Filed 11/19/18 P. v. Cartwright CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Leonard B. Cartwright III was convicted of 12 counts for committing lewd acts on children under age 14. (See Pen. Code, § 288, subd. (a).)[1] On appeal, he argues that his conviction was tainted by the erroneous admission of certain evidence and by an inappropriate prosecutorial comment during closing argument. As to the former, we assume that admission of the evidence—a letter penned by one of Cartwright's victims, disclosing his abuses—was error, but nevertheless find no basis for reversal given a dearth of potential prejudice. As to the latter claim of error, Cartwright contends the prosecutor improperly disparaged the exercise of his right against self-incrimination. But as we read the record, there was nothing improper about the prosecutor's remark. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Based on incidents during which he kissed and fondled the breasts of young girls, Cartwright was charged with 18 violations of section 288, subdivision (a). Each charge alleged commission of a lewd act on a minor under the age of 14. Ultimately, the jury convicted him on 12 of those charges.

As will be detailed below, the People's evidence against Cartwright generally fell into two categories. Foremost, each of the six alleged victims—five of whom were Cartwright's stepgranddaughters through his marriage to their grandmother—testified. Secondly, the People admitted three recordings that included statements Cartwright made during the underlying investigation—two from "pretext calls" made by one of the victims and one from his postarrest interview. The defense presented no affirmative case at trial; its strategy instead relied on cross-examination.

A. Victim Testimony

Sarah C.

Sarah, one of Cartwright's stepgranddaughters, was 19 years old at the time of trial. By then, she could not pinpoint her first memory of Cartwright's inappropriate behavior—it had "always been like that." Cartwright "would get her alone," and then touch her breasts over and under her shirt, as well as kiss her using his tongue. Such encounters took place five to six times per year between the ages of 10 and 17, though the abuse started before that period and continued after it. Aside from one occasion in Arizona, all the incidents took place in San Diego County.

Several occurred at the San Marcos home shared by Cartwright and Sarah's grandmother, when Sarah was around age 11 or 12. On at least three occasions, Cartwright summoned Sarah to his office to view his coin collection. There, he would reach into her shirt to touch her breast area, kiss her on the mouth using his tongue, and instruct Sarah to "put out her tongue" too. Cartwright engaged in the "same kind of touching" in both the kids' room and front room of the house. At least five other similar incidents took place at Cartwright's Lemon Grove home before Sarah turned 14. Cartwright would call Sarah over to a rocking chair in the garage and then kiss her on the mouth using his tongue and touch her breasts.

Although not directly tied to a charged count, Sarah testified regarding an encounter with Cartwright in Arizona. (See Evid. Code, § 1108.) On a family vacation there, when Sarah was around nine or 10, Cartwright approached her while she was watching television. No one else was home. He knelt beside Sarah, who was clad only in a bathing suit and towel, and "started playing with [her] vagina, outside [her] swimsuit." He reached underneath her bathing suit and proceeded to rub his hand on her vagina, asking if she liked it. Sarah "froze in fear" and did not respond. Cartwright ceased and left the room when the other family members started to arrive home.

Sarah also recounted two instances when she was age 18, again not directly related to charged counts. (See Evid. Code, § 1108.) On both occasions, Cartwright kissed her with his tongue and grabbed her breasts while they were in his truck on the way home from a shopping trip. During the first of the two, he told her "that [she] would be his secret girlfriend" and "not to tell anybody." The second time, and multiple times thereafter, he again told her not to tell anyone. He said things like "don't tell your grandma about this" and "let's just keep this between the two of us."

Catherine C.

Catherine, another of Cartwright's stepgranddaughters and the younger sister of Sarah, was age 17 at the time of trial. The first instance of abuse she recalled occurred when she was around five years old. While she was sitting on Cartwright's lap in a rocking chair at the San Marcos home, he reached underneath her shirt and rubbed her breasts. Similarly, on five to 10 occasions at the San Marcos home, Cartwright touched and grabbed her chest when hugging her. Catherine also recounted that, in Arizona, Cartwright once made her kiss him on the lips after he bought her a music player for her birthday and once grabbed her butt.

Michelle C.

Cartwright's stepgranddaughter Michelle, the younger sister of Sarah and Catherine, was age 15 at the time of trial. She testified Cartwright touched her inappropriately more than three times. Her first memory of inappropriate touching involved an incident at age 11. Having just arrived at the San Marcos house, she greeted Cartwright with a hug, during which he reached into her shirt to rub her breasts and told her he loved her. The same thing happened when she was around age 13. Cartwright also regularly kissed her on the lips, though usually it was a "peck" when others were present. Michelle generally avoided being alone with Cartwright by staying with her other siblings.

Amy H.

Amy was a cousin of Sarah, Catherine, and Michelle, and another of Cartwright's stepgranddaughters. She was age 22 at the time of trial. Cartwright first touched her inappropriately when she was age nine or 10. On five to 10 occasions, Cartwright rubbed her chest area when hugging her. Amy eventually started blocking him from doing so by putting up her arm when they hugged. Cartwright also kissed her, but not with his tongue. One night when Amy was 11 or 12, Cartwright came to her bedside to say goodnight. He started rubbing her stomach and gradually moved his hand upwards to her breasts, saying "[O]h, my Amy"—he "always" said things like that.

Lauren S.

Lauren, age 13 at the time of trial, was a junior racecar driver that Cartwright sponsored and often took shopping. In his truck on various shopping trips, he asked her questions out of the blue like whether she "loved him" in a romantic sense; whether she was a virgin; if she knew how to French kiss; and if he could teach her how to French kiss. When Lauren wouldn't answer, Cartwright would press for a response, repeating his question and, on some occasions, reaching over to touch her hand.

Cartwright touched Lauren's breast area multiple times. He did so in his truck around five to 10 times when Lauren was age 12 or 13. One time, he attempted to pull up her shirt and reach underneath it, but Lauren moved away before he was able to. Cartwright also tried to touch her crotch "a couple times in the truck." On one particular occasion, he moved his hand up her leg; Lauren closed her legs together before he reached her vagina. Another time, Cartwright grabbed and then smacked her butt while they were in a retail store.

Cartwright also showed Lauren catalogs to recommend certain clothing, making comments like "I would like you to wear that so I can look at you." Similarly, he once told her she "looked sexy" in a particular pair of jeans. Another time, when he noticed her looking at a bra during a shopping trip, he told her, "I'll buy that for you if you let me put it on."

B. Cartwright's Statements

Sarah was the first to come forward. At age 18, she disclosed the abuse to her mother in a letter, which ultimately led to an investigation of Cartwright. The investigation yielded recorded statements from Cartwright in two forms—during "pretext calls" and from his postarrest interview.

Pretext Calls

Sarah participated in two recorded "controlled calls" to Cartwright, the purpose of which was to "solicit various statements of admission" regarding the abuse she had suffered.

When confronted in the first call, Cartwright initially asked Sarah if his conduct bothered her, and apologized after she said it did. Sarah asked why he did those things; Cartwright replied, "I guess it's a hidden love." He later explained his behavior as "part of love on the person" and that it had been his family's practice to kiss on the lips from a very early age. Yet Cartwright eventually agreed "to some degree" with Sarah's characterization of his conduct as inappropriate. Still, he maintained that he had not done anything of that nature when Sarah was a child, nor to her sisters. He denied intentionally touching her breasts. But he acknowledged that once, he had "just . . . reached over and squeezed . . . . and didn't think anything of it." As to their most recent French kiss—which occurred after Sarah turned 18—he stated, "I rather enjoyed that. Looks like you did too."

In the second call, Cartwright spoke similarly regarding their most recent French kiss, which he maintained was the only one: "I rather enjoyed it. So, I thought you enjoyed it too, but I guess not." As to fondling her breasts, Cartwright explained he "didn't think it was bothering [her]," did not think there "was anything really wrong" with it, and thought he was "just show[ing] a sign of affection." He admitted to fondling her breasts before she began to develop, but continued to explain it as "a form of affection[,] of tickling," and denied having "skin contact." Toward the end of the call, Cartwright apologized: "I'm uh, awfully sorry for offending you, mean it."

Postarrest Interview

Following his arrest, Cartwright was interviewed by the lead case agent. After he was Mirandized[2] and informed of the basics of the ongoing investigation—i.e., "that [he'd] been inappropriately touching several kids"—the interviewing detective remarked that Cartwright did not appear surprised. He responded, "Well, you know?" and agreed with the detective's ensuing characterization that "[i]t is, what it is."

During the interview, Cartwright admitted to recently French kissing Sarah and touching her breasts. But he initially maintained that was "the only time" he had "skin contact" with any of the girls. While he admitted to rubbing their chests, it was only "with clothing on top." He had "never . . . touched any [of] the kids [in a way] that [he] would consider inappropriate[ ]" and had not touched their chests—except for Sarah's—once they started to develop breasts.

However, he eventually admitted, "I've caressed 'em," referring to the girls' breasts. More specifically, Cartwright acknowledged touching Amy's breasts through her shirt when she was 14 or 15 years old. Cartwright repeatedly explained the chest rubbing as "a sign of affection, . . . squeezing and hugging and things like that." He said at one point: "I didn't think it was wrong to rub somebody's chest. And I actually felt by reaching up and squeezing their boob once in a while that it was a sign of affection."

Cartwright later admitted to kissing Sarah with his tongue two to three times after she turned 18, and "[s]everal hundred [times], maybe, over the years" without using his tongue. When pressed, he acknowledged that he might have "barely stuck out [his] tongue" during those earlier kisses too. He said—with regard to that and the fondling—he "just ha[d] a different" "perception" than Sarah as to what was "going on here." With respect to kissing the other girls, Cartwright said he gave Michelle "a couple kisses" on her lips, but they were not French kisses. He also generally admitted to kissing "all the girls on the lips."

When asked directly regarding his romantic or sexual interest in younger girls, Cartwright explained that he "enjoy[ed] looking" and "like[d] a good hug," but said he never got aroused. He expounded, "I probably had desires, but I'm not gonna do that." After stating that he never touched any of the girls' vaginas, he said, "I would've like [sic] to [have] seen 'em." Cartwright similarly elaborated that he went through a period in which "it was exciting to look at" younger girls and that he had hoped to see them naked. But he never acted on those desires—"I think the . . . most I'm guilty of is . . . touching their breast[s] or . . . fondling." Toward the end of the interview, Cartwright apologized, "I'm sorry for everything that occurred."

C. The Outcome

As noted above, Cartwright was charged with 18 counts under section 288, subdivision (a) for committing lewd acts on children under age 14. The jury ultimately convicted him on 12 of the 18 charged counts. As to the 12 counts of which he was found guilty: six related to Sarah—three for fondling her breasts and three for French kissing her (counts 1–6); two related to Catherine, all for fondling her breasts (counts 7–8); one related to Michelle for fondling her breasts (count 14); one related to Amy for fondling her breasts (count 16); and two related to Lauren, both for fondling her breasts (counts 17–18). With respect to the remaining counts, the jury acquitted Cartwright of four and hung on two. All four of the acquitted counts related to Catherine (counts 9–12). Of the two on which the jury hung, one related to Michelle (count 13) and the other was the sole count tied to Amy's sister, Ashley (count 15).[3] Cartwright was subsequently sentenced to a total term of 105 years to life.

DISCUSSION

Cartwright raises two claims in this appeal. We first address his challenge to the introduction of a victim letter initially disclosing the abuses. We then turn to Cartwright's claim that the prosecutor made an improper remark during closing argument commenting on Cartwright's decision to exercise his right against self-incrimination. As to both issues we conclude there was no prejudicial error.

1. Sarah's Letter

a. Additional Background

Before trial, the prosecution moved in limine to introduce Sarah's letter to her mother disclosing the abuses. Cartwright conversely moved to exclude it. Ultimately, the court admitted the letter subject to certain redactions, and it was read into the record during Sarah's testimony.

With respect to the letter, Sarah testified that she authored it at least partially in light of her unsuccessful attempt at age eight to approach her mother regarding Cartwright's advances. At that time her mother responded by telling her to simply avoid Cartwright. Thereafter, Sarah "just . . . pushed it down"—until she reached age 18 and drafted the letter. By then, Sarah had just started college and was receiving poor grades "because [she] was dealing with . . . all the emotions . . . and trauma." She "realized how deeply it was affecting her life," and "didn't want to see . . . [her] sisters . . . have to go through . . . that same thing when they start[ed] college . . . . "

The letter began with reference to Sarah's poor grades. She wrote that she "just kind of want[ed] to explain what's been going on"—namely, the fact that "[t]he past semester" she "ha[d] been dealing with the sexual abuse [she] ha[d] endured from [Cartwright]" "for basically as long as [she] [could] remember." She explained further, "I have spent the majority of my time in the past five months trying to find healing." From there, the letter launched into a description of that period of time, noting Sarah's loss of friendships, breakup with her boyfriend, and loss of faith. She recounted feelings of depression and having, "at one point," suicidal thoughts. In the letter, Sarah penned: "I just let go of it all."

As to why she was telling her mother now, Sarah wrote that while she still was unsure "what to do about [Cartwright]," she "believe[d] this [was] what God [was] leading [her] to do." Sarah explained that she did not want to come forward sooner out of fear that her mother would feel "like [she] failed as a parent" and because she was concerned for her grandmother's (Cartwright's wife's) happiness. Sarah also expressed concern that her other siblings may have been affected. Towards the close of the letter, she conveyed, "I hope this gives you a better understanding of where I'm at and what I'm going through."

b. Analysis

A so-called "fresh complaint" refers to an "extrajudicial complaint[ ] made by the victim of a sexual offense, disclosing the alleged assault." (People v. Brown (1994) 8 Cal.4th 746, 749–750 (Brown).) Subject to generally applicable evidentiary principles, such evidence "may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others . . . ." (Id. at p. 750.)

Despite its name, the current iteration of the fresh complaint doctrine recognizes that "evidence of the fact and circumstances of a victim's complaint may be relevant for a variety of nonhearsay purposes, regardless of whether the complaint is prompt or delayed." (Brown, supra, 8 Cal.4th at p. 760, italics added.) For example, when a complaint is delayed—as here—admission of the surrounding circumstances "including those that might shed light on the reason for the delay, will reduce the risk that the jury, perhaps influenced by outmoded myths regarding the 'usual' or 'natural' response of victims of sexual offenses, will arrive at an erroneous conclusion with regard to whether the offense occurred." (Id. at pp. 761–762.)

To be certain, however, showing that a fresh complaint is relevant under the facts of a particular case does not end the inquiry. (Brown, supra, 8 Cal.4th at p. 763.) It remains "subject to exclusion under Evidence Code section 352 in the event the court determines that the probative value of the evidence is outweighed by the risk that the jury will consider it for impermissible hearsay purposes, or that the evidence will otherwise create a danger of undue prejudice or will mislead or confuse the jury." (Ibid.)

Keeping those principles in mind, we consider the receipt of Sarah's letter as a fresh complaint in this case. Cartwright's challenge to the admission of this evidence is twofold. First, he asserts the details in the letter went beyond that which the fresh complaint doctrine contemplates as relevant. Alternatively, he posits it should have been excluded under Evidence Code section 352. We review the trial court's admission of the letter for an abuse of discretion.[4] (See People v. Waidla (2000) 22 Cal.4th 690, 723 ["an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence"].)

With respect to his first argument, Cartwright contends the ostensible "voluminous details beyond the nature of the offense and the identity of the asserted offender" found in Sarah's letter fell outside the contours of a true fresh complaint. He relies on our Supreme Court's admonition in Brown, supra, 8 Cal.4th 746 that "evidence of the victim's report or disclosure of the alleged offense should be limited to the fact of the making of the complaint and other circumstances material to this limited purpose." (Id. at p. 763.) Certain other "details," Brown teaches, should be left out. (Id. at p. 756.) Cartwright urges that the chronicling of Sarah's difficulties leading up to her revelation qualifies as such impermissible detail.

Yet we think Cartwright misapprehends the nature of "details" with which Brown was concerned. As we read Brown, the troublesome "details" are those "of the incident." (Brown, supra, 8 Cal.4th at p. 756.) And Sarah's letter hardly included "details of the incident." (Ibid.) She made, in total, two direct references to the nature of the actual abuse: (1) "I have been dealing with the sexual abuse I have endured from [Cartwright]" and (2) "[Cartwright] has been abusing me for basically as long as I can remember." Presumably the rest of the letter, which recounted "the past five months" in which Sarah had been "trying to find healing," was admitted as going to "the circumstances surrounding [her] delayed complaint." (Brown, at p. 762.)

Assuming the contents of the letter were relevant on that basis under the fresh complaint doctrine, we come to Cartwright's second argument—i.e., that the letter should have nevertheless been excluded under Evidence Code section 352. (See Brown, supra, 8 Cal.4th at p. 763.) In this regard, he posits "the details in the letter were victim impact evidence, which produces an emotional response . . . prejudicial within the meaning of Evidence Code section 352." (See People v. Vance (2010) 188 Cal.App.4th 1182, 1199 [explaining that "victim impact evidence" "relates 'to the personal characteristics of the victim and the emotional impact of the crime on the victim's family' "]; see also People v. Salcido (2008) 44 Cal.4th 93, 151 ["the prosecutor's introduction of victim-impact testimony is impermissible at the guilt phase of a capital trial"].)

Cartwright's argument—that the details of the letter have little relevance other than to elicit sympathy for the victim—is not without force. Yet we ultimately need not decide whether admission of Sarah's letter constituted an abuse of discretion because, assuming error occurred, it was harmless. Even had Sarah's letter been excluded, there is no reasonable probability that the jurors would have reached a different result. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)[5]

Perhaps of most significance in this regard are Cartwright's own statements made during his postarrest interview. There, he admitted multiple times to touching the girls. Indeed, he recognizes on appeal that intent was "the only live nerve" in his defense since the fact of the touchings was uncontested by defense counsel in light of those admissions. Yet here, the evidence of intent was compelling. During his postarrest interview, Cartwright admitted to an interest in looking at young girls and to wanting to see their vaginas. Other circumstantial evidence of his intent was apparent in his remarks to the girls—e.g., saying "Oh, Amy" as he rubbed Amy's breasts, telling Lauren S. she "looked sexy" in a particular pair of jeans, stating to Sarah that she could "be his secret girlfriend." In addition, the "other acts of lewd conduct admitted . . . in the case" (People v. Martinez (1995) 11 Cal.4th 434, 445 (Martinez)), like the incident in Arizona where he rubbed Sarah's vagina and asked her whether she liked it, provided further strong circumstantial evidence of his intent. Finally, the jury was permitted to look at the nature of the "charged act" in deciding "whether it was performed with the required specific intent." (Id. at p. 445.)

In sum, even assuming Sarah's letter was excluded, a different outcome in this case was not reasonably probable. (See Watson, supra, 46 Cal.2d at p. 836.)

2. Alleged Griffin Error

a. Additional Background

Section 288, subdivision (a) " 'requires "the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused." ' " (People v. Villagran (2016) 5 Cal.App.5th 880, 891 (Villagran).) On that issue, the prosecutor explained during his rebuttal closing argument:

"[B]efore you may rely on circumstantial evidence to conclude that the defendant had that required intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent. [¶] Is there any other reasonable conclusion here? Certainly not. Uncontroverted evidence. Uncontroverted. Nothing presented for you to consider that would suggest to you that he did not bear that sexual intent." (Italics added.)

Here, Defense counsel objected based on Griffin v. California (1965) 380 U.S. 609 (Griffin). The court overruled the objection. Immediately thereafter, the prosecutor continued:

"In the cross-examination of each one of these witnesses, think to yourself, what information was presented to you? What was elicited from these witnesses that caused you to doubt their veracity in talking about how these things happened? [¶] If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those conclusions supports a finding that the defendant did have the required intent . . . but another reasonable conclusion . . . supports a finding that the defendant did not, you must conclude that the required intent was not proved."

The jury was later instructed, among other things, not to take into account Cartwright's decision not to testify.

b. Analysis

"The Fifth Amendment of the federal Constitution provides that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.' (U.S. Const., 5th Amend.) That provision 'forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' " (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 852; accord, Griffin, supra, 380 U.S. at p. 615.)

"[A] prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand." (People v. Bradford (1997) 15 Cal.4th 1229, 1339; accord, People v. Thomas (2012) 54 Cal.4th 908, 945.) Griffin "does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses." (Bradford, at p. 1339.) The relevant question is whether there is a "reasonable likelihood that the jury would have understood [the challenged] remarks as a comment upon [the] defendant's failure to testify." (People v. Ledesma (2006) 39 Cal.4th 641, 727.)

Cartwright contends the trial court wrongly overruled his Griffin objection lodged during the prosecution's rebuttal argument. His claim rests on the following statement by the prosecutor: "Nothing presented for you to consider that would suggest to you that he did not bear that sexual intent." He reads this comment as highlighting the defense's failure to introduce direct evidence of his intent—evidence he ostensibly could only provide by taking the witness stand. The People, on the other hand, contend "[t]he prosecutor's argument was a proper comment on the state of the evidence," and more particularly, the lack of exculpatory evidence elicited during cross-examination of their witnesses.

We find the People's position persuasive. As shown by the prosecutor's statements leading up to the challenged comment, a major theme of the prosecution's closing argument was the uncontroverted nature of the circumstantial evidence of intent presented through the victims' testimony. For example, he argued, "How is it that you determine the sexual intent that is the crux of the case here? You have the repetitive conduct, multiple victims, multiple instances."

And "[t]he thrust of the prosecutor's argument [was] further confirmed by the question [he] posed immediately after the court overruled defense counsel's objection . . . ." (People v. Taylor (2010) 48 Cal.4th 574, 633 (Taylor).) He inquired whether anything elicited during "the cross-examination of each one of these witnesses" "caused [the jury] to doubt their veracity in talking about how these things happened."

Indeed, it makes particular sense that the prosecutor was discussing that nature of the circumstantial evidence adduced, given that " 'intent for purposes of . . . section 288 can seldom be proven by direct evidence.' " (Villagran, supra, 5 Cal.App.5th at p. 891.) In most instances it must be " 'inferred from the circumstances.' " (Ibid.) "In determining whether the defendant acted with the required specific intent, the jury . . . looks to all the circumstances, including the charged act." (Ibid., citing Martinez, supra, 11 Cal.4th at p. 445.) "Other relevant factors can include the defendant's extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim's cooperation or avoid detection [citation]." (Martinez, at p. 445.) The prosecutor's comment here referred to Cartwright's failure to introduce any favorable evidence going to those factors.

For that reason, Cartwright's cited authorities—People v. Medina (1974) 41 Cal.App.3d 438 (Medina), People v. Vargas (1973) 9 Cal.3d 470 and People v. Williams (1971) 22 Cal.App.3d 37—are distinguishable. In each of those cases, the prosecutors' comments called for evidence that could come only from the defendants themselves. (See Medina, at p. 457 [defendants "were the only ones who could have refuted it"]; Vargas, at p. 476 ["only defendant himself could 'deny' his presence at the crime scene"]; Williams, at p. 41 ["such could have been done by defendant himself"].) Here, however, the context of the remark makes plain not only that "the evidence could have been contradicted by witnesses other than the defendant," but that the comment went directly to the dearth of contradictory evidence elicited during the cross-examination of other witnesses. (People v. Johnson (1992) 3 Cal.4th 1183, 1229, italics added.) Accordingly, "the prosecution [could] without violating defendant's privilege against self-incrimination describe the evidence as 'unrefuted' or 'uncontradicted.' " (Ibid.)

In sum, "[c]ontrary to defendant's argument, on this record, there is no reasonable likelihood the jury understood the prosecutor's remark as an invitation to draw an improper inference of guilt from defendant's decision not to testify. (Medina, supra, [41 Cal.App.3d] at p. 756.) Defendant's claim of Griffin error therefore fails." (Taylor, supra, 48 Cal.4th at p. 633.)[6]

DISPOSITION

The judgment is affirmed.

DATO, J.

WE CONCUR:

HALLER, Acting P.J.

IRION, J.