1

Filed 8/21/24 P. v. Addiego 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MATTHEW ADDIEGO,

Defendant and Appellant.

C099598

(Super. Ct. No. 62187245)

After a jury found defendant Matthew Addiego guilty of transporting a controlled 

substance for sale and related crimes, the trial court placed him on formal probation for 

two years. On appeal, Addiego raises four claims of misconduct by the prosecutor. 

Three of those claims are forfeited on appeal, and the fourth lacks merit. Accordingly, 

we affirm.

BACKGROUND

I

Prosecution’s Case

One morning in September 2022, a Placer County Sheriff’s deputy noticed an

expired registration sticker on the rear license plate of the gold Mercedes that Addiego 
2

was driving. The deputy initiated a traffic stop and the interaction between the two men 

was captured by the deputy’s in-car camera and lapel microphone. 

The deputy asked Addiego if he used drugs and if there was anything illegal in the 

car. Addiego said no and begged the deputy not to search and tow his car. Unmoved, the 

deputy searched the car and found a number of items including clear Ziplock baggies

containing a white crystal-like substance, which he suspected was methamphetamine

(meth), a used meth smoking pipe, a scale with a white substance on it, and a $20 bill. 

Addiego placed his cell phone on the dashboard of the car when the deputy asked him to

step out of the car. No gun was found. 

A. Cell Phone and “Pay/Owe” Ledgers

The deputy seized Addiego’s phone. As for what happened next, the following 

exchange occurred at trial: 

“[THE PROSECUTOR]: And did you ask the defendant for consent to look in the 

phone to see if there is any messages that might be indicative of illegal activities? 

“[DEFENSE COUNSEL]: Objection, Your Honor, here. . . . Relevance. 

“THE COURT:· Objection sustained.

“[THE PROSECUTOR]: Eventually, later on, did you author a search warrant to 

search the cell phone? 

“[THE DEPUTY]: Yes, I did.” 

On cross-examination, the following exchange occurred between defense counsel 

and the deputy:

“[DEFENSE COUNSEL]: Now, you recovered a cell phone; is that right?

“[THE DEPUTY]: Correct.

“[DEFENSE COUNSEL]: And, sir, you authored, you helped prepare a search 

warrant to look at the contents of the cell phone; is that right?

“[THE DEPUTY]: That is correct.
3

“[DEFENSE COUNSEL]: And, sir, you didn’t find any text messages in the cell 

phone, did you?

“[THE DEPUTY]: The data from the cell phone was unable to be extracted.” 

Defense counsel also asked the deputy about “pay/owe sheets” and “ledgers,”

which the deputy agreed are used by dealers to record the date of drug sales and how 

much money the buyer owes to the dealer. Defense counsel asked the deputy if he found 

any pay/owe sheets or ledgers in the car. The deputy said he did not find either and 

emphasized that was the reason he confiscated the cell phone. 

A digital forensics detective testified that while he had successfully extracted data 

from over 400 cell phones (“normal android phones, iPhones mainly”) over the course of 

nearly six years in the Placer County Sheriff’s Department, he was unable to extract any 

data from Addiego’s cell phone, which was a phone brand he had never seen before that 

did not appear to be supported by the tools he normally used on cross-examination. The 

detective said he spent about two hours trying to extract data from the phone and did not 

seek help from anyone else in the Placer County Sheriff’s Department or any outside 

organizations, including the FBI. On redirect, the detective explained that he did not seek 

outside help because he used the same tools and had the same training as anyone doing 

digital forensics at the FBI.

Also on redirect, and over defense counsel’s speculation objection, the prosecutor 

posed the following counterfactual to the detective: “Had you been provided with a PIN 

code to unlock the phone, would that have changed your ability to download the data?” 

“Yes,” the detective replied, if he had the PIN, he would have entered it in the phone, 

opened the phone, and extracted the data with the tools he normally used. 

B. Seized Drugs

Laboratory tests confirmed a total of about 14 grams of meth in the various plastic 

bags the deputy found in Addiego’s car. 
4

A detective in the Auburn Police Department who was assigned to a local 

narcotics task force testified at trial as an expert on drug use and drug sales. The 

detective opined that Addiego intended to sell the meth found in his car, which had a 

street value of about $300. He explained: “You have multiple baggies, you have a scale 

that shows that the person was weighing his drugs for the purpose of sales. You also 

have . . . money that’s consistent [with] sales.” He explained that in his experience drug 

dealers rarely have physical “pay/owe” sheets at present, because “[e]verything is done 

digitally with phones.” 

The detective further explained that some meth users are also low-level dealers,

and a heavy user might consume 0.2 grams every six to eight hours. Thus, the detective 

testified, the roughly 14 grams of meth found in Addiego’s car amounted to more than

two weeks’ worth of meth for a heavy user. 

II

Addiego’s Case-in-Chief

A. Defense Expert

A former special agent for the Drug Enforcement Administration testified as an 

expert witness for Addiego and opined that the meth found in Addiego’s car was for 

personal use. He explained: (1) many drug dealers carry guns to protect themselves and 

their drugs, including low-level dealers1; (2) at least 50 times in his career he recovered 

scales from drug users, who used the scales (a) to confirm they are getting what they pay 

for and (b) to determine the amount of a drug necessary to get high while avoiding an 

overdose; (3) the single $20 bill found inside Addiego’s car was not indicative of drug 

sales, as the low-level dealers he interacted with had, on average, several hundred to a 

couple thousand dollars of cash in their possession; and (4) many users, “if they . . . come 

1

 About 90 percent of the drug dealers he arrested in his career had guns. 
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into any money will buy as much as they can,” because they can get more drugs at a 

lower price by buying in bulk. 

In response to defense counsel’s questions about “pay/owe” sheets and ledgers, the 

expert witness testified he had seen low-level dealers with “pay/owe” sheets and ledgers, 

but rarely, because “most of the stuff is on the phone.” 

Regarding cell phones generally and hypothetically, defense counsel asked his 

expert witness: “[I]n a case where someone is arrested . . . for drugs and you have a cell 

phone there, sir, what is your immediate objective with the cell phone?” “First thing I 

would immediately ask for consent to search the phone,” the witness testified. “And then 

get the pass code, and then we would go to the text section.” 

Regarding Addiego’s cell phone specifically, the following exchange occurred 

between defense counsel and the defense witness:

“[DEFENSE COUNSEL]: And you know that the cell phone here, that there were 

no text messages recovered, correct?

“[DEFENSE EXPERT]: Correct.

“[DEFENSE COUNSEL]: And, sir, as a DEA agent have you done forensic cell 

phone analysis on phones?

“[DEFENSE EXPERT]: Yes, . . . I helped our tech guy do it several times at the 

DEA. And if for some reason we weren’t able to get into it, we would send it down to

. . . the FBI [lab] down the street, or if not we could send it to Quantico[, Virginia]

because their lab there can break into basically everything.

“[¶]. . . [¶]

“[DEFENSE COUNSEL]: And, sir, that location, you know it also receives 

phones from jurisdictions from all over the country, correct?

“[DEFENSE EXPERT]: They’ll take phones from any local, county, state or 

federal case.” 
6

On cross-examination, the prosecutor questioned the defense expert about cell 

phone data, and what happens when the owner of a cell phone is unwilling to reveal the

passcode that unlocks a phone.

“[THE PROSECUTOR]: [Y]ou described that oftentimes when you would seize a 

cell phone you would get consent from the person and then be able to go into the phone.

“[DEFENSE EXPERT]: If possible.

“[THE PROSECUTOR]: What do you do when you don’t have consent from 

them?

“[DEFENSE EXPERT]: Then we would have to get a warrant.

“[THE PROSECUTOR]: And once you get a warrant, are you then able to access 

the phone?

“[DEFENSE EXPERT]: Well, if we had a warrant, then we would have to -- if 

the cell phone was password protected and the person wasn’t willing to cooperate at that 

point and give the password, then we would have to use different programs that we have 

to get into them. Or . . . we could ask another federal . . . . [¶] . . . And then if not, then 

we send it down to Quantico and they have experts [who] have gotten into everything 

I’ve sent down there. 

“[THE PROSECUTOR]: So having the pass code, that would make it easier.

“[DEFENSE EXPERT]: Yes.” 

Later, the prosecutor asked, without objection from defense counsel, what the 

benefit would be for a low-level dealer to consent to a search of a cell phone that contains 

incriminating information. The defense expert replied: “If there is incriminating 

evidence on it, then probably I would assume that they wouldn’t want us to look at it. 

That we would just seize it and get a warrant and we would look at it anyway. Because 

then that would give us additional probable cause to show that there is probably 

something on it.” 
7

On redirect, the expert witness agreed with defense counsel that the Fourth 

Amendment protects the right to refuse to consent to a search of one’s phone by law 

enforcement. 

B. Addiego’s Testimony

Taking the stand in his own defense, Addiego testified that when the deputy

sheriff stopped his car in September 2022, he had been using meth for about one year and 

was addicted. He used it three to 10 times a day, consuming one to 3.0 grams a day. He 

used the $20 bill found in his car to ingest meth, and the scale found in his car to “keep 

[his] use in check.” The meth found in his car was exclusively for his personal use 

because he does not sell it.

On cross-examination, Addiego said the deputy sheriff asked him to unlock his

phone. The prosecutor next asked: “He didn’t ask you, can I look at your phone to see if 

there is any messages or anything that would show you’re a dealer?” “No, sir,” Addiego 

replied. This exchange followed:

“[THE PROSECUTOR]: Had he asked you to look at the messages, would you 

have agreed?

“[DEFENSE COUNSEL]: Objection, Your Honor, going into areas here that calls 

for speculation, also Fourth Amendment rights here. . . .

“THE COURT: He has made a choice to testify today, so it kind of opens the door 

to lots of things here. So objection is overruled. . . . 

“[¶] . . . [¶]

“[THE PROSECUTOR]: If the deputy asked you to look at your phone to see if 

there’s any messages that would indicate sales of methamphetamine, would you have 

agreed to show him your phone, the messages?

“[ADDIEGO]: No, I don’t believe I would.” 

On redirect, Addiego testified he did not allow the deputy sheriff to search his 

phone because his phone is private. 
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III

Prosecution’s Rebuttal

The prosecution’s expert on drug use and drug sales testified on rebuttal that it was 

“very unrealistic” that Addiego would be consuming up to three grams of 

methamphetamine a day after one year of using. He explained that only a long-time

heavy methamphetamine user on a “bender[]” would use three grams in a single day. 

IV

Closing Arguments

In closing argument to the jury, the prosecutor maintained that Addiego’s intent 

was the key area of disagreement. “Is it for sale or personal use?” The answer, he 

maintained, was that Addiego intended to sell at least some of the drugs. “[M]ake sure 

that you hold me to my burden, and that is to prove each element beyond a reasonable 

doubt,” the prosecutor said. 

Defense counsel argued to the jury that law enforcement could not find any text 

messages on Addiego’s cell phone. Referring to the forensics detective who was unable 

to extract any data from Addiego’s phone, defense counsel argued: “He goes somewhere 

two hours, looks at it. . . . Two hours, I couldn’t get anything out of it, goes to this one 

place. That’s it, I’m done. . . . They just gave up?” Counsel returned to this line of 

argument later: “All you’ve got to do is pick up the phone, call FBI, Quantico, we’ve got 

an issue here with a phone. Can you help us with that?” “You’re law enforcement; you 

get on it. There are no shortcuts.” 

Defense counsel then emphasized what was not in evidence: “Where is the U.S. 

currency, multiple denominations? We don’t have any. . . . Where are the guns? We 

don’t have any. Where are the ledgers, digital or manual? We don’t have any. Where 

are the pay/owe sheets, digital or manual? We don’t have any.” Addiego was “not in the 

business of selling,” counsel maintained. “He’s not a tradesman in the art of drug dealing 

or drug selling. He’s in the art of possession of [a] controlled substance for him to use.” 
9

In rebuttal, the prosecutor responded to defense counsel’s comment that no text 

messages were found on Addiego’s phone. “It wasn’t for lack of trying,” the prosecutor 

said. A detective unsuccessfully tried two different software and hardware applications

to access the data in Addiego’s phone. “[T]hat probably wouldn’t have been necessary 

had he had the PIN code to open that phone,” the prosecutor argued. The detective 

“would have been able to unlock the phone without even needing” the special software 

and hardware. “And what we heard today is that the defendant didn’t consent to that 

phone being searched.”

The prosecutor then reminded the jury of the defense expert’s testimony regarding 

cell phone searches: “[H]e testified . . . that when people don’t consent to search a 

phone, they go and get a warrant. And they do that based on probable cause, because 

now they certainly believe that there is something illegal on that phone.” Defense 

counsel objected that the prosecutor was misstating the evidence. “That’s what he 

testified to,” the trial court explained when overruling the objection. The prosecutor told 

the jury Addiego “took the stand and . . . said that he is a user” after “[h]e waited to hear 

all of the evidence in the case.” Defense counsel objected the comment was “improper 

argument.” The trial court agreed, “he couldn’t testify before that.” 

At the end of his rebuttal argument, the prosecutor told the jury: “Hold me to my 

burden of proving the case beyond a reasonable doubt. Please do. We want that. . . . We 

don’t convict people just because of how we feel or what is fair and unfair.” 

V

Motion for Mistrial, Verdicts, and Sentencing

After the trial court instructed the jury and outside of their presence, defense 

counsel made an oral motion for a mistrial because of the prosecutor’s comment that 

Addiego waited to hear the evidence against him before testifying. The trial court denied 

the motion a few days later, finding that the comment was not improper under People v. 

Miller (1990) 50 Cal.3d 954, 996 and Portuondo v. Agard (2000) 529 U.S. 61. 
10

The jury found Addiego guilty of transporting and possessing a controlled 

substance for the purposes of sale, and misdemeanor possession of drug paraphernalia. 

(Health & Saf. Code, §§ 11379, subd. (a), 11378, 11364, subd. (a).) In September 2023, 

the trial court placed Addiego on formal probation for two years and he appealed. 

DISCUSSION

Addiego alleges prosecutorial misconduct on four distinct grounds: (1) crossexamination and argument to the jury regarding his refusal to consent to a cell phone 

search was impermissible comment on the exercise of a Fifth Amendment privilege 

against self-incrimination and thereby violated his due process rights; (2) crossexamination and argument was also impermissible comment on the exercise of his Fourth 

Amendment right against unreasonable searches; (3) the prosecutor shifted its burden of 

proof to the defense; and (4) argument to the jury on the timing of his testimony violated 

his right against self-incrimination and thereby violated his rights to due process and a 

fair trial. In relation to the first and third claims, Addiego also argues that his trial 

counsel was ineffective by failing to raise those two specific claims with the trial court. 

The People contend all four claims are forfeited on appeal and lack merit, and that any 

possible error was harmless. 

We conclude Addiego’s first three claims are forfeited on appeal and the fourth 

claim lacks merit. 

I

Background Principles of Prosecutorial Misconduct 

and Ineffective Assistance of Counsel

A defendant may not complain of prosecutorial misconduct on direct appeal 

absent both a timely objection to the misconduct in the trial court on the same grounds

raised on appeal and a request that the jury be admonished to disregard the alleged

misconduct. If trial counsel did not object at trial to the alleged prosecutorial misconduct, 

a criminal defendant can argue on appeal, like Addiego does here in connection with two 
11

of his four claims, that counsel’s inaction violated the constitutional right to effective 

assistance of counsel. But the appellate record “rarely shows that the failure to object 

was the result of counsel’s incompetence.” (People v. Lopez (2008) 42 Cal.4th 960, 966.)

To demonstrate ineffective assistance of counsel, a criminal defendant must show 

that counsel’s deficient performance prejudiced the defense. On direct appeal, a finding 

of deficient performance is warranted where (1) the record affirmatively discloses 

counsel had no rational tactical purpose for the challenged act or omission, (2) counsel 

was asked for a reason and failed to provide one, or (3) there simply could be no 

satisfactory explanation. Where trial counsel’s tactics or strategic reasons for challenged 

decisions do not appear on the record, the court must not find ineffective assistance of 

counsel on appeal unless there could be no conceivable reason for the acts or omissions. 

(People v. Johnsen (2021) 10 Cal.5th 1116, 1165; see People v. Mendoza Tello (1997) 15 

Cal.4th 264, 267, 268 [“[a]n appellate court should not . . . brand a defense attorney 

incompetent unless it can be truly confident all the relevant facts have been developed”].)

II

Cell Phone Fifth Amendment Claim

Addiego contends the prosecutor’s questioning of witnesses and rebuttal argument 

regarding his refusal to unlock his phone were impermissible comments on his exercise 

of a Fifth Amendment right not to incriminate himself as elucidated in Doyle v. Ohio 

(1976) 426 U.S. 610 and Griffin v. California (1965) 380 U.S. 609. We agree with the 

People that this claim is forfeited on appeal because it was not raised below and there 

could be a satisfactory explanation why trial counsel acted as he did.

A. Additional Background

In a pretrial motion to admit evidence of statements that Addiego made to the 

deputy before his arrest, the People asserted that after an initial exchange in which 

Addiego insisted there was nothing illegal in his car and he did not use drugs, the deputy 
12

“advised [Addiego] of his rights per Miranda,[2] and [Addiego] invoked.” When the 

parties and the trial court later discussed this motion, defense counsel said he had no 

objection to the admission of Addiego’s pre-arrest statements but asked that no reference 

be made to Addiego’s invocation of his Miranda rights. The prosecutor responded that 

the tape he prepared and provided to defense counsel was edited from the original to cut 

off before the invocation of rights and was “only about a minute, minute and a half long. 

So we’re really not even getting close to the point where we get to any sort of Miranda

advisements being given to the defendant.” 

B. Relevant Fifth Amendment Principles

While the Fifth Amendment provides that no person may be compelled to 

incriminate themself in a criminal case, this is not an unqualified right to remain silent. 

The Fifth Amendment is concerned with coercion by the government, such as in cases 

where a prosecutor “invites the jury to draw adverse inferences from a defendant’s failure 

to take the witness stand. [Citation.] Although Griffin included a general statement that 

the Fifth Amendment ‘forbids either comment by the prosecution on the accused’s 

silence or instructions by the court that such silence is evidence of guilt’ (Griffin v. 

California, supra, 380 U.S. at p. 615), the court has since clarified that the ‘broad dicta in 

Griffin . . . must be taken in the light of the facts of that case’—a prosecutor’s comment 

on a defendant’s right not to testify at trial.” (People v. Tom (2014) 59 Cal.4th 1210, 

1222-1223 (Tom).)

“[T]he Fifth Amendment privilege against self-incrimination does not 

categorically bar the prosecution from relying on a defendant’s pretrial silence. The 

prosecution may use a defendant’s pretrial silence as impeachment, provided the 

defendant has not yet been Mirandized. (Fletcher v. Weir (1982) 455 U.S. 603 

2

 Miranda v. Arizona (1966) 384 U.S. 436.
13

[postarrest silence]; Jenkins v. Anderson (1980) 447 U.S. 231 . . . [prearrest silence]; cf. 

Doyle . . . [postarrest, post-Miranda silence is not admissible as impeachment].) The 

prosecution may also use a defendant’s prearrest silence in response to an officer’s 

question as substantive evidence of guilt, provided the defendant has not expressly 

invoked the privilege.” (Tom, supra, 59 Cal.4th at p. 1223.)

C. Analysis

Here, Addiego argues there could be no possible tactical reason why trial counsel 

failed to raise a claim of prosecutorial misconduct relating to Doyle and Griffin error. He 

argues this is so because any conversation he had with the deputy regarding his cell 

phone must have occurred after he invoked his Miranda rights. In support of this 

ostensible factual certainty, Addiego invokes the above discussion of the prosecutor’s 

pre-trial motion and the transcript of the audio recording of the traffic stop entered into 

evidence, neither of which referenced or contained any conversation regarding a cell 

phone. We are not persuaded. 

As the People observe, this contention has a gap in its logic.3 Consider a 

hypothetical five-minute conversation between a police officer and a driver who is read 

Miranda rights at the beginning of the fifth minute and thereafter invokes the right to 

remain silent. If we know only what was said in the first minute and a half, it does not 

follow that any conversation occurred after invocation of the right to remain silent. There 

are at least two and one-half minutes unaccounted for under that theory. Likewise, here it

is plausible the pertinent discussion about Addiego’s cell phone occurred after the portion 

of his conversation with the deputy that was admitted into evidence but before Addiego 

was read his Miranda rights. And that plausibility makes the ineffective assistance claim 

unpersuasive. Perhaps trial counsel did not raise a claim of Doyle error because he knew

3

 Addiego does not respond to this observation in his reply brief. 
14

the cell phone conversation happened before Addiego was read and invoked his rights. 

(See People v. Mendoza Tello, supra, 15 Cal.4th at pp. 267-268; Tom, supra, 59 Cal.4th 

at p. 1223 [Doyle concerns postarrest, post-Miranda silence].)

As for the alleged Griffin error, trial counsel is not ineffective by failing to raise a 

meritless argument. Addiego testified at trial, so Griffin was not implicated. (Tom,

supra, 59 Cal.4th at p. 1223 [Griffin concerns a “defendant’s right not to testify at 

trial”].) Accordingly, this claim is forfeited on appeal because it was not raised below 

and there is a conceivable reason why trial counsel acted as he did.

III

Fourth Amendment Claim

Addiego contends the prosecutor’s questioning and comments regarding his 

refusal to allow the deputy to search his phone improperly penalized him for exercising 

his Fourth Amendment rights. We agree with the People that this claim is forfeited on 

appeal because Addiego did not raise it below. Addiego neither contests the People’s 

assertion that he failed to raise this specific claim of prosecutorial misconduct below nor 

offers any reason why we should consider it despite that failure. Accordingly, we will 

not consider this claim. (See People v. Lopez, supra, 42 Cal.4th at p. 966.) 

IV

Shifted-Burden-of-Proof Claim

The due process clause of the Fourteenth Amendment “protects the accused 

against conviction except upon proof beyond a reasonable doubt of every fact necessary 

to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 

364.)

Addiego contends the prosecutor improperly shifted the burden of proof onto the 

defense by (1) asking him if he would have agreed to show text messages on his phone to 

the deputy if the deputy had asked, (2) eliciting testimony from the digital forensics 

detective that data from Addiego’s phone easily could have been extracted with the PIN 
15

code, (3) eliciting testimony from the defense expert that someone suspected of drug 

dealing would not consent to a search of a cell phone that has incriminating evidence. He 

further contends trial counsel provided ineffective assistance by failing to raise this claim 

below. 

We agree with the People that this claim is forfeited on appeal because it was not 

raised below and there could be a satisfactory explanation why trial counsel acted as he 

did.

A. Additional Legal Background

There is a strong presumption that counsel’s conduct falls within the wide range of 

reasonableness, and reviewing courts should not second-guess what may be difficult 

tactical decisions at trial, even if a tactical error can be gleaned under the “ ‘harsh light of 

hindsight.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) A decision whether to 

object to testimony is “ ‘highly tactical, and depends upon counsel’s evaluation of the 

gravity of the problem and whether objection or other responses would serve only to 

highlight the undesirable testimony.’ ” (People v. Seumanu (2015) 61 Cal.4th 1293, 

1313.) Because trial counsel “ ‘is best able to determine proper tactics in the light of the 

jury’s apparent reaction to the proceedings,’ ” competent counsel might “forgo even a 

valid objection.” (People v. Riel (2000) 22 Cal.4th 1153, 1197.)

B. Analysis

It is plausible trial counsel chose not to object to avoid highlighting the evidence 

on which that shift rested. Perhaps, in light of the jury’s reaction to the proceedings,

counsel believed the trial court’s jury instructions and his closing argument would cure a

suggestion by the prosecutor that Addiego had an evidentiary burden. Perhaps trial 

counsel wanted to emphasize what he hoped would appear to be an overall weak case by 

the prosecution and inadequate investigation by law enforcement. As the cases

immediately above explain, such tactical decisions do not amount to ineffective 

assistance of counsel. 
16

It is worth noting that counsel objected when the prosecutor said in rebuttal 

argument that the defense expert “testified . . . that when people don’t consent to search a 

phone, they go and get a warrant. And they do that based on probable cause, because 

now they certainly believe that there is something illegal on that phone.” Counsel 

objected the prosecutor was misstating the evidence. The trial court correctly overruled 

the objection, as the prosecutor indeed was faithfully paraphrasing the defense expert’s 

testimony.4 

V

Testimonial Fifth Amendment Claim

Addiego contends the prosecutor violated his right against self-incrimination when 

commenting in rebuttal argument to the jury that he “took the stand and . . . said that he is 

a user” after “[h]e waited to hear all of the evidence in the case.” He contends this 

comment violated his rights under Doyle and Griffin as it impermissibly asked the jury to

disbelieve his testimony because he did mention his drug use to the deputy when arrested.

We are not persuaded.

The prosecutor did not invite the jury to penalize Addiego for postarrest silence. 

He invited the jury to consider that Addiego was able to hear the prosecution’s evidence 

during the trial and then tailor his testimony accordingly. We agree with the People this 

was fair argument under Portuondo v. Agard, supra, 529 U.S. 61, wherein the United 

4 Two observations are worth noting. First, in the context of claims of prosecutorial 

misconduct in shifting the burden of proof, there is an important distinction 

“ ‘between . . . permissible comment’ ” by a prosecutor “ ‘that a defendant has not 

produced any evidence’ ” on the one hand and “ ‘improper statement that a defendant has 

a duty or burden to produce evidence, or a duty or burden to prove his or her 

innocence’ ” on the other hand. (People v. Steskal (2021) 11 Cal.5th 332, 352, italics

added.) Second, in closing, argument the prosecutor asked the jury to “hold [him] to [his] 

burden . . . to prove each element beyond a reasonable doubt.” Similarly, he told the jury 

in rebuttal to “[h]old [him] to [his] burden of proving the case beyond a reasonable 

doubt.”
17

States Supreme Court ruled it is appropriate to treat a criminal defendant the same as any 

other witness who has an opportunity to tailor testimony after hearing other witnesses 

testify first.5 (Id. at p. 73.) 

DISPOSITION

The judgment is affirmed.

 /s/

BOULWARE EURIE, J.

We concur:

 /s/

DUARTE, Acting P. J.

 /s/

MESIWALA, J.

5

 We note Addiego does not discuss Portuondo v. Agard in his briefing. And we

disagree with the People that this claim is forfeited on appeal because trial counsel 

objected to the comment only as “improper argument” and not specifically on grounds of 

prosecutorial misconduct. The objection and related motion for mistrial preserved the 

claim. (See People v. Hubbard (2020) 52 Cal.App.5th 555, 563 [disagreeing with the 

People’s contention that the defendant forfeited an argument “by not objecting on the 

basis of a federal constitutional error,” where the defendant argued the prosecutor “had 

made ‘an improper argument’ by highlighting that he did not testify and implying that he 

should have testified to support his trial counsel’s version of the events”].)