Griffin error in California

2026“The Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant’s decision not to testify on his own behalf.” (People v. Taylor (2010) 48 Cal.4th 574 , 632–633 (Taylor), citing Griffin, supra, 380 U.S. at p. 613 .) “Directing a jury’s attention to a defendant’s failure to testify at trial runs the risk of inviting the jury to consider the defendant’s silence as evidence of guilt.” (People v. Lewis (2001) 25 Cal.4th 610, 670 (Lewis).) A prosecutor is generally allowed to comment on the state of the evidence, or the defendant’s failure to introduce material ev

2026“The Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant’s decision not to testify on his own behalf.” (People v. Taylor (2010) 48 Cal.4th 574 , 632–633 (Taylor), citing Griffin, supra, 380 U.S. at p. 613 .) “Directing a jury’s attention to a defendant’s failure to testify at trial runs the risk of inviting the jury to consider the defendant’s silence as evidence of guilt.” (People v. Lewis (2001) 25 Cal.4th 610, 670 (Lewis).) A prosecutor is generally allowed to comment on the state of the evidence, or the defendant’s failure to introduce material ev

2026The Supreme Court rejected the defendant’s claim of Griffin error, finding that the prosecutor “did not allude to the lack of refutation 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.” (Id. at p. 1340.) By contrast, courts have found Griffin error where the prosecutor makes a “bare assertion that appellant, who knew the facts, had failed to come forward.” (People v. Denard (2015) 242 Cal.App.4th 1012, 1021 [error to state that “defendant clearly d

2026(See, e.g., People v. Vargas (1973) 9 Cal.3d 470, 478 .) Griffin error occurs when the judge or prosecutor comments on the defendant’s right not to testify.

2025Relevant Legal Principles “ ‘Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused’s 17 invocation of the constitutional right to silence.’ ” (People v. Tafoya (2007) 42 Cal.4th 147, 184 ; see Griffin, supra, 380 U.S. at p. 615 [“We . . . hold 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.” (Fn. omitted.)].) Griffin error is subject to the harmless error test set forth in Chapman v. California (1

2025(See People v. Frazier (2020) 55 Cal.App.5th 858 , 864; accord, In re Taylor (2015) 60 Cal.4th 1019, 1035 .) “If an error violates a defendant’s federal constitutional rights, reversal is required unless the error was harmless beyond a reasonable doubt.” (People v. Hernandez (2011) 51 Cal.4th 733, 745 , citing Chapman v. California (1967) 386 U.S. 18, 24 ; see 6 People v. Woodruff (2018) 5 Cal.5th 697, 759 [applying Chapman standard to due process claim]; Thompson, supra, 1 Cal.5th at p. 1118 [same, to Griffin error]; People v. Clair (1992) 2 Cal.4th 629, 669, fn. 10 [same, to alleged violatio

2026(Lewis, supra, 25 Cal.4th at p. 670 [no Griffin error in prosecutor’s argument that evidence of mitigating circumstances “does not exist”]; People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford).) In Taylor, supra, for example, the defense counsel argued that the evidence did not support a finding that defendant entered the victim’s home with the specific intent to commit the charged crimes.

2025(Id. at p. 615.) The Griffin rule “does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses.” (People v. Bradford (1997) 15 Cal.4th 1229, 1339 ) And here, the trial court admonished the jury that the defense had no obligation to call witnesses or present evidence.

2026We find the prosecutor’s remarks did not rise to the level of Griffin error. “[T]he rule prohibiting comment on defendant’s silence does not extend to comments on the state of the evidence . . . .” (People v. Medina (1995) 11 Cal.4th 694, 755 .) As discussed at length above, the prosecutor’s remarks, viewed in context, were a fair comment on the state of the evidence.

2026We find the prosecutor’s remarks did not rise to the level of Griffin error. “[T]he rule prohibiting comment on defendant’s silence does not extend to comments on the state of the evidence . . . .” (People v. Medina (1995) 11 Cal.4th 694, 755 .) As discussed at length above, the prosecutor’s remarks, viewed in context, were a fair comment on the state of the evidence.

2025The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” ’ ” ’ [Citation.]” (People v. Hubbard, supra, at p. 563.) Where the prosecutor’s comments amount to Griffin error, the error is prejudicial if there is “a reasonable likelihood that any of the comments could have been understood, within its context, to refer to [the] defendant’s failure to testify.” (People v. Clair (1992) 2 Cal.4th 629, 663 .) “[I]n determining whether prejudicial Griffin error has occurred, ‘we must focus upon the

2025(See People v. Frazier (2020) 55 Cal.App.5th 858 , 864; accord, In re Taylor (2015) 60 Cal.4th 1019, 1035 .) “If an error violates a defendant’s federal constitutional rights, reversal is required unless the error was harmless beyond a reasonable doubt.” (People v. Hernandez (2011) 51 Cal.4th 733, 745 , citing Chapman v. California (1967) 386 U.S. 18, 24 ; see 6 People v. Woodruff (2018) 5 Cal.5th 697, 759 [applying Chapman standard to due process claim]; Thompson, supra, 1 Cal.5th at p. 1118 [same, to Griffin error]; People v. Clair (1992) 2 Cal.4th 629, 669, fn. 10 [same, to alleged violatio

2016(People v. Hovey (1988) 44 Cal.3d 543, 572 .) A Griffin error is committed where there is a reasonable likelihood that a jury could construe any of a prosecutor’s comments within its context to refer to a defendant’s failure to testify.

2016(People v. Hovey (1988) 44 Cal.3d 543, 572 .) A Griffin error is committed where there is a reasonable likelihood that a jury could construe any of a prosecutor’s comments within its context to refer to a defendant’s failure to testify.

2025As the court pointed out in Griffin, absent such a suggestion “the inference of guilt is not 4 always so natural or irresistible.” . . . [A] prohibited comment is [not] necessarily or even ordinarily harmless so long as it is unaccompanied by a statement that silence implies guilt; we simply note that the absence of any such statement tends to mitigate the independently damaging effect of a comment uttered in violation of the Griffin rule.’ (Italics in original; People v. Modesto, 66 Cal.2d 695, 713 .)” (People v. Vargas (1973) 9 Cal.3d 470 , 478–479.) B.

2025As the court pointed out in Griffin, absent such a suggestion “the inference of guilt is not 4 always so natural or irresistible.” . . . [A] prohibited comment is [not] necessarily or even ordinarily harmless so long as it is unaccompanied by a statement that silence implies guilt; we simply note that the absence of any such statement tends to mitigate the independently damaging effect of a comment uttered in violation of the Griffin rule.’ (Italics in original; People v. Modesto, 66 Cal.2d 695, 713 .)” (People v. Vargas (1973) 9 Cal.3d 470 , 478–479.) B.

2022(Cf., People v. Murtishaw (1981) 29 Cal.3d 733, 757, fn. 19 [prosecution comments emphasizing that testimony regarding statements made when only defendant and witness were present was “‘uncontradicted’” constituted Griffin error]; In re Rodriguez (1981) 119 Cal.App.3d 457, 468 [prosecution comment that it was “‘undisputed that there was a kidnap,’” arguably referring to defendant’s failure to rebut testimony of incriminating statements by defendant, together with repeated admonitions reminding jury of the defendant’s silence, constituted Griffin error].) The rule regarding prosecution commenta

2015It is well established, however, that the rule prohibiting comment on defendant’s silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.” (People v. Medina (1995) 11 Cal.4th 694, 755 ; People v. Lewis (2001) 25 Cal.4th 610, 670 [“The prosecutor is permitted, however, to comment on the state of the evidence, ‘including the failure of the defense to introduce material evidence or to call witnesses.’ ”].) As People v. Murtishaw (1981) 29 Cal.3d 733, 757 , tells us, applying the Griffin princip

1974In People v. Gioviannini, 260 Cal.App.2d 597, 604-605 [ 67 Cal.Rptr. 303 ], the court found Griffin error when the prosecutor commented upon defendant’s alleged admission to a..police officer, stating that ‘ “[t]he defendant, in his own words spoken to Sergeant Wrona, there is no denial of those words, with the defendant present; . . .” ’ (Italics added by the court.) Similarly, in People v. Northern, 256 Cal.App.2d 28, 30-31 [ 64 Cal.Rptr. 15 ], the court found Griffin error in the prosecutor’s statement that the People’s evidence ‘has not been refuted by the Defendant . . . .’ (See also Peop

1974In People v. Gioviannini, 260 Cal.App.2d 597, 604-605 [ 67 Cal.Rptr. 303 ], the court found Griffin error when the prosecutor commented upon defendant’s alleged admission to a..police officer, stating that ‘ “[t]he defendant, in his own words spoken to Sergeant Wrona, there is no denial of those words, with the defendant present; . . .” ’ (Italics added by the court.) Similarly, in People v. Northern, 256 Cal.App.2d 28, 30-31 [ 64 Cal.Rptr. 15 ], the court found Griffin error in the prosecutor’s statement that the People’s evidence ‘has not been refuted by the Defendant . . . .’ (See also Peop

2025The Griffin rule has been extended to prohibit a prosecutor from commenting, either directly or indirectly, on the defendant’s failure to testify.” (People v. Hubbard (2020) 52 Cal.App.5th 555 , 563.) “ ‘[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 denial could be provided only by the defendant, who therefore would be required to take the witness stand.’ ” (People v. Thomas (2012) 54 Cal.4th 908, 945 .) “This rule does not prohibit a prosecutor’s comments on the state of the evidence, or o

2025The Griffin rule has been extended to prohibit a prosecutor from commenting, either directly or indirectly, on the defendant’s failure to testify.” (People v. Hubbard (2020) 52 Cal.App.5th 555 , 563.) “ ‘[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 denial could be provided only by the defendant, who therefore would be required to take the witness stand.’ ” (People v. Thomas (2012) 54 Cal.4th 908, 945 .) “This rule does not prohibit a prosecutor’s comments on the state of the evidence, or o

2016(People v. Johnson (1992) 3 Cal.4th 1183, 1229 (Johnson).) Both Thomas and the Attorney General rely on the same three cases that examined potential Griffin error in a prosecutor’s closing arguments and found none: Bradford, supra, 15 Cal.4th 1229 ; Johnson, supra, 3 Cal.4th 1183 ; and People v. Thomas (2012) 54 Cal.4th 908 (Thomas).

2016(People v. Johnson (1992) 3 Cal.4th 1183, 1229 (Johnson).) Both Thomas and the Attorney General rely on the same three cases that examined potential Griffin error in a prosecutor’s closing arguments and found none: Bradford, supra, 15 Cal.4th 1229 ; Johnson, supra, 3 Cal.4th 1183 ; and People v. Thomas (2012) 54 Cal.4th 908 (Thomas).

2024(People v. Hughes (2002) 27 Cal.4th 287, 372 [defendant “waived his right to complain of asserted Griffin error on appeal” by failing to object to the prosecutor’s statements made in closing argument]; People v. Mitcham (1992) 1 Cal.4th 1027, 1050-1051 [any Griffin error forfeited “[b]ecause a timely objection and admonition would have cured any harm caused by these remarks”].) Even if Sarinana did not forfeit the issue, there was no Griffin error.

2022(See Brady, supra, 50 Cal.4th at pp. 565-566 [the rule against prosecutorial comment on the accused’s silence “does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses”]; cf. People v. Hughes (2002) 27 Cal.4th 287 , 372-373 & fn. 19 [rejecting a claim of Griffin error where the prosecutor’s statements—including, “ ‘I would ask you to . . . base your verdict on the law and on the facts, evidence that you can handle, evidence of somebody from the witness stand, not accept [defense counsel’s] invitation a

2020The court held that this and similar comments violated the Griffin rule as “implied invitations to the jury to draw inferences damaging to the defense, not from the general state of the evidence but specifically from appellant’s failure to present himself as a witness.” (Id. at p. 604; see also People v Mesa (2006) 144 Cal.App.4th 1000, 1005-1006 [prosecutor’s comment that “unless we have an explanation, then you'll know [defendant] is guilty” was improper].) Here, by questioning the witnesses about their intentions for seeking legal advice in June 2010 and about specific reasons the witnesses

2020The court held that this and similar comments violated the Griffin rule as “implied invitations to the jury to draw inferences damaging to the defense, not from the general state of the evidence but specifically from appellant’s failure to present himself as a witness.” (Id. at p. 604; see also People v Mesa (2006) 144 Cal.App.4th 1000, 1005-1006 [prosecutor’s comment that “unless we have an explanation, then you'll know [defendant] is guilty” was improper].) Here, by questioning the witnesses about their intentions for seeking legal advice in June 2010 and about specific reasons the witnesses

2020(People 26 v. Rangel (2016) 62 Cal.4th 1192, 1218 ; People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 .) In any event, there was no Griffin error, which requires “‘comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.’” (United States v. Robinson (1988) 485 U.S. 25, 30 (Robinson), quoting Griffin, supra, 380 U.S. at p. 615 .) Viewing the prosecutor’s request for an admonition, and the court’s subsequent admonition in context, it is clear that both were fair responses to defendant’s disruptive behavior during trial. ( Robinson, s

2020(People 26 v. Rangel (2016) 62 Cal.4th 1192, 1218 ; People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 .) In any event, there was no Griffin error, which requires “‘comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.’” (United States v. Robinson (1988) 485 U.S. 25, 30 (Robinson), quoting Griffin, supra, 380 U.S. at p. 615 .) Viewing the prosecutor’s request for an admonition, and the court’s subsequent admonition in context, it is clear that both were fair responses to defendant’s disruptive behavior during trial. ( Robinson, s

2025(Mincey, supra, 2 Cal.4th at p. 446 .) Regardless, we reject Cortez’s argument that the prosecutor committed Griffin error when she discussed the victim’s testimony in argument.

2014(People v. Mincey (1992) 2 Cal.4th 408, 446 [failure to object on grounds of Griffin error forfeits argument on appeal].) The argument is also without merit.

2020Motion for New Trial As discussed, defendant filed a motion for new trial following the verdict, and argued inter alia that trial counsel rendered ineffective assistance by failing to consult with or call an eyewitness identification expert, and that the prosecutor’s request to admonish defendant constituted Griffin error.13 The People opposed the motion, and 12 The single case on which defendant relies, People v. Guzman (2000) 80 Cal.App.4th 1282 , is readily distinguishable.

2013(People v. Medina (1995) 11 Cal.4th 694, 755 [ 47 Cal.Rptr.2d 165 , 906 P.2d 2 ]; People v. Guzman (2000) 80 Cal.App.4th 1282, 1288 [ 96 Cal.Rptr.2d 87 ].) “ ‘The prohibition, however, does not extend to . . . such comment on the defense’s failure at trial to introduce evidence that could reasonably have been expected [citation]—save only, of course, the testimony of the defendant himself.’ ” (People v. Sanders (1995) 11 Cal.4th 475, 528 [ 46 Cal.Rptr.2d 751 , 905 P.2d 420 ].) In reviewing whether a prosecutor’s comment constitutes Griffin error, appellate courts are called to determine “wheth

2015(See People v. Houston (2012) 54 Cal.4th 1186, 1223 [ 144 Cal.Rptr.3d 716 , 281 P.3d 799 ] [“given the overwhelming evidence of defendant’s guilt,” errors harmless under Chapman or People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ] standard of review]; People v. Booker (2011) 51 Cal.4th 141, 186 [ 119 Cal.Rptr.3d 722 , 245 P.3d 366 ]; Sanchez, supra, 228 Cal.App.4th at p. 1535 .) Our Supreme Court has held most indirect Griffin error to be harmless.

2015(See People v. Houston (2012) 54 Cal.4th 1186, 1223 [ 144 Cal.Rptr.3d 716 , 281 P.3d 799 ] [“given the overwhelming evidence of defendant’s guilt,” errors harmless under Chapman or People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ] standard of review]; People v. Booker (2011) 51 Cal.4th 141, 186 [ 119 Cal.Rptr.3d 722 , 245 P.3d 366 ]; Sanchez, supra, 228 Cal.App.4th at p. 1535 .) Our Supreme Court has held most indirect Griffin error to be harmless.

2026Griffin error The Fifth Amendment to the United States Constitution prohibits a prosecutor from commenting on a criminal defendant’s invocation of his constitutional right to remain silent in the face of criminal charges. ( Griffin, supra, 380 U.S. 609 .) “Directing a jury’s attention to a defendant’s failure to testify at trial runs the risk of inviting the jury to consider the defendant’s silence as evidence of guilt.” (People v. Lewis (2001) 25 Cal.4th 610, 670 .) The prohibition of Griffin is violated where there is a 56 “‘reasonable likelihood that any of the [prosecutor’s] comments could

2021(See People v. Taylor (2010) 48 Cal.4th 574 , 632–633 [no Griffin error in prosecutor’s comments on defendant’s failure to call any witnesses, such as a hypothetical friend or neighbor, to provide nonfelonious reason for defendant’s entry into victim’s home]; Thomas, supra, 54 Cal.4th at p. 945 [no Griffin error in prosecutor’s comments on absence of alibi evidence “framed in terms of the failure to call some person other than defendant”]; People v. Sanchez (2014) 228 Cal.App.4th 1517 , 1526–1527 (Sanchez) [no Griffin error in prosecutor’s comments emphasizing defense’s failure to explain defe

2026“The Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant’s decision not to testify on his own behalf.” (People v. Taylor (2010) 48 Cal.4th 574 , 632–633 (Taylor), citing Griffin, supra, 380 U.S. at p. 613 .) “Directing a jury’s attention to a defendant’s failure to testify at trial runs the risk of inviting the jury to consider the defendant’s silence as evidence of guilt.” (People v. Lewis (2001) 25 Cal.4th 610, 670 (Lewis).) A prosecutor is generally allowed to comment on the state of the evidence, or the defendant’s failure to introduce material ev

2026“The Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant’s decision not to testify on his own behalf.” (People v. Taylor (2010) 48 Cal.4th 574 , 632–633 (Taylor), citing Griffin, supra, 380 U.S. at p. 613 .) “Directing a jury’s attention to a defendant’s failure to testify at trial runs the risk of inviting the jury to consider the defendant’s silence as evidence of guilt.” (People v. Lewis (2001) 25 Cal.4th 610, 670 (Lewis).) A prosecutor is generally allowed to comment on the state of the evidence, or the defendant’s failure to introduce material ev

2022(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [ 80 L.Ed.2d 674 ].) We conclude counsel’s representation was not deficient because there was no Griffin error.

2022(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [ 80 L.Ed.2d 674 ].) We conclude counsel’s representation was not deficient because there was no Griffin error.

2026The Supreme Court rejected the defendant’s claim of Griffin error, finding that the prosecutor “did not allude to the lack of refutation 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.” (Id. at p. 1340.) By contrast, courts have found Griffin error where the prosecutor makes a “bare assertion that appellant, who knew the facts, had failed to come forward.” (People v. Denard (2015) 242 Cal.App.4th 1012, 1021 [error to state that “defendant clearly d

2021(See, e.g., People v. Hubbard (2020) 52 Cal.App.5th 555 , 562 [“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. Denard (2015) 242 Cal.App.4th 1012, 1019 [“the prosecutor’s argument could have been understood by the jury only as a comment on appellant’s silence, and thus constituted Griffin error”]; People v. Bradford (1997) 15 Cal.4th 1229, 1339 [“a prosecutor may commit Griffin error if he or she argues to t

2022(People v. Hughes (2002) 27 Cal.4th 287, 372 .) For example, 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 denial could be provided only by the defendant, who therefore would be required to take the witness stand.” (People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford).) Nevertheless, a prosecutor is permitted “to comment on a defendant’s failure to introduce material evidence or call logical witnesses.” (People v. Brown (2003) 31 Cal.4th 518, 554 ; see Bradford, at p. 1340 [references

2021(See People v. Valdez (2004) 32 Cal.4th 73, 127 ; People v. Brown (2003) 31 Cal.4th 518, 554 .) 4 Defendant claims he did not forfeit the issue because any objection would have been futile, pointing out that one of the issues he raised in a new trial motion was the prosecutor’s alleged Griffin error.

2018In People v. Szeto (1981) 29 Cal.3d 20 , the Supreme Court held there was no Griffin error when the prosecutor “merely pointed out that the defense had not produced alibi witnesses for the crucial period.” (Id. at p. 34; see also People v. Echevarria (1992) 11 Cal.App.4th 444, 452 [no Griffin error where prosecutor observed that none of the defense witnesses could tell jury “ ‘where [the defendant] was that night’ ”].) Under Szeto, a prosecutor is not precluded from remarking on the lack of alibi evidence simply because the defense has not indicated what the alibi might be, and thus which spec

1991But they're giving you no evidence on which to do that. " (Italics added.) As the People correctly observe, defendant failed to object to the statement, thereby waiving his present objection. ( People v. Ratliff, supra, 41 Cal.3d at p. 690 .) Moreover, the Griffin rule does not extend to remarks, such as those here, which merely comment "on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses." ( People v. Szeto (1981) 29 Cal.3d 20, 34 [ 171 Cal. Rptr. 652 , 623 P.2d 213 ]; People v. Ratliff, supra, 41 Cal.3d at p. 691 .) Accord

2026In People v. Ratliff (1986) 41 Cal.3d 675, 691 , the case on which Weinstein relies in support of his claim of Fifth Amendment interference, our Supreme Court explained, “[T]he Griffin rule [Griffin v. California (1965) 380 U.S. 609 ] forbids any reference to a defendant’s failure to take the stand in his defense, but ‘that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.’ ” In questioning why the defense did not introduce evidence from the I.T. company that erased the lost- and-found rec

2022(People v. Hughes (2002) 27 Cal.4th 287, 372 .) For example, 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 denial could be provided only by the defendant, who therefore would be required to take the witness stand.” (People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford).) Nevertheless, a prosecutor is permitted “to comment on a defendant’s failure to introduce material evidence or call logical witnesses.” (People v. Brown (2003) 31 Cal.4th 518, 554 ; see Bradford, at p. 1340 [references

2022We are unpersuaded by defendant’s citation to People v. Medina (1974) 41 Cal.App.3d 438 , which found Griffin error based on a prosecutor’s statement that the jury should “believe the testimony of the three accomplice witnesses because the defendants, who were the only ones who could have refuted it, did not take the stand and subject themselves to cross-examination and to prosecution for perjury.” (Medina, at p. 457.) As defendant acknowledges, the prosecutor here did not mention defendant’s failure to refute the other witnesses’ testimony.

2016Chamberlain's related contention is that the prosecutor's statements constituted error under Griffin v. California (1965) 380 U.S. 609, 615 (Griffin). " 'Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness 21 stand.' " (People v. Hovey (1988) 44 Cal.3d 543, 572 .) Chamberlin suggests that what the prosecutor said in this case is similar to what was determined to be Griffin error in People v. Medina (1974) 41 Cal.App.3d 438 (Medina).