Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC582235
ELIA, J.Defendant Douglas Allen Peters appeals from a judgment of conviction of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) and receiving stolen property (§ 496, subd. (a)) following a jury trial. A mistrial was declared on a second count of first degree burglary. On appeal, defendant argues that judgment must be reversed because (1) the trial court erroneously denied his motion to sever trial of the two burglary counts in violation of due process and (2) the prosecutor committed prejudicial Griffin error (Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229] (Griffin)). Defendant also asks this court to review the record of the in camera hearing on his pretrial motion for discovery of police officer records (Pitchess) for any abuse of discretion.
All further statutory references are to the Penal Code unless otherwise stated.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
The appellate record does not disclose any due process or Griffin error. We are compelled to reverse the judgment for a new in camera hearing on defendant's Pitchess motion, however, since this court does not have an accurate record of the materials produced by the custodian of records and examined by the trial court in camera.
A. Facts and Procedural History
Defendant was charged by information with three felonies: a first degree burglary committed in the City of Santa Clara on about July 1, 2004 (count one), a first degree burglary committed in the City of Livermore on about July 14, 2004 (count two), and receiving stolen property, namely a Blockbuster card and a Sears credit card, on about August 3, 2004 (count three).
On February 16, 2006, defendant filed a Pitchess motion seeking discovery of police officers' records. On March 10, 2006, the trial court conducted an in camera examination of Sergeant Hoesing's records but found no relevant information and did not require any disclosures to defendant.
Defendant moved to sever count one from the trial of counts two and three on the ground that severance was required to "avoid the substantial risk of undue prejudice" and provide due process. He anticipated calling alibi witnesses to testify with regard to count one but not count two. He asserted that his lack of a credible alibi as to count two "would likely make the jury more prone to conviction due to the inconsistent nature of the defense as to each crime." He also argued that "if the evidence as to Count 2 or 3 is substantially stronger, the spillover effect amounts to improper evidence of other bad acts . . . ." He suggested that "exposure to the facts of counts 2 and 3, not properly admissible in the prosecution of Count 1, would have the effect of bootstrapping the weak case to a stronger case . . . ." The court denied the motion to sever, finding that defendant would not be substantially prejudiced or deprived of a fair trial by a joint trial regardless of whether or not evidence was cross-admissible.
At trial, the evidence showed the following. On July 1, 2004, Officer Norm Henry responded to a burglary report in the City of Santa Clara. At about 5:30 a.m. that morning, a resident discovered that the large door to her attached garage was open, the driver's side door of her car was ajar, and the console and the glove box were open. A few items, including a hard black case containing her prescription eyeglasses and a black vinyl case containing the owner's manual, the car's registration, and repair records, were missing. The victim immediately telephoned police and was told to call back during regular business hours after 8:00 a.m. She drove to work at Kaiser in Santa Clara, parked in the employee parking lot at the back, called police around 8:00 a.m., and then drove home to meet with a police officer. Officer Henry found no signs of a forced entry into the garage and concluded that someone had entered through the open garage door. The officer recovered "two partial usable prints" from the exterior doors on the driver's side of the victim's vehicle, which was driven on a daily basis.
On the morning of July 15, 2004, Christine Miller discovered the door to the attached garage of her Livermore home was open. Her purse and cell phone were missing from her car. Her purse contained her driver's license, a JC Penney gift certificate, a Mervyns card, a Sears card, a Blockbuster card, and her children's social security cards. Her husband, Alan Miller, discovered that his cell phone was missing from his truck, which was also parked in the garage. A community service specialist for the City of Livermore Police Department responded to their residence after the burglary was reported.
Sergeant Steven Hoesing learned from the San Jose Central Identification Unit that a latent print taken from the Santa Clara burglary had been matched to defendant's fingerprint card. On August 4, 2003, Sergeant Hoesing and other officers went to defendant's home. Officer Hoesing identified himself as a Santa Clara Police Detective and informed defendant that they were at his house investigating a burglary. The officers searched his room and discovered a black backpack on the floor beneath his mattress and headboard.
The backpack contained a Sears credit card embossed with the name Christine Miller, a Blockbuster membership card with the name Chris M. Miller and a City of Livermore address, a business card for a Livermore business called the Winds of Change, a prepaid phone card from the Aston Kaanapali Shores, and a loose hypodermic syringe. One of the officers contacted the police department and determined that Christine Miller had reported a burglary involving property taken from vehicles inside an open garage.
Defendant agreed to talk to police. When defendant was asked about the burglary of a vehicle in a garage a couple of weeks earlier, defendant stated he did not know anything about it. When he was asked to explain the presence of his fingerprints at the scene of the burglary, defendant said "he didn't know how they got there." When defendant was then asked if he knew anything about a burglary in Livermore, he responded, " 'I don't know anything about any burglaries with an open garage door.' " This response struck Sergeant Hoesing as "odd" because he had not "mentioned anything about an open garage door." Defendant was asked "how he knew the garage doors were open" and he answered, "How else would you get in there."
At trial, Christine Miller identified her Sears credit card and her Blockbuster card that had been in her wallet on July 14, 2004. Miller also recognized the Winds of Change business card and stated that she had "booked a gift certificate for [her] mom to go for a massage." She also recognized the Aston Kaanapoli Shores phone card, which she had been given by a sales rep at work.
Defendant lived with his parents during June and July 2004 in their San Jose home and was still living there when he was arrested on August 4, 2004. Defendant's son had also stayed there for a week-long visit, extending from the Tuesday before July 4, 2004 until the Monday after July 4, 2004. Every night defendant and his son played video games and watched movies. Defendant's mother, who was working during the summer of 2004, recalled that, every morning when she got up for work at 4:00 a.m., she saw defendant and his son in the living room, "on the couch, in the recliner or on the floor asleep where they had gone to sleep watching TV or whatever." She stated that defendant was there when she went to bed at 9:00 p.m. on June 30, 2004 and he was there when she got up for work at 4:00 a.m. on July 1, 2004. But she could not vouch for his presence while she was asleep.
A jury found defendant guilty of the first degree burglary charged in count one (the Santa Clara burglary) (Pen. Code, §§ 459, 460, subd. (a)) and receiving stolen property (§ 496, subd. (a)). The court declared a mistrial on count two (the Livermore burglary) after the jury deadlocked and granted the prosecution's motion to dismiss that count.
Defendant admitted allegations that he had suffered three prior serious or violent felony convictions within the meaning of California's "Three Strikes" law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), he had suffered two prior serious felony convictions (§ 667, subd. (a)), and he had served a prior prison term (§ 667.5, subd. (b)). The court struck two of the three alleged "strike" convictions (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced defendant to a total term of 20 years and four months.
B. Pitchess Motion
"In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as 'Pitchess motions' . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045." (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, fns. omitted.) "Evidence Code sections 1043 and 1045 . . . allow discovery of certain relevant information in peace officer personnel records on a showing of good cause. Discovery is a two-step process. First, defendant must file a motion supported by declarations showing good cause for discovery and materiality to the pending case. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 . . . .) . . . [T]he good cause requirement embodies a 'relatively low threshold' for discovery and the supporting declaration may include allegations based on 'information and belief.' (Id. at p. 94 . . . .) Once the defense has established good cause, the court is required to conduct an in camera review of the records to determine what, if any, information should be disclosed to the defense. (Evid.Code, § 1045, subd. (b).)" (People v. Samuels (2005) 36 Cal.4th 96, 109.)
In support of the defense Pitchess motion for the discovery of police officers' records, defendant's attorney stated that defendant believed that Officer Hoesing had (1) planted a hypodermic needle from defendant's "hype kit" in the backpack containing the cards stolen in the Livermore burglary to make it appear that defendant had knowledge of the presence and contents of the backpack seized from his room and (2) fabricated an incriminating statement attributed to defendant. The court determined that a showing of good cause for discovery had been made regarding only Officer Hoesing and the court would conduct an in camera examination of Officer Hoesing's files for previous complaints of filing false police reports.
In camera, the trial court reviewed the records brought by the City of Santa Clara Police Department's custodian of records, who testified under oath. The court described generally the contents of files for the record. Back in open court, the court stated for the record that there were no responsive documents in the files and ordered no disclosure. On appeal, defendant asks this court to review the sealed transcript of the in camera hearing and material reviewed by the trial court for any abuse of discretion.
"When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring to the trial court all 'potentially relevant' documents to permit the trial court to examine them for itself. [Citation.]" (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1 229.) "[C]riminal defendants are protected by the fact that a representative of the custodian of records is placed under oath before responding to a trial court's questions during the in camera inspection of records." (Id. at p. 1229, fn. 4.) In Mooc, the Supreme Court concluded that a trial court errs when it fails to make a record of the documents being considered in ruling on a defendant's Pitchess motion. (Id. at p. 1232.)
The Supreme Court admonished in Mooc, supra, 26 Cal.4th 1216, that "[t]he trial court should . . . make a record of what documents it examined before ruling on the Pitchess motion." (Id. at p. 1229.) It explained: "Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer's privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed. [Citation.]" (Ibid., fn. omitted.)
In this case, the trial court gave a general description of the documents reviewed in camera but did not retain the documents or copies and did not make a record of document numbers or other specific identifiers for all documents. While we have independently reviewed the sealed reporter's transcript of the in camera hearing and discern no abuse of discretion from the limited record, the reporter's transcript alone was insufficient for full appellate review.
We ordered the trial court to hold an in camera hearing to determine the specific documents reviewed during the in camera Pitchess motion hearing held on March 10, 2006 and to have the documents, or true and correct copies of the originals, transmitted, under seal, to this court. It is our understanding that the judge who conducted the original in camera review has retired. A different judge held the hearing ordered by this court. It is apparent from the materials transmitted to this court in response to our order that we received a different set of documents from those originally examined and, therefore, we lack a complete and accurate appellate record to review. Consequently, we are compelled to reverse the judgment in order for the trial court to again conduct an in camera examination of all "potentially relevant" documents in response to defendant's Pitchess request for discovery. (See People v. Mooc, supra, 26 Cal.4th at pp. 1226, 1228-1229.)
C. Denial of Motion to Sever
Defendant maintains that the trial court abused its discretion by denying his motion to sever the two burglary counts for trial even though he does not dispute that the charged burglaries fell within the same class of offenses within the meaning of section 954. Under section 954, "[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts . . . . ." "[I]n the interests of justice and for good cause shown, [a court] may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . ." (§ 954.)
In general, the law favors consolidation of charges. (People v. Smith (2007) 40 Cal.4th 483, 510.) "We review the denial of severance under a deferential abuse of discretion standard. (People v. Mayfield (1997) 14 Cal.4th 668, . . . (Mayfield).) Where the statutory requirements for joinder are met, the defendant must make a clear showing of prejudice to demonstrate that the trial court abused its discretion. (People v. Stitely (2005) 35 Cal.4th 514, 531 . . . (Stitely); Mayfield, supra, at p. 720 . . .; see also People v. Mendoza (2000) 24 Cal.4th 130, 160 . . . (Mendoza).)" (People v. Zambrano (2007) 41 Cal.4th 1082, 1128.)
"In assessing potential prejudice, we examine the record before the trial court at the time of its ruling. The relevant factors are whether (1) the evidence would be cross-admissible in separate trials, (2) some charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case, or with another weak case, so that the total evidence may unfairly alter the outcome on some or all charges, and (4) one of the charges is a capital offense, or joinder of the charges converts the matter into a capital case. [Citations.]" (Id. at pp. 1128-1129.) "A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process." (Stitely, supra, 35 Cal.4th at p. 531.)
"Cross-admissibility ordinarily dispels any inference of prejudice. [Citations.]" (Ibid.) But even assuming evidence of each burglary was not cross-admissible, " 'cross-admissibility is not the sine qua non of joint trials.' (Frank v. Superior Court (1989) 48 Cal.3d 632, 641 . . . .)" (People v. Geier (2007) 41 Cal.4th 555, 575.) "In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, . . . evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact." (§ 954.1.) "Because of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial. [Citation.]" (People v. Arias (1996) 13 Cal.4th 92, 127.) The lack of cross-admissibility of evidence between charged offenses does not establish prejudice where "the offenses were of the same class and therefore statutorily joinable under section 954.1" and "none of the factors relevant to the assessment of prejudice supports defendant's claim of prejudice." (People v. Geier, supra, 41 Cal.4th at pp. 577-578.)
"[T]he first step in assessing whether a combined trial was prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials . . . ." (People v. Balderas (1985) 41 Cal.3d 144, 171.) The charged burglaries did not exhibit highly distinctive features such that the evidence of those crimes would be cross-admissible to prove identity. (See People v. Ewoldt (1994) 7 Cal.4th 380, 403 [To be admissible on the issue of identity, " '[t]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature' "].) We note that "in most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime." (Id. at p. 406.) "[I]n such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value." (Ibid.) Likewise, where intent cannot reasonably be disputed, the prejudicial effect of admitting evidence of similar uncharged acts to prove intent may outweigh the probative value of such evidence. (Ibid.)
In this case, none of the counts charged a capital offense. Neither of the burglary charges involved evidence likely to inflame the jury against defendant. The evidence merely showed that, in each incident, someone entered an open garage and took a few belongings from vehicles. Defendant failed to show that trial of both burglary charges together was at all likely to unfairly change the outcome. A proffered alibi defense as to one burglary charge was not necessarily inconsistent with a failure of proof defense on the other burglary charge since both defenses essentially assert that the prosecution failed to prove the defendant's guilt beyond a reasonable doubt. (See People v. Alcala (1992) 4 Cal.4th 742, 804 [in the absence of a specific request for an alibi instruction, "it is sufficient that the jury be instructed generally to consider all the evidence, and to acquit the defendant in the event it entertains a reasonable doubt regarding his or her guilt"]; People v. Freeman (1978) 22 Cal.3d 434, 438 ["an alibi defense is not an affirmative defense"]; People v. Costello (1943) 21 Cal.2d 760, 765-766 [a defendant need only present sufficient alibi evidence to create a reasonable doubt that defendant committed the crime].) The court did not manifestly abuse its discretion by denying defendant's request for severance.
Neither does the record demonstrate that the trial court's ruling, correct when made, nevertheless deprived defendant of a fair trial or due process of law. (See People v. Zambrano, supra, 41 Cal.4th at p. 1130.) Defendant now argues that the evidence of both burglary charges was weak and, "[a]lthough the evidence in the Livermore case was too weak to sustain a verdict, it served, improperly, to bolster the Santa Clara case." He asserts that the evidence of the Santa Clara burglary merely consisted of a single fingerprint found on the outside of a victim's vehicle. This is not correct; defendant made an inculpatory remark about open garage burglaries during the search of his home that was relevant to the Santa Clara burglary as well as to the charged Livermore burglary. In addition, the jury was instructed: "Each count charges a distinct crime. You must decide each count separately." We have no reason to believe that the jury used the evidence of the Livermore burglary to improperly bolster the Santa Clara burglary case when it failed to reach a verdict of guilt on the charged Livermore burglary. We reject defendant's assertion that improper evidentiary "spillover" resulted in a due process violation.
D. Alleged Griffin Error
Defendant complains that the prosecuting attorney committed prejudicial Griffin error during closing argument. In Griffin, the United States Supreme Court held that the Fifth Amendment's self-incrimination clause, "in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin, supra, 380 U.S. at p. 615, fn. omitted.)
In this case, the prosecuting attorney argued during rebuttal: "When the defense puts on evidence, you have to understand they have no duty to do so, the burden still sits completely with me. But when they call witnesses to attempt to advance a theory, you can wonder what about those they didn't call, like the fingerprint examiner that they could have hired to say, Templeman [latent print examiner testifying for prosecution], you're wrong. [¶] His mother was called. She wasn't the only one living in the house at the time. [His son] – as distasteful as it is to see a child in court, he could have said, yeah, I remember that time. I spent all that time with my dad and we were up every single night, even though I'm nine or 10, however old, he was up until 1:00 or 2:00 in the morning without fail, didn't happen. He was with the defendant more time than defendant's mother was. [¶] Anyone who can say where the defendant was on June 30th between 9:00 p.m. and 5:30 in the morning on July 1st or 9:00 p.m. on July 14th and 6:00 a.m. on July 15th; anyone who can explain how his print got on that car; anyone who can explain why the property of the Miller's was in his room; the failure to call logical witnesses and to put forth logical evidence that would suggest evidence or at the very least undermine a finding of guilt, is something you can consider." No Griffin error objection was interposed by defense counsel. The court excused the jury and then held a discussion with counsel on the record before adjourning.
The next morning defense counsel delivered to the court a proposed instruction, which read: "The prosecutor has commented in his closing argument about the fact that the defense did not call any other witnesses to his whereabouts during the time of the crimes, with the exception of the defendant's mother . . . . [¶] You are reminded that while the prosecution may comment on witnesses he believes could have been called, the defendant himself has a constitutional absolute right to remain silent. And you're not to speculate as to any reason for doing so[,] to comment on it or to allow that fact to enter into your deliberations or otherwise influence you in any way."
The court instructed jury without giving the requested defense instruction. The court did instruct the jury that "[n]either side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events." The court also instructed: "A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further you must neither discuss this matter nor permit it to enter your deliberations in any way. [¶] In deciding whether or not to testify the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charges against him. [¶] No lack of testimony on the defendant's part will make up for a failure of proof by the People, so as to support a finding against him on any essential element." The court explained the presumption of innocence and the People's burden of proof beyond a reasonable doubt.
Afterward, out of the presence of the jury, defense counsel explained the instruction request for the record: "Obviously, another witness that could have been called is the defendant. While I listened very carefully to what the prosecutor said in his closing statement and did not object as it being Griffin error, because he made a true statement of the law that other witnesses —he can comment on the failure to call certain witnesses. Nonetheless, I believe that his comment, basically, taken as a whole, tends to be burden-shifting." She asked that the proposed curative instruction be given to the jury.
The court found the proposed curative instruction was unnecessary because the prosecutor had not committed Griffin error and the instruction duplicated other instructions that had already been given. On appeal, defendant does not claim the court erred in failing to give the requested instruction or that the prosecutor's comments impermissibly shifted the burden of proof. He maintains that the prosecutor committed Griffin error.
A Griffin error is forfeited if there is no timely objection. (See People v. Turner (2004) 34 Cal.4th 406, 421; People v. Valdez (2004) 32 Cal.4th 73, 127; People v. Bemore (2000) 22 Cal.4th 809, 854; People v. Medina (1995) 11 Cal.4th 694, 756.) Contrary to defendant's assertions on appeal, circumstances immediately following closing argument did not preclude a defense objection on Griffin grounds and the next day defense counsel did not object to the prosecutor's closing statements on Griffin grounds. Rather, defense counsel indicated the next day that she had made a conscious choice not to object based upon Griffin. She proposed the instruction out of concern that the prosecutor's comments "tend[ed] to be burden-shifting." An objection of improper burden-shifting relates to the due process clause of the Fourteenth Amendment of the United States Constitution (see In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068]; see also Jackson v. Virginia (1979) 443 U.S. 307, 315-316 [99 S.Ct. 2781]; cf. People v. Frye (1998) 18 Cal.4th 894, 973) rather than the constitutional privilege against self-incrimination or the protection of that privilege articulated in Griffin.
In any case, defendant's present claim of Griffin error is without merit. "Griffin's prohibition against ' "direct or indirect comment upon the failure of the defendant to take the witness stand,' " however, ' "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." ' [Citations.]" (People v. Carter (2005) 36 Cal.4th 1215, 1266.) But "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 . . . . [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) Defendant asserts that only he could have provided an explanation regarding his fingerprint on the car involved in the Santa Clara burglary or the presence of the Millers' property from the Livermore burglary in his bedroom and, therefore, the prosecutor's comments violated Griffin.
In People v. Lancaster (2007) 41 Cal.4th 50, 84, during closing argument, the prosecutor commented that the defense had offered no explanation for a bottle of Liquid-Plumr found at a murder scene with the defendant's prints all over it. The Supreme Court rejected the claim of Griffin error: "[T]he prosecutor's statement was a fair comment on the state of the evidence, rather than a comment on defendant's failure to personally provide an alternative explanation. [Citations.]" (Ibid.)
In People v. Hughes (2002) 27 Cal.4th 287, the defendant, who had been convicted of first degree murder, first degree robbery, first degree burglary, and sodomy, argued on appeal that the prosecutor's statements during closing argument that the defense had failed to call any witness to testify regarding his consumption of alcohol and cocaine constituted Griffin error. (Id. at pp. 315, 373.) The California Supreme Court stated that the "comments properly highlighted for the jury the circumstance that there were no witnesses who testified concerning how much alcohol defendant had at his disposal to consume or how much cocaine defendant had used" (id. at p. 373) and it "read the prosecutor's statements as a comment on the general state of the evidence, rather than an assertion that the prosecution's evidence was not contradicted by defendant personally." (Ibid.)
In People v. Sanders (1995) 11 Cal.4th 475, during rebuttal argument, the prosecutor referred to the defense's failure to explain the presence of an incriminating holster in the defendant's father's closet in the two-bedroom apartment that defendant shared with his father, his father's girlfriend, his own girlfriend, and his sister. (Id. at pp. 527-528.) The California Supreme Court determined there was no Griffin error: "We are unpersuaded by defendant's argument that only his own testimony could logically have provided the missing evidence about the items found in his father's closet. Other members of the household -- including defendant's sister, his girlfriend, and his father's girlfriend -- shared use of the closets with defendant and his father and might logically have testified concerning the contents of the father's closet and whether the holster found there was used as a child's toy." (Id. at p. 529, fn. omitted.)
In People v. Medina (1995) 11 Cal.4th 694, during rebuttal argument, the prosecutor referred to the defense's failure to explain why the defendant was seen with a weapon and with a particular automobile. (Id. at pp. 755-756.) The Supreme Court rejected the claim of Griffin error: "[T]he prosecutor's comments were directed to the general failure of the defense to provide an innocent explanation as to why defendant was armed, and in possession of the Maverick, at the time of the robberies. These remarks contained no references, express or implied, to defendant's own silence, and therefore were unobjectionable. [Citation.] . . . The prosecutor's remarks, viewed in context, can only be seen as a fair comment on the state of the evidence, comment falling outside the purview of Griffin. (See People v. Mincey, supra, 2 Cal.4th at p. 446.)" (Id. at p. 756.)
During closing argument in this case, defense counsel suggested that the fingerprint on the car at most proved that defendant, "at some point," "came in contact with [the victim's] car, not necessarily in her garage, not on [her street]." Defense counsel also argued in closing that, as to Miller's stolen property discovered in defendant's room, it was equally as rational to believe that "somebody left it there" or "somebody dumped it on him." The prosecution in rebuttal questioned why the defense had not called an opposing fingerprint expert or defendant's son as an alibi witness. The prosecutor's references to the lack of any defense witness explaining the presence of defendant's fingerprint on the car or the stolen property in defendant's room can be properly viewed as remarks on the state of the evidence and the defense's failure to provide any exculpatory explanation. Viewed in context, the prosecutor's comments did not suggest that the jury should treat the defendant's silence as substantive evidence of guilt.
The judgment is reversed and the matter is remanded for the purpose of holding a new in camera hearing on defendant's Pitchess motion. The court shall retain for the record, under seal, originals or copies of all documents it examines in camera. If the court finds no discoverable information during its in camera review, the court shall reinstate the judgment. If court determines there is discoverable information, the court shall order disclosure as required by law (see Evid. Code, §§ 1043, 1045, People v. Mooc, supra, 26 Cal.4th at pp. 1226-1227) and permit defendant a reasonable opportunity to prepare and bring a motion for a new trial. If defendant does not bring a motion for a new trial within the reasonable time permitted or a new trial motion is denied, the court shall reinstate the judgment.
WE CONCUR: RUSHING, P. J, PREMO, J.