By clearly referring to defendant’s failure to testify and cautioning jurors not to be so “gullible” as to believe his defense, the prosecutor committed Griffin error and misconduct, but it was harmless. Sanchez was found in the wheel well of a truck in a Southern California Edison (SCE) service yard at 3:00 a.m. Video surveillance showed two people moving about the yard around that time, taking items from trucks and gathering copper wire. A jury convicted Sanchez of grand theft (Pen. Code, § 487, subd. (a)). On appeal Sanchez claimed the prosecutor committed prejudicial misconduct in his argument to the jury. Held: Affirmed. In Griffin v. California (1965) 380 U.S. 609, the Court held the Fifth Amendment prohibits the prosecution from commenting on the accused’s silence, which includes comment on his failure to testify (People v. Medina (1995) 11 Cal.4th 694). However, the prosecutor may comment on the defense’s failure to introduce material evidence or call logical witnesses. It is improper for the prosecution to argue that certain evidence has not been refuted when the nontestifying defendant is the only person who could contradict it. Here, the prosecutor’s comment that if Sanchez had a logical explanation why he was in the yard, he would have presented it, was not Griffin error because his accomplice, Rodriquez, could have been called for that purpose. However, the statement that Sanchez was in a real sense still hiding in a wheel well from the jury, violated Griffin because it referred to Sanchez’s refusal to testify. However, “the errors, while egregious, were isolated and not accompanied by misstatements of law or [] strong appeals to passion and prejudice” and were therefore harmless in the face of overwhelming guilt evidence.

The prosecution’s repeated argument that defendant hoped to “hoodwink” at least one “gullible,” “naive” juror, was misconduct. During argument the prosecutor repeatedly stated it was Sanchez’s hope to fool at least one “gullible” juror, so he could go free and have a good laugh at the jury’s expense. This was misconduct because the comments were “designed to offend and intimidate the potential holdout juror who doubted defendant’s guilt.” Further, the “guilt-or-go-home choice presented to the jurors” was inaccurate. However, the error was harmless.