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Filed 8/29/22 P. v. Ybarra CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO YBARRA, JR.,

Defendant and Appellant.

C094583

(Super. Ct. No. 17FE007784)

A jury found defendant Armando Ybarra guilty of gross vehicular manslaughter, 

driving under the influence of alcohol, and driving with a blood-alcohol level of 0.08

percent or greater. The trial court sentenced him to 15 years to life in state prison. 

Defendant appeals, arguing the prosecutor improperly commented on his decision to 

remain silent at trial. We find no prosecutorial misconduct and affirm. 
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FACTUAL AND PROCEDURAL BACKGROUND

Defendant drove his Subaru over a raised center median and into the oncoming 

traffic lane. He collided head-on with a Hyundai. Both defendant and the driver of the 

Hyundai, Andre Arnold, were taken to a nearby hospital. 

A California Highway Patrol officer responded to the scene of the collision. 

Neither of the drivers were present when he arrived. The officer smelled alcohol and 

found an open container of an alcoholic beverage that was still cold to the touch in the 

Subaru. To continue his investigation, the officer went to the hospital to interview the 

drivers. At the time, he did not know who had driven which car. Based on the 

information provided by the hospital, the officer located defendant in the emergency 

room. Defendant told the officer that he was the driver of the Subaru. The officer asked 

defendant how his car had crossed the median, and defendant responded that he did not 

know what happened and that he just lost control of the car. Defendant also denied he 

had been drinking alcohol either before or after the collision. The officer measured 

defendant’s blood-alcohol level at 0.199 percent and placed him under arrest. Andre 

Arnold died approximately one month later from injuries sustained during the collision. 

A jury found defendant guilty of gross vehicular manslaughter, driving under the 

influence of an alcoholic beverage, and driving with a blood-alcohol level of 0.08 percent

or greater. In a bifurcated proceeding, the trial court found true three prior conviction 

allegations. Defendant additionally pled no contest to four counts and admitted two prior 

convictions. The trial court sentenced defendant to an aggregate term of 15 years to life. 

Defendant timely appealed. 

DISCUSSION

In his rebuttal closing argument, as discussed more fully below, the prosecutor 

commented that defendant was the only person “who knows” how the fatal collision 

occurred but did not explain “when he had the opportunity.” Defendant contends this 
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comment violated his Fifth Amendment rights and constituted error under Griffin v. 

California (1965) 380 U.S. 609 [14 L.Ed.2d 106]. We disagree. 

I

Additional Background

In his rebuttal closing argument, the prosecutor commented: “[I]f the defendant 

was not intoxicated/impaired to the point where he did not know what he was doing or 

able to control his car, how did this accident--this collision happen?” He then addressed 

the officer’s testimony: “[T]hat’s what happened at the hospital when Officer Browning 

spoke to Defendant Ybarra. . . . [¶] . . . [¶] . . . He did not want to tell the officer that he 

had been drinking. Why? Because there was no other reasonable explanation for why 

and how this collision occurred. [¶] ‘How did you lose control?’ [¶] ‘I don’t know.’ ” 

After discussing defendant’s behavior following the collision and blood-alcohol 

level, the prosecutor continued: “And I go back to, if he was not intoxicated, why did 

this happen? How did it happen? [Defense counsel] suggests to you that the People 

don’t know, no one knows. You know who knows? Defendant Ybarra knows. He was 

driving the car. [¶] . . . [¶] . . . And when he had the opportunity, if it was something 

other than the fact that he didn’t know because he was so intoxicated, how do you drive a 

car, go over that median that you saw, slam into another car, and say, ‘I don’t know what 

happened?’ ” 

Following a brief discussion on negligence, the prosecutor argued: “Let’s just say 

you’re going the speed limit, 65 miles an hour, and the car comes over the median at you. 

Would you not expect that there’s a reasonable explanation for that, and would you not 

expect that someone would be able to tell you why that collision occurred? [¶] Someone 

knows, and someone was asked. The inquiry was made, and the answer was, ‘I don’t 

know. I don’t know. I just lost control.’ ” 

After argument, defense counsel moved for a mistrial on the ground that the 

prosecutor’s comments violated defendant’s right to remain silent. The trial court denied 
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the motion, finding the comments were “in reference to the questioning that was 

conducted at the hospital and . . . [defendant’s] alleged lack of candor with the peace 

officer.” 

II

Griffin Error

The Fifth Amendment prohibits a prosecutor from directly or indirectly 

commenting on the defendant’s failure to testify in his or her defense. (Griffin v. 

California, supra, 380 U.S. at p. 615 [14 L.Ed.2d at p. 107]; People v. Medina (1995) 11 

Cal.4th 694, 755.) The Griffin rule, however, “does not extend to comments on the state 

of evidence, or on the failure of the defense to introduce material evidence or to call 

logical witnesses.” (Ibid.) The prosecutor has the right to “fully state his views as to 

what the evidence shows and to urge whatever conclusions he deems proper.” (People v. 

Lewis (1990) 50 Cal.3d 262, 283.) The Griffin rule also does not require the trier of fact

to be “immunized against any dictate of plain reason.” (People v. Beghtel (1966) 239 

Cal.App.2d 692, 695-696.)

We evaluate claims of Griffin error by inquiring whether there is “a reasonable 

likelihood that any of the [prosecutor’s] comments could have been understood, within its 

context, to refer to defendant’s failure to testify.” (People v. Clair (1992) 2 Cal.4th 629, 

663.) When the comments were made before a jury, “the question is whether there is a 

reasonable likelihood that the jury construed or applied any of the complained-of remarks 

in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) 

Defendant contends that the prosecutor, by directly addressing the jurors, “You 

know who knows? Defendant Ybarra knows” and emphasizing defendant’s failure to 

explain the collision “when he had the opportunity,” carefully designed a line of 

argument to make a reasonable juror understand defendant could have testified at trial but 

chose not to. Specifically, defendant argues the prosecutor never clarified to the jurors 
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that the “opportunity” referred to the opportunity to tell the officer what happened. Not 

so. 

As the trial court correctly observed, the prosecutor’s comments addressed 

defendant’s “alleged lack of candor with the peace officer,” not defendant’s failure to 

testify at trial. The prosecutor explicitly stated he was commenting on “what happened at 

the hospital when Officer Browning spoke to Defendant Ybarra” when he began his line 

of argument. He suggested the only reasonable explanation for the collision was that 

defendant was intoxicated, but defendant could not admit such to the officer. He then 

argued defendant would have been able to explain what had happened in the collision to 

the officer instead of answering, “I don’t know what happened” “when he had the 

opportunity” if he had not been intoxicated. Contrary to defendant’s contention, the 

“opportunity” here clearly referenced the opportunity to explain the collision to the 

officer. Finally, the prosecutor concluded his line of argument by once again referring to 

defendant’s statement to the officer: “Someone knows, and someone was asked. The 

inquiry was made, and the answer was, ‘I don’t know. I don’t know. I just lost 

control.’ ” The prosecutor never once referenced defendant’s silence at trial during the 

complained-of remarks. Rather, he repeatedly referred to defendant’s statement to the 

officer at the hospital in order to persuade the jurors that defendant was intoxicated when 

the collision happened. We are therefore satisfied that the prosecutor’s comments 

consisted entirely of his view of, and the inferences he urged the jurors to draw from, the 

officer’s testimony. (See People v. Beghtel, supra, 239 Cal.App.2d at pp. 694-695 

[finding the prosecutor’s comment “where [the defendant] is afforded the opportunity to 

explain, and he doesn’t, even though it is not in the nature of an accusatory statement 

because obviously the officers don’t know of the commission of the robbery” “consisted 

almost entirely of a summary of the direct evidence” and did not constitute a Griffin 

error].) A reasonable juror would have construed the prosecutor’s comments as merely 

reflecting his view of the state of the officer’s testimony. 
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DISPOSITION

The judgment is affirmed.

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Mauro, J.

/s/ 

Krause, J.