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Name: People v. Mesa
Case #: B184186
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 11/14/2006

During closing argument during appellant’s trial for grand theft, the prosecutor commented on appellant’s decision not to testify, arguing that appellant had “no explanation” for the evidence. Appellant’s trial counsel did not object to the prosecutor’s comments or request a curative admonition. On appeal, he contended the prosecutor committed Griffin error. The appellate court held that appellant forfeited this claim on appeal by the failure to timely object below. Further, reversal was not required due to ineffective assistance of counsel for failing to object, because appellant failed to demonstrate that there was a reasonable probability that absent his attorney’s incompetence, he would not have been convicted. The trial court instructed the jury pursuant to CALJIC 2.60 and 2.61 that appellant had a right not to testify and that no inference could be drawn from his silence.