1 Filed 8/19/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JOSE CESAR SANCHEZ, Defendant and Appellant. E057059 (Super.Ct.No . FWV1200490) O P I N I O N

APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge. Affirmed. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Raquel M. Gonzalez, Deputy Attorneys Genera l, for Plaintiff and Respondent.2 I. INTRODUCTION A jury convicted defendant and appellant Jose Cesar Sanchez of grand theft of copper wire. (Pen. Code, § 487, subd. (a).) He was sentenced to three years in county jail. On appeal, defendant contends that f our statements made by the prosecutor during closing argument deprived him of his constitutional rights to due process and a fair trial in two respects. First, the prosecutor committed Griffin 1 error by implicating defendant’s failure to testify. Second, the prosecutor made inflammatory stat ements about defendant and the jurors. We hold that one comment constituted Griffin error and another amounted to prosecutorial misconduct. We conclude, however, that the errors, individually and cumulatively, are harmle ss. We therefore affirm the judgment. II. FACTUAL BACKGROUND Around 3:00 a.m. on Februa ry 28, 2012, two Southern California Edison (SCE) employees drove to an SCE service center. Th e center, or yard, is surrounded by a brick wall topped with barbed wire; entry requires an electronic ke y card. As they pulled into the yard, one of the employees saw a person underneath a truck. The employee called the police. Police officers arrived and found defendan t in the wheel well of a truck. An officer ordered defendant to come out. When defendant did not comp ly, the officer tased him, pulled him out, and arrested him. Inside the wheel well there were rolls of tape and a walkie-talkie.

1 Griffin v. California (1965) 380 U.S. 609 ( Griffin ).3 The police officers found a large extensio n ladder propped up against the north wall of the distribution yard. A backpack c ontaining pliers and mi scellaneous hand tools was found near the truck. Spools of SCE’ s wire were on the ground, along with wire cutters; a milk crate holding drills and an im pact wrench was found in the middle of the yard. According to one of the SCE employee s, the location of the ladder and the items found on the ground was unusual a nd would violate SCE’s rules. Police officers located a GMC Yukon at a restaurant parking lot about a block away from the SCE yard. The ve hicle had been last register ed in defendant’s name in 2010. Jasmine Rodriguez was in the driver’s seat. Rodriguez consented to a search of the vehicle. The search tu rned up a notebook with the word “Cash” written on it and containing addresses of severa l SCE yards, including the ya rd in which defendant was found. A walkie-talkie found in the vehicle co nnected directly to th e walkie-talkie found inside the SCE truck wheel well. Inside the Yukon there were also several tools, black tape, a dolly, and a ceramic insulator of the kind used on power poles. A surveillance videotape of the SCE di stribution yard revealed two figures climbing in and out of SCE tr ucks and taking items off the trucks during the two hours preceding defendant’s apprehension. The videotape also showed a person walking toward the south end of the yard—the same area in which defendant was found—at 3:03 a.m. Less than two minutes later, the tw o SCE employees who found defendant pulled into the yard.4 The copper wire found lying on the grou nd was about 3,125 feet long. The total value of the wire was $4,185. If the wire wa s deemed scrap, it would be worth $1,366.
III. THE PROSECUTOR’S COMME NTS DURING CLOSING ARGUMENT

At trial, defendant did not testify and did not presen t any defense witnesses. At the conclusion of rebuttal argument, the prosecutor stated: “Ladies and gentlemen, ultimately the thing to remember is that defens e attorneys don’t get up here and say, ‘You know what, ladies and gentlemen, the evidence is just damning. My guy is guilty. Find him guilty. Than k you, I’m done.’ [¶] They don’t do that. They get up here and they work with what they have. And the reality is that this is not a good case for the defense so they get up here and argue whatever they can. If the defense had a plausible, reasonable explanati on why the defendant was in th e yard that morning, they would have given it. They haven’t

. [¶] [Defense counsel] is a talented a ttorney, skilled attorney. And if she had a reasonable, plausible ex planation for the defendant’s presence in that yard at 3:00 in the morning she would have given it. She hasn’t because . . . .” (Italics added.) At this point, defense counsel objected to these statements as Griffin error. The court took the matter under submission. The prosecutor continued: “I would submit to y ou ultimately the defense’s argument is about hope. It’s about hope that one of you—and just one of you, that’s all they need—just one of you, will be gullible enough to think that th e defendant just happened to be in that Edison ya rd at 3:00 in the morning . . . . Hope that one of you, just one of you will be naïve enough to believe that this was some kind of inside job. Hope5 that one of you, just one of you, will be hoodwinked by the idea that [the two SCE employees] came in here and lied about how th e yards are kept at Southern California Edison. Hope that one of yo u, just one of you, will be gullible enough to be bought by one of these ridiculous arguments. Hope that one of you will be naïve enough to think that any of this amounts to reasonable doubt. [¶] Why? So that the defendant can go home and have a good la ugh at your expense. ” (Italics added.) Defense counsel objected to these statemen ts as “[i]mproper.” In the presence of the jury, the court instructed th e prosecution “not [to] influe nce the jurors by calling them names, basically, naïve or gullible if they did something you don’t like.” The prosecutor concluded hi s argument by stating: “Ladies and gentlemen, as we sit here today, the defendant is still in that wheel well in a very real sense, and this time he’s hiding from all of you.

. . . Pull him out of that wheel well one last time. Thank you.” (Italics added) Defense counsel did not object to this statement. Despite the lack of objection, the court addressed some of th ese statements outside the presence of the jury. Although the court had been “vigilantly listening,” it “did not see or hear any Griffin error.” However, the court reminded the pros ecutor that he is held to “high, high ethical standards,” and told the prosecutor there were a couple of times when he “got very close to the line.” In particular, the court pointed to the prosecut or’s statement that defendant is: “[S]till hiding in this barrel [ sic ]. You repeated your theme . . . that he never acknowledged his guilt so he’s still hidi ng, he doesn’t acknowledge his guilt.” The6 prosecutor was reminded to “stay away from those arguments because it’s going to be appealed. It’s going to be a huge issue.” IV. STANDARD OF REVIEW We evaluate claims of Griffin error by inquiring whether there is “a reasonable likelihood that any of the [pro secutor’s] comments could have been understood, within its context, to refer to defendant ’s failure to testify.” ( People v. Clair (1992) 2 Cal.4th 629, 663.) The standard for evaluating claims of prosecutorial misconduc t is well established and summarized as follows: “A prosecut or’s conduct violates the Fourteenth Amendment to the federal Constitution when it in fects the trial with su ch unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally un fair is prosecutor ial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, . . . when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complainedof remarks in an objectionable fashion.” ( People v. Morales (2001) 25 Cal.4th 34, 44, italics added.) V. DISCUSSION A. Griffin Error Defendant argues the prosecutor implicat ed defendant’s failure to testify by arguing that if the defense had a plausibl e, reasonable explanation for defendant’s7 presence in the SCE yard, it would have give n one, and it had not. Defendant further argues that the prosecutor compounded the Griffin error by telling the jurors that defendant was “still in th at wheel well in a very real sens e, . . . hiding fr om all of you,” and that the jury should “[p]ull him out of that wheel well one last time.” 1. Applicable Law
In Griffin , the United States Supreme Court held that “the Fifth Amendment . . . forbids . . . comment by the prosecution on the accused’s silence . . . .” ( Griffin, supra, 380 U.S. at p. 615, fn. omitted.) The Griffin rule has been exte nded to prohibit a prosecutor from commenting, either directly or indirectly, on the defendant’s failure to testify. ( People v. Medina (1995) 11 Cal.4th 694, 755; see U.S. v. Robinson (1988) 485 U.S. 25, 32 [ Griffin prohibits “‘prosecutor from suggesti ng to the jury that it may treat the defendant’s silence as subs tantive eviden ce of guilt.’”]

. ) However, this rule does not preclude a prosecutor’s comments on the state of the evidence, or on the failure of the defense to introduce material eviden ce or to call logical witnesses. ( People v. Hovey (1988) 44 Cal.3d 543, 572.) As both parties acknowledge , a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted when the nontestifying defendant is the only pers on who can refute the evidence. ( People v. Johnson (1992) 3 Cal.4th 1183, 1229.) “If, how ever, the evidence could have been contradicted by witnesses other than the de fendant, the prosecutor may without violating8 defendant’s [Fifth Amendment right] desc ribe the evidence as ‘unrefuted’ or ‘uncontradicted.’” ( Ibid. ) 2. Analysis We first consider the prosecutor’s comme nt: “If the defense had a plausible, reasonable explanation why the defendant was in that yard that morning, they would have given it. They haven’t. ” We conclude this st atement did not constitute Griffin error. Preliminarily, the People argue that de fendant forfeited any claim regarding this statement because he failed to object when it was made. It is true that “[w]hen a defendant believes the prosecutor has ma de remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection . . . [to] preserve[] [the claim] for appeal.” ( People v. Morales, supra, 25 Cal.4th at pp. 43-44.) However, it is also true that a review ing court may, in its discretion, decide to review a claim that has been or may be forfeit ed for failure to rais e the issue below. ( In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; se e also Pen. Code, § 1259 [an “appellate court may, without exception having been taken in the trial court, review any question of law involved . . . at the trial . . . which affected the substan tial rights of the defendant.”].) Here, because a Fifth Amendmen t violation may affect defe ndant’s “substantial rights,” we will exercise discretion in this case to address the merits of the claim. The most recent California Supreme Court case reviewing similar Griffin error claims is People v. Thomas (2012) 54 Cal.4th 908. In Thomas , the defendant was convicted of first degree murder, among other crimes. ( Id . at p. 914.) During the9 defendant’s penalty phase closing argument, the prosecutor commented that “‘[n]ot one person came forward’ to say defendant ‘could n’t have done it, he was with me.’” ( Id. at p. 945.) The court stated the ru le that “‘a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or deni al could be provided only by the defendant, who therefore would be required to take the witness stand.’” ( Ibid. ) The court concluded th at the prosecutor had not violated this rule because the “comments were framed in terms of the failure to call
some person other than defendant who would testify that defendant ‘was with me.’” ( Ibid. ) Two other cases are also instructive: People v. Johnson, supra , 3 Cal.4th 1183 and People v. Bradford (1997) 15 Cal.4th 1229. In Johnson , the defendant was charged with murder, attempted mu rder, robbery, and burglary. The defense was misidentification. ( People v. Johnson, supra, at p. 1209.) At tria l, the defense challenged the victim’s identification testimony, “i mplicitly contending that defendant was elsewhere . . . on the night of the crime.” ( Id. at p. 1229.) However, the defense presented no alibi evidence to support this argument. ( Ibid. ) During closing argument, the prosecutor argued that the fa ct the defendant was at the sc ene of the crime, killed one victim, and shot another victim was “uncontradicted.” ( Ibid. ) The Supreme Court held there was no Griffin error because the prosecutor’s co mments merely reflected the state of the evidence. ( People v. Johnson, supra, at p. 1229.)10 In Bradford , the defendant was found guilty of tw o counts of first degree murder. ( People v. Bradford, supra, 15 Cal.4th at pp. 1261-1262.) During closing argument, the prosecution stated that “the defense had no t called a single witness, nor produced a single piece of evidence pointing to th e defendant’s innocence.” ( Id. at p. 1338.) The prosecution also argued that the victims had been killed fo r pleasure and there was “‘no evidence to the contrary.’” ( Ibid. ) The court held no Griffin error had been committed because “[t]he prosecutor did not allude to the lack of refu tation or denial by the sole remaining witness, defendant, but rather to the lack of evidence , which might have been presented in the form of physical evidence or testimony other than that of defendant.” ( People v. Bradford, supra, at p. 1340.) In each of these cases, our state Supreme Co urt indicated, expressly or impliedly, that the challenged comment s would have constituted Griffin error if defendant was the only witness who could ha ve been called to refute alleged uncontradicted evidence. If, however, other evidence could ha ve been produced to refute the uncontradicted evidence,

no Griffin error is committed. Here, defendant argues that he was the onl y plausible witness who could testify as to why he was in the SCE yard that morn ing and the prosecutor, by commenting on his failure to offer any such witnesses, improperl y focused the jury on defendant’s failure to testify. We disagree. A “logical witness” for explaining defe ndant’s presence in the SCE yard was Rodriguez—the woman in the Yukon. (See People v. Hovey, supra, 44 Cal.3d at p. 572.)11 At the time of defendant’s apprehension, Ro driguez was sitting in the Yukon about a block away from the SCE yard. The vehicle had been previously regist ered to defendant. There were numerous items insi de the Yukon indicating that Rodriguez’s presence in the Yukon and defendant’s presence in the nearby SCE yard at 3:00 in the morning was not mere coincidence or happenstan ce. There was a walkie-talkie in the Yukon that directly connected to a walkie-talkie found inside the wheel well where defendant was found. From all of this evidence, the jury c ould have reasonably concluded that both defendant and Rodriguez had gone to the ar ea near the SCE yard with a common goal and that Rodriguez could explain defendant ’s presence in the yard. The defense, however, did not call Rodriguez to testify. Under these circumstances, the prosecution’s statements reasonably allude, no t to defendant’s failure to testify, but to the defense’s failure to call Rodriguez or introduce a ny other evidence that could explain why defendant was in the SCE yard at 3:00 in the morning. The prosecutor’s comment, therefore, did not constitute Griffin error. Defendant responds that his principal defense was not to excuse his presence in the yard, but rather th at the prosecution failed to prove that he either possessed or moved the wire. Thus, he argues, Rodriguez could no t have testified as to the “possession or moved” requirement for larceny because she was not in the yard with defendant. Defendant’s argument is misplaced. Regard less of defendant’s principal defense, the challenged comment refers to the defense’ s failure to offer evidence to explain defendant’s presence in the SC E yard. The issue is whethe r it is reasonably likely that12 the jurors understood the statement to refer to defendant’s failure to testify; as we have explained, it is not. The fact that defe ndant’s principal defe nse was focused on a different issue has no bearing on the question presented. We now turn to the second comment—“the defendant is still in that wheel well in a very real sense, and this time he’s hiding from all of you.” Initially, we observe that the prosecutor, despite referring to “a very r eal sense,” was speaking metaphorically; defendant was, after all, in the courtroom throughout the tr ial. The most reasonable interpretation of the comment is that defendant was “hiding” from the jury in a figurative sense by not testifying; he was hiding because he refused to get on the stand and tell the jury why he was in the SCE ya rd the night of the incident. The Attorney General has not offered an alternative interp retation of the comment. Significantly, the prosecuto r identified “the defendant ” as the person who was hiding. The focus on defendant in this case contrasts with the prosecutors’ comments in Thomas , Johnson , and Bradford , which were centered on the defense’s case as a whole

. In Thomas , the prosecutor commented on how the defendant had not brought forward any witnesses, alluding to a fa ilure to present ev idence from witnesse s other than the defendant. ( People v. Thomas, supra, 54 Cal.4th at p. 945.) In Johnson , the prosecutor’s comment that the evidence wa s “uncontradicted” alluded to a failure to present alibi evidence to contradict prosecuti on evidence that the defendant was present at the scene of the crime. ( People v. Johnson, supra, 3 Cal.4th at p. 1229.) Finally, in Bradford , the prosecutor commented on the lack of defe nse evidence generally, as well as more13 particularized comments on certain issues, all of which alluded to evidence that could have been presented from sources other than the defendant. ( People v. Bradford, supra, 15 Cal.4th at pp. 1339-1340.) Here, th e prosecution specifically referenced the defendant , as opposed to defendant’s defense or case , by stating that the defendant was “hiding from all of you.” 2 Because the prosecutor explicitly referre d to defendant’s actions, there is a reasonable likelihood that a ju ry would construe or apply the prosecution’s statement to mean that defendant refused to testify in fr ont of the jury. The prosecution compounded this effect by asking the jury to “[p]ull hi m out of that wheel well one last time.” The statement, therefore, constituted Griffin error. B. Prosecutorial Misconduct Defendant next argues the prosecutor committed pr osecutorial misconduct by arguing that defendant ho ped that at least one of the juro rs would be “gullible,” “naïve,” and “hoodwinked” into believing defendant’s arguments, and that de fendant would then have a good laugh at the jury’s expense. Defendant further argues that the prosecutor compounded the misconduct by asking the jury to pull the defendant “out of that wheel well.” We agree.

2 Here, the trial court correc tly recognized a possibility of Griffin error by stating: “Actually, the place it got closer to [a Griffin error] was your very closing when you said he’s still hiding in this barrel [ sic ]. You repeated your th eme . . . that he never acknowledged his guilt so he’s still hiding, he doesn’t acknowledge his guilt. He has a right to a trial.” The trial court reminded the prosecutor that “the jury can get confused. It can be . . . misinterpreted. A [prosecutor] has such high, high ethical standards. You should stay away from that.”14 1. Applicable Law “‘A prosecutor’s conduct violates a de fendant’s constitutional rights when the behavior comprises a pattern of conduct so egregious that it infe cts “‘the trial with unfairness as to make the resulting convic tion a denial of due process.’”’” ( People v. Hamilton (2009) 45 Cal.4th 863, 920.) Even if the behavior does not reach that level of egregiousness, it may still violate California law if it involves the “‘use of “deceptive or reprehensible methods” when attempting to persua de either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.’” ( People v. Dykes (2009) 46 Cal.4th 731, 760.) “The focus of the inquiry is on the effect of the prosecutor’s ac tion on the defendant, not on the intent or bad faith of the prosecutor.” ( People v. Hamilton , supra , at p. 920.) Our state Supreme Court reminds us that “[i]t is the duty of every member of the bar to ‘maintain the respect due to the co urts’ and to ‘abstain from all offensive personality.’” ( People v. Espinoza (1992) 3 Cal.4th 806, 819-820, quot ing Bus. & Prof. Code, § 6068, subds. (b), (f).) Ho wever, prosecutors “are held to an elevated standard of conduct.” ( People v. Hill (1998) 17 Cal.4th 800, 819, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn . 13.) Prosecutors are held to a standard higher than that imposed on other a ttorneys because of the unique function they perform in representing the interests, and in ex ercising the sovereign power, of the state.
In Berger v. United States (1935) 295 U.S. 78, the Supreme Court described the role of a prosecutor: “The Un ited States Attorney is the repr esentative not of an ordinary15 party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose intere st, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . He may prosecute with earnestness and vi gor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wr ongful conviction as it is to use every legitimate means to bring about a just one.” ( Id . at p. 88.) Thus, when prosecutors engage in jury intimidation instead of relying on the evidence presented, they strike a “foul blow” and take adva ntage of their unique function by “greatly demean[ing] the offi ce they hold and the People in whose name they serve.” ( People v. Espinoza, supra, 3 Cal.4th at p. 820.) Within the scope of permissible prosecutori al argument, a prosecutor is given wide latitude during argument “‘“‘as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or de ductions to be drawn th erefrom. . . .’”’” ( People v. Stanley (2006) 39 Cal.4th 913, 951.) However, it is prosecutorial misconduct to “‘make arguments to the jury that give [the jury] the impression that “emotion may reign over reason,” and to present “. . . infl ammatory rhetoric that diverts the jury’s attention from its proper role, or invites an irrational, purely subjective response.” [Citation.]’” ( People v. Redd (2010) 48 Cal.4th 691, 742; see also People v. Fuiava (2012) 53 Cal.4th 622, 693.)16 2. Analysis Defendant contends the prosecutor co mmitted misconduct when he argued that defendant hopes that “one of you” will be “gullible enough,” “n aïve enough,” and “hoodwinked” by the defense ar guments so that he “can go home and have a good laugh at your expense

. ” The trial judge recognized the misconduct and reminded the prosecutor to “not influence the jurors by calling them names, basically, naïve or gullible if they did something you don’t like.” We agree with defendant. The prosecu tor’s comments fell outside the bounds of the “wide latitude” give n to prosecutors during argument because the comments were designed to offend and intimidate the potential holdout juror who doubted defendant’s guilt.
In People v. Gainer (1977) 19 Cal.3d 835 ( Gainer ), disapproved on another point in People v. Valdez (2012) 55 Cal.4th 82, 163, the de fendant was tried for murder. On the third day of deliberation, and after the ju ry requested to have testimony reread several times, the jury foreman indicated they were having difficulty reaching a verdict. ( Gainer,

supra, at p. 840.) The trial judge inquired as to the numerical count of the panel and the foreman replied, “‘El even to one.’” ( Ibid .) At this point, the tr ial judge instructed the jury: “‘Although the verdict to which a juror agrees must, of course, be his own verdict . . . you must examine the questions submitte d to you with candor and with a proper regard and deference to the op inions of each other. You sh ould consider that the case must at some time be decided . . . . [¶] [I]f in any part of [the case] you are left in doubt, the defendant is entitled to th e benefit of the doubt and must be acquitted. But in17 conferring together, you ought to pay proper respect to ea ch other’s opinions and listen with a disposition to be convinced to each other’s argument.’” ( Id. at p. 841). The trial judge then gave the jurors two scen arios: “‘[I]f much the larger of your panel are for a conviction, a dissenting juror sh ould consider whether a doubt in his or her own mind is a reasonable one . . . . [¶] A nd, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves wh ether they may not reasonably and ought not to doubt the correctness of a judgment . . . .’” ( Gainer , supra , 19 Cal.3d at 841.) After further deliberations , the jury returned a verdict of guilty. ( Id. at p. 842.) On appeal, our state Supreme Court held that the trial judge’s instruction was improper because it instructed the jury to consider extran eous and improper factors, inaccurately stated the law, and carri ed a potentially coercive impact. ( Gainer, supra, 19 Cal.3d at pp. 842-843.) The court stated th at the charge to the minority or dissenting jurors implicated two important principles. The first is th at “‘“the conclusions to be reached in a case will be induced only by evidence and argument in open court . . . .”’ [Citations.]” ( Id. at pp. 847-848.) The second “relates to the right of bo th the People and the defendant to the indivi dual judgment of each juror on the issue of guilt.” ( Id. at p. 848.) The court then explained that “in instru cting that ‘a disse nting juror should consider whether a doubt in his or her ow n mind is a reasonable one, which makes no impression on the minds of so many men or women equally honest, equally intelligent18 with himself or herself,’ the trial judge poi ntedly directs the ju rors to include an extraneous factor in their deliberations, i.e., the position of the major ity of jurors at the moment. The one or more ‘hol dout’ jurors are told that in reaching their independent conclusions as to whether or not a reasonabl e doubt of the defendant’s guilt exists, they are to weigh not only the arguments and evidence but also their own status as dissenters—a consideration both rationally and legally irrelevant to the issue of guilt. They are thus deflected from their proper role as triers of fact, as effectively as if they had been instructed to cons ider their doubts as to guilt in light of th eir own prejudices or desire to go home.” ( Gainer, supra, 19 Cal.3d at p. 848, fn. omitted.) The Gainer court stated further that the “instr uction interferes with the jury’s task in a way which threatens the defendant’s ri ght under the Californi a Constitution to have his guilt or innocence determin ed by the unanimous verdict of a jury of 12 persons. [Citations.] ‘Unanimity obviously requires that each juror must vote for and acquiesce in the verdict. Acquiescence simply because the verdict has been reached by the majority is not an independent judgment , and if permitted, would undermine the right to a unanimous verdict.’ [Citation. ] The open encouragement give n by the charge to such acquiescence [in the majority’s decision] is ma nifestly incompatible with the requirement of independently achieved jury unanimity.” ( Gainer, supra, 19 Cal.3d at pp. 848-849.)
In Gainer, the improper comments in those cases were made by a trial judge, not the prosecutor, as in this case. However, the principles and concerns expressed in Gainer19 are applicable here. 3 Significantly, the prosecutor repeat edly stated that defendant hopes that “one of you”—a phrase uttered 10 times in five sentences—would be gullible, naïve, and hoodwinked. By focusing on “one of yo u,” the prosecutor’s comments were directed at any juror who might consider being a lo ne holdout for acquitta l. The prosecutor planted the idea that anyone who accepted th e defense attorney’s “ridiculous arguments” would be a sucker who could be easily manipulated, or “hoodwinked.” If the prosecutor’s comments had the desired effect, they created a risk that a juror would decide the case not based on th e evidence or the law, but ra ther find defendant guilty to avoid being viewed as gullible , naïve, or hoodwinked. We can easily imagine the ju ry room in which 11 juro rs favor guilt and one is undecided, as was the case in Gainer . In addition to the ev idence and the court’s instructions, the 11 would be ve rbally armed with the prosecut or’s weighty accusations of gullibility and naiveté to pressure the holdout. The lone doub ter might easily give in to such pressure despite harbor ing reasonable doubt of defenda nt’s guilt. The result is a juror not participating in the le gal system as an independent fact finder in order to avoid appearing gullible and naïve. Such extraneous considerations are, like the instruction disapproved in Gainer , “rationally and legally irrelevant to the issue of guilt.” ( Gainer,

supra, 19 Cal.3d at p. 848, fn. omitted.) By en couraging a holdout’s acquiescence in the majority’s view based on such considera tions, the statements also undermine the

3 Although the improper comments in Gainer were made by a trial judge, not the prosecutor, the court has indicated that the same principles apply to prosecutors. (See People v. Boyette (2002) 29 Cal.4th 381, 436.)20 defendant’s right to the individual judgment of each juror and unanimous verdict. (See id. at pp. 848-849.) Additionally, we find the prosecuto r’s statement that “defendant can go home and have a good laugh at your expense ” independently inappropriate. (Italics added.) The comment suggests that if one of the jurors votes not guilty, defendant will go free, or “go home.” The guilty-or-go-home choice presented to the jurors, however, is inaccurate. A trial may result in a hung jury. That is, if there are 11 jurors who believe defendant is guilty and the twelfth juror vot es not guilty, defendant may re main incarcerated at least until the case is retried. Thus, there are thre e possible outcomes for defendant: defendant is found not guilty and gets to go home, de fendant is found guilty and presumably does not go home, or the jury is hung and, depending upon su bsequent events, defendant might go home. It was improper to suggest or impl y that if “just one” of the jurors believed defendant not guilty, that defendant would necessarily go free. The comment that defendant would also have a good laugh at the juror’s expense compounds that error by intimidating any juror who does not want to be viewed as a fool. The statement that defendant is going to go home and laugh at the jurors at their expense is also unsupported by facts in evidence. In People v. Edelbacher (1989) 47 Cal.3d 983, the prosecutor “a ttacked [the defendant’s] char acter by referring to him as a ‘contract killer,’ a ‘snake in the jungle,’ ‘slick ,’ ‘tricky,’ a ‘pathological liar,’ and ‘one of the greatest liars in the hist ory of Fresno County.’” ( Id. at p. 1030.) The court held that this comment amounted to fair argument beca use “[r]eferring to the testimony and out-of-21 court statements of a defendant as ‘lies’ is an acceptable pr actice so long as the prosecutor argues inferences based on eviden ce rather than the prosecutor’s personal belief resulting from personal experience or from evidence outside the record.” ( Ibid .) In that case, “[t]he prosecutor’s comments we re based on the evidence . . . .” ( Ibid .) Unlike the comment in Edelbacher , the prosecutor’s comment here does not refer to facts in evidence, but is based on specula tion or the prosecutor’s personal belief about defendant’s character. By stating that defend ant is going to “go home and laugh at your expense,” the prosecutor is implying that de fendant is a person w ho would hoodwink the jurors into believing he is innocent and then laugh at th em for doing so. There was, however, no evidence as to defendant’s character. If defendant indicated by some behavior in court that he was the kind of person who would go home and laugh at the jurors, it would have be en misconduct to refer to such behavior in his argument. “Considerati on of the defendant’s be havior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character.” ( People v. Heishman (1988) 45 Cal.3d 147, 197; see also People v. Garcia (1984) 160 Cal.App.3d 82, 92 [“ [T]he nontestimonial behavior of a defendant while in the courtroom cannot be [used] as evidence of his guilt.”].) The misconduct is even clearer if the prosecutor’s comment was based solely on specu lation as to how defendant would behave if he was acquitted. Finally, we note that the prosecutor’s improper comments were made at the conclusion of his rebuttal argument. As such, defense counsel had no opportunity to respond, and the words were the la st the jurors heard22 before deliberating. Therefore, we hold th at this statement independently constitutes prosecutorial misconduct. The Attorney General contends that when viewed in context, the prosecutor’s rebuttal argument simply focused the jury’s attention on the testimony and evidence in the case. We disagree. The statement of “that’s all th ey need—just one of you, will be gullible enough to think that the defendant just ha ppened to be in that Edison ya rd” cannot be interpreted to be a fair comment on the evidence presented. (Italics added.) The statement that “ just one of you, will be hoodwinked by the idea that [two of the prosecution’s witnesses] came in here and lied” cannot be interprete d to be a fair comment on the evidence presented. (Italics added.) Further, th e statement that “one of you will be naïve enough to think that any of this amounts to reasonabl e doubt” cannot be interpreted to be a fair comment on the evidence presented. (Italic s added.) Neither can the comment that “defendant [will] go home and have a good laugh at your expense ” be interpreted to be a fair comment on the evidence presented. (Italics added.) None of these statements focused the jurors’ atten tion on the testimony or evidence in the case. Rather, they were made to intimidate any juror who believed de fendant’s defense and did not want to be viewed as gullible, naïve, hoodwinked, or la ughed at. The statemen ts could have had a chilling effect on the jury’s deliberative process. The People argue that the prosecuto r’s comments resemble the comments permitted by the court in People v. Cunningham (2001) 25 Cal.4th 926. We reject this23 argument. In Cunningham , the prosecutor was permitted to tell the jury that defense counsel’s “‘job is to create straw men. Th eir job is to put up smoke, red herrings . . . [a]nd [the prosecutor’s] job is to straighten that out and show [the jury] where the truth lies.’” ( Id . at pp. 1002-1003.) Similarly here, the prosecutor stated: “[ T]he thing to remember is that defense attorneys don’t get up here and say, ‘You know what, ladies and gentlemen, the evidence is just damning. . . .’ [¶] Th ey don’t do that. They get up here and they work with what they have. And the reality is that this is not a good case for the defense so they get up here and argue whatever they can.” Howeve r, the prosecutor in this case took this approach one significant step further by arguing that the jurors would be hoodwinked, naïve, or gullible if they believed the defense arguments. Unlike the comments in Cunningham , the comments in this case raised th e far more serious risk of jury intimidation. Cunningham is thus easily distinguished. In our view, the comments addressed he rein were not oratorical slips or the product of over-exuberance in the heat of battle. Phrases such as “def endant is still in that wheel well . . . hiding from all of you” a nd “[p]ull him out of that wheel well one last time” are not the stuff of excited improvisa tion. Indeed, the comments are well put together and, based on thei r content and placement near the end of the prosecutor’s rebuttal, appear to have been ca refully crafted and planned. To summarize, we find two areas of misconduct: (1) Griffin error based on the prosecutor’s statement that defendant was hiding from the jury and (2) prosecutorial24 misconduct based on the prosecutor’s statement that the jury would need to be gullible, naïve, and hoodwinked to believe defendant, who would then go ho me and laugh at their expense. We reject all other claims of error. C. Harmless Error Next, we must determine the effect of the Griffin error and the prosecutorial misconduct. Errors that rise to the level of federal constitutional error are prejudicial unless the state “prove[s] beyond a reasonable do ubt that the error co mplained of did not contribute to the verdict obtained.” ( Chapman v. California (1967) 386 U.S. 18, 24.) Errors under California law are prejudicial wh en “it is reasonably probably that a result more favorable to the appealing party would have been reached in the absence of the error.” ( People v. Watson (1956) 46 Cal.2d 818, 836.) It is clear that “‘a “probability” in this context does not mean more likely than not, but merely a reasonable chance , more than an abstract possibility .’” Further, the courts’ inte rpretation of a “‘result more favorable’” has “no significant distinction” fro m “the phrase[] ‘a different result,’” as “[b]oth standards anticipate that the party seeking relief will be in a different, and necessarily a better, position if relief is granted.” ( People v. Soojian (2010) 190 Cal.App.4th 491, 519-520.) Thus , “[i]t appears that under the Watson standard a hung jury is considered a more favorable result than a guilty verdict.” ( Id . at p. 520.) Our state Supreme Court has repeatedly found the harmless error standards met when the evidence of guilt is so strong that the jury would have re ached the same verdict regardless of the error. (See People v. Houston (2012) 54 Cal.4th 1186, 1222 [holding25 errors harmless under either Chapman or Watson “[g]iven the overwhelming evidence of defendant’s guilt”]; People v. Booker (2011) 51 Cal.4th 141, 186 [holding that when “[v]iewing the prosecutor’s statements in the context of his entire ar gument, the jury was properly informed about the prosecutor’s burden, and the ev idence of defendant’s guilt (notably, his own confession) was overwhelming”]; People v. Fields (1983) 35 Cal.3d 329, 363 [holding that the misconduct of the pr osecutor and even the erroneous ruling of the trial judge did not prejudice the defendan t because “[t]he evidence of defendant’s guilt of first degree murder was overwhelming”].) Defendant relies on People v. Mendoza (1974) 37 Cal.App.3d 717. In that case, the defendant was convicted of lewd acts upon a minor. ( Id. at p. 721.) In reversing the judgment, the Court of Appeal pointed to four errors by the prosecution. Not only did the prosecutor violate “the spirit of Griffin . . . with a thinly veiled comment on [the defendant’s] failure to testify,” 4 she also drew unjustifiable inferences from the defendant’s conduct, dwelt on suppositions not reflected in evidence , misstated the law, and improperly asked the jury “‘to take [the defendant] off the streets.’” ( Id . at pp. 726- 727.) The court al so compounded the Griffin error by giving a jury instruction that “indirectly implied that the ju ry could consider [the defenda nt’s] failure to testify as evidence to prove an essential element of the offense.” ( People v. Mendoza, supra, at p.

4 The offensive comment in cluded the statements: “‘Since olden days, I guess it is from the time when the defe ndant was not capable of taki ng the stand, you know, he couldn’t be a witness in those days, there is a cautionary instructi on that says to you, “The charge is easily made; ha rd to defend against.””” ( People v. Mendoza, supra , 37 Cal.App.3d at p. 726.)26 726.) The Court of Appeal concluded that the prosecutor’s “str ong[] appeal to passion and prejudice,” “misstatements [,] and irrelevancies may have erroneously prejudiced the jury against the defendant.” ( Id. at p. 727.) As a result, the court was “not persuaded beyond a reasonable doubt that the cumulative impact of thes e errors had no effect in bringing about the guilty verdict.” ( Ibid .) Here, the prosecution committed two errors: Griffin error by referring to the defendant still hiding in the wheel well, and prosecutorial misconduct by his comments directing jurors not to be gullible, naïve, or hoodwinked. The errors, while egregious, were isolated and not accompan ied by misstatements of law or the strong appeals to passion and prejudice that were present in Mendoza . Moreover, the ev idence of guilt in the present case is extremely strong. We have viewed the surveillance videot ape shown to the jury. The videotape shows movement within the SC E yard by two individuals be tween 1:00 and 3:00 in the morning; one individual is wearing a dark sh irt, the other a light-colored shirt. The movement continues for some time in which it appears the two individuals were moving items on and off several trucks and pushing a la rge cart or dolly back and forth. One of the SCE employees testified at trial that many of the area s where the two individuals were seen moving contained st ocked wire wheels. About an hour later, the individual with the light-colored shirt no l onger appeared in the camera’s view, but the individual in the dark shirt appeared to be climbing in and out of the bu cket trucks. Eventually, a27 person is seen walking toward s the south end of the distri bution yard in the same area where the two SCE employees found de fendant in a truck’s wheel well. Defendant argues the videotape was uncle ar and blurry, and the figures moving were too small to positively identify either one as defendant. However, the videotape clearly showed two individuals who were not su pposed to be in the yard at 1:00 in the morning, and that these individuals were movi ng items back and forth in the yard and on and off trucks, and that one of them was last seen in the south end of the yard where defendant was found minutes la ter. The videotape, combined with the testimony of the SCE employees who found defendant, is ex tremely strong evidence establishing that defendant was one of the individuals seen moving items in the yard. Additionally, valuable copper wire was found near the area where defendant was arrested, along with miscellaneous tools, including wire cutters. Defendant was found with rolls of tape and a walkie-talkie inside th e wheel well. Further, a truck registered in 2010 in defendant’s name was found only a bl ock from the SCE yard with a walkie-talkie connected to the one in the wheel well, and a notebook listing several SCE addresses, including the SCE yard where defendant was a rrested. Therefore, in light of the strong evidence against defendant, we are convinced beyond a reasonable d oubt that the jury would not have reached a different verdict absent the Griffin error. Finally, we note that the trial judge am eliorated the effect of the error by admonishing the prosecutor, in fr ont of the jury, to refrain fro m calling the jurors names.28 Although the court did not ask the jury to disregard the prosecutor’s statements, the admonishment lessened the prejudicial effect. After reviewing the entire record, we ar e convinced that the errors committed by the prosecutor are harmless under either the Chapman or Watson standards. While we hold both errors were ha rmless, we note the language in People v. Lambert (1975) 52 Cal.App.3d 905, which applie s with equal force here: “Despite our conclusion that the misconduct here was nonp rejudicial, we feel compelled to forewarn prosecutors that we have too often of late been faced wi th the task of determining whether unnecessarily zealous prosecutors have committed misconduct, and if so, determining whether, on the basis of the whole record, that misconduct was prejudicial. Frequently, it seems that deputy district atto rneys see their sole function as winning cases even at the expense of a fair trial for th e defendant and the proper administration of justice in the courts. . . . [¶] . . . [W]h ile we are not inclined to find such conduct prejudicial if the record does not warrant such a conclusion, we feel compelled to warn prosecutors that they cannot co ntinue with impunity to enga ge in such conduct thinking that appellate courts will save them by ap plying the harmless error rule. . . .” ( Id . at pp. 911-912.)29 VI. DISPOSITION The judgment is affirmed. CERTIFIED FOR PUBLICATION

KING Acting P. J.

We concur:
MILLER J. CODRINGTON J.