false testimony is not a matter of 

common knowledge. Instead, the validity of this assertion 

hinges on the inner workings of the relevant disciplinary 

procedures, including the disciplinary rules of the relevant law 

enforcement agency and the applicability of any collective 

bargaining agreement. This kind of determination lies beyond 

the ken of the average juror. 

The Attorney General emphasizes that the prosecutor only 

stated that the officers put their careers “at risk” or “on the line,” 

but did not “firmly” state the officers would lose their jobs, as 

the Court of Appeal indicated. (See People v. Rodriguez (2018) 

26 Cal.App.5th 890, 907 (Rodriguez).) We agree with the 

Attorney General that the prosecutor did not “firmly” state that 

the officers would lose their jobs, as the Court of Appeal 

suggests. Nonetheless, the prosecutor did convey to the jury

that the officers would risk losing their jobs by lying on the 

stand. There was no evidence in the record to support this 

contention. Furthermore, the prosecutor’s statements conveyed

that he knew information about the discipline of law 

enforcement officers that was not known to the lay juror. This 

was improper. (See United States v. Weatherspoon (9th Cir. 

2005) 410 F.3d 1142, 1146 [“while no such firm assurance was 

provided . . . [,] no such modest shade of difference in the level 

of impropriety calls for a different result”].)
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

10

To be clear, our cases have traditionally looked to 

statements of personal beliefs in assessing whether a prosecutor 

has improperly invoked personal prestige or the reputation of 

the office. (See, e.g., People v. Fuiava (2012) 53 Cal.4th 662, 

693–694 [“the prosecutor placed his own prestige and the 

prestige of his office behind the Vikings, and in so doing, 

improperly interjected into the trial his personal view of the 

credibility of the heart of the defense case”]; People v. Loker

(2008) 44 Cal.4th 691, 739–740 [prosecutor improperly “injected 

his own experiences and beliefs into the argument”].) This is 

not a case where the statements at issue involved reliance on 

the personal beliefs or honor or integrity of the attorney making 

the statement. The main problem with the statements here is 

that they suggest “that evidence not available to the jury 

supports the argument.” (Anderson, supra, 5 Cal.5th at p. 415.) 

But the statements pose similar concerns to vouching in its more 

traditional forms. When a prosecutor argues beyond the record 

about the career risks of untruthful testimony, the prosecutor 

invites the jury to fill in gaps in the evidentiary record by 

reference to the jury’s own surmise based on the special 

reputation of law enforcement agencies and officers for veracity, 

as well as suppositions about the special insight prosecutors 

may have into law enforcement disciplinary procedures. The 

prosecutor thus “invite[s] the jury to rely on the prestige of the 

government and its agents rather than the jury’s own evaluation 

of the evidence.” (U.S. v. Torres-Galindo (1st Cir. 2000) 206 F.3d 

136, 142.)

The prosecutor’s comments regarding “possible 

prosecution for perjury” do not implicate quite the same 

concerns regarding improper vouching. With at least one 

version of the oath administered to witnesses stating that the 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

11

testimony is “under penalty of perjury” (Code Civ. Proc., § 2094, 

subd. (a)(2)), that someone may be subject to “possible

prosecution for perjury” for knowingly providing false testimony 

at a trial may well be a more widely appreciated proposition

than is the likelihood of termination from employment for such 

conduct.

In light of our conclusion that it was misconduct to 

speculate about the potential employment consequences of lying 

on the stand, we need not determine if the prosecutor’s specific 

assertions regarding “possible” perjury prosecutions were 

acceptable. That a perjury prosecution for false testimony was 

“possible” may have been a fact within the common knowledge 

of jurors; however, as the Attorney General conceded at oral 

argument, a lay juror would naturally think that a prosecutor 

would know more about when someone can be prosecuted for 

perjury than a juror. For this reason, prosecutors are well 

advised to generally avoid raising the subject of future perjury 

prosecutions in their closing arguments.

Finally, though the argument in this case crossed the line 

into impermissible vouching, we do not mean to suggest that 

appropriate and zealous advocacy is somehow prohibited. When 

defense counsel argues that a witness has lied, the prosecutor is 

permitted to respond. The prosecutor “ ‘may make “assurances 

regarding the apparent honesty or reliability of” a witness 

“based on the ‘facts of [the] record and the inferences reasonably 

drawn therefrom.’ ” ’ ” (Redd, supra, 48 Cal.4th at p. 740.) The 

error here is that the prosecutor’s arguments were based on 

matters outside the record and that is not permitted.
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

12

B. Cases Relied Upon by the Parties

We have briefly addressed vouching claims based upon 

similar career-risk arguments before, with some divergence in 

our precedent. In Dykes, supra, 46 Cal.4th at page 774, the

prosecutor argued: “ ‘If you believe [defendant], [an officer] is 

lying, risking his career and everything it stands for, to 

somehow frame this man.’ ” We concluded the claim was 

forfeited and, in any event, “the remark constituted fair 

comment on the evidence” that had been presented in that trial.

(Ibid.) In another instance, we doubted “that the argument was 

proper” when a prosecutor argued that if a testifying officer had 

lied he would have “ ‘risked his whole career of 17 years.’ ” 

(People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on 

another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1.) 

The Attorney General argues that we approved a 

prosecutor’s closing argument in “[p]erhaps the case most 

similar to the present one.” In People v. Anderson (1990) 52 

Cal.3d 453, in “briefly review[ing] the merits,” we found that 

“remarks [were limited] to facts of record, namely, the years of 

experience of officers involved,” and “inferences reasonably 

drawn therefrom,” when the prosecutor doubted the officers 

would “jeopardize” their reputation by lying on the witness 

stand “just to convict one defendant.” (Id. at pp. 478–479.) The

Attorney General, however, attaches too much import to this 

discussion. Because the claim there was forfeited, our 

observations were not necessary to the claim’s resolution. (See 

People v. Mendoza (2000) 23 Cal.4th 896, 915 [“ ‘[W]e must view 

with caution seemingly categorical directives not essential to 

earlier decisions and be guided by this dictum only to the extent 

it remains analytically persuasive’ ”].) Moreover, the prosecutor 

in Anderson doubted the officers would “ ‘jeopardize’ ” their 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

13

reputation, but did not, as here, argue that officers would not 

put their “entire career on the line.” The prosecutor’s arguments 

in Anderson were therefore more directly tied to evidence in the 

record, namely the officer’s years of experience, than the 

arguments here. Whether an officer would be fired for testifying 

falsely would not depend on the number of years the officer had 

been working, but, conversely, an officer’s reputation could 

reasonably grow over time. 

The Attorney General argues that we should follow People 

v. Caldwell (2013) 212 Cal.App.4th 1262. In Caldwell, in 

response to a defense argument that testifying officers had lied, 

the prosecutor argued that the officers would not commit 

perjury and “ ‘put their career on the line.’ ” (Id. at p. 1270.) 

Caldwell found that the prosecutor “was not vouching for [the 

officers’] credibility; he was rebutting the defense attorney’s 

charge that the officers had lied about the photo lineup.” (Id. at 

p. 1271.) The Court of Appeal in this case disagreed: “Defense 

counsel does not open the door for prosecutorial vouching every 

time he or she argues that a prosecution witness’s testimony is 

untrue.” (Rodriguez, supra, 26 Cal.App.5th at p. 910.) 

Impermissible vouching — where counsel relies on evidence not 

available to the juror or invokes his or her personal prestige or 

depth of experience — does not become permissible simply 

because the speaker claims to be responding to something 

opposing counsel said. (See People v. Bain (1971) 5 Cal.3d 839, 

849 [“A prosecutor’s misconduct cannot be justified on the 

ground that defense counsel ‘started it’ with similar 

improprieties”]; People v. Taylor (1961) 197 Cal.App.2d 372, 383 

[“It is no answer to state that defense counsel also used 

questionable tactics during the trial and therefore the district 

attorney was entitled to retaliate”].) We accordingly agree with 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

14

the Court of Appeal and disapprove People v. Caldwell, supra, 

212 Cal.App.4th 1262. 

The argument here suffers from the same deficiencies, 

albeit to a lesser degree, as those addressed in People v. Woods

(2006) 146 Cal.App.4th 106 (Woods). In Woods, the prosecutor 

argued that:

“ ‘In a day of videotapes and people standing out 

with video cameras, do you honestly believe that out 

of 12 officers that went to that location that day they 

all sat down and got together and cooked up what 

they are going to say, that they all agreed as to what 

was going to go into the report, and they allowed 

that report to be filed with their names in it and 

their serial numbers in it? They are going to risk 

their careers and their livelihood for kilos of cocaine? 

For some heroin? Maybe for some stolen Maserati 

car parts? No. For five rocks of cocaine? That’s 

what this comes down to, ladies and gentlemen. Mr. 

Woods and his cocaine that he tossed that day. 12 

officers, 12 individual careers, pensions, house 

notes, car notes.’ Defense counsel objected that 

there was no evidence to support the argument. The 

court overruled the objection.

“[The prosecutor] continued her argument, stating,

‘Bank accounts, children’s tuition.’ Defense counsel 

asserted a ‘running objection,’ which the court 

overruled.

“After the ruling on the objection, [the prosecutor] 

resumed the argument, saying, ‘Are these 12 officers 
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Opinion of the Court by Groban, J.

15

willing to risk those things for Mr. Woods and his 

five rocks of cocaine?’ ” (Woods, supra, 146 

Cal.App.4th at p. 114.)

The Court of Appeal in Woods held that the argument 

strayed “into impermissible territory when [the prosecutor] 

implicitly suggested that all 12 unidentified, mostly 

nontestifying officers . . . had been involved in a case or cases 

involving higher stakes such as kilos of cocaine, heroin, and 

stolen Maserati parts, but had not risked their careers for the 

higher stakes case or cases; and the same 12 officers had 

mortgages, car loans, and children in private schools. Although 

the officers’ financial obligations and experience were irrelevant 

to appellant’s guilt, [the prosecutor] argued these factual 

matters outside of the record to attempt to establish the veracity 

of the few members of the group of 12 officers who testified.” 

(Woods, supra, 146 Cal.App.4th at p. 115.) While the 

prosecutor’s extrarecord arguments in Woods are more 

extensive than here, the overarching concern is the same in both 

cases. In Woods, the prosecutor argued beyond the record to 

bolster the credibility of the testifying officers by suggesting that 

they would not risk their careers and jeopardize their financial 

obligations. Here, the prosecutor also argued beyond the record 

to support the veracity of the testifying officers — specifically,

that the officers would be putting their “entire career on the 

line.”

The Attorney General also points to less analogous cases 

where we rejected claims of prosecutorial vouching. However, 

in each case, the prosecutor’s statements were either more 

directly tied to the record than the arguments at issue here or 

were sufficiently general such that they would not convey to the 
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Opinion of the Court by Groban, J.

16

jury that the prosecutor had any special knowledge about the 

subject. (See People v. Peoples (2016) 62 Cal.4th 718, 796 

[prosecutor argued that an expert was “ ‘so much more capable, 

with no agenda, and serving the bottom line to you’ ”; the 

comment was “reasonable commentary on the credibility of the 

witnesses”]; Redd, supra, 48 Cal.4th at p. 741 [prosecutor 

argued that a testifying officer “went the extra distance” and 

took his “job seriously”; the comments “were based upon facts 

established by the testimony”]; People v. Boyette (2002) 29 

Cal.4th 381, 433 [prosecutor argued witnesses had no motive to 

lie; the comments were “simply argument based on inferences 

from the evidence presented”]; People v. Medina (1995) 11 

Cal.4th 694, 757 [prosecutor argued that ballistics experts had 

no reason to lie, were not being paid for testifying, and told the 

truth to the jury; “the prosecutor properly relied on facts of 

record and the inferences reasonably drawn therefrom”]; People 

v. Davenport (1995) 11 Cal.4th 1171, 1217–1218 [prosecutor 

argued, “ ‘[i]s that [expert], for 75 bucks going to come in here 

and, you know, make all of his findings up or try and sway 

them?’ ”; “the prosecutor reasonably inferred that [the expert]

had received $75 for the . . . autopsy based on [testimony about 

payments]. Reference to this modest payment suggested that 

[the expert] had no motive to fabricate in making his report”].)

The claims in Redd, Medina, and Davenport were forfeited on 

appeal as well. (See Redd, at p. 741; Medina, at p. 757; 

Davenport, at p. 1095.) These cases are therefore not dispositive 

of the issue before us now.

C. Conclusion

Based upon the foregoing and the record in this case, we 

find that the prosecutor impermissibly vouched for the testifying 

officers’ credibility. The Court of Appeal found that the 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

17

prosecutor’s vouching was prejudicial. That court appears to 

have overstated the import and effect of the prosecutor’s 

remarks when it explained, “The impact of the prosecutor’s 

remarks depended on the truth of a number of propositions, 

none of which come close to being self-evident: that law 

enforcement officers of long tenure are more likely to be honest 

than other people; that they can firmly expect to lose their jobs 

if they lie or exaggerate when testifying against those accused 

of crime; that they face a grave risk of prosecution for perjury by 

the very prosecutors who have presented their testimony if they 

do this; or that these factors are so powerful in the minds of 

officers that they would feel no motivation to lie in order to 

maximize the punishment of those who attack them.”

(Rodriguez, supra, 26 Cal.App.5th at p. 907, italics added.) We 

doubt that a reasonable juror would have drawn these precise 

conclusions from the prosecutor’s remarks and therefore 

disapprove People v. Rodriguez, supra, 26 Cal.App.5th 890. 

Nevertheless, the Attorney General has not argued 

harmlessness here, and we express no view on the Court of 

Appeal’s conclusions that the statements were prejudicial. We 

do observe, however, that courts have often found that brief 

statements such as those before us have limited prejudicial 

effect. (See, e.g., State v. Whitfield (R.I. 2014) 93 A.3d 1011, 

1020, fn. 6.) We therefore affirm the Court of Appeal’s reversal 

of the judgment.

2

 

2 The Attorney General also does not contest the Court of 

Appeal’s reversal of Rodriguez’s convictions for assault with a 

deadly weapon on instructional error grounds. 
PEOPLE v. RODRIGUEZ

Opinion of the Court by Groban, J.

18

III. DISPOSITION

We affirm the Court of Appeal’s judgment.

GROBAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rodriguez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding 

Review Granted XXX 26 Cal.App.5th 890

Rehearing Granted

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Opinion No. S251706

Date Filed: May 21, 2020

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Court: Superior

County: Kings

Judge: James LaPorte

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Counsel:

Lauren E. Dodge, under appointment by the Supreme Court, for Defendant and Appellant.

Ricardo D. Garcia, Public Defender, and Albert J. Menaster, Deputy Public Defender, for the Los Angeles 

County Public Defender’s Office as Amicus Curiae on behalf of Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, 

Assistant Attorney General, Lewis A. Martinez, Nora S. Weyl, Louis M. Vasquez, Rachelle A. Newcomb,

Janet E. Neeley and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Lauren Dodge

1250 Newell Avenue, #220

Walnut Creek, CA 94596

(925) 948-1090

Lewis A. Martinez

Deputy Attorney General

2550 Mariposa Mall, Room 5090

Fresno, CA 93721

(559) 705-2308