People v. Kittrell CA4/3 ( 2021 )

Filed 12/7/21 P. v. Kittrell CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058809
v. (Super. Ct. No. 18NF0770)
CHRISTOPHER WAYNE KITTRELL, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Gary S.
Paer and Lance Jensen, Judges. Affirmed.
Erica Gamble, under appointment by the Court of Appeal, for Defendant
and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Generally, a criminal defendant has “the privilege to be free from comment
upon the assertion of a constitutional right.” (People v. Keener (1983) 148 Cal.App.3d
73, 78 (Keener).) For instance, a prosecutor cannot comment on a defendant’s silence
during a jury trial (a Griffin error). (Griffin v. California (1965) 380 U.S. 609, 614-615
(Griffin).) Nor can a prosecutor ordinarily comment on a defendant’s post-Miranda
silence (a Doyle error). (Doyle v. Ohio (1976) 426 U.S. 610, 611 (Doyle).)
Here, a police officer stopped a car. Defendant Christopher Wayne Kittrell
was in the front passenger seat. As Kittrell got out of the car, the officer saw a meth pipe
in the front passenger door and a locked backpack on the floorboard. During a patdown
search, Kittrell refused the officer’s request to search his wallet.
A trained police dog sniffed the car and alerted to the presence of narcotics
in the passenger compartment. The police officer arrested Kittrell, opened his wallet, and
a small key dropped out. The officer then opened the backpack with the key. The officer
found heroin, methamphetamine, scales, and syringes in the backpack.
Prior to trial, Kittrell moved to suppress the evidence from the backpack. A
magistrate denied the motion. During the trial, Kittrell testified neither the key nor the
backpack belonged to him. During closing argument, the prosecutor commented on the
fact that Kittrell had refused the officer’s request to search his wallet.
The jury found Kittrell guilty of four drug sales charges. Kittrell contends
the warrantless search of his backpack violated the Fourth Amendment. Kittrell also
contends the prosecutor committed misconduct during closing argument by commenting
on his refusal to allow the police to search his wallet.
We find the search of the backpack in the car was permitted under the
automobile exception to the Fourth Amendment’s warrant requirement. We further find
the prosecutor committed misconduct during closing argument; however, we do not find
the error to be prejudicial.
Thus, we affirm the judgment in all regards.
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I
FACTS AND PROCEDURAL BACKGROUND
On December 15, 2017, Officer Steve Thompson was following behind a
car with an expired license plate. When the car parked in front of a convenience store,
both the driver and Kittrell (the front passenger) started to get out. Thompson activated
his vehicle’s emergency lights and instructed the two people to get back inside of the car.
When other officers arrived, Thompson asked Kittrell to step out of the car.
As Kittrell was getting out of the car, Thompson saw a methamphetamine
pipe in the passenger door. Thompson also saw a backpack on the floorboard in the front
passenger area, which was locked with a small padlock. Thompson conducted a patdown
search of Kittrell and felt a bulge in his pocket. Kittrell said it was a wallet. Thompson
asked Kittrell if he could remove the wallet; Kittrell said no.
Thompson had Kittrell sit down on a nearby curb. Officer Jeremy
Hunziker arrived on the scene with Jarvis, a trained search dog. Jarvis sniffed the car and
alerted for the presence of drugs. Thompson asked Kittrell if he had a key to the lock on
the backpack. Kittrell said he did not. Thompson then placed Kittrell under arrest for
possession of the methamphetamine pipe.
Thompson took Kittrell’s wallet out of his pocket, opened it, and a small
key fell out. Thompson opened the backpack using the key. Thompson found
methamphetamine, heroin, and syringes inside.
Court Proceedings
The prosecution charged Kittrell with transportation and possession of
heroin for sale, and transportation and possession of methamphetamine for sale.
Kittrell filed a pretrial motion to suppress the evidence found in the
backpack. (Pen. Code, § 1538.5.) Officers Thompson and Hunziker testified at the
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hearing. The magistrate denied the motion: “I believe the search of the backpack was
legal and justified. No violation of the Fourth Amendment.”
At a jury trial, Kittrell testified on his own behalf. Kittrell said the driver of
the car picked him up about two hours before he was arrested. Kittrell testified the
backpack was in the car when he got in and it did not belong to him.
Kittrell said when he got out of the car Officer Thompson conducted a
patdown search and felt his wallet “which was in my front pocket and asked me what that
was. I told him it was my wallet. He asked to search it, and I refused, and then he
proceeded to continue to search me.” Kittrell testified after the dog alerted for the
presence of drugs, Thompson “came over after searching the car briefly to ask me about
my wallet, and then when I refused to let him see it again, he then placed me under arrest
for the methamphetamine bong that was supposedly in the door.”
Kittrell also said Thompson placed him in handcuffs, then “removed the
wallet from my pocket and proceeded to search through it.” Kittrell testified Thompson
only found cash in his wallet. Kittrell said after Thompson searched his wallet,
Thompson set it down and went back to the car. Kittrell stated Thompson then “held up a
key and said, “‘look what I found in his wallet.’” Kittrell said he had never seen the key
before. Kittrell testified when Thompson “said he found the key, I remarked to the other
officers standing around ‘that key didn’t come from my wallet.’ ‘You see that key didn’t
come from my wallet,’ but none [of] the officers replied.”
The jury found Kittrell guilty of all charges. The trial court imposed a five-
year sentence (two years jail, followed by three years mandatory supervision).
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II
DISCUSSION
Kittrell contends: A) the trial court improperly denied his motion to
suppress evidence; and B) the prosecutor committed prejudicial misconduct.
A. The Motion to Suppress Evidence
Kittrell argues the search of his backpack was unconstitutional “because the
prosecution failed to establish that the warrantless search of appellant’s locked backpack
fell within a recognized exception to the warrant requirement.”
When reviewing a ruling on a defendant’s motion to suppress evidence,
appellate courts “‘“‘defer to the trial court’s factual findings, express or implied, where
supported by substantial evidence. In determining whether, on the facts so found, the
search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.’”’” (People v. Johnson (2018) 21 Cal.App.5th 1026, 1031-1032.)
Under Penal Code section 1538.5, a trial court may grant a motion to
suppress evidence “only if exclusion is mandated by the federal Constitution.” (People v.
Banks (1993) 6 Cal.4th 926, 934.) The initial burden is on the defendant to establish that
the government conducted a search without a warrant. The burden then shifts to the
prosecution to justify the warrantless search. (People v. Williams (1999) 20 Cal.4th 119,
127.) A warrantless search is presumptively unreasonable. (Vernonia School Dist. 47J v.
Acton (1995) 515 U.S. 646, 652-653.) The prosecution must prove by a preponderance
of the evidence the search falls within an exception to the Fourth Amendment’s warrant
requirement. (People v. Torres (1992) 6 Cal.App.4th 1324, 1334-1335.)
One of the exceptions to the warrant requirement is known as the
automobile exception: “One such exception is for vehicles used on a public thoroughfare
or readily capable of such use. If a vehicle is readily mobile and probable cause exists to
believe it contains contraband, the Fourth Amendment permits the search of the vehicle.”
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(People v. Allen (2000) 78 Cal.App.4th 445, 449.) “Besides the element of mobility, less
rigorous warrant requirements govern because the expectation of privacy with respect to
one’s automobile is significantly less than that relating to one’s home or office.” (South
Dakota v. Opperman (1976) 428 U.S. 364, 367-368.)
There are two requirements under the automobile exception: the police
have lawful access to the vehicle, and they have probable cause to believe it contains
contraband or evidence of a crime. (People v. Evans (2011) 200 Cal.App.4th 735, 753.)
The scope of a search that may be conducted under the automobile
exception extends to any container within the vehicle capable of concealing the object of
the search, including a passenger’s belongings. (Wyoming v. Houghton (1999) 526 U.S.
295, 306-307.) “If probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may conceal the
object of the search.” (United States v. Ross (1982) 456 U.S. 798, 825 (Ross).)
The automobile exception includes locked containers. (See Ross, supra,456 U.S. at p. 822.) Although the United States Supreme Court recognizes the
distinctions between “paper bags, locked trunks, lunch buckets, and orange crates” the
Court has nonetheless held “the central purpose of the Fourth Amendment forecloses
such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled
to the same guarantees of privacy as the most majestic mansion, so also may a traveler
who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf
claim an equal right . . . as the sophisticated executive with the locked attaché case.”
(Ibid., fn. omitted.)
Here, when ruling on the motion to suppress evidence, the magistrate who
conducted the hearing thoroughly analyzed multiple legal issues as applied to the facts.
Consequently, we will quote from the magistrate’s analysis at length:
“These issues are sort of like puzzles where you have to look at all the
pieces and you have to look at the totality of the circumstances.
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“So the defendant was properly detained because he is in a car with expired
vehicle registration. So the detention is okay. Then when the officer who was lawfully at
the side of the car . . . in plain view he sees a methamphetamine pipe . . . that is allowed
because he is legally there. He can look into a car. He doesn’t need a warrant to look
into a car.
“Now when he sees the methamphetamine pipe, he has probable cause to
believe that the car has drugs. It would be negligence for an officer to look in and see
that and then not do anything about it. Then while this lawful detention is going on a
canine dog shows up . . . and the dog alerts to the presence of drugs on the passenger side
where the defendant was seated with the backpack between his legs.
“Well, not only did the officer have probable cause to believe that there
were drugs in the car based on the methamphetamine pipe, now he has more probable
cause because now there is a hit by Jarvis indicating that there [are] drugs in or near I
guess the passenger compartment. [¶] . . . [¶]
“So now the defendant is arrested, and now the search incident to lawful
arrest cases come into effect. The officer is allowed to search the defendant’s person,
which he lawfully did, and he previously did a pat-down. He left the wallet in the
defendant’s pocket because he didn’t believe it was a weapon, which was probably the
correct thing to do. But now that the defendant was arrested the officer could lawfully
search the defendant and his clothing.
“I agree . . . that an arrested person . . . may be searched without a warrant
as incident to lawful arrest. So you got the detention of the car. You got the PC with the
plain view doctrine and the canine alert. You got the arrest and then the search incident
to arrest.
“So during the lawful seizure of the wallet the key comes out. They
already have probable cause to believe that the backpack has drugs in it based on the
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location of the backpack, the hit on the passenger side of the car, and the
methamphetamine pipe on the passenger side of the car.
“So I don’t find it offensive that the officer would just take the key and
open up the backpack, and low and behold the seizure of the drugs and the syringes and
everything else corroborates the dog hitting on that side of the car.”
We have little to add to the magistrate’s cogent analysis. Ultimately, the
search of Kittrell’s backpack did not violate the Fourth Amendment because Officer
Thompson had lawful access to the backpack and he had probable cause to believe it
contained contraband. (See Ross, supra, 456 U.S. at pp. 822-823.)
Kittrell appears to recognize the automobile exception under the holding of
Ross is dispositive. (See Ross, supra, 456 U.S. at p. 822.) Nevertheless, Kittrell argues
there are “courts that sometimes decline to follow Ross.” Kittrell “invites this court to do
so here,” asserting a California Supreme Court opinion “is instructive.” (See People v.
Ruggles (1985) 39 Cal.3d 1 (Ruggles).) We disagree.
In Ruggles, the California Supreme Court found an officer’s warrantless
search of a suspect’s briefcases located inside a car’s trunk was unlawful under the
California Constitution. (See Ruggles, supra, 39 Cal.3d at pp. 1, 12-13.) However, after
the passage of Proposition 8, in order “[t]o decide whether relevant evidence obtained by
assertedly unlawful means must be excluded in a trial . . . , we look exclusively to
whether its suppression is required by the United States Constitution.” (People v. Glaser
(1995) 11 Cal.4th 354, 363, italics added.)
Thus, Ruggles is no longer “good law” and therefore it is not helpful to
Kittrell’s argument on appeal. (See People v. Rodrigues-Fernandez (1991) 235
Cal.App.3d 543, 548, fn. 2 [“Ruggles was superseded by Proposition 8”].)
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B. Prosecutorial Misconduct
Kittrell contends the prosecutor “committed misconduct when she argued
the jury could use appellant’s refusal to consent to a search as evidence of his guilt.”
We evaluate claims of prosecutorial misconduct under well-established
standards. “A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
In this part of the discussion, we will: 1) review general legal principles
concerning prosecutorial misconduct; 2) summarize the relevant portions of the trial
transcript; and 3) analyze the law as applied to the facts.
1. General Legal Principles
“‘A prosecutor is held to a standard higher than that imposed on other
attorneys because of the unique function he or she performs in representing the interests,
and in exercising the sovereign power, of the state.’” (People v. Hill (1998) 17 Cal.4th
800, 819-820.) However, “‘the term prosecutorial “misconduct” is somewhat of a
misnomer to the extent that it suggests a prosecutor must act with a culpable state of
mind. A more apt description of the transgression is prosecutorial error.’” (People v.
Centeno (2014) 60 Cal.4th 659, 666-667.)
In reviewing a prosecutor’s comments to the jury, “we must view the
statements in the context of the argument as a whole.” (People v. Cole (2004) 33 Cal.4th
1158, 1203-1204.) Generally, a prosecutor has “‘wide latitude to discuss and draw
inferences from the evidence at trial,’ and whether ‘the inferences the prosecutor draws
are reasonable is for the jury to decide.’” (Id. at pp. 1202-1203.) The relevant question is
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“‘whether there is a reasonable likelihood that the jury construed or applied any of the
complained-of-remarks in an objectionable fashion.’” (Ibid.)
“As a general rule, an officer may not search a suspect’s pockets during a
patdown unless he or she encounters an object there that feels like a weapon.” (In re
Lennies H. (2005) 126 Cal.App.4th 1232, 1237.) Under the plain-touch doctrine, if an
object’s “incriminating character is immediately apparent, and if the officers have a
lawful right of access to the object, they may seize it without a warrant.” (Minnesota v.
Dickerson (1993) 508 U.S. 366, 374-375.)
However, since the scope of the patdown search is limited by its
justification—a search for weapons—if the incriminating character of an object felt in the
patdown is not apparent by the time the officer determines that it is not a weapon, the
object may not be seized or searched. (Minnesota v. Dickerson, supra, 508 U.S. at p.
375; compare People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005-1006 [a wallet
may be seized and searched after a suspect has been arrested under the warrant exception
for searches incident to lawful arrests].)
Generally, a criminal defendant has “the privilege to be free from comment
upon the assertion of a constitutional right.” (Keener, supra, 148 Cal.App.3d at pp. 78-
79.) In Keener, a victim reported to police defendant had raped her. After police went to
his apartment, defendant refused to come out. After a three-and-a-half-hour negotiation
with a SWAT-team, defendant surrendered. (Id. at p. 76.) The trial court allowed the
prosecution to introduce evidence of the “siege of defendant’s apartment” in order to
prove his “consciousness of guilt” of the charged offenses. (Id. at p. 78.) This Court of
Appeal found the evidence was “marginally relevant” and had been improperly admitted:
“Although an individual’s refusal to consent to a warrantless entry of his residence may
be open to various interpretations and is not encouraged, the assertion of the right itself
cannot be a crime nor can it be evidence of a crime.” (Id. at pp. 78-79.)
10
“Defendant’s refusal to leave his apartment was privileged.” (Keener,
supra, 148 Cal.App.3d at p. 78, capitalization omitted.) “Presenting evidence of an
individual’s exercise of a right to refuse to consent to entry in order to demonstrate a
consciousness of guilt merely serves to punish the exercise of the right to insist upon a
warrant. It is of no consequence that police had a right to enter without a warrant here,
nor does it matter that defendant spoke to the police during the siege. ‘The right to refuse
[entry] protects both the innocent and the guilty, and to use its exercise against a
defendant would be, as the court said in Griffin, [supra, 380 U.S. at pages 614-615] a
penalty imposed by courts for exercising a constitutional right.’” (Id. at p. 79.)
2. Relevant Proceedings
During the prosecution’s case-in-chief, Officer Thompson said on direct
examination: “So during the pat-down search I felt a wallet. I asked the defendant if I
could search the wallet. He said no.” Thompson testified after Kittrell’s arrest, he then
had lawful authority to search his person. Thompson said when he searched through
Kittrell’s wallet, the key “fell out of the wallet.”
During the defense case, Kittrell testified on direct examination that Officer
Thompson asked if he could search his wallet and he refused. The prosecutor asked
Kittrell on cross-examination: “You had a wallet on you that night, correct?” Kittrell
responded: “That’s correct.” The prosecutor asked: “And you did not want the officers
to look inside your wallet?” Kittrell said: “That’s still within my rights to privacy, and I
did not want to be searched.” The prosecutor asked: “You told them a couple of times in
fact that the officers could not search your wallet; is that correct?” Kittrell said: “That’s
1
correct, or my person for that matter.”
1
Kittrell did not object to Officer Thompson’s direct testimony or the prosecutors’ cross-
examination regarding his refusal to allow a search of his wallet.
11
During closing argument, the prosecutor argued to the jury: “The officers
ask, hey, can we search you? No. Can we look in your wallet? No. Why? You have
nothing to hide. What’s typically in a wallet? Your I.D., cash, credit cards. Who cares.
Yeah, here you go. Not the defendant. He has a key in there and that key goes
specifically to his drug bag. Doesn’t want the officers -- wants to protect that wallet at all
costs. [¶] Well, officers are legally allowed to look through his wallet. He says, well, I
know my rights. Well, in this instance, he was wrong.”
Later on, the prosecutor continued: “So let’s talk about the defendant’s
testimony. It is not my bag and it’s not my key. Now, if any of you are hoping for a
Perry Mason moment, I am very sorry. I am a decent lawyer, but I can’t promise one of
those you see on TV where all of a sudden I get the defendant to admit he’s been selling
and it’s all a lie. But he did slip up and I think some of you jurors caught it. If you didn’t
catch it, I will tell you what it is, but he did make a mistake in his testimony. He says, I
don’t want the officers to search my wallet. Doesn’t want them too.”
Kittrell’s counsel objected: “Improper argument.” The court overruled the
objection, but admonished the jury: “Ladies and gentlemen nothing the attorneys say is
evidence. In their closing arguments the attorneys discuss the case, but their remarks are
not evidence. Only the witness’s [statements] are evidence.” The prosecutor then
proceeded with closing argument, “[d]oesn’t want the officers to search his wallet.”
3. Application and Analysis
There appear to be no published California opinions directly on point, but
there are several cases from other jurisdictions that specifically hold a prosecutor
commits misconduct by commenting on a defendant’s refusal to consent to a warrantless
search. (See, e.g., State v. Palenkas (1996) 188 Ariz. 201, 212 [“prosecution’s references
to defendant’s invocation of his fourth amendment rights to refuse to consent to a
warrantless entry . . . violated defendant’s due process rights to a fair trial”]; United
12
States v. Thame (3d Cir. 1988) 846 F.2d 200, 206-207 [“error for the prosecutor to argue
that [defendant’s] reliance on his fourth amendment rights constituted evidence of his
guilt”]; Padgett v. State (Alaska 1979) 590 P.2d 432, 434 [error for prosecutor to
comment on defendant’s refusal to consent to a search of his car]; United States v. Taxe
(9th Cir. 1976) 540 F.2d 961, 969 [“prosecutor’s comments on the [defendants’] refusal
to consent to a search of their trucks was misconduct”].)
The foregoing opinions are fundamentally an extension of what is
commonly referred to as a “Griffin error” or a “Doyle error” in numerous California
opinions. (See, e.g., People v. Hubbard (2020) 52 Cal.App.5th 555, 562 [“We evaluate
claims of Griffin error by inquiring whether there is ‘a reasonable likelihood that any of
the [prosecutor’s] comments could have been understood, within its context, to refer to
defendant’s failure to testify’”]; People v. Denard (2015) 242 Cal.App.4th 1012, 1019
[“the prosecutor’s argument could have been understood by the jury only as a comment
on appellant’s silence, and thus constituted Griffin error”]; People v. Bradford (1997) 15
Cal.4th 1229, 1339 [“a prosecutor may commit Griffin error if he or she argues to 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. Galloway (1979) 100 Cal.App.3d 551, 556 [“Doyle error only occurs
when the prosecutor inquires about a defendant’s failure to talk to law enforcement
officers after he has been given his Miranda rights”].)
Here, at the point when Officer Thompson conducted the patdown search,
Kittrell had the right under the Fourth Amendment to refuse Thompson’s request to
search his wallet. The prosecutor improperly argued to the jury Kittrell’s refusal was
circumstantial evidence of his guilt. That is, the gist of the prosecutor’s argument was
Kittrell had refused to allow Thompson to search his wallet because Kittrell knew it
contained the key to the backpack, which would ultimately tie him to the illegal evidence.
13
In short, the prosecutor’s closing argument was prosecutorial misconduct
because it constituted an improper “comment upon the assertion of a constitutional right.”
(Keener, supra, 148 Cal.App.3d at pp. 78-79.)
The Attorney General argues Kittrell forfeited his claim of misconduct in
the trial court because “he failed to specifically object to the prosecutor’s argument on the
same constitutional grounds he raises here.” We disagree.
“An objection is sufficient if it fairly apprises the trial court of the issue it is
being called upon to decide. [Citations.] In a criminal case, the objection will be deemed
preserved if, despite inadequate phrasing, the record shows that the court understood the
issue presented.” (People v. Scott (1978) 21 Cal.3d 284, 290.)
Here, after referring to the iconic Perry Mason television show, the
prosecutor argued Kittrell “did make a mistake in his testimony. He says, I don’t want
the officers to search my wallet. Doesn’t want them too.” Kittrell’s counsel objected,
stating only: “Improper argument.”
The trial court overruled the objection, but the court went on to admonish
the jury that statements of counsel are not evidence. Although counsel’s objection did
not use the phrase “prosecutorial misconduct,” the court’s admonishment supports a
reasonable inference that the court understood the issue presented by the objection.
Alternatively, the Attorney General argues the closing argument “cannot be
read as a reference to appellant’s exercise of his constitutional right to refuse to consent
to a search of his wallet.” The Attorney General theorizes: “Saying that appellant did
not want the officers to search his wallet is not the same as saying that appellant refused
to give consent to a search of his wallet.” Respectfully, the Attorney General’s
distinction is nothing more than legal sophistry. (See People v. Modesto (1967) 66
Cal.2d 695, 711 [finding Griffin error where prosecutor argued that the defendant, who
was the only person aware of the facts, was “‘just sitting’” in the courtroom].)
14
The Attorney General also seeks to distinguish the holding in Keener,
supra, 148 Cal.App.3d 73. The Attorney General argues “appellant is not complaining
about the admission of evidence . . . as was the case in Keener. Instead, he is
complaining about a statement made by the prosecutor during closing argument.” Again,
this appears to be a distinction without a meaningful difference.
Relying on Griffin, supra, 380 U.S. 609, and Doyle, supra, 426 U.S. 610,
this court in Keener held the admission of evidence that a suspect did not allow the police
to enter his home “violated the privilege to be free from comment upon the assertion of a
constitutional right.” (Keener, supra, 148 Cal.App.3d at pp. 78-79, italics added.) Thus,
we think the scope of the Keener holding fairly includes the proposition that a prosecutor
cannot comment on a defendant’s assertion of his Fourth Amendment rights as
substantive evidence of his guilt during a closing argument.
We now turn to whether Kittrell was prejudiced by the misconduct. (See
People v. Watson (1956) 46 Cal.2d 818, 835-837 [defendant must show a reasonable
probability the outcome of the proceeding would have been different in the absence of the
error]; see also Chapman v. California (1967) 386 U.S. 18, 23-24 (Chapman)
[prosecution must show the error was harmless beyond a reasonable doubt].)
Prosecutorial misconduct is evaluated under Chapman, to the extent federal constitutional
rights are implicated; misconduct is evaluated under Watson if exclusively state law
issues were involved. (People v. Adanandus (2007) 157 Cal.App.4th 496, 514-515.)
In this case, since Kittrell’s constitutional rights are implicated, we employ
the more rigorous Chapman standard. (See People v. Thomas (2012) 54 Cal.4th 908,
936-937 [Chapman standard applies to Doyle error]; see also People v. Denard, supra,
242 Cal.App.4th at p. 1022 [Chapman standard applies to Griffin error].)
Here, Officer Thompson testified on direct examination that Kittrell refused
to consent to a search of his wallet prior to his arrest. Kittrell did not object to this
15
2
testimony. Indeed, Kittrell himself testified to these same facts both during his direct
examination and on cross-examination. Further, although the prosecutor improperly
commented on Kittrell’s refusal to allow a search of his wallet, the prosecutor’s
comments were brief, and the court immediately admonished the jury: “Nothing the
attorneys say is evidence.” (See People v. O’Malley (2016) 62 Cal.4th 944, 998-999
[juries are presumed to have followed a court’s admonishment].) Moreover, the evidence
of Kittrell’s guilt regarding the substantive charges was overwhelming.
In conclusion, considering Thompson’s testimony (without objection),
Kittrell’s own testimony, the court’s admonition, and the overwhelming evidence of
Kittrell’s guilt, we find the prosecutorial misconduct during closing argument to be
harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at pp. 23-24; see
also United States v. Young (1985) 470 U.S. 1, 11-12 [courts have no general authority to
overturn criminal convictions simply to punish for prosecutorial misconduct].)
2
We cannot say on direct appeal whether this absence of an objection by Kittrell’s trial
counsel constituted ineffective assistance because we do not know the possible reasons.
(See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [claims of ineffective
assistance of counsel based on matters outside the appellate record are “more
appropriately litigated in a habeas corpus proceeding”].)
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III
DISPOSITION
The judgment is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
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