Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 210706
RUSHING, P.J.
I. Statement of the Case
In 2002, defendants Leobardo Blancarte, Ramon Landin, and Victor Palacios were charged with attempted murder, robbery, attempted robbery, and aggravated assault. Among other things, it was further alleged that the attempted murder was premeditated; some of the offenses were committed for the benefit of a criminal street gang; during the attempted murder and attempted robbery, Blancarte personally discharged a firearm and inflicted great bodily injury; during the robbery Blancarte and Landin used firearms; and during the aggravated assault, Blancarte and Landin personally used a firearms. (Pen. Code, §§ 664, subd. (a), 187, 189, 211/212.5, subd. (c), 245, subd. (a)(1), 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d) & (e)(1), 12022.7, 1203, subd. (e)(3).) Prior to trial, Palacios pleaded guilty to robbery, attempted robbery, and aggravated assault and admitted various enhancements. Thereafter, a jury found Blancarte and Landin guilty of all counts and found the enhancement allegations true. On appeal, this court reversed the judgment. (People v. Blancarte (H026676, Aug. 1, 2006) [nonpub. opn].)
On remand, defendant Blancarte was tried separately on charges of attempted premeditated murder and assault with a firearm with allegations that he personally used a firearm and personally and intentionally discharged it causing great bodily injury. The jury found him guilty of aggravated assault and found that he personally used a firearm but deadlocked on the murder charge, and the court declared a mistrial on that charge and related enhancements. The court imposed a four-year upper term for the assault and a 10-year enhancement for personally using a firearm.
On appeal from the judgment, Blancarte claims the prosecutor was guilty of misconduct in eliciting from a witness an improper opinion concerning Blancarte’s credibility and commenting on his failure to testify at trial.
We grant Blancarte’s request that we take judicial notice of the record and files in the first appeal. (Evid. Code, § 452, subd. (d)(1).)
We affirm the judgment.
II. Facts
The parties fully and exhaustively set forth the evidence introduced at the retrial, which was essentially the same, and partially identical, to that at the first trial and included the former testimony of Blancarte and his then codefendant Landin and one of the victims, Miguel Garcia. Accordingly, we need only briefly summarize the facts.
On the evening of April 21, 2001, Landin and Palacios, who identified with Norteños, were at Palacios’s house when they saw Miguel Garcia and Jose Antonio Garcia walking down the street. Because they looked like rival Sureños, Landin, who had a gun, and Palacios approached them. Palacios accosted Miguel, and Landin accosted Jose. Palacios robbed Miguel of his wallet and then hit him. Landin, who was holding a gun at his side, pulled Jose’s ponytail, asked if he was a Sureño, and demanded his wallet. Jose, who had had his hands in his pockets, removed them, and when he did, Landin yelled out that Jose had a gun, which was not true. Landin immediately hit Jose in the head with his gun, knocked him down, and started kicking and pistol whipping him. After a while, Landin realized that Jose did not have a gun.
While Landin was beating and kicking Jose, Blancarte, who was a Norteño gang member, joined him, kicking Jose and then beating him in the head with his own gun. At one point, Blancarte’s gun fired and hit Jose. According to Miguel, Blancarte racked his gun, bent over, and may have been pointing the gun at Jose before it fired.
Blancarte testified that he noticed that Palacios and Landin were confronting Miguel and Jose because he heard Landin shout, “He’s got a gun.” Blancarte then rushed over to help Landin. He had his hand on his gun. When he got there, Landin had stopped beating and kicking Jose. However, Jose was squirming around trying to protect his face with one hand. He also appeared to be reaching in the area of his pockets with the other hand. Blancarte started kicking him and then beating him with his gun. He said he thought Jose might be trying to get a gun, but he never saw one. Nevertheless, he continued beating Jose several times on the head with his gun, hoping to knock him out and prevent him from trying to shoot them as they left. Blancarte said that the third time he hit Jose with his gun, it fired accidentally, hitting Jose in the neck. Blancarte was surprised that the gun fired because he was holding it in the palm of his hand and did not have his finger on the trigger and did not mean for Jose to get shot. Thereafter, Blancarte, Palacios, and Landin fled.
III. Prosecutorial Misconduct
Blancarte contends that the prosecutor was guilty of prejudicial misconduct in eliciting an improper opinion from a witness and commenting on Blancarte’s failure to testify at the retrial.
A. Improper Opinion
Background
Blancarte testified at his first trial but not at his second trial. However, his former testimony was admitted and read to the jury. He testified that although he was on parole and not supposed to possess a firearm, he carried a loaded gun in his waistband just in case he ran into trouble. He said that when he heard Landin shout, “He’s got a gun,” he started running to him and the others. He kept his hand on his gun so that it would not fall out of his waistband. When he reached them, Landin had already knocked Jose to the ground, and Jose was trying to cover his face with one hand. According to Blancarte, Jose was also moving his other hand around his stomach and pocket area. Blancarte kicked him a few times and grabbed his gun. He thought Jose was reaching for a gun, so he started hitting Jose with his gun. The third time he hit him, the gun went off accidentally. On cross-examination, Blancarte described how he was holding the gun like a weight in the palm of his hand at an angle rather than by the grip with his finger on the trigger. The prosecutor at the first trial, Mark Duffy, then demonstrated the way that Blancarte said he had used his gun to beat Jose.
At the retrial, Miguel Garcia and Landin also did not testify, and their former testimony was read to the jury.
At the retrial, Duffy testified about that demonstration and Blancarte’s explanation of how he was holding the gun in the palm of his hand with the barrel pointed up in the air when it fired. Duffy testified that at the first trial, he did not describe his demonstration on the record because the jurors could see what he was doing, and it was clear that the barrel of the gun was pointed away from Jose’s neck. Duffy said he did not want to draw too much attention to this fact because he planned to emphasize it during his closing argument. Duffy further testified that “Mr. Blancarte had agreed to the positioning of the gun in his hand and the way that he was swinging it down on the victim. And I knew right then and there that Mr. Blancarte’s story made no sense.” (Italics added.)
Defense counsel objected, and at his request, the court struck Duffy’s last remark. On cross-examination, Duffy explained why he did not describe his demonstration on the record. Later, during a recess, defense counsel moved for mistrial. The prosecutor argued, and defense counsel agreed, that it was proper for Duffy to explain why he had not described his demonstration on the record during the first trial. However, defense counsel argued that Duffy’s statement, italicized above, was improper. The court denied the motion.
The court had previously instructed the jury that “[o]ccasionally evidence will be admitted and I’ll strike that evidence from the record. In that case you are required to completely disregard that evidence.”
Discussion
Blancarte claims that the prosecutor was guilty of misconduct in eliciting Duffy’s comment, “And I knew right then and there that Mr. Blancarte’s story made no sense.” He argues that the comment constituted an improper opinion about Blancarte’s veracity and credibility. Blancarte further claims that the comment was incurably prejudicial. Accordingly, Blancarte argues that the trial court erred in denying his motion for mistrial.
Generally, “[i]t is... presumed in the ordinary case where evidence is stricken out and the jury is instructed to disregard it, that the jury will follow the instruction, and that the error is thereby cured. But this rule is not of invariable application; and sometimes the seriousness or peculiar nature of the evidence, or the circumstances, are such that it cannot reasonably be said that its prejudicial effect was eradicated by the instruction.” (People v. Bolton (1932) 215 Cal. 12, 26; People v. Riggs (2008) 44 Cal.4th 248, 299; People v. Coddington (2000) 23 Cal.4th 529, 631, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; People v. Morris (1991) 53 Cal.3d 152, 194, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Because the trial court struck Duffy’s comment and had warned jurors to disregard any evidence that is stricken, we focus on Blancarte’s claim that the comment was incurably prejudicial.
In People v. Riggs, supra, 44 Cal.4th 248, the defendant complained of eight instances of alleged prosecutorial misconduct, where, in essence, the prosecutor elicited opinions from the lead investigator that defendant’s statements to the police and his written account of the murder in a manuscript were untruthful attempts to shift blame away from himself; and the defendant, not his common law wife, had shot and killed the victim in order to rob her. The California Supreme Court first noted that as to some instances, a defense objection had been sustained and the improper testimony stricken, “thus eliminating any possible prejudice from [each] alleged instance of misconduct on the part of the prosecutor.” (Id. at p. 300.)
Concerning the potential cumulative prejudice, the court explained that in eliciting the investigator’s personal opinion that the defendant was guilty and had lied about his culpability, the prosecutor did not present “any evidence to the jury that it would not have already inferred from the fact that [the investigator] had investigated the case and that defendant had been charged with the crimes. There was no implication from the questions or answers that [the investigator’s] opinions were based upon evidence that had not been presented to the jury. [Citation.] In addition, we see nothing in the record that would lead us to conclude that the jury was likely to disregard the instructions it received concerning its duty to decide the issues of credibility and guilt based upon its own assessment of the evidence, not the opinions of any witness. The jury’s exposure to the unsurprising opinions of the investigating officer that he believed the person charged with the crimes had committed them, and was untruthful in denying his guilt, could not have influenced the verdict—especially in light of the overwhelming evidence against defendant. To the extent that there was any misconduct in eliciting these opinions from [the investigator], under the state standard there is no likelihood that without the misconduct defendant would have achieved a better result; under the federal standard, the trial was not infected with such unfairness as to result in a denial of due process.” (People v. Riggs, supra, 44 Cal.4th at pp. 300-301.)
In this case, Duffy was an officer of the court even though he sat in the witness chair. Moreover, as an experienced prosecutor he knew, or certainly should have known, that his comment was an improper and gratuitous opinion. Indeed, given that he had previously prosecuted the case, won an attempted murder conviction, and had the judgment reversed on appeal, we consider it hard to believe that he did not know exactly what he was saying when he said it and its potential impact on the jury if not stricken by the court. However, we do not find that his comment was as potentially prejudicial as the instances of alleged misconduct and the nature of the opinions rendered by the investigator in Riggs. Moreover, there was only one comment, and we see no reason why jurors might have ignored the court’s order striking the comment or would have been unable to obey the court’s instruction to disregard evidence that it had ordered stricken.
After the court struck the comment, the prosecutor never referred to it again and never argued that the jury should accept Duffy’s opinion concerning Blancarte’s testimony about how he was holding the gun when it fired. Rather, the prosecutor directly argued that Blancarte’s testimony at the first trial failed to explain how the gun could have fired and how the bullet could have hit Jose in the neck. On the other hand, defense counsel specifically reminded jurors of the comment when he cross-examined Duffy about it and tried to get Duffy to admit that he offered the opinion even though he knew it constituted improper testimony. Then, during closing argument defense counsel urged the jury to disregard Duffy’s testimony about the demonstration because Duffy was biased and had failed to make a record of the demonstration during the first trial.
In claiming that the comment was incurably prejudicial, Blancarte relies primarily on People v. Johnson (1982) 121 Cal.App.3d 94. However, his reliance is misplaced.
In Johnson, the defendant was convicted of raping his best friend’s former girlfriend. To impeach her testimony, her former boyfriend, Terry, testified that she asked him face-to-face to tell the defendant that she would drop the charges in exchange for money and his car. Terry testified that she also called him later to see if he had conveyed the demand. (People v. Johnson, supra, 121 Cal.App.3d at pp. 97-100.)
On cross-examination, the prosecutor asked Terry if he remembered their prior conversation about the extortion demand. Terry said he did. The prosecutor asked if he remembered saying that the victim spoke to him only once and that was on the phone. Terry said he did not recall saying that. The prosecutor continued, “ ‘Well, you never mentioned to me any discussion you had with her personally, did you, when we talked on the phone?’ ” (People v. Johnson, supra, 121 Cal.App.3d at p. 100.) However, Terry responded, “ ‘Yes, I did, because you asked me—you quoted the same words that I just said to you, and you asked me, did she say those words, and I told you yes, she did.’ ” (Id. at p. 101.)
In argument to the jury, the prosecutor noted that defense counsel never asked the victim about the alleged attempt to extort money and property from the defendant. The prosecutor then focused on Terry, saying, “I had talked to him, as you well know, he’s testified to that, that we discussed it. Whether you believe what he said on the stand is entirely up to you. Suppose you did believe it. Wouldn’t it again appear to be more—and unfortunately I shouldn’t be talking about this, because I think I’m dignifying what to me is an outright lie.’ ” (People v. Johnson, supra, 121 Cal.App.3d at p. 102.) Concerning Terry’s testimony about the extortion, the prosecutor further argued, “ ‘Well, I’m not going to, as I say, [it] bothers me to bring this up, because it tends to dignify the fact that you may think that there is some truth toward his statement. I’m not going to bring [the victim] all the way here just to say, did you say that, and have her say no.’ ” (Id. at p. 102.)
On appeal, the court concluded that the prosecutor’s argument was improper and compelled reversal. (People v. Johnson, supra, 121 Cal.App.3d at pp. 103-105.) The court noted that although there was no evidence that the victim would have denied making the extortion demand, the prosecutor nevertheless informed jurors that she would have done so. The court noted that the prosecutor told jurors that he personally believed that Terry’s testimony was an outright lie. In doing so, however, the prosecutor was not simply offering an interpretation of Terry’s testimony; rather, the prosecutor expressly reminded the jury that he had personally investigated the matter and had personally spoken to Terry, and thus he had direct, personal knowledge based on their conversation that Terry was lying. (People v. Johnson, supra, 121 Cal.App.3d at pp. 102-103.)
Duffy’s comment reflected his opinion of Blancarte’s testimony and a demonstration of that testimony at the first trial. Duffy did not suggest that he had a private source of evidence or personal information which confirmed his comment. Nor was Duffy urging jurors to believe evidence that only he was privy to. Rather, the source of that comment was clearly identified, and the jury at retrial heard the testimony upon which the demonstration and the comment were based.
We find Johnson to be inapposite. We do not mean to minimize the seriousness of Duffy’s improper comment. However, we do not find that it was so inflammatory or provocative that the jury could not have heeded the court’s instruction to disregard it. Accordingly, we conclude that any potential prejudice from the comment was cured by the court’s order striking it and the instruction directing jurors to disregard evidence that is stricken.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
Background
During opening argument, the prosecutor attacked Blancarte’s prior testimony that he acted in self-defense and that the gun fired accidentally as lies, noting conflicting statements Blancarte had made in recorded calls from jail. The prosecutor pointed out that there were no similar inconsistencies or contradictions in the testimony of Miguel and Jose Garcia. In urging jurors to disbelieve Blancarte’s exculpatory version of events, the prosecutor emphasized the instruction that allows jurors to consider a witness’s false statements in determining credibility and guilt. The prosecutor then stated, “Nobody said being a juror is easy. If we could put people on the witness stand and after they testify, a sign came up, told the truth, lied, it would be real easy. It happens here in court. And in this case, unfortunately you didn’t even get to see what Leo Blancarte is like on the stand. You heard....” (Italics added.)
The court sustained the objection, admonished counsel not to discuss the fact that Blancarte did not testify, noted that it had instructed the jury on the issue, and opined that, having heard the instructions, the jury would follow them.
Notwithstanding the court’s order that the statement be stricken and the jury disregard it, the prosecutor returned to the subject and made it even worse with his comments. “My reference was to [Blancarte’s] former testimony. It was read by someone who was not a witness; you’re unable to view the demeanor of that person.” (Italics added.) Defense counsel objected again, but inexplicably the court overruled the objection. The prosecutor continued, “But you get a picture of who he’s like when he thinks you are not listening.”
Later, defense counsel moved for a mistrial based on the prosecutor’s two comments, italicized above, arguing that they constituted improper references to Blancarte’s failure to testify. The court denied the motion, noting that it had admonished the jury on the objection and was satisfied that there was no error.
Later, outside the presence of the jury, the prosecutor sought to clarify the matter. He reiterated that his initial comment was about Blancarte’s former testimony and explained that because defense counsel had objected so quickly, he was unable to make that point. He said he did not intend to refer to Blancarte’s failure to testify at the retrial. Defense counsel argued that the prosecutor’s intent was irrelevant. His words were what mattered, they implicated Blancarte’s failure to testify, and therefore he had a duty to immediately object. Defense counsel further argued that the prosecutor’s second comment about not being able to see Blancarte’s demeanor could only be understood as a direct reference to the fact that he did not take the stand.
The court stated that it understood the prosecutor’s initial comment as a reference to “the fact that there was a reader sitting on the witness stand, not as to the fact that Mr. Blancarte was not testifying in this trial.” The court then noted that it had reminded the jury that Blancarte had the right not to testify and that the jury should not hold that against him. The court offered to reinstruct on that point and on reasonable doubt. However, defense counsel declined the court’s offer because he did not want to draw attention to the fact that Blancarte did not testify. Counsel was satisfied that the jury would have the written instructions when they deliberated.
Discussion
The Fifth Amendment to the United States Constitution provides, in relevant part, that no person “shall be... compelled in any criminal case to be a witness against himself.” Article I, section 15 of the California Constitution contains an identical provision.
“In Griffin, the United States Supreme Court held that the privilege against self-incrimination of the Fifth Amendment prohibits any comment on a defendant’s failure to testify at trial that invites or allows the jury to infer guilt therefrom, whether in the form of an instruction by the court or a remark by the prosecution.” (People v. Clair (1992) 2 Cal.4th 629, 662.) In People v. Hughes (2002) 27 Cal.4th 287, the California Supreme Court explained that “it is [Griffin] error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.]... [I]t is error for the prosecution to refer to the absence of evidence that only the defendant’s testimony could provide.” (Id. at pp. 371-372; People v. Bradford (1997) 15 Cal.4th 1229, 1339.)
Griffin error may be committed by either direct or indirect comments on the defendant’s failure to testify in his defense. (People v. Medina (1995) 11 Cal.4th 694, 755; People v. Guzman (2000) 80 Cal.App.4th 1282, 1288.) “ ‘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, quoting People v. Clair, supra, 2 Cal.4th at p. 662.)
In reviewing whether a prosecutor’s comment constitutes Griffin error, appellate courts are called to determine “whether there is a reasonable likelihood that the jurors misconstrued or misapplied the words in question.” (People v. Roybal (1998) 19 Cal.4th 481, 514.)
It is inconceivable that the prosecutor did not know this seemingly rehearsed initial paragraph to be a clever attempt to avoid the rule in Griffin, or that it would promptly draw an objection which the court would sustain.
That initial comment unmistakably referred to Blancarte’s failure to testify: jurors could not see what he was like on the stand because he did not testify. Thus, it was entirely appropriate for defense counsel to interrupt the prosecutor with an immediate objection. Although the prosecutor attempted to clarify his initial statement by explaining that he was referring to defendant’s former testimony, doing so again indirectly drew attention to his failure to testify on retrial.
We note that the court instructed jurors on the credibility of witnesses and the factors relevant in determining credibility, which include the witness’s attitude and behavior on the stand. (See CALCRIM No. 226.) Moreover, concerning the former testimony that was read at the retrial, the court instructed jurors to evaluate it under the same standards applicable to live witnesses. (See CALCRIM No. 317.)
In Beardslee v. Woodford (9th Cir. 2004) 358 F.3d 560, the prosecutor made an argument similar to that here. He noted that although the jurors heard the defendant through his tape recorded statements and former testimony, they could not see his demeanor when he made those statements and gave that testimony and thus could not completely assess his sincerity and remorse. (Id. at p. 586.) The court concluded that the prosecutor’s comments constituted Griffin error because the prosecutor, in effect, compared the actual trial with a hypothetical one, in which the defendant testified. (Ibid.)
We conclude that here too, the prosecutor’s comments constituted Griffin error.
Griffin error is not reversible per se but is subject to harmless-error review under Chapman v. California (1967) 386 U.S. 18. (People v. Brasure (2008) 42 Cal.4th 1037, 1060.)
“In determining the degree of prejudice flowing from Griffin error, ‘ “we must focus upon the extent to which the comment itself might have increased the jury’s inclination to treat the defendant’s silence as an indication of his guilt... A forbidden comment... is less likely to affect the ‘substantial rights’ of a defendant... if that comment merely notes the defendant’s silence and includes no suggestion that, among the various inferences which might be drawn therefrom, those unfavorable to the defendant are the more probable.... ”... [¶]... [¶]... Moreover,... [t]his court has stated that, in order for Griffin error to be prejudicial, the improper comment... must either “serve to fill an evidentiary gap in the prosecution’s case,” or “at least touch a live nerve in the defense....” ’ [Citation.]” (People v. Miller (1996) 46 Cal.App.4th 412, 429, disapproved on other grounds in People v. Cortez (1998) 18 Cal.4th 1223, 1240.) On the other hand, “indirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.” (People v. Hovey (1988) 44 Cal.3d 543, 572; accord, People v. Mincey (1992) 2 Cal.4th 408, 446-447; People v. Bradford, supra, 15 Cal.4th 1229, 1340; People v. Rundle (2008) 43 Cal.4th 76, 195, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)
For example, in People v. Guzman, supra, 80 Cal.App.4th 1282, the prosecutor in a hit-and-run and assault case tried to support the victim’s credibility by emphasizing that, while the defendant tried to flee the crime scene, the victim spoke with the police and then came to court and testified. (Id. at pp. 1285-1286.) The prosecutor repeatedly emphasized the victim’s willingness to testify during his rebuttal argument and used a demonstrative chart to get the point across. (Id. at p. 1286.) In finding prejudicial Griffin error, the Court held the prosecutor’s “relentless insistence to the jurors that they consider the contrast between” the victim’s testimony and the defendant’s silence “could only have served to convince them this was an important point.” (Id. at p. 1290.)
Similarly, in Chapman v. California, supra, 386 U.S. 18, the error was prejudicial because the prosecutor repeatedly argued to the jury that the defendants were the only ones who could explain numerous key incriminating facts and circumstances. “[T]he state prosecutor’s argument and the trial judge's instruction to the jury continuously and repeatedly impressed the jury that from the failure of petitioners to testify, to all intents and purposes, the inferences from the facts in evidence had to be drawn in favor of the State—in short, that by their silence petitioners had served as irrefutable witnesses against themselves.” (Id. at p. 25.)
On the other hand, in Beardslee v. Woodford, supra, 358 F.3d 560, the court found the prosecutor’s isolated comments, which were essentially the same as those in this case, to be harmless because they were not extensive, they did not suggest that jurors could infer guilt from silence, and there was strong evidence of guilt. (Id. at p. 586.)
Similarly, in People v. Hovey, supra, 44 Cal.3d 543, the prosecutor’s comment that the defendant had not told jurors anything different was deemed a harmless passing reference to the defendant’s choice not to testify. (Id. at p. 572.) In People v. Vargas (1973) 9 Cal.3d 470, the prosecutor’s comment to the effect that the defendants did not deny being present was also considered “ ‘brief and mild,’ ” and harmless. (Id. at p. 479.)
Here, the prosecutor’s comment did not itself constitute negative comment on defendant’s failure to testify. However, Duffy’s previous comment that part of defendant’s testimony made no sense could have been seen as implicitly daring defendant to take the stand and explain how what he had said did make sense. This comment coupled with the prosecutor’s Griffin comment could have been interpreted as a negative comment on defendant’s failure to testify.
Nevertheless, we note that the prosecutor’s two comments were brief in an otherwise lengthy opening argument that comprises over 70 pages of the reporter’s transcript. The prosecutor did not revisit the issue during closing argument. The prosecutor did not directly or indirectly state that jurors could and should infer guilt from Blancarte’s silence. Nor do we find that the prosecutor’s comments increased the likelihood that jurors might do so. Furthermore, the comments did not fill some evidentiary gap in the prosecution’s case, and they were minimal compared with the substantial, if not overwhelming, evidence that Blancarte was guilty of aggravated assault with his gun.
In this regard, we note that although there may have been sufficient evidence to warrant instructions on self-defense—i.e., evidence from which a reasonable jury could have concluded that Blancarte acted in self-defense—the evidence that it was reasonable under the circumstances for Blancarte to think that he and/or Landin was in imminent danger of suffering bodily injury and that it was necessary to kick and pistol whip Jose was less than compelling. Although Landin yelled out that Jose had a gun, Blancarte did not know whether this was true. On the other hand, Landin was armed and holding his gun. He hit Jose with it, knocked him down, and kicked him. When Blancarte arrived, Jose was squirming on the ground in a defensive position. Landin was there but had stopped his assault and presumably was still holding his gun, showing no apparent concern that Jose had a gun. Although Blancarte said he saw Jose move his hand near a pocket, Blancarte never saw a gun. Nevertheless, Blancarte immediately started kicking and then clubbing Jose with his gun.
Defense counsel argued, in essence, that jurors could just as easily find that Blancarte’s alleged belief in the need to defend himself and/or Landin from Jose was reasonable or unreasonable.
Finally, the court admonished jurors that a defendant is presumed innocent and has the right not to testify and therefore no negative inference should be drawn from the fact that a defendant does not testify. (CALCRIM Nos. 220 and 355.) Generally, and in the absence of evidence to the contrary, jurors are presumed to both understand and follow the court’s instructions. (See People v. Young (2005) 34 Cal.4th 1149, 1214 [presume jury follows warning against drawing negative inference from defendant’s absence at penalty phase]; e.g., People v. Brasure, supra, 42 Cal.4th at p. 1059 [instruction cured potential prejudice]; People v. Carter (2005) 36 Cal.4th 1215, 1267 [same].)
CALCRIM No. 355, reads as follows: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”
In sum, although the prosecutor committed Griffin error, and Duffy’s opinion that part of defendant’s testimony made no sense exacerbated the potential impact of the Griffin error, we conclude that the court’s instruction negated any possible prejudice and prevented jurors from not only drawing an inference of guilt from defendant’s silence but also even discussing Blancarte’s failure to testify during deliberations. Accordingly, we conclude beyond a reasonable doubt that that the prosecutor’s comments were harmless in that they did not contribute to Blancarte’s conviction for aggravated assault. (Chapman v. California, supra, 386 U.S. at p. 24.)
IV. Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.