People v. Allen CA1/5

Filed 3/3/21 P. v. Allen CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A159128
v.
DONTAE ALLEN, (San Francisco County
Super. Ct. No. SCN227459)
Defendant and Appellant.

Defendant and appellant Dontae Allen (Appellant) appeals following
his conviction for first degree murder. He claims the trial court erred in
admitting certain evidence, there was insufficient evidence to support a
felony murder theory, and the prosecutor committed misconduct during oral
argument. We affirm.
PROCEDURAL BACKGROUND
In May 2017, the San Francisco County District Attorney filed an
information charging Appellant with the murder of Preston Bradford (Pen.
Code, § 187, subd. (a)), second degree robbery (Pen. Code, § 211), and being a
felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)). The
information also alleged personal discharge of a firearm (Pen. Code,
§ 12022.53, subd. (d)).
In August 2017, the trial court dismissed the robbery charge.

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 In November 2019, a jury found Appellant guilty of first-degree murder
and being a felon in possession of a firearm, and found true the enhancement.
In December, the trial court sentenced Appellant to prison for 50 years to life,
plus a concurrent three-year term.
FACTUAL BACKGROUND
The victim, Preston Bradford (victim), left his house at about 12:30 a.m.
early in the morning of February 15, 2017. He told his wife he was going to
the store. Instead, the victim spent time with his girlfriend and then dropped
her off at 2:06 a.m. Surveillance video then showed Appellant getting into
the victim’s car at 2:08 a.m. on Fillmore Street in San Francisco. Appellant
was wearing a black hoodie, white pants, and white shoes. The victim drove
off; surveillance video showed two people in the car.
The victim’s car crashed at 2:13 a.m. Surveillance video showed a
person run from the car. An eyewitness testified he saw a person wearing
both light and dark clothing running from the car; the car’s passenger-side
door was open. The victim was slumped over the center console with fatal
gunshot wounds to his head and chest. Casings from a .40 caliber Glock
handgun were found in the vehicle. The police department’s crime scene
investigator opined the shooter was sitting in the front passenger seat.1
The victim’s wife testified he normally wore a black watch with
diamonds and took his wallet when he went out. The victim’s wife never saw
the watch or wallet again.
The police found Appellant’s phone on the ground outside the victim’s
car. A text message sent on the phone at 3:20 a.m., a bit more than an hour

1A defense expert opined one could not determine with certainty from the
physical evidence whether the casings were fired from a Glock firearm or
whether the shooter was in the front passenger seat. He did not dispute the
evidence was consistent with those conclusions.

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after the shooting, stated, “This is lump Preston I left my phone in yo car,
check yo car for me.” Other text messages retrieved from Appellant’s phone
showed he had arranged to purchase a .40 caliber Glock handgun a little
more than a month before the shooting. There was also a text dated January
31, 2017, in which Appellant said, “I’m broke,” and a text dated February 13,
in which Appellant stated he needed money to pay child support.
When interviewed by the police, Appellant admitted he was the person
shown getting into the victim’s car on Fillmore Street prior to the shooting,
but he claimed the victim had given him a ride to his own car and dropped
him off. The claim that the victim dropped Appellant off at his car was
inconsistent with the surveillance video footage.
DISCUSSION
I. No Error in Admission of Evidence Regarding the Victim’s Watch
Over Appellant’s pre-trial objection, the victim’s wife testified at trial
regarding a “black watch with diamonds around the face of it” owned by the
victim. She testified the watch was a wedding gift he wore “if he was going
out somewhere,” but not every day. He generally left the watch on a dresser
in their bedroom when he was not wearing it. She agreed with the
prosecutor’s characterization that the watch “would either be on [the victim’s]
wrist or regularly on his dresser.” “Immediately after” the murder of the
victim she looked for the watch “[a]round the whole house,” but she never
found it. She had last seen the watch on February 13, 2017, essentially the
day before the murder in the early morning hours on February 15.2

2 The victim’s wife also testified the victim regularly carried a wallet with his
identification and a bank card. The identification was found in the console of
the car after the murder, but the victim’s wife never saw the wallet again.
The testimony about the watch and wallet is relevant to the sufficiency of the

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 Respondent argues the evidence was relevant because it allowed the
jury to infer that the victim was wearing the watch the night he was
murdered and, further, that Appellant shot the victim with the intent to rob
him of the watch. Appellant contends the victim’s wife’s testimony was not
admissible under Evidence Code section 11053 as evidence of the victim’s
habit with respect to the watch.4
Section 1105 provides, “evidence of habit or custom is admissible to
prove conduct on a specified occasion in conformity with the habit or custom.”
“ ‘ “Habit” means a person’s regular or consistent response to a repeated
situation. “Custom” means the routine practice or behavior on the part of a
group or organization that is equivalent to the habit of an individual.’ ”
(People v. Memro (1985) 38 Cal.3d 658, 681, fn. 22, overruled on another
ground by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2; see also Bowen
v. Ryan (2008) 163 Cal.App.4th 916, 926.) “The question whether habit
evidence is admissible is essentially one of threshold relevancy [citation]; it is
addressed to the sound discretion of the trial court.” (People v. McPeters
(1992) 2 Cal.4th 1148, 1178 (McPeters); accord People v. Hughes (2002) 27
Cal.4th 287, 337 (Hughes).)

evidence of a robbery to support the felony murder instruction (see Part III,
post).
3 All undesignated statutory references are to the Evidence Code.
4 Appellant also asserts in passing that the evidence should have been

excluded under section 352. But Appellant has identified no undue prejudice
from admission of the evidence. Instead, the prejudice to Appellant from
admission of the evidence was due to its legitimate probative value as
evidence supporting an inference Appellant murdered the victim during a
robbery. (See People v. Doolin (2009) 45 Cal.4th 390, 439 (Doolin) [“ ‘The
prejudice that section 352 “ ‘is designed to avoid is not the prejudice or
damage to a defense that naturally flows from relevant, highly probative
evidence.’ ” ’ ”].)

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 We conclude “there was ‘evidence of repeated instances of similar
conduct’ sufficient for the trial court to conclude a habit was present.”
(McPeters, supra, 2 Cal.4th at p. 1178.) Appellant frames the question as
whether there was sufficient evidence the victim wore the watch every day,
and Respondent frames the question as whether there was sufficient evidence
the victim wore the watch whenever he went “out”—apparently meaning
outside the house for something other than a minor errand. Those framings
unnecessarily complicate the matter. Regardless of whether the victim’s wife
provided sufficiently certain testimony of the victim’s habit with respect to
when he wore the watch, she did testify the watch was always or almost
always either on the victim’s wrist or on a dresser in their bedroom. Thus,
given that she also testified she saw the watch a day before the murder and
could not find the watch afterwards, the factfinder could reasonably infer
from the evidence of the victim’s habit that he was wearing the watch the
night he was murdered.
The trial court did not abuse its discretion in admitting the challenged
testimony. (Hughes, supra, 27 Cal.4th at p. 337.)
II. No Prejudicial Error in Admission of Text Messages Referencing
Appellant’s Finances
Appellant contends the trial court erred in admitting into evidence two
text messages from his phone that made reference to his finances. We agree
the evidence was inadmissible, but the error was harmless.
At trial, the court admitted into evidence a binder with print outs of
over 1800 text messages recovered from Appellant’s phone between
November 24, 2016 and February 15, 2017 (the day of the murder). As
relevant to Appellant’s claim on appeal, on January 31, 2017, Appellant
texted a friend, asking “Where you at[?]” The friend responded that he was
in a work meeting and asked Appellant, “what’s good?” Appellant responded,

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“I’m broke[.]” Then, on February 13, essentially the day before the murder,
Appellant texted someone named “Mister” and asked “What time you get
off[?]” “Mister” responded with a time and Appellant texted, “Alright because
I need that money to pay child support.” “Mister” replied in 20 seconds, “Got
u bro.”
“Evidence of a defendant’s poverty or indebtedness, without more, is
inadmissible to establish motive for robbery or theft because it is unfair to
make poverty alone a ground of suspicion and the probative value of the
evidence is deemed to be outweighed by the risk of prejudice.” (People v.
Edelbacher (1989) 47 Cal.3d 983, 1024 (Edelbacher); accord People v. Clark
(2011) 52 Cal.4th 856, 929 (Clark); People v. Cornwell (2005) 37 Cal.4th 50,
96 (Cornwell), disapproved on another ground in Doolin, supra, 45 Cal.4th
390.)
As the language used by the Supreme Court in Edelbacher (and other
cases) reflects, the rule generally excluding evidence of poverty is rooted in
section 352, which provides that a “court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (See also, e.g., People v. Hogan (1982) 31 Cal.3d 815,
854, disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771,
836 [the “evidence of poverty . . . should have been excluded pursuant to the
. . . section 352 objection”]; People v. Wilson (1992) 3 Cal.4th 926, 939 [“The
probative value of the evidence of debt therefore was outweighed by its
prejudicial effect, and this evidence should not have been admitted at trial.”].)
Thus, we understand the California Supreme Court’s cases to establish
a strong presumption that evidence of a defendant’s poverty should be

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excluded under section 352. The necessary corollary to that proposition is
that there is no absolute rule excluding such evidence, as the court has made
clear. “Evidence of poverty or indebtedness is admissible . . . in a variety of
circumstances, such as to refute a defendant’s claim that he did not commit
the robbery because he did not need the money [citation], or to eliminate
other possible explanations for a defendant’s sudden wealth after a theft
offense [citations].” (Edelbacher, supra, 47 Cal.3d at p. 1024; accord Clark,
supra, 52 Cal.4th at p. 929.) Respondent acknowledges the general rule
prohibiting admission of evidence of a defendant’s poverty, but argues,
“Evidence of an immediate need to generate cash closely tied to the time
period of the murder was properly admitted.”
We need not determine whether in the proper case evidence of a
defendant’s acute financial need immediately before a crime could properly be
admitted, because the text messages at issue in the present case did not
demonstrate any such acute financial need. Contrary to respondent’s
assertion on appeal, Appellant did not send a text message stating he was
“broke” on February 13, 2017. Instead, that text message was sent two
weeks before, on January 31. There are over 1800 text messages in People’s
Exhibit 36, both sent and received. Appellant made no statement expressing
financial desperation in the preceding 1200 text messages dating back to
November 24, 2016, and he made no more such references in the 600 text
messages that followed.5 Given the absence of other similar text messages,
the January 31 “I’m broke” text message was not properly admitted as

5 It is not important to specify how many of those were text messages sent by
Appellant, rather than text messages he received. Suffice it to say that he
sent a very large number of text messages in the almost three-month period
reflected in People’s Exhibit 36, and he only made one reference to being in
financial distress.

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evidence of proximate financial distress in the early morning hours of
February 15. People in difficult financial situations can be expected to
comment on their finances, and it would undermine the presumption against
admission of evidence of a defendant’s poverty were such statements
admitted absent unusual circumstances. The trial court abused its discretion
in failing to exclude the January 31 text message under section 352.
The trial court also abused its discretion in failing to exclude the
February 13, 2017 text message. Although the day before the night of the
murder Appellant sent a text message stating, “Alright because I need that
money to pay child support,” he immediately received a response, “Got u bro.”
Thus, the full context demonstrates that Appellant sought to collect a debt
from a friend or acquaintance, and the debtor assured Appellant of payment.
Although the trial court erred in admitting Appellant’s text messages
regarding his finances, the error was harmless. Appellant asserts the error
was of “federal constitutional dimension,” requiring review for prejudice
under the harmless beyond a reasonable doubt standard of Chapman v.
California (1967) 386 U.S. 18, 24. However, Appellant cites no authority
supporting that assertion. Because, as explained previously, the
presumption against admission of evidence of a defendant’s poverty is an
application of section 352, the trial court’s error was of state evidentiary law,
requiring review for prejudice under the standard of People v. Watson (1956)
46 Cal.2d 818. That is, the error requires reversal if, “ ‘after an examination
of the entire cause, including the evidence,’ [the reviewing court] is of the
‘opinion’ that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.”
(Watson, at p. 836.)

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 In the present case, the text messages presented a lower risk of
prejudice because they did not show that Appellant was financially desperate
at the time of the murder. Indeed, other text messages reflected that
Appellant was employed at the time. And, as noted previously, Appellant
made only one reference to being “broke,” or an equivalent comment, in his
numerous text messages over two and a half months. The jury could have
inferred from the text messages that Appellant had low income, but the text
messages provided no reason to think Appellant had a great pressing need
that may have motivated the crime. And the evidence of Appellant’s guilt
was overwhelming. Indeed, Appellant implicitly concedes the evidence he
was the killer was overwhelming; he argues only that the jury might not have
accepted the felony murder theory but for the erroneously admitted evidence.
Appellant’s prejudice argument is premised on his assumption that
both the evidence of the watch and the text messages should have been
excluded. However, because the trial court properly admitted the testimony
about the watch, it is likely the jury believed the murderer took the victim’s
watch and wallet—Appellant has identified no other reasonable explanation
for the disappearance of those items. From there, it is a logical inference that
the murderer intended to take those items at the time of the murder (see
Part III, post). It is not reasonably probable the jury would have failed to
make that inference if the trial court had excluded the two text messages
challenged on appeal.6

6 Appellant correctly observes the prosecutor repeatedly relied on Appellant’s
“I’m broke” text message in his closing arguments. He cites the decision in
People v. Minifie (1996) 13 Cal.4th 1055, in which the Supreme Court
concluded the prosecutor’s argument “tip[ped] the scale in favor of finding
prejudice.” (Id. at p. 1071.) However, that case involved improperly excluded
evidence that the defendant’s life had been threatened, offered to support his
self-defense claim. (Id. at pp. 1063, 1071.) While we agree prosecutorial

9
III. There Was Sufficient Evidence the Victim Was Killed During a Robbery
Appellant contends the trial court erred in instructing the jury on the
felony murder theory because the evidence was insufficient to support the
instruction. We disagree.7
“A trial court must instruct the jury on every theory that is supported
by substantial evidence, that is, evidence that would allow a reasonable jury
to make a determination in accordance with the theory presented under the
proper standard of proof. [Citation.] We review the trial court’s decision de
novo. In so doing, we must determine whether there was indeed sufficient
evidence to support the giving of [the challenged] instruction. Stated
differently, we must determine whether a reasonable trier of fact could have
found beyond a reasonable doubt that defendant committed murder based on
a” felony-murder theory. (People v. Cole (2004) 33 Cal.4th 1158, 1206 (Cole).)
“Murder is the unlawful killing of a human being . . . with malice
aforethought.” (Pen. Code § 187, subd. (a).) “All murder that is perpetrated
by . . . willful, deliberate, and premeditated killing, or that is committed in
the perpetration of, or attempt to perpetrate,” certain specified felonies,
including robbery, “is murder of the first degree.” (Pen Code § 189, subd. (a).)
“ ‘[T]he felony-murder rule makes a killing while committing certain felonies
murder without the necessity of further examining the defendant’s mental
state’ vis-à-vis an intent to kill. [Citation.] ‘For conviction, the prosecution
must establish that the defendant, either before or during the commission of

argument can justify a finding of prejudice in a close case, we do not believe
this was a close case on the prosecution’s felony-murder theory, given the
disappearance of the watch and wallet.
7 Appellant does not contend that dismissal of the robbery count before trial

precluded the prosecution from relying on a felony-murder theory if
supported by the evidence at trial.

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the acts that caused the victim’s death, had the specific intent to commit one
of the listed felonies.’ ” (People v. Wear (2020) 44 Cal.App.5th 1007, 1021
(Wear).)
“Robbery is the felonious taking of personal property in the possession
of another, from his [or her] person or immediate presence, and against his
will, accomplished by means of force or fear.” (Pen. Code § 211.) “ ‘[T]o find a
defendant guilty of first degree murder based on a killing perpetrated during
a robbery [or attempted robbery], the evidence must show the defendant
intended to steal the victim’s property either before or during the fatal
assault.’ ” (Wear, supra, 44 Cal.App.5th at p. 1022.)
It is well-established that, “ ‘ “ ‘[w]hen one kills another and takes
substantial property from the victim, it is ordinarily reasonable to presume
the killing was for purposes of robbery.’ ” ’ ” (People v. Potts (2019) 6 Cal. 5th
1012, 1030; see also People v. Johnson (2015) 60 Cal.4th 966, 988 [“The jury
could readily conclude defendant intended to steal when he entered the
victim’s house with a weapon and beat her to death. It did not have to
conclude he killed the victim for no apparent reason and only then decided to
steal.”]; People v. Marshall (1997) 15 Cal.4th 1, 35 [“If a person commits a
murder, and after doing so takes the victim’s wallet, the jury may reasonably
infer that the murder was committed for the purpose of obtaining the wallet,
because murders are commonly committed to obtain money.”].)
Appellant does not deny the jury could properly make an inference of
intent to steal if there was a basis to find the victim had his watch and wallet
with him when he was murdered. Instead, Appellant repeats his argument
that an inference the victim had those items would have been “speculation,”
essentially because the victim’s wife did not testify with absolute certainty
that the victim had his watch and wallet. The argument fails. As explained

11
previously, the testimony was sufficient to support an inference the victim
had those items when he was murdered; the only speculation is Appellant’s
suggestion that the disappearance of those items on February 14 or 15 may
have been unrelated to the murder.
Because a reasonable trier of fact could have found beyond a reasonable
doubt that Appellant murdered the victim while committing a robbery, the
trial court properly instructed the jury on the felony-murder theory. (Cole,
supra, 33 Cal.4th at p. 1206.)8
IV. Appellant Has Not Shown Prejudicial Prosecutorial Misconduct
Appellant presents various claims of error based on the prosecutor’s
closing arguments. Appellant largely has failed to show misconduct, and he
has not shown any improper argument was prejudicial, individually or
cumulatively.
A. Comments Placing Jurors in Appellant’s Shoes
Appellant argues the prosecutor made statements improperly “asking
the jurors to put themselves in the shoes of” Appellant. For example, the
prosecutor asked, “When is the last time you got caught on surveillance
camera leaving a murder?” Appellant cites no authority such argument was
improper. Instead, he cites inapposite authority prohibiting “an appeal for
sympathy for the victim,” which “is out of place during an objective
determination of guilt.” (People v. Stansbury (1993) 4 Cal.4th 1017, 1057.)
The argument at issue is also distinguishable from that in People v. Rodgers
(1979) 90 Cal.App.3d 368, in which the prosecutor suggested the defendant
was guilty because he had been accused and asked the jurors to consider

8Because sufficient evidence supported the felony-murder instruction, we
need not address whether Appellant’s conviction may also be upheld on the
ground that the jury could also have relied on a premeditated murder theory.

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whether they would hire the defendant as a babysitter. (Id., at p. 371.)
Appellant has not shown the prosecutor’s comment was an attempt to play on
the jury’s sympathies or to gain some other unfair advantage. In essence, the
prosecutor’s comment simply sought to emphasize that the evidence of
Appellant’s guilt was overwhelming.
B. Disparagement of Defense Counsel
Appellant argues, “[t]he prosecutor made a number of jury arguments
that were attacks on defense counsel’s integrity, suggesting counsel knew his
client was guilty.” For example, the prosecutor argued, “When you have
presented no evidence to show this man is anything but completely guilty,
you start throwing a whole bunch of garbage that is misleading and
distracting against the wall and hoping something sticks. Answer none of the
real questions.” We agree the language used by the prosecutor to describe
opposing counsel’s defense strategy was harsh and disrespectful, but
Appellant identifies no comments that constitute prohibited disparagement.
(See People v. Young (2005) 34 Cal.4th 1149, 1193 [“prosecutor’s
characterization of [defense counsel’s] argument as ‘idiocy’ [was] fair
comment on counsel’s argument”]; People v. Wash (1993) 6 Cal.4th 215, 266
[prosecutor is “ ‘entitled’ ” to make “ ‘vigorous argument’ ”].)9 For example,
none of the statements highlighted by Appellant “implied that defense
counsel had fabricated evidence” (Wash, at p. 265) or “accused counsel of
lying to the jury” (Young, at p. 1193). (See also People v. Zambrano (2007) 41
Cal.4th 1082, 1154–1155, disapproved on another ground in Doolin, supra, 45
Cal.4th at p. 421, fn. 22.)

9We do observe that “[p]rosecutors who engage in rude or intemperate
behavior, even in response to provocation by opposing counsel, greatly
demean the office they hold and the People in whose name they serve.”
(People v. Espinoza (1992) 3 Cal.4th 806, 820.)

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 The prosecutor’s comments arguably implying defense counsel knew
Appellant was “obviously guilty” were closer to the line of what is
permissible. It is “improper for the prosecutor to argue to the jury that
defense counsel does not believe in his client’s defense.” (People v. Thompson
(1988) 45 Cal.3d 86, 112 (Thompson).) Such argument is improper because it
“directs attention to largely irrelevant matters and does not constitute
comment on the evidence or argument as to inferences to be drawn
therefrom.” (Ibid.) In the present case, the prosecutor’s argument was
essentially that defense counsel was unable to employ a more effective
defense strategy because, as defense counsel knew, the evidence against
Appellant was overwhelming. On balance, we believe the focus of the
argument was the strength of the evidence against Appellant rather than an
improper comment on what defense counsel believed. Appellant has not
shown the prosecutor’s comments were improper.10
C. Griffin Error
Appellant contends the prosecutor improperly commented upon his
failure to testify, in violation of Griffin v. California (1965) 380 U.S. 609
(Griffin). “It is a bedrock principle in our jurisprudence that one accused of a
crime cannot be compelled to testify against oneself. [Citations.] In order
that an accused not be penalized for his invocation of this fundamental right,
the prosecutor may neither comment on a defendant’s failure to testify nor
urge the jury to infer guilt from such silence.” (People v. Hardy (1992) 2

10We reject Appellant’s assertion that the prosecutor’s comments expressed
“a personal belief in [Appellant’s] guilt,” which is improper “in part because of
the danger that jurors may assume there is other evidence at his command
on which he bases this conclusion.” (Thompson, supra, 45 Cal.3d at p. 112.)
Instead, the prosecutor’s argument was that the evidence overwhelmingly
demonstrated Appellant’s guilt.

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Cal.4th 86, 153–154.) “Pursuant to Griffin, it is 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.] We [have] also suggested
. . . that it is error for the prosecution to refer to the absence of evidence that
only the defendant’s testimony could provide. [Citation.] But although
‘ “Griffin forbids either direct or indirect comment upon the failure of the
defendant to take the witness stand,” ’ the prohibition ‘ “does not extend to
comments on the state of the evidence or on the failure of the defense to
introduce material evidence or call logical witnesses.” ’ ” (People v. Hughes
(2002) 27 Cal.4th 287, 371–372; accord People v. Gomez (2018) 6 Cal.5th 243,
299.)
Only one of the prosecutor’s comments cited by Appellant arguably
commented on his failure to testify.11 The prosecutor argued, “Your client
has all these shady text messages. He’s broke. Needs money. And, poof, all
of a sudden this valuable property goes missing. What is he going to say, one
of the Three Stooges was sitting in the back seat, . . . shot the victim, then
just flew into the air? [¶] What has he actually presented? Nothing. What

11Appellant also cites the prosecutor’s statement, “He could have had text
messages on his phone that said I have good financial standing right now.
Instead he is broke and needs that money.” That was a comment on what
was and was not shown in Appellant’s text messages, not a comment on his
failure to testify. Appellant also refers to other remarks by the prosecutor
quoted earlier in his opening brief, without specifically identifying the
challenged remarks or explaining how they constitute Griffin error. None of
the additional statements quoted on the referenced pages were comments on
Appellant’s failure to testify. Appellant also references other portions of the
prosecutor’s argument without providing citations to the record; we do not
consider claims not supported by citations to the record. (Guthrey v. State of
California (1998) 63 Cal.App.4th 1108, 1115; Cal. Rules of Court, rule
8.204(a)(1)(C).)

15
has he refuted? Nothing.” Respondent argues the prosecutor was referring
to defense counsel’s failure to provide an alternate explanation for the
murder, such as that there was another person in the victim’s car who may
have shot the victim. It is true many of the prosecutor’s comments during
that portion of his closing argument referred to defense counsel. However, it
is also true the prosecutor frequently switched between references to defense
counsel and references to Appellant, and the prosecutor had just used “he” to
refer to Appellant in saying, “he’s broke.”
Because the jury could have understood the prosecutor’s comments as
referring to Appellant’s failure to testify, the argument was improper under
Griffin. People v. Vargas (1973) 9 Cal.3d 470 (Vargas) is on point. In that
case, a robbery prosecution, the prosecutor argued there had been no
“ ‘denial’ ” a robbery had taken place. (Id. at p. 476.) The Supreme Court
concluded that violated Griffin, because “the word ‘denial’ connotes a
personal response by the accused himself” and “the jury could have
interpreted the prosecutor’s remarks as commenting upon defendant’s failure
to take the stand and deny his guilt.” (Vargas, at p. 476 [italics added].)
Similarly, in the present case, the prosecutor argued, “What has he actually
presented? What has he refuted? Nothing.” Like the word “denial,” the word
“refuted” “connotes a personal response by the accused himself.” (Ibid.)
The case respondent relies upon, People v. Gomez, supra, 6 Cal.5th 243,
is distinguishable. In Gomez, the prosecutor argued the defendant’s
knowledge about the details of a murder implicated him in the crime. (Id. at
p. 299.) The Supreme Court concluded there was no Griffin error where the
prosecutor commented on the lack of evidence the defendant read news
articles about the murder, which would have explained his knowledge.
(Gomez, at p. 299.) The court observed, “[a]lthough [the defendant] argues

16
that only his own testimony could have contradicted the prosecutor’s claim
that [he] did not read the articles or newspapers in general, [the defendant]
could have presented other evidence to that effect. As the trial court
explained, ‘[t]here could, for example, have been evidence that [the
defendant] subscribed to the [newspaper], that he was an avid reader and
others around him, anyone associated with him knew that he read the paper
and commented to others about reading.’ ” (Ibid.) In the present case, the
prosecutor did not only refer to the absence of evidence of another shooter.
Instead, the jury could have understood the prosecutor’s argument to refer to
Appellant’s failure to “refute” the evidence by, for example, identifying
another shooter.
Nevertheless, the Griffin error was harmless beyond a reasonable
doubt. (Vargas, supra, 9 Cal.3d at p. 478.) Vargas emphasized that, “in
determining whether prejudicial Griffin error has occurred, ‘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.’ ”
(Vargas, at p. 478.) The absence of “ ‘a statement that silence implied guilt
. . . tends to mitigate the independently damaging effect of a comment uttered
in violation of the Griffin rule.’ ” (Vargas, at pp. 478–479.) Here, the
prosecutor’s point was that the evidence against Appellant was so
overwhelming that any attempt to refute it—by, for example, claiming
another person in the car shot the victim—would have been futile. Thus,
even though the argument can be construed as a reference to Appellant’s
failure to testify, in effect it was a comment on the state of the evidence
rather than a suggestion that Appellant’s silence showed his guilt. (See also
People v. Bradford (1997) 15 Cal.4th 1229, 1340 [“ ‘indirect, brief and mild
references to a defendant’s failure to testify, without any suggestion that an

17
inference of guilt be drawn therefrom, are uniformly held to constitute
harmless error’ ”]; accord People v. Boyette (2002) 29 Cal.4th 381, 455–456.)12
D. Appeals to Sympathy
Appellant contends the prosecutor committed misconduct by asking the
jury to reflect on the fact that the victim had three children, stating “What’s
uncomfortable is that this man, the evidence showed, had three children.
Burying your father . . . .” Respondent argues the prosecutor was merely
commenting on the evidence admitted at trial, although respondent does not
identify how the prosecutor’s statement was relevant to the determination of
Appellant’s guilt. The prosecutor’s comment was improper: “a prosecutor’s
argument to the jury that ‘ “appeal [s] to sympathy for the victim is out of
place during an objective determination of guilt.” ’ ” (People v. Salcido (2008)
44 Cal.4th 93, 151.) However, there is no “reasonable probability” that the
passing reference to the victim’s children, of whom Appellant admits the jury
was already aware from the evidence at trial, affected the outcome of the
trial. (People v. Amezcua & Flores (2019) 6 Cal.5th 886, 920.)
Appellant also complains of the prosecutor’s reference to the children of
a police officer who was a prosecution witness. The prosecutor stated that
the officer, upon being called to the scene of the murder, had to get “her kids
settled in the house, knowing she was going to be gone for the next 48 hours.”

12 We also observe that the trial court instructed the jury that “A defendant
has an absolute constitutional right not to testify. He 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.” “[A]bsent some
indication to the contrary, we assume a jury will abide by a trial court’s
admonitions and instructions.” (People v. Seumanu (2015) 61 Cal.4th 1293,
1336.)

18
The comment had no apparent relevance, but Appellant does not explain how
painting the officer in a slightly sympathetic light could possibly have
affected the outcome of the trial.
E. Alleged Vouching for Police Officer Expert
Finally, Appellant contends the prosecutor improperly “vouched” for his
police department expert in arguing that she was “the only real expert. The
only expert here that said she wouldn’t charge money if I wanted to have a
15-minute conversation with her.” Appellant points out that the prosecutor’s
comments were likely directed at the defense expert, who testified he charged
$150 an hour for his work and would have charged to speak with the
prosecutor.
“A prosecutor is prohibited from vouching for the credibility of
witnesses or otherwise bolstering the veracity of their testimony by referring
to evidence outside the record. [Citation.] Nor is a prosecutor permitted to
place the prestige of her office behind a witness by offering the impression
that she has taken steps to assure a witness’s truthfulness at trial.
[Citation.] However, so long as a prosecutor’s assurances regarding the
apparent honesty or reliability of prosecution witnesses are based on the
‘facts of [the] record and the inferences reasonably drawn therefrom, rather
than any purported personal knowledge or belief,’ [the] comments cannot be
characterized as improper vouching.” (People v. Frye (1998) 18 Cal.4th 894,
971, disapproved on another ground in Doolin, supra, 45 Cal.4th at pp. 420–
421.)
Appellant forfeited his objection by failing to object below, but, even
assuming the claim was preserved, Appellant has not shown misconduct.
“[A]lthough counsel may not denigrate the integrity of opposing counsel, an
attorney is free to argue that the opinions of paid expert witnesses may be

19
biased.” (People v. Cook (2006) 39 Cal.4th 566, 614.) Furthermore, there is
no “reasonable likelihood the jury understood” the prosecutor’s comment as
vouching. (People v. Frye, supra, 18 Cal.4th at p. 970.) The prosecutor’s next
comment was that the police department expert was “[t]he only person that
actually looked at the property. The only person that wrote a report. The
only person that did any measurements.” Thus, the prosecutor’s argument
that his expert was more reliable was based on the facts of the record,
“ ‘rather than any purported personal knowledge or belief.’ ” (Frye, at p.
971.)13
F. Cumulative Error
We have concluded the prosecutor committed Griffin error and made
improper references to the victim’s children and the children of a police
officer witness. We have also previously concluded the trial court erred in
admitting two text messages that referred to Appellant’s financial situation.
(Part II, ante.) Nevertheless, considering those errors jointly, it is clear
beyond a reasonable doubt the outcome of the trial would not have been more
favorable to Appellant had those errors not occurred. This is not a case in
which “[t]he sheer number of the instances of prosecutorial misconduct,
together with the other trial errors . . . . created a negative synergistic effect,
rendering the degree of overall unfairness to defendant more than that

13Appellant also argues “there was no evidence that the sergeant was the
only real expert who wouldn’t charge money for discussing the facts of the
case with the prosecutor.” The expert testified she was a police officer
assigned to the crime scenes investigations unit. The jury could reasonably
infer that she, as a public employee, did not charge the prosecutor to discuss
the case. Nevertheless, the prosecutor apparently misspoke in asserting the
expert “said she wouldn’t charge money.” (Italics added.) Appellant forfeited
any objection to that minor misstatement—which easily could have been
corrected—by failing to make a contemporaneous objection.

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flowing from the sum of the individual errors.” (People v. Hill (1998) 17
Cal.4th 800, 847, overruled on another ground in Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13.) Appellant has not shown cumulative
error.
DISPOSITION
The trial court’s judgment is affirmed.

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 SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

SELIGMAN, J.*

(A159128)

*Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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